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Sishuwa says Lungu has no power to appoint acting BoZ Governor



President Edgar Lungu has again asked the Anti-Corruption Commission (ACC) to take interest and find out how contracts are being awarded by government institutions. Speaking yesterday when he inspected Mwenda Secondary School in Chipili District in Luapula whose works have stalled since 2017, President Lungu said that the request does not mean that he is interfering with the work of the ACC. President Lungu said that he will not shy away from telling the Commission to fight all forms of corruption as opposed to concentrating in one area. The President said that he was disappointed that construction works have continued to be given to private companies when there are government wings such as the Zambia Army and Zambia National Service that can do the works at lower costs. The President observed that the tendency to give expensive contracts that can be executed at a lower cost is motivated by greed and corruption and that this must be investigated, before adding that the Zambia Army and Zambia National Service can deliver quality works at a lower cost compared to private companies. The President called on officers should treat government projects as their own if the people are to benefit and questioned why the Ministry of General Education has not completed the project in a phased manner so that people can start using the facility. The President has since directed that the school be completed in a phases. Speaking earlier, Housing and Infrastructure Development Minister Vincent Mwale said the government will practice the model that is being used to construct schools in Zambia by the World Bank. Mr. Mwale said the government will be using internal engineers to work on projects. He said it is 70 percent cheaper to use internal government engineers to work on projects than engaging contractors. Mr. Mwale said the model which had so far worked on 15 schools countrywide will help the Government to complete schools on time and save on resources. And General Education Minister Dennis Wanchinga said he will ensure key infrastructure is completed at the school in the next few months. Later, President Lungu held a meeting with chiefs and village headmen. Speaking during the meeting, President Lungu said money for the construction of key roads has been found. He said works on the roads will start in the next few days.

President Edgar Lungu’s appointment of Dr Francis Chipimo as acting Governor of the Bank of Zambia is not supported by law, argues University of Zambia lecturer Sishuwa Sishuwa.

Dr Sishuwa has advised Dr Chipimo, who is Bank of Zambia deputy governor for Operations, not to take up the appointment, warning that he risks being prosecuted in future because he lacks authority to exercise the functions of the governor.

Last week, President Lungu appointed Dr Chipimo to serve as acting BoZ governor, pending Christopher Mvunga’s ratification by Parliament.

On August 22, President Lungu dismissed Dr Denny Kalyalya and appointed Mvunga as BoZ governor subject to ratification by the National Assembly.

But in an interview with The Mast yesterday, Dr Sishuwa challenged State House to point to any law that empowers the President to appoint an acting central bank governor. He argued that both the Constitution of Zambia and the bank of Zambia Act do not give the President such powers.

“The office and functions of Governor of the Bank of Zambia are established by the Constitution. Article 214 (1) of the Constitution of Zambia states that ‘There shall be a Governor of the Bank of Zambia who shall be appointed by the President, subject to ratification by the National Assembly, and who shall be (a) a citizen; (b) a person who has specialized training and experience in economics, finance, accounting, banking, law or other field relevant to banking, as prescribed; and (c) a person of proven integrity’. It then states under sub-article (2) that the Governor shall be the Chairperson of the Board of Directors of the Bank. The functions of the Bank of Zambia are set out in Article 213 of the Constitution and are conferred on the Board of Directors,” Dr Sishuwa noted. “There is no provision under these Articles or any other Article of the Constitution that allows the President to appoint a person to the position of Governor on an acting basis. The question is, where did President Lungu get the power to appoint Dr Chipimo as acting central bank governor?”President Lungu

He said no legislation confers power on the President to appoint any person as BoZ governor in an acting capacity.

“Other provisions relating to the appointment, functions and tenure of office of Governor of the Bank of Zambia are provided for in the Bank of Zambia Act. Section 10 of this Act provides for the appointment and functions of the Bank of Zambia Governor. It states in subsection (1) that ‘Subject to section fifteen, the President may appoint for a period not exceeding five years a person with recognised professional qualifications and experience in financial and economic matters to be Governor of the Bank and the President may re-appoint the Governor upon the expiry of the Governor’s term of office’. This section also provides that the appointment of the Governor made under it shall be subject to ratification by the National Assembly, and that the Governor shall be the Chief Executive Officer of the Bank and shall be responsible to the Board for the execution of the policy and management of the Bank. It further states that the Governor may, with the approval of the Board, delegate any of his functions or powers to a Deputy Governor, or any other staff of the Bank,” he noted.

“Section 11 provides for the position of Deputy Governor and the functions of the office. Section 12 provides for the Board of Directors in which the functions of the Bank are vested. The Board of Directors ‘may delegate to the Governor such functions as it considers necessary for the better administration of the Bank.’ What is crucial to note is that the Bank of Zambia Act does not give the President or the Board of Directors the power to transfer or delegate the functions of the Governor of the Bank of Zambia. Further, the Deputy Governor as established under section 12 is not expressly empowered to perform the functions of the Governor in the absence of the Governor or in acting capacity. Please ask State House to cite the law that empowers the President to appoint an acting central bank governor.”

Asked if President Lungu may have used powers conferred on his office by the Constitution, the UNZA researcher disagreed.

He said the executive functions of the President are stipulated in Article 92 of the Constitution, none of which gives the office the power that President Lungu invoked when appointing Dr Chipimo.

“In any case, the statutory functions Act Cap 4 of the Laws of Zambia, expressly prohibits the President from delegating or transferring statutory functions which are conferred on any person by the Constitution. Section 6 (1) (a) of the statutory functions Act provides that ‘The President shall not transfer any statutory function conferred on any person by the Constitution.’ The prohibition also applies to delegation of statutory functions which are conferred to any person by the Constitution (Section 6(2)(b)(i)). The rationale for this is to limit the powers of the President,” Dr Sishuwa said. “Zambians have elevated certain important positions and functions to the Constitution to protect them from undue and political interference by the President or the Executive. The Constitution sets out the qualifications of the person to be appointed as Bank of Zambia Governor. The appointment is subject to ratification by the National Assembly which provides a mechanism for control of the executive power.”

He said being a constitutional office, the bank of Zambia Act does not envisage that the office of governor of the central bank or its functions should be performed by a presidential appointee in an acting capacity.

“This supports the intention of the Constitution in requiring that the office holder be properly scruitinised through the process of ratification by the National Assembly. A presidential appointee who is not ratified by Parliament therefore occupies the office illegally as the President has no power to transfer constitutional functions to his appointee. This is the position in which Dr Chipimo finds himself. I advise my brother to stay away from the mess created by President Lungu through the impulsive dismissal of Dr Denny Kalyalya and the failure to realise that his appointment of a new governor would not be confirmed immediately since Parliament is currently on recess,” said Dr Sishuwa.

“The President has belatedly realised the void that his hurried sacking of Kalyalya has created at the central bank and is now trying to fill it using non-existent powers. What a mess! This is why central bank governors should not be changed like underwear. Let Dr Chipimo, who I consider to be a decent man, respectfully decline the appointment. This is because he risks being prosecuted in future as he lacks authority to exercise the functions of the Bank of Zambia governor since his appointment is not supported by law. An acting appointee is vulnerable to control and direction of the President, as he is holding office on a temporary basis, lacks a legal mandate, and serves at the mercy of the President. This is exactly what the Constitution sought to prevent by institutionalizing the procedures relating to the appointment of Governor of the Bank of Zambia. Dr Chipimo is young and has a long life ahead of him. Let him not get caught up in this web”, he advised.

Source: Lusaka Times



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