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Monday, 10 January 2011

Constitution of Zambia (Amendment) Bill 2010 : Part IV

Ratification of Appointment by National Assembly

We resume our selected review of the draft bill with Article 49 :
(1) Where any appointment to be made by the President is expressed by this Constitution to be subject to ratification by the National Assembly, the National Assembly shall not unreasonably refuse or delay the ratification.
(2) Where the ratification is refused, the President shall appoint another person to that office and shall submit the appointment for ratification by the National Assembly.
(3) Where the National Assembly refuses to ratify the second appointment, the President shall invite the National Assembly to ratify another appointment for the third time, but the third
appointment shall take effect irrespective of whether the National Assembly refuses the ratification, or delays it for a period of more than fourteen days.
(4) Subject to the other provisions of this Constitution and any other law, any person appointed by the President under this Constitution or that other law may be removed by the President.
(5) Nothing in this Article shall prevent Parliament from conferring functions on persons or authorities other than the President.
There's a principle in game theory we call the "chainstore paradox". You can check the Wikipedia link for full explanation of the theory but the general gist of it is that if the final outcome is set in stone then the game essentially unravels backwards. The whole full game need not be played. 

So lets play this out with the above provisions.  

According to the provision above, the President gets to nominate three times. At stage 3 he will always get his preferred person.  So what will happen at Stage 2? Well at stage the MPs will know that at Stage 3 the president will always get his man, so why put a fight at Stage 2?  So game theory suggests that they will always fold at Stage 2.  Now if at Stage 2 they always fold, then what will they do at Stage 1? Well at Stage 1 they know that he will always get his man at Stage 2, therefore why put up the fight at Stage 1?  So what do we get? Well at Stage 1 the President chooses his man and always wins.

That is the value of an economic framework in policy development. 

As a pro-bono economic adviser to you the Zambian people, my advice is that  this piece of legislation is not good because it will always result in the President choosing his man. The reason is because the deterrence effect has been removed by automatically ensuring that in Stage 3 he always get his man! 

Is there a way out? 

Yes! The Mung'omba Draft Constitution suggested that the game should be indefinite for many provisions except a few.  That of course was rejected by the NCC without explanation (see page 445 of the NCC Initial Report). I would go further by ensuring that for those posts regarded as "critical" (i.e. not subject to indefinite ratification process) they would only be approved on temporary basis e.g. 12 months and then they come back to Parliament. This is a slight modification of the American system. 

What I don't understand is why the NCC Parliamentarians did not see the folly of what they proposed!

The important point to note here is that this is not an academic exercise. If your ratification process is flawed then you will have weak separation of powers. The power of the Legislature does not just reside in making laws but also in its ability to check the Executive. The above provision is weak and should be replaced with what I have suggested. 

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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