ACTING President Guy Scott may be eligible to contest the election of the presidency of the Republic of Zambia, Law Association of Zambia (LAZ) president George Chisanga has said.
Meanwhile, Lusaka lawyer Sakwiba Sikota has said Minister of Defence and Justice Edgar Lungu should have continued to perform the functions of President when President Michael Sata died in London on October 28 because there was no vacancy.
And Lusaka lawyer Stephen Mumbi has observed that Cabinet had no powers to revoke the appointment of Mr Lungu as Acting President in preference to Vice-President Guy Scott for the 90 days transition period.
LAZ president George Chisanga has told AFP that if Zambians were comfortable with following the precedent that was established by the Supreme Court in the case of Lewanika v. Chiluba, his conclusion was that Dr Scott qualified to contest the presidential election.
Mr Chisanga said it was the reasoning of the Supreme Court that people like Dr Scot were in the the ambit of those who could qualify to contest elections as president of the Republic.
But according to the Supreme Court judgment Mr Chisanga is referring to, it was found that Dr Chiluba’s mother was a Zambian where as in the case of Dr Scott, both his parents were Scotish.
“If people will be comfortable with following the precedent that was established by the Supreme Court in the case of Lewanika v. Chiluba, the conclusion would be that Mr Guy Scott qualifies to contest the election and that, if you ask us lawyers, is the law. The Supreme Court in that case argued that notwithstanding that Mr Chiluba’s parents were not Zambians, the fact that Mr Chiluba was in Zambia when Zambia was created as a sovereign state made him eligible to become a Zambian.”
And Stephen Chan, a politics professor at the University of London and who lectured in Zambia told Bloomberg: “Scott is very popular and was very close to Sata. “He will not have difficulty in achieving acceptance.” But Mr Sakwiba said there was no need for Cabinet to appoint Vice-President Scott as acting President because the vacancy which was created when the President left the country was filled by Mr Lungu.
“At the time when the President passed on, there was no vacancy; there was somebody in an acting capacity and that person should have continued. That is Honourable Lungu. That is my argument and that of others as well.
“I agree with arguments Brigadier-General Miyanda has put forward that he (Dr Scott) is disqualified from acting as President.
Mr Sikota said even if other people were comfortable with Dr Scott acting as Republican President, he strongly believed that the Constitution was breached.
“I feel that there was a breach of the Constitution, but others feel there was no breach. If there was breach, there is that doctrine of State necessity that acts which are being taken now. Otherwise we have a situation of total chaos if we said that acts are null and void,” he said. Meanwhile, Mr Mumbi has charged that the advice rendered by Attorney-General Musa Mwenye to Cabinet to force Mr Lungu to cede power to Dr Scott was a nullity.
Mr Mumbi said in a statement that Cabinet was therefore misguided by Mr Mwenye and rode on a fallacy to the extent that it erroneously revoked the appointment of Mr Lungu to perform the functions of the office of President and appointed Dr Scott in his place.
The Lusaka lawyer said that Mr Lungu in accordance with article 39 (2), was and still is the rightful person to hold and perform functions of the office of President until a new President was elected.
Mr Mumbi has argued that the appointment of Dr Scott as Acting President was a breach of the Constitution and should therefore be revoked and that Mr Lungu should be reinstated. He said the act by Cabinet to appoint Dr Scott to take over the functions of the office of President was a breach of the Constitution and therefore a nullity at law.
Mr Mumbi has demanded that for purposes of upholding the Constitution, the erroneous decision by Cabinet that revoked the appointment of Mr Lungu as Acting President should be rescinded and the appointment of Dr Scott revoked.
Mr Mumbi said late President Michael Sata did not appoint Dr Scott to act as President because he (Scott) was disqualified by article 34 (3) and it was therefore irregular for Cabinet to have demanded that Mr Lungu should cede power to the Vice-President.