A President dies in office, leaving the country momentarily without a chief executive. Under ordinary circumstances, this would set off a predictable succession that is most often spelled out in the country’s constitution. Often, the second in command, a Vice or Deputy President, takes the reins of the mourning country. However, such a tragedy can also lead to fights over succession, with a number of individuals vying for the top job. In an ambiguous situation it is often left to the courts to interpret succession.
Such a succession fight has been on full display over the last few weeks in Zambia. When President Michael Sata passed away in office at the end of October, the constitutional prescribed order of succession went into effect.
According to Article 38 of the country’s constitution ”…whenever the office of President becomes vacant, the Vice President …shall perform the functions of the office of President.” This led the country to swear in Guy Scott, the country’s Vice-President, as the new President of the sub-Saharan state.
Scott’s ascension to the Presidency made significant headlines. Not only is the new Zambian President a firebrand, famous for a lack of filter in interviews, he is also white. This makes Scott the continent’s only white leader since the fall of colonialism.
In most situations this would be the conclusion of the story. An interesting story, certainly, with the rise of a white politician to the highest ranks of governance in the country, but a predictable mode of constitutional succession.
Per Zambia’s constitution Scott would simply be required to usher the country to new elections within 90 days. However, Zambia falls into the latter of the two aforementioned categories, where the courts have been called on to intervene and a smooth transition can no longer be guaranteed.
The controversy stems from the time that Sata left the sub-Saharan state to seek medical attention in London. Upon his leave, Sata appointed the country’s Justice and Defense Minister Edgar Lungu, also the Secretary-General of the ruling Patriotic Front party, to serve in his stead. This left Scott as the Vice President while Lungu possessed the Presidential powers. Sata would never return and, upon his death, Scott assumed the Presidency and used the opportunity to sack Lungu from his ministerial position.
The transfer of power between Lungu and Scott was then challenged in Court, because there was no official announcement, including “no gazette notice, no letter of transfer of power and no instrument were signed to signify the transfer of power from Lungu to Scott” according to Zambia Reports.
Further complicating the matter are accusations by Lungu’s supporters that Scott and the country’s Attorney General, Musa Mwenye threatened to charge Lungu with treason if he did not immediately relinquish power. Lungu further alleges that he was informed “that police were on stand-by to arrest him and other cabinet ministers opposed to [Scott’s] opinion,” according to the Lusaka Times.
The case, after initial hearings, was adjourned by the Lusaka High Court last week until the end of November, where it will continue to hear arguments on both sides.
At first glance, the succession fight seems to be much ado about nothing. Not only must the country hold elections within 90 days (Scott recently announced that elections would be held January 20 of next year) the incumbency is no major benefit for Scott as he may be ineligible to run for President and seems to have no plans to even if eligible.
In the country not only must one be a citizen in order to run for President, so too must be his or her parents. This would disqualify Scott, who is the progeny of a Scottish father and an English mother.
However, there is some doubt based on a former constitutional court case regarding the country’s former President Frederick Chiluba, who’s parents citizenship was questioned. The case held those who were ordinary residents at Zambian independence in 1964 qualified and there was no need to inquire into their parentage, because their parents knew no nation of Zambia and thus could not be Zambian citizens.
According to the Washington Post’s Monkey Cage Blog, Scott has said he will not run, though when he said so it was “in the same breath of saying he’s constitutionally ineligible.”
According to Zambia Reports, the ruling Patriotic Front, which was the party of Sata and is the party of both Scott and Lungu, selects a Presidential candidate either through the Central Committee or by a convention. While Scott is demanding that a convention be called, the pro-Lungu camp is demanding that the Central Committee method be used.
The disagreement between the two sides has gotten heated in recent days, with Lungu’s supporters issuing a statement accusing Scott of “acting unilaterally” similar to his “old ways.” There has also been talk among some Lungu supporters of expelling the acting president from the party’s ranks.
This intra-party fighting is certainly doing the party no favors. According to Sunday Chanda, the former Open Society Foundation Executive Director and current party member, other parties have already selected their presidential candidates and begun campaigning while the PF lags behind in selecting a candidate.
While the PF continues to hold the president’s office, the political infighting is doing the country no favors. The country should be preparing for new elections and attempting to peacefully bridge the gap between Sata’s death and the next presidential election but instead factional divides in the PF have lead to a court case that will further distract Zambian leadership.
This distraction will only be furthered if Scott changes course and decides to run. Not only will it lead to more incredibly consequential court cases, it will no doubt lead to a greater split in the PF. Only time will tell just where the transfer of power leads, but for the time being let us simply hope it remains peaceful.
Andrew Friedman is a human rights attorney and freelance consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.
