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Wednesday, 5 January 2011

Constitution of Zambia (Amendment) Bill 2010: Part IV

Swearing In and Handing Over

Article 37 provides specific provisions on “swearing in and handing over”:
(1) The President-elect shall be sworn in by the Chief Justice and shall assume office immediately but not later than twenty four hours from the time of declaration of the presidential election results.
(2) The incumbent President shall immediately hand over the office of President to the President elect and shall complete the procedural and administrative handing over process within twenty one days from the date the President-elect is sworn in.
(3) The incumbent President shall not, within the period referred to in clause (2) perform any functions of the office of President under this Constitution or any other law.
This is one of the most controversial provisions in the constitution. It is not too difficult to see why. When elections are held there’s nearly always a dispute as to whether the winner did so fairly. What then follows are appeals through the various courts and the outcome is always predictably in the favour of the incumbent.

But before we discuss the central problems with the current provision, it is worth first pointing out the positive rationale given by proponents. According to the Initial NCC Report on the deliberations the main positive reason the conference opted for an immediate swear in ceremony was : “there was nothing wrong with the current system where the President was sworn-in and the handover took place within twenty-four (24) hours of the declaration of the results”. [Ref: Initial NCC Report para, page 383].

What then followed were largely negative reasons as to why we should not have a longer period. This of course is a weak form of argumentation - rarely able to score points in a properly organised primary school debate! It appears the NCC had no positive reason for their position. Among the negative reasons they gave was that “unlike developed countries, [Zambia] lacked the necessary maturity to successfully and peacefully manage a long transition period. The members were concerned that if the swearing–in and handing-over were prolonged, the outgoing President could, out of frustration, misuse the instruments of power...” Mind boggling incompetence! Surely then the chap should just be prosecuted and ensure he goes to jail ?

Since the NCC preferred to argue in negative terms, let us play along and state three specific reasons why the current provision is inadequate (and by inference why a longer period would be better).

First, the provision distorts the incentives facing judges deciding the cases. With the President sworn in quickly it gives him greater leverage to coerce judges to adopt his position. The judges are now faced with a difficult scenario. They would be hearing a petition against a sitting President rather a President-elect. As the President embodies the powers of the Executive, any judicial decision would be questioning the entire Executive. This is a very difficult for any Supreme Court Judge to be in, especially one appointed by the sitting President in most cases. The incentive for such a Judge to decide against is therefore seriously diminished.

Second, it discourages petitions by undermining confidence in the justice system. There are several interrelated points to note here. The distortion of judicial incentives by nature will always undermine confidence in the justice system. But even if judges were actually independent, people are likely to perceive the system as procedurally unfair. If everyone believed that the Supreme Court judges were incapable of rendering a negative judgement against a sitting president because such people are inherently persuaded by the first point above, even if the point is invalid  they will still hold a negative view of the judiciary. The result is that they will not take forward petitions. This undermines the nature of justice. The point here is that what is crucial for an effective justice system is not just the practice of justice but also justice being perceived as fair. For this reason it is important that laws are developed in a way in which society perceives them as fair. Can anyone seriously argue that rushing off the President to be sworn projects a lawful society?

Third, immediate swearing in may allow an illegitimate president to hold power. Consider a situation in which a President is sworn quickly and he is impossibly found by the Constitutional Court to have defrauded everyone. That President of course would have been sworn in already and would have governed knowing full well he defrauded and may lose his job if found out. Contrary to the NCC reasoning, such a President has strong incentives to steal more than an outgoing incumbent President. If you are an electoral thief presiding over a country illegitimately and the clock is ticking before the courts would you not plunder? At the very least you would have every incentive to bribe the judges! In short the law as currently drafted leads to more Presidents stealing than under a smooth transition. This seems to have escaped the NCC.

It seems to me for these reasons the current provisions advocated by the NCC should be removed.  There’s need for a three month gap period as originally advocated by the Draft Mung’omba Constitution to allow for election petitions to be decided and a more orderly transition of power. During this period the incumbent President would retain the usual Executive powers except to make appointments; or dissolve the National Assembly. However, to account for a possibility of death during that period, it would be necessary to have a vice presidential running mate or at the very least the President-elect to nominate a Vice – President elect when immediately elected who would take power in the highly unlikely event that something went wrong before swearing in.

The Zambian Economist is currently reviewing the Constitution of Zambia (Amendment) Bill 2010 before it formally responds to the Legislature. All posts in this ongoing review can be found at the Constitution of Zambia page.

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