INVOKE ARTICLE 36

By Gershom Ndhlovu

Is MMD spokesman Benny Tetamashimba evil to suggest that the MMD should start looking for President Mwanawasa’s successor? Or is it simply that the whole nation is burying its head in the sand over Mwanawasa’s health status?

It is now close to three weeks since Mr Mwanawasa was taken ill while attending an African Union summit in Egypt and subsequently transferred to France for specialist treatment. According to foreign media reports, Mr Mwanawasa had an operation in Egypt to remove clots in the brain and another one in Paris, believed to be a tracheostomy, to ease his breathing problems. Tracheostomy is the opening by surgery of a direct airway in the windpipe.

The nation, probably out of emotion and the tradition of not discussing the fate of someone who is ill, does not want to face the inevitability of Mr Mwanawasa’s exit from the political stage.

Really, Mr Mwanawasa may not have the appetite to continue as President after suffering two strokes within two years. But another real possibility is that he may not be in a mental and physical state to perform the functions of the office of the president after his latest affliction.

Zambians in general and Mr Mwanawasa’s family in particular, let him down in 2006 when they forced him to carry on as President after he suffered the first stroke. Those who truly sympathise with him should let him retire, really.

Those who are genuinely concerned with Mr Mwanawasa’s health should seriously look at the Zambian constitution’s Article 36 “Removal of President on Grounds of Incapacity” reproduced below for the way forward.:

(1) If it is resolved by a majority of all the members of the Cabinet that the question of the physical or mental capacity of the President to discharge the functions of his office ought to be investigated, and they so inform the Chief Justice, then the Chief Justice shall appoint a board consisting of not less than three persons selected by him from among persons who are qualified as medical practitioners under the law of Zambia or under the law of any other country in the Commonwealth, and the board shall inquire into the matter and report to the Chief Justice on whether or not the President is, by reason of any infirmity of body or mind, incapable of discharging the functions of his office. (2) If the board reports that the President is incapable of discharging the functions of his office, the Chief Justice shall certify in writing accordingly and thereupon the President shall cease to hold office. (3) Where the Cabinet resolve that the question of the physical or mental capacity of the President to discharge the functions of his office shall be investigated, the President shall, until another person assumes the office of President or the board appointed under clause (1) reports that the President is not incapable of discharging the functions of his office, whichever is earlier, cease to perform the functions of his office and those functions shall be performed by: (a) the Vice-President; or (b) in the absence of the Vice-President or if the Vice-President is unable, by reason of physical or mental infirmity, to discharge the functions of his office, by such member of the Cabinet as the Cabinet shall elect: Provided that any person performing the functions of the office of President under this clause shall not dissolve the National Assembly nor, except on the advice of the Cabinet, revoke any appointment made by the President. (4) A motion for the purposes of clause (1) may be proposed at any meeting of the Cabinet. (5) For the purposes of this Article, a certificate of the Chief Justice that the President is, by reason of physical or mental infirmity, unable to discharge the functions of this office shall be conclusive and shall not be questioned in any court.

So, the first step that Cabinet must take, if they love the President, is to appoint a board of medical experts to determine whether or not Mwanawasa can continue to hold the office of President. The sooner this is done the better because the nation will avoid a situation where Zambia will be on standstill because the president’s indisposition. As it is, crucial decisions will have to wait until Mr Mwanawasa recovers fully which we don’t know when that will be.

Those suggesting that the nation should start looking for Mwanawasa’s successor like Tetamashimba may not, after all, be as evil as they are being portrayed. They are simply being realistic and are within the constitutional ambit cited above.

It will not do for the nation to avoid this issue given the circumstances under which it finds itself.

The crucial standpoint is that Mr Mwanawasa alive as an ex-president is better than Mr Mwanawasa who dies in office.