OUR current Constitution is truly ambiguous and confusing, hence the need for change.
It will be very difficult to convince Zambians that Dr. Guy Scott who could not be entrusted with instruments of power by President Michael Sata when he was alive should now be trusted with such power.
It is of course true that article 38(1) clearly stipulates that whenever the office of President becomes vacant by reason of his death or resignation the Vice President takes over.
However further reading of the Constitution suggests that the President has the power to appoint any other person to act as President. In other words the President has power to overlook the Vice President and appoint any other person to act and President Sata did exactly that .
He overlooked Dr. Scott for three years, perhaps without contemplating his mortality. The result is that practice has now conflicted with the Constitution.
By his very consistent conduct President Sata demonstrated that the Vice President Dr. Guy Scott was “Incapable of discharging the functions of the office of President” as stipulated in the Constitution in article 39(1), otherwise he would have been asked to act.
The reality however is that a very wide interpretation can be rendered to the term that the VP was incapable of discharging the function of President. It is a very subjective terminology which the court must now interpret.
Cadres on one hand have stated that if Dr. Scott could not be allowed to act as President when Mr. Sata was alive, why should the ordinary PF member or indeed ordinary citizen believe that he was capable of leading the nation either as acting President or indeed as full President of the country now that the President has passed on?
It is not simply a legal problem; it is very much a perception problem which the President must have dealt with in his mind. Obviously he was comfortable with Dr. Scott as his Vice President, a position which was more ceremonial and in many respects an expression of the friendship which the two enjoyed.
This is a friendship that cannot be accommodated in the Constitution which by its very nature is a dry “normative” document, dealing with ideal situations.
This confusion would have been avoided if the constitution had been clearer, hence the need for the new constitution which will allow for a running mate who will be chosen by the electorate.
The current situation is neither dry nor normative, it is dynamic, emotive and emotional and therefore not readily translated into legal nicecities, with the result that considerable confusion will continue to prevail on both sides.
President Sata must have known that Dr. Scott would stick out like sore thumb on the African continent and in the minds of the ordinary Zambian people who would associate him with colonialism, on the simplistic side, but more of an “A” team member in the mind of his political adversaries.
The “A” team as the nemesis of the “B” team is not only a divisive factor but a source of considerable tension and contention which must be resolved within the next 90 days if the PF is to stand a chance in the by-election scheduled for January next year.
While a technicality can be argued that the “Chiluba” judgment overruled the constitutional provision of parentage, there is no guarantee that the facts surrounding Dr. Scott will guarantee a successful outcome. What these proceedings will guarantee is a prolonged period of litigation that is bound to be acrimonious.
At the end of the day it falls on Dr. Scott to take account of the various views and sentimentalities and conduct himself in a manner that will give credit and honour to his name. He has less than 87 days to prove that he has the acumen, wisdom and leadership qualities to guide the nation through these troubled times.