Last updated Feb 22, 2024
The press release from the Chief of Staff of the Head of State, asking members of the Government to expedite current affairs after the resignation of Prime Minister Sama Lukonde, continues to raise questions. While several members of the Government have taken the decision to give up their functions to exercise their parliamentary mandates, public opinion is questioning the legality of the measure taken at the level of the Presidency of the Republic.
It should be emphasized that when the Prime Minister resigns, the entire Government resigns. The Deputy Prime Ministers, the Ministers, the Deputy Ministers handle current affairs. The same rule is then applied as when a motion of censure against the Government is adopted by Parliament. In the case of the Sama Lukonde Government, all members of the government have resigned, including those who were not elected deputies.
As for the request made by the Presidency of the Republic to expedite current affairs, this decision also targets the members of the Government elected deputies, while they have decided to run for their mandates instead of continuing to exercise an incompatible function. We believe that this request should have targeted only the unelected members of the Government and let the other members occupy their new functions. The rules of administrative law would then be applied to ensure the continuity of the State. To this end, mechanisms such as replacement and temporary work are established. “There is substitution when a text (law or regulation) attributing a specific competence provides that in the event of the absence or incapacity of the competent authority, the attributions of the latter or part of its attributions will be temporarily and automatically exercised by another administrative authority” (Félix VUNDUAWE TE PEMAKO and Jean-Marie MBOKO DJ’Andima, Treatise on Administrative Law, 2nd edition, Bruylant, 2020, p.768). As for temporary work, it is “the situation in which an administrative authority acts in place of another administrative authority which is superior to it, and this, by virtue of an interim decision” (Félix VUNDUAWE TE PEMAKO and Jean-Marie MBOKO DJ’Andima, Op.Cit., p.769).
The same question arose in 2019 at the start of the mandates of elected deputies from the past legislature, who were still seeking ministerial positions. But while members of the Government of the time had opted for parliamentary mandates, certain people were given the role of interim Ministers.
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2024-02-22 17:28:04
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