Hichilema has no power to stop son from getting salary – Lawyer
By George Zulu
NO law gives President Hakainde Hichilema power to suspend or quash his son Habwela’s entitlements as an officer in the Zambia National Service (ZNS), Lusaka lawyer Isaac Simbeye has said.
Commenting on Hichilema’s assurance that his son, Lieutenant Habwela, will not draw any salary from his employment, Simbeye said Hichilema has no power to do that under the Defence Act.
“The president lacks the power to suspend or quash Habwela Hichilema’s entitlements under the Defence Act. Defence forces are regulated by the Defence Act, Chapter 106 of the laws of Zambia (The Defence Act), Section 154 (1) of the Defence Act, which prohibits forfeiture of the Defence force officer’s pay. No forfeiture of the pay of an officer or soldier of the Defence Force shall be imposed unless authorised by this Act, other service law or any other law and no deduction from such pay shall be made unless so authorised or by regulations,” he said.
He explained that under the law, there was no way an officer would be stopped from getting his entitlement by an individual.
Simbeye said the law regulated entitlements and benefits.
“It follows that payment to a defence officer cannot be casually withheld unless in line with the provisions of the Defence Act or the regulations made thereunder. In this regard, section 155 of the Defence Act authorises the making of rules. Pursuant to section 155 of the Defence Act, the Defence (Regular Forces) (Officers) Regulations were made to deal with the salaries, allowances, and other benefits to which officers in the defence forces are entitled. In this regard, Section 11(1) provides for a salary in the following terms, “subject to the provisions of these regulations, pay- (a) An officer, other than a medical officer, dental officer, legal officer or chaplain, shall be paid at the annual rate of pay prescribed in Part 1 of the First Schedule for an officer holding the rank and having the years of service in that rank which apply to him,” he said.
He insisted that defence forces officers were legally entitled to be paid their salaries in accordance with the law.
“In this context, Defence (Regular Forces) (Officers) Regulations, part 1 to the first Schedule to Section 11 prescribes rates of pay for officers as follows: Lieutenant-Col Wing Commander, in his first Year of service in the rank, is entitled to K2,835,000 per annum. In his first year of service, Lieutenant Flying Officer is entitled to an annual salary of K1,578,150. Second Lieutenant pilot officer in his first year of service is entitled to an annual salary of K1,181,250,” he said.
Simbeye said Zambia, as a constitutional democracy, was guided by the rule of law, adding that Hichilema lacked legal authority to make such a decision.
“Zambia, being a constitutional democracy, is supposed to be governed by the rule of law, but the President lacks legal authority to make pronouncements or declarations that contradict the law. No matter how nice such pronouncements may sound, not even as a good gesture, this remains the case. It is trite that Habwela Hichilema is an officer within the Defence Force of Zambia,” Simbeye said.
He said the pronouncement by Hichilema against his son was illegal and unconstitutional.
“In view of the fact that the law does not give the president power to suspend salaries, of the Defence officers outside the law and the announcement he made that Lieutenant Habwela will not be drawing a salary, appear to lack a legal basis and are ultra vires section 154 and the section 155 regulations.
Simbeye urged Habwela to enjoy his entitlement as an officer under the defence forces.
“Accordingly, Lieutenant Habwela remains entitled to receive his lawful entitlements to the extent that he cannot legally forego them on the basis that there is no such action under the law. If illegally denied now, he is at liberty to claim the same at any other later date. Nothing stops him from doing that,” said Simbeye.
