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The Constitutional Court has ordered acting Auditor General, Ron Mwambwa, to immediately stop performing the functions of Auditor General and vacate the office, ruling that his appointment was unconstitutional because he had exceeded the constitutional retirement age.
The court found that Mwambwa was ineligible to occupy the position, whether on a substantive or acting basis, because he was above the constitutionally prescribed retirement age.
The decision follows a petition by the Law Association of Zambia (LAZ), which challenged Mwambwa’s continued occupation of the office, arguing that his appointment was unconstitutional and that he had exceeded the prescribed retirement age.
A five-member bench, presided over by Constitutional Court President Professor Margaret Munalula, heard the matter.
The court found that the process of appointing Mwambwa as Auditor General by President Hakainde Hichilema had commenced but was never completed because he was neither recommended by the State Audit Commission nor ratified by Parliament.
The judges also considered Mwambwa’s contention that he had been appointed Acting Auditor General but found that he had failed to produce evidence of such an appointment.
“We have not been persuaded by this contention because the 2nd Respondent had an opportunity to respond to this by producing evidence of his appointment as Acting Auditor-General but chose not to,” the court said.
The court then examined the constitutional requirements governing the appointment and retirement of an Auditor General.
It noted that Article 252(1) of the Constitution provides that the Auditor General shall retire from office upon attaining the age of 60.
After considering Articles 249(3), 251 and 252 of the Constitution and Section 6(2) of the Public Audit Act, the court concluded that Mwambwa did not qualify for appointment because he was above the constitutional retirement age.
The court further rejected the argument that the constitutional requirements did not apply because Mwambwa was serving in an acting capacity.
It said Article 251 requires the President to appoint a person qualified to perform the functions of Auditor General when the office holder is absent or unable to perform the functions.
“Having established that the 2nd Respondent was ineligible for appointment as Auditor-General because of age, it follows that the 2nd Respondent could not be appointed as Acting Auditor-General,” the court ruled.
The judges added that an acting appointment under Article 251 was situation-specific and intended to last for a short period.
Having found the appointment unconstitutional, the court said allowing Mwambwa to continue performing the functions of Auditor General would amount to perpetuating an illegality.
“We accordingly order that the 2nd Respondent immediately ceases performing the functions of and vacates office of Auditor-General,” the court said.
The court declared his purported appointment by the President ultra vires Articles 249(1) and 259(1)(a), read with Article 252(1) of the Constitution.
It also declared his continued occupation of the office, being above the retirement age, null and void.
However, the court declined to order Mwambwa to repay salaries, allowances and other emoluments he allegedly received while occupying the office.
The judges said LAZ had failed to substantiate, through affidavit evidence, its claim that Mwambwa had received the specific monies and emoluments.
“Absent such proof this Court cannot fill in the gaps on behalf of the Petitioner to grant the relief sought,” the court said.
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