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Saturday, 5 July 2008

Why Rupiah Banda must wait...

If the current uncertainty of the President has any silver lining is that Zambians all across the world are finally beginning to take a genuine interest in the constitution. Many times I have heard someone quote many clauses. It appears that a document that was the preserve of constitutional lawyers is now being read widely by ordinary Zambians with access to the internet!

Particularly puzzling to many is the
Article 38 clause which demands that the country goes to polls within 90 days of the President's resignation or death, and restricts what the sitting Vice President can do as Acting President. In short Zambia has no system of “running mates”. In the past this issue has been a theoretical problem, but with the President potentially incapacitated we are facing the prospect of feeling the full force of its practical implications. As such many are genuinely wondering how we ended up with a constitutional clause that ties the hands of the Vice President and would force the country to go the polls whenever a President was unable to continue.

I think the answer lies in the underlying incentives that such a clause presents. Previous presidents have insisted on such a clause because it raises the cost of reneging within the ruling party. Basically, it makes it difficult for those within the ruling party to remove a sitting President, because doing so would automatically send the whole party to the Presidental polls - or it is a general election? More on that in a minute. No party cadre or sitting Minister wants to go and face an electoral vote with an uncertain outcome. So by having this clause in the constitution, the sitting President (incapacitated or not) is immune from pressure from his party, thereby providing further opportunity for centralising his authority. A president who is immune from being removed because the cost is too much is guaranteed to remain in power throughout the term of his office. Infact if it were possible for the government to hide the truth about the President’s health they would do it, because the incentives of doing so are so strong. Of course nowadays, with the digital age you can delay news but you cannot hide it. I am not saying that is what is happening, I am simply saying that the incentives for doing so are sufficiently strong.

The current situation of course is even more complicated becauset the Vice President is not the Vice President of the ruling party either! This makes his position very vulnerable. if the nation was going to go through a Presidential bye-election he would almost certainly have to compete with others for the right to stand. As I mentioned in a previous post, its actually unclear whether MMD would even have the capacity to hold party elections quickly enough to have a running candidate against the opposition. This all again points to the disincentives for Rupiah Banda and other within MMD to act hastily unless they are absolute convinced there's no alternative than to put their jobs on the line (delay in this context is equivalent to "playing for time" as the MMD prepares itself for a possible urgent election i.e. the incentive to wait is that it amplifies the first mover advantage for the ruling party - MMD will only trigger leadership at the time of their choosing and when they feel ready). MMD of course has other problems, including the "insider" versus "outsider" problem. One of the great acts of the Mwanawasa period is the way in which he has been able to bring people from outside into government e.g. Masebo, Magande, etc. These people although compete are regarded as outsiders within the MMD (insiders include many people from Chiluba's reign e.g. Katele Kalumba whose strong within the party but not in government).

And while you are pondering these disincentives, its also worth bearing in mind that the constitution is unclear on whether any newly elected President would sit for a full term or simply complete a new term. Such is the mess of the current constitution. The implications are obvious. If the President was to sit for a full new term they would be out of sink with the Parliamentary election cycle. A friend has suggested that MPs could dissolve parliment and force themselves to go through the ballot. That way the presidential electoral cycles and the Parliamentary cycle would be restored. But why would a rational MP agree to such a proposal that the constitution does not demand? But even assuming that Parliament would be dissolved, this again simply reinforces the incentives for MPs to avoid unseating a President who is incapacitated or unable to continue. In other it makes the argument for waiting more stronger since its not just the Cabinet at stake, but all MPs. Be sure that many MPs would surely resist going to the polls before they get their gratuities and NCC expenses.

That is of course not to say the current system has no advantages. It does. If a President was always under pressure from being removed it may make it difficult for him to continue even when he becomes temporary sick. One can certainly imagine that on Wednesday when we heard rumours of the President supposed death, temptation for the VP to assume power would have been stronger, if his (and that of supporting ruling party MPs) hold on power was guaranteed. But as that is not the case, and with him facing the possibility that he could be out of the job, that temptation is not so strong. Certainly when you add the complexity of the parliamentary electoral cycle angle, its not pretty. With the current electoral clauses, its quiet clear than any internal transition of power would have to be judged as absolute necessary.

The only problem of course is that waiting for too long could have negative impacts. As all Zambians now know, by minimising one problem (hasty transitions & internal party discords, uncontrolled VPs, etc) it may create other significant problems.

The first problem is political uncertainty. Whenever some change of power is hinted or that change is prolonged, markets react. In Zambia for example we have seen already seen the fall in the Kwacha, as questions arise with respect to
government's economic policy. Certain offshore investors are apparently looking at reducing their risks in the Kwacha until there is proper clarification about the president's health. That is sobering considering that it took Mbeki's mistake and an unknown diplomat to ignite the fire.

The second problem is the prospect of a temporary unelected Acting President. The current Vice President
Rupiah Banda (and presumably quasi Acting President) is simply a nominated MP and therefore has never gone through the electoral challenge. Is it right that Zambia could be temporary governed during periods of heighted tension by a personal appointee of the President? Those that value the right to vote may not agree. Incidentally Rupiah Banda apparently suffers from other complicated issues, including the fact that he was not born in Zambia and questions over his descent etc. Its unclear whether he would even qualify to stand for elections. I'll let others speculate on this, but suffice to say, his position appears relatively weak within the party to guarantee himself as a MMD presidential candidate. This ultimately explains why he is waiting.

Looking forward, its worth emphasising that there are ways around both problems which may ensure we retain the benefits of the current system without introducing the disincentives associated with a "running mates" proposal suggested by the Mung’omba Draft Constitution. The issue of uncertainty can simply be addressed by making sure that the VP assumes power from the President and can rule for a year and elections take place within that year. This allows the VP to continue in charge restoring certainty, providing enough time for elections to be held and so on. The question of nominated MPs who become VPs or government ministers can simply be addressed by abolishing the practice of nomination. But of course the "running mates" model does have other advantages which this narrowly focused post is unable to cover e.g. the benefits of certainty, guarantee of broader electoral choices, etc. It would be interesting to see how the sitting NCC addresses this tricky issue and balances the net benefits of a running mate system versus the net benefits of a modified version of current system as articulated in this post.


  1. Though I lack authority on the subject, it seems to me that you seem to have missed certain cardinal points relating to our constitution? Your suggestion of a Presidential bye-election contradicts Article 34 relating to election of President? You rely solely on Article 38 which addresses the seemingly unlikely, and naturally undesirable, event of death of The President or The President being incapacitated to hold that office.

    It would appear more practical to abide by Article 34 (on election of President) which ties the election of President with a General election - Presidential and Parliamentary elections. However, you will likely argue that Article 38, clause 3 would ensure that a general election is not automatic as it stipulates that within the 90 days of an Acting President, that Acting President may not dissolve Parliament. Parliamentary elections can only be held once Parliament is dissolved, which is exactly what Article 34 subscribes?

    Although you suggest that it would be in the ruling party's interest to prevent both a "Presidential Bye-election" (as you call it) or a General election altogether, you have failed to weigh in on the consequences. Since, as you rightly point out, the office of Vice President in Zambia is more ceremonial than executive, it would mean Rupiah Banda would be unable to govern based on him "acting" as President during a period in which the President is unable to execute the functions of his office.

    The reality is that the constitution is clear and adherence to it should not be by incentive, but by both the spirit and the letter of it?

  2. Ntheye,

    "Your suggestion of a Presidential bye-election contradicts Article 34 relating to election of President?"

    I don't see how I do that. Article 34, Clause (2) states:

    "An election to the office of President shall be held whenever the National Assembly is dissolved and otherwise as provided by Article 38."

    The "otherwise" indicates that Article 38 provisions act as an alternative to the necessitity of dissolving Parliament. I am therefore confident that whilst "or" would have been preferred to "and", the use of "otherwise" was clearly intended to convey the same point.

    Its therefore clear that we are very much focusing on Article 38 and the possibility of a bye election.

    Of course that is not to say Parliamentarians cannot dissolve themselves. They can if they wanted to, but it is important to note that NO where does it REQUIRE them to that.

    "It would appear more practical to abide by Article 34 (on election of President) which ties the election of President with a General election - Presidential and Parliamentary elections."

    Please refer to the above. Article 34 in my view does not provide a robust basis. Rather it seems to cite Article 38 as an alternative.

    But I would also question you assumption that it is more "practical" to hold both the general election and the Presidential election.

    First I don't think the constitutional Article 38 envisaged a general election within 90 days. That would be most unpractical.

    As FMD has acknowledge in our various email exchanges, U cannot organise a general election within 90days. It is clearly logistically impossible to get everyone registered and all people to have sufficient time to campaign and so forth to hold a Parliamentary election. This would definitely be successfully challenged in a court of law. Indeed No Zambian MP is talking about that as even an issue. All MPs clearly see a Presidential bye-election as consistent with the spirit of the constitution. Are you seriously think that the constitution would require all MPs to go through a vote when the problem lies with the incapacity or death of a President? That is inconsistent with the spirit of the current constitution. Bear in mind that such clauses are there for stability not to cause havoc.

    "The reality is that the constitution is clear and adherence to it should not be by incentive, but by both the spirit and the letter of it?"

    As every good lawyer knows, its not the letter, but the spirit of the law that is crucial. As I explain above, both the letter and the "spirit" point to the Presidential bye-election.

    But my main point is that you actually miss the point of what I was saying. Incentives are crucial. After all the constitutional is there to provide the right incentives for political players and all involved to act in a certain way. That is what the law is for.

    I am not inventing the concept of incentives, I am simply saying the current constitutional framework provides incentives that is likely to Rupiah Banda not to act as swiftly as he would if he a running mate.

    Nominated cabinet MPs also will suffer from the same problem. The next President may well not be an MMD one. That again means that they would be more cautious.

    The way to think about it is simple. Zambia is not Cuba. When Castro was ill for a while, the transition took place and it was easier to do that because the cabinet and all the people around Raul Castro where guaranteed jobs. No election took place. Atleast not in democratic way. We can confidently say the incentives for transititon for cuba were stronger than for Zambia at present due to the precarious position of the VP and his ministers.

  3. "A friend has suggested that MPs could dissolve parliment and force themselves to go through the ballot. That way the presidential electoral cycles and the Parliamentary cycle would be restored."

    I thought that once a situation like this arose, parliament stood dissolved and there would then be a parliamentary election as well.

    The person elected as president would then serve a full five year term rather than serving out the rest of the term that a previously elected president would have served.

    We could draw an example from the Kaunda era when he cut short his term in 1991 when he should have gone up to 1993 for the full five year term.

    The question of synching the election years does not arise at all. It is the five year term that counts regardless of when it started if I understand some of these things correctly.

  4. Gershom,

    The Kaunda precedent is wrong because Kaunda was still President and had full powers to dissolve Parliament. The Vice President has no such power. The parliament can dissolve itself but its no REQUIRED by the constitution to do so under these circumstances.

    Please the above exchange with Ntheye where I expand on these points.

  5. Ladies and Gentlemen,
    i think we are officially in "a pickle". Th nation has not faced anything like this and the current situation poses a new challenge for the revision of our constitution. Thanks Cho for shedding more light on Article 38.

  6. It appears that the Articles in question are a hangover from the one party system when transition would have been, well, smooth. But in the current situation, assuming that a president with few or no members of parliament won this "bye-election", he surely would have a torrid time in parliament unless he was to "bribe" the lot for them to toe his line.
    As Campbell Lumbila says above, we are in a right pickle. The situation as it is, is just a matter of when rather than if it happens because if Mr Mwanawasa pulls through, and I hope he does, he may not have the stamina for the job.
    It is simply time for all parties to put in place their machinery for the obviously inevitable "by-election".

  7. Once again, I feel you have missed the point vis-a-vis Election of President in Zambia. Although many commentators on your blog appear confused about what our constitution stipulates, I find the guidance pretty clear. Article 34, Election of President, is un-ambigous and clearly sets out how the President is elected in Zambia. What seems to confuse you is Clause 2, under article 34, which states as follows: An election to the office of President shall be held whenever the National Assembly is dissolved and otherwise as provided by Article 38.

    What you are missing is the gist of Article 38 which addresses, specifically, Vacancy in Office of President. Therefore, Article 34, Clause 2, out to be intepreted as follows:
    An election to the office of President shall be held whenever the National Assembly is dissolved AND otherwise in the event that the office of President becomes vacant.

    The "and" in Article 34 Clause 2 ensures that Election of President in Zambia can only occur once the National Assembly is dissolved. Therefore, there is absolutely no provision for a so-called Presidential bye-election! So even the question of Presidential and Parliamentary elections falling out of sync is ridiculous!

    Where the confusion begins, perhaps, is Article 38 Clause 3 which states thus:
    The Vice-President or, the member of the Cabinet as the case may be, performing the functions of the office of the President under clause (2) shall not dissolve the National Assembly nor, except on the advice of the Cabinet, revoke any appointment made by the President.

    However, Article 88, Clause 6, Section B provides for the National Assembly dissolving itself by two-thirds majority of its members.

    The intepretation is thus clear and as follows:
    1. A Presidential election in Zambia can only be held if AND when the National Assembly is dissolved;
    2. The National Assembly can only be dissolved by the President or by itself;
    3. When the office of President becomes vacant, for any reason, Presidential elections have to be held within 90 days. However, for this to happen, the National Assembly ought to have been dissovled. Since the "Acting" President has no power to do so under the current provisions of the constitution, Parliament would HAVE to dissolve itself!

    You will note, therefore, that it is not about incentives for Members of Parliament, rather the spirit and letter of our constitution!

    VIVA Mvunga!

  8. Ntheye,

    I give up. I have explained to you already that AND in this context used in conjuction with OTHERWISE necessitates that Article 38 be viewed as an alternative.

    Please review my response to your earlier post again.

  9. Yours is not to give up, but to steadfastly and continuously engage yourself and others on the subjects you offer comment on. I am really at pains to understand why Articles 34 through to 38, as well as Article 88, continur to be so agonising to comprehend for you? (To adequately grasp my comments herein, please refer to Article 34, and Article 38 of the constitution of Zambia).

    Article 34 outlines the provisions for Election of President. With specific attention to Clause 2, which seems to be the source of your confusion, you should note that it is explaining the circumstances, or conditions if you may, upon which an election to the office of President may be held.

    The first condition, explained in the first part of the clause - before the "and otherwise" phrase, stipulates that a condition to hold an election for President is when the National Assembly is dissolved.

    The second part of Clause 2 beginning with the "and otherwise" phrase ensures that an election for President is also held in the event that the National Assembly has not been dissolved AND a vacancy in the office of President has arisen. Therefore, Article 38 - Vacancy in Office of President - is NOT an alternative, but one of the conditions upon which Article 34 may be effected.

    Stated differently, the condition for election of President to be held in Zambia exists when:
    1. National Assembly has been dissolved; and
    2. A vacancy in the Office of President.

    Essentially, both aforementioned are necessary conditions for an election of President to be held. However, the office of President need not be vacant for a Presidential election to be held, hence the provision beginning with "and otherwise" in Article 34, Clause 2.

    The two articles address distinctly different things, with Article 34 being concerned with Election of President and Article 38 concerning itself with Vacancy in office of President. It is both counter-intuitive and contrary to the provisions of the constitution to suggest that one of these two Articles (34 and 38) is an alternative to the other?

    With all due respect to other aspects of your analysis, I strongly suggest you have another, perhaps more thorough, go at reading Articles 34 through to 38, as well as Article 88. Once looked at objectively, I am certain you will re-evaluate your seemingly skewed views your so called "Presidential bye-election".

  10. Ntheye,

    My "tired" remark stems from the fact that your concern is about a micro aspect of the post.

    The blog lays out an arguments of why Rupiah Banda must wait. Rooted in that argument is that the incentives for Rupiah and other nominated members of the Cabinet are weak to move swiftly towards a general election. Within the post I noted that if MPs were also REQUIRED to go to the polls the incentives would even be STRONGER to wait.

    If you are correct, then it simply strengthens my narrative rather than weaken it. But I am not as hasty in my intepretation as you on this point. I have suggested that correctly read and its intended spirit the Article 38 is self standing clearly as an alernative to elements of Article 34 Clause 2.

    This really is a matter of words and it would be up to the constitutional lawyers to debate that. If the time does come, I am sure we'll find out. But what I would say to you is the following:

    1. The concept of Presidential bye-election is the position understood by Michael Sata and was articulated during the Presidential election.

    2. All MPs I have spoken to on this matter understand that to be the position.

    3. It is impractical to hold a general election within 90s and that is clearly not intended by the "spirit of the constitution".

    Now you may be correct, but if you are that further reinforces my point that the incentives for waiting are very strong.

  11. Cho,
    Thanks for bringing up this matter.
    Is it possible to ask one of your expert guest bloggers to shed light on this matter? It could be the case that no senior lawyer wants to be seen discussing this issue while the President remains admitted in Percy hospital but it is important that the country understands what the options are.
    Someone like Patrick Mathabini would offer a balanced view on this situation.

    The Panel


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