By Dickson Jere
A lady officer of Zambia Army was fired by the President after her conduct was found to discredit the Army. This was on the recommendation of the Army Commander. Consequently, her rank of Lieutenant Colonel was stripped off and her commission canceled after serving for 18 years.
Unsatisfied with the President’s decision, she challenged her dismissal in the Constitutional Court (ConCourt). She argued that the Courts have powers to enquire and possibly reverse the President’s decision under the Constitution.
But then Regulation 10 under the Defence Force Act gives absolute powers to the Commander In-Chief to dismiss erring officers and that decision is final and not subject to any challenge.
So, the question posed to the ConCourt was whether such a law was constitutional when the Judiciary has powers to counter-check Executive powers in a democracy.
A panel of three Judges heard the case and determined thus;
“Regulation 10A confers discretionary power on the President to cancel and order the removal from office of a Defence Force officer if the President is satisfied that the officer is inefficient, unsuitable to remain in the regular force,” the Judges said.
They observed that the President can also remove the office of his or conduct is likely to bring discredit on the Army. Once the procedure is followed, the officer cannot challenge the President.
“It is significant to note that Regulation 10A envisages to be final and not be questioned in any proceedings,” the Judges observed.
However, the ConCourt said even though the power to remove officers is bestowed on the President, he needs to follow the procedures stated in the law when doing so.
“The import of this is that a decision that purports to dismiss an officer without the President being satisfied that the officer is inefficient, unsuitable or is likely to bring discredit upon the Defence Force, is improper and of no effect,” they said.
The ConCourt dismissed the case stating that Parliament had a reason for putting such a law and that the Courts must abide by it even though it takes away the powers of the Judiciary.
Case citation- Brenda Mpashi v Attorney General-2024/CCZ/005 and judgement delivered two months ago.
Lecture Notes;
1. Regulation 10 has what we call “ouster clause” that takes away the power of courts to question decisions of the Executive. In developed jurisdictions, these are frowned upon as they defeat the doctrine of separation of powers.
2. The ConCourt indicated that the dismissal of officers must follow the procedures even of the power of the President is final and cannot be questioned.
3. The army officers can only be removed under Regulation 10 for three reasons, namely, (a)inefficient, (b) unsuitable and (c) his conduct likely to discredit the army.
