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Saturday, 5 March 2011

Constitution of Zambia (Amendment) Bill 2010: Part IV

Tenure of Office for Members of Parliament

Article 69 deals tenure of office and vacation of office of members of parliament :
(1) Every member of the National Assembly, except the Speaker, shall vacate the seat in the National Assembly upon a dissolution of Parliament.

(2) The office of member of the National Assembly becomes vacant if—
(a) the member ceases to be a citizen of Zambia;
(b) the member resigns in writing addressed to the Speaker;
(c) the member becomes disqualified for election under clause (3) of Article 66;
(d) the result of an election for that member is nullified by the High Court under Article 74;
(e) the member acts contrary to a code of conduct provided by, or under, an Act of Parliament;
(f) the member resigns from the political party which sponsored the member for election to the National Assembly;
(g) subject to clause (6), a member ceases to be a member by reason of expulsion from the political party which sponsored that member for election;
h) having been elected to the National Assembly as an independent candidate, the member joins a political party; or
(i) the member dies.

(3) A constituency based member of the National Assembly who causes a vacancy in the Assembly due to the reasons specified under clause (2) (b), (c), (e), (f), (g) and (h) shall not be eligible, for the duration of the term of that Parliament—
(a) to contest any election; or
(b) for nomination, by the President, as a member of the National Assembly.
The objective of this article is prevent the party in government from capturing opposition MPs. This is achieved by making it clear under clause (3) that an MP who resigns or is fired by his or her party would no longer be able to re-contest the seat. It therefore strengthens the disciplinary force of the party in question over the individual MP. More importantly, it makes it less likely for an individual MP to resign to resign of her / his own accord.  There are two implications  that flow from this - the practical effect of the clause; and, the inherent credibility of the clause.  

The practical effect is likely to be limited because of the nature of the judicial system. An MP under this clause would not be able to stand again once fired by the party but there's nothing to prevent the MP from challenging the expulsion and letting the court determine. This as we have seen can run and run. The incentive to switch sides would only be diminished if courts where efficient.  So no effect there in the foreseeable future. Unfortunately, where it will have an effect is to eliminate the incentive for "principled" resignations. There would be no MPs who would genuinely disagree with their party position and resign but still go to serve their people as independents. So the law basically makes it difficult for principled parliamentarians to emerge publicly. 

The credibility question is also important - is this a law that should even be contemplated? I think the problem this law wants to solve is important in the presence of a predatory Executive but preventing people to re-contest infringes their democratic rights (not human rights). In a democracy every one should be free to vie for office and it should be up to the electorate to decide. We should focus on institutional changes that expands freedom positively rather than limiting people's democratic rights. This therefore seems like another bad law which will in any case have little practical effect. I suspect it was championed by a foolish opposition which thought it could make any difference. 

Zambian Economist is currently reviewing the Constitution of Zambia (Amendment) Bill 2010. All posts in this ongoing review can be found at the Constitution of Zambia page.


  1. The other observation is that it would still be possible for MPs to resign if the period is towards the end of a parliamentary term, say 6 months before general elections.

    The other part which I think should have been considered is to allow someone who came second in the last election to take up membership in parliament when an incumbent MP resigns to reduce on our expenditure on by-elections.

    Am really surprised that we are the only ones not talking about cutting spending when its on the lips of the whole world.

  2. Thats a good observation!

    The closer to the general election the more likely that is.

    That has enormous implications actually. This measure may well lead to MPs stalling until the period you allude to.

    A way must be found to prevent bye-elections closer to the general election. I don't think allowing second placed candidates is the answer for constituency based parliamentarians. That creates bizarre incentives e.g assassinations, slander, etc. It is vital succession is not automatic, except for the proportional representation seats.

    What we need is to simply declare such seats vacant. This saves everyone money for 6 months or so. It would not be the end of the world.


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