EQUAL APPLICATION OF THE BENEFITS OF FORMER PRESIDENTS ACT: THE CASE OF DR. KENNETH KAUNDA AND DR. NEVERS SEKWILA MUMBA

EQUAL APPLICATION OF THE BENEFITS OF FORMER PRESIDENTS ACT: THE CASE OF DR. KENNETH KAUNDA AND DR. NEVERS SEKWILA MUMBA By Dr Charles Sinkala The Benefits of Former Presidents Act, Chapter 15 of the Laws of Zambia, was enacted in 1993 in the context of Zambia’s transition to multi-party democracy. It is a matter of […]

EQUAL APPLICATION OF THE BENEFITS OF FORMER PRESIDENTS ACT: THE CASE OF DR. KENNETH KAUNDA AND DR. NEVERS SEKWILA MUMBA

By Dr Charles Sinkala

The Benefits of Former Presidents Act, Chapter 15 of the Laws of Zambia, was enacted in 1993 in the context of Zambia’s transition to multi-party democracy. It is a matter of public record from parliamentary debates at the time that one of the considerations of the drafters was to manage the political role of former Heads of State, with particular reference to the first Republican President, Dr. Kenneth Kaunda.

The concern then was his continued influence and the likelihood of a return to active partisan politics. In that regard, Dr. Kaunda elected to forego the benefits provided for under the Act and instead chose service to the people. His decision demonstrates that entitlement under the Act is not automatic, but is subject to the qualifications and conditions set out in the law.

In the interpretation of statutes, the courts in Zambia are guided by the intention of Parliament at the time of enactment, read together with the plain and ordinary meaning of the words used. An important observation in respect of the Act is that it is silent on political affiliation.

It does not distinguish between former Presidents who support the government of the day and those who do not. The qualifications for benefits are set out objectively in Section 3 of the Act and relate to tenure of office, manner of leaving office, and conduct. To imply a condition of political support into the Act would amount to judicial legislation, which is not permissible.

The law must be applied equally and without discrimination in accordance with Article 11 of the Constitution of Zambia, Amendment No. 2 of 2016, which guarantees equality before the law.

The case of Dr. Nevers Sekwila Mumba must therefore be considered on its own facts and within the confines of the law. Unlike the context that informed the enactment of the 1993 Act, there is no provision in the current statute that permits the denial of benefits on the basis of political stance or on grounds that are not expressly stated in the Act.

Where a former Republican President meets the constitutional and statutory qualifications set out in the Benefits of Former Presidents Act, Chapter 15, and has not been disqualified by any express provision of the law, there is no legal justification to withhold the benefits. To do so would be inconsistent with the rule of law and the constitutional principle of equal treatment.

In conclusion, while we may seek to understand the mischief Parliament sought to address in 1993, we are bound by the text of the Act as it stands. The Act does not make entitlement to benefits contingent upon support for or opposition to the sitting government.

Accordingly, in the case of Dr Nevers Sekwila Mumba, and in the absence of any express disqualification under the Benefits of Former Presidents Act, Chapter 15, and in keeping with the Constitution of Zambia, he is entitled to be considered for the benefits provided for under the law.

Finally, I suggest that this benefit Act of 1993 should be returned back to Parliament for review.