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Tuesday, 15 March 2011

Constitution of Zambia (Amendment) Bill 2010: Part X

Participation of Chiefs In Public Affairs 

Part X, Article 176, Clause (1) states:
A person shall not, while remaining a Chief, join or participate in partisan politics.
Article 176 limits the participation of chiefs in partisan politics. An immediate observation is that it is unclear on what is meant by participating in "partisan politics". Is it just participating in elections or is it standing for elected office? A simple reading of the text would suggest that it is both "joining" and "participating" in any way including issuing political endorsements. This raises obvious problems because we continue to see chiefs engaged in politics one way or another, when in fact clause (1) is already in the existing constitution.

In light of the above, one might therefore be within reason to conclude that this provision would only be enforced with respect to elected office. The question therefore is whether a deletion of Article 176 is necessary to liberate chiefs to vie for political office if they so wished. Should chiefs be allowed to stand as parliamentary or presidential candidates? The answer requires a strong rationale to be established and a careful balancing between the costs and benefits of giving chiefs additional political space.

The issue of greater political participation for chiefs was at the centre of the debate in the media during National Constitutional Conference (NCC). There were a catalogue of the contradictory positions taken by chiefs, ranging from the pro-participation camp of Chief Kapalaula and Chieftainess Chiawa to the anti-participation camp of Chieftainess Lesa and Chief Macha. In between we found some like Chietainess Nkomenshya advocating for strategic incoherence, preferring the constitution to be silent on the issue.

The passion of the debate among chiefs on this issue should not come as surprise. Although chiefs interact in our society at many levels, in recent times we have seen a rise in political activism. Chiefs now increasingly pursue access to “political power” in order to change the local social and economic order. Politics provides the means to make a difference to themselves and those around them. Many of the chiefs have clearly stated they see political activism in this way. Their search for the economic emancipation of (for themselves and their people) drives them to engage in political discourse as its currently viewed, rightly or wrongly, as the only route for effecting change on the ground. Rightly understood, the traditional quest for political power is therefore fundamentally an economic one.

With that in mind, the debate on whether chiefs should hold political office therefore has wider implications for local governance and economic development. More importantly, the traditional influence in political offices is not narrowly dependent on political office. Chiefs may still wield political influence through other means. Its therefore important that a wider array of political dynamics are considered to assess the optimal level of engagement for chiefs in society that maximizes the social and economic good for all Zambians.

It is normal generally to make a distinction between two sources of political power: “de-jure” and “de-facto” political power. “De-jure” political power is defined by rules and laws that govern political interactions. The constitutional provision above therefore relates only to “de-jure”. However, in practice chiefs possess “de-facto" political power. “De- facto” political power refers to the power that chiefs may exercise derived from their social position or economic resources. Although chiefs are currently formally excluded from open political competition they may still have great political power and likely to shape formal political outcomes. For example, they may use their economic and social resources to get their desired parliamentarians elected.

A clear example of defacto power is the 2008 Supreme Court nullification of the election of PF MP for Mwansabombwe Constituency, Samuel Chitonge on grounds that he and his campaign team flouted the Electoral Act. The Court concluded that the conduct of Mwata Kazembe and his utterances during the election period prevented a number of voters from freely and fairly choosing a candidate of their choice :
"The Mwata acted in total disregard of the various pieces of legislation of the Constitution of Zambia. We therefore declare that the elections in Mwansabombwe Constituency were not free and fair and therefore declare the election of Mr Chitonge void. The court observed that the Electoral Act and the Electoral Code of Conduct regulations did not allow chiefs and headmen to exert undue influence on their subjects to vote for a particular political party or candidate.....We have no doubt that the Mwata's conduct and utterances amounted to illegal practices within the ambit of section 93 (2) (a) of the Electoral Act number 12 of 2006 as he is an influential person and wielded a lot of powers in his chiefdom who even stopped campaigns for MMD cadres and the petitioner, thereby influencing the outcome”.
So although Mwata was not able to compete, his de-facto power on electoral outcomes was evident and determined the outcome of the election. With such influence on the outcome, it was possible that Samuel Chitonge was clearly going to be under strong influence of Mwata. This is an issue because although in Chitonge’s case Mwata openly seemed to influence and therefore was brought under scrutiny, in most cases the exercise of de-facto power is much more subtle, but no less significant.

In much of the political debates on the potential role of chiefs in politics, the “de-facto” element has been missed leading to sub-optimal conclusions. The reason why de-facto power is important is that it reinforces "de-jure" power over time and vice versa. So over time as chiefs become more powerful "de-facto" the push for change in rules in their favour may well be inevitable. The extent to which that happens depend on relative distribution of power vis-à-vis other players. What is important is to recognise that the question of whether chiefs should hold political office needs to consider all their sources of political power and how this power may change over time as the social and economic dynamics evolve. That allows to ensure any restrictions or liberalisation actually fulfil our intended objectives.

The issue therefore is whether chiefs be allocated more “de-jure” political power or given more “opportunity” to acquire “de-jure” political power e.g. as parliamentarians. The answer to this question largely depend on what problem people feel they would like to solve and the extent to which allowing chiefs to compete for political offices would successfully eliminate that problem. Such an assessment of course needs to consider carefully the counter-factual (e.g. the rise in de-facto power that is occurring with or without changes in formal rules), as well as the trade-offs that may be made.

The conventional approach towards institutional reform focuses on efficiency and equity arguments. Institutional reform is necessary if there’s a perceived failure in the way existing institutions operate or society would like to improve on the existing institutional apparatus. Society may also pursue reform for equity or fairness reasons. In this context the issue is whether the current bar on chiefs to compete and hold political office represents some institutional failure. In economic speak, we are essentially asking can society be better off if the bar was removed?

There are good reasons to believe that the current restrictions in chiefs does indeed impose wider costs on society, that otherwise would not be there if the bar was removed. The main costs are that the prevention of chiefs holding elected restricts political competition for parliamentary  / presidential posts and restricts electoral choices available to citizens. This in time might mean local areas select low calibre individuals as MPs leading to poor outcomes for local peoples. Equally important is that the current constitutional bars infringes on their democratic rights. Chiefs who assume their office through customs are restricted from the domain of competing elsewhere because they chose to answer the call of their people as servants. This artificial constraint on chiefs to take part in politics therefore imposes costs on both chiefs and the wider society.

The political efficiency costs are mitigated, to some degree, if the education and social calibre of prevented chiefs is low. If the chiefs barred from political completion are unlikely to improve the quality of the competition, the artificial bar may be unnecessary but not detrimental to social outcomes. The costs would also be mitigated if the rise de-facto power compensated for the formal political process. Where chiefs, as we have already noted, are rising in veiled political dominance, preventing them from influencing decisions might not be overly costly. The people therefore may not be totally robbed of their influence.

However, in both cases their important points to be made. First, if chiefs engaging in political process are inconsequential then the bar is unnecessarily. Secondly, the new generation of chiefs are just as educated as the existing parliamentarians. Indeed in many cases some chiefs are more learned than many poorly educated parliamentarians. This is largely because newer chiefs are chosen for their ability to engage the wider political elite on level footing, but also because of the likelihood of a self selection problem - it is the most educated chiefs that have argued for the chance to compete. Finally, although the rise in de-facto power has clearly been evident, it has probably diminished in other areas and may well be a feature of electoral cycles. In many areas chiefs have lost influence and regular complain about a new nexus between the political elite, civil servants and foreign investors. It is therefore not immediately the case that being vocal through the press or being asked for endorsement directly translates in tangible power on the ground.

The general conclusion one therefore draws is that restricting chiefs from political competition imposes genuine economic costs that aren’t easily mitigated. Beyond these costs there’s also genuine questions regarding the need to build fairness in our institutional systems that helps reduce inequalities over time and supports long term social cohesions.

However, the existence of these costs is not sufficient for lifting the constitutional restrict. We first need to understand whether allowing chiefs to compete for political office is the most effective way that addresses the scale of the problem and fulfils the positive rationale without difficulties (or unnecessary unfairness). This calls for a proper cost benefit assessmen focusing on several areas.

Allowing chiefs greater space to seek political office will inevitably impact on chiefs and the traditional institutions. Chiefs would be the primary beneficiaries. There are a number of chiefs who have expressed interest to compete and hold parliamentary offices. Many chiefs have argued strongly that they are normal human beings, who should be accorded the same democratic rights as everyone else. Indeed historically when opportunities for political offices existed chiefs embraced them. It is therefore reasonable to expect that should the above clause be lifted the competition field at both presidential and parliamentally level may be widened. This would clear convey a benefit to wider society and eliminate the costs associated with the current unfair treatment of chiefs.

The counter argument is that chiefs are not “ordinary people” but individuals who enjoy special privileges e.g. chiefs are partially compensated financially through subsidies. In that sense chiefs are not “ordinary people” per se but enjoy other privileges. We might even say that by becoming chiefs they have chosen to exchange their democratic rights in exchange for cash. In that sense chiefs are no different from civil servants who have opted to get paid and forfeited their right to hold political office at the same time. However, that argument fails due to two significant limitations. First, the chiefs are not properly integrated in the system of governance nor are their subsidies and other benefits (cars etc) predictable or backed by legislative power. These things tend to be given at the discretion of those in power. Secondly, a key aspect here perhaps is that chiefs have a somewhat limited choice when they get adopted. Whilst it is correct that they “choose” to become chiefs, we should not ignore the role of traditions and other social norms. Many chiefs are chosen by the community and refusal to assume the chieftainship vacated by your father or mother tends to be very rare.

Assuming that chiefs can credibly take part and have the desire to do so, this will clearly have an impact on local political competition leading to better outcomes. The argument is the that the best people of whatever background should rise to power and more importantly, such “best people” should be determined not by artificial constraints but by the choices of local people. With Zambia having low human capital, it needs all of its best people in solving local and national problems regardless of whether these are chiefs or academics or Zambians abroad. There’s a strong argument therefore for open and competitive institutions that allow the very best to emerge. Allowing chiefs to participate in competitive politics is consistent with that aspiration.

There are some that disagree that believe that far from enhancing competition, allowing chiefs to stand for electoral office would weaken it. This is because chiefs would bring significant “market (political) power” that would make them unfair competitors. If, as argued, chiefs already possess significant de-facto power through their economic and traditional positions, they may be better equipped to leverage these to their advantage and skew electoral competition in their favour. More directly, some have suggested that chiefs may literally impose their will on their subjects. If they are allowed to participate in partisan politics, they may consciously or otherwise abuse the absolute traditional authority they wield by imposing their political views and choices on their subjects, a situation that would not just lead to greater political apathy but damage local and national cohesion.

There’s certainly some credibility to that argument. Perhaps a more worrying prospect is the idea that competition is likely to be worse where the incumbent party in government colludes with chiefs to have them adopted and keep hold on power. In particular, while currently that may already happen, the possibility of freer political engagement from chiefs is likely to amplify this aspect. The weakness of this critique is that it ignores the possibility that other parties may co-opt chiefs or indeed create formidable oppositions to chiefs. An important point to recognize is that in all these challenges the real question is whether restricting parties is the way to resolve them. Is banning chiefs the optimal solution to avoiding the likely dangers of “monopolisation” of local politics? One suspects not partly because this is rarely the case with other “markets”. It would seem the logical response to such dangers is clear regulatory oversight, maximum transparency and significant provision of electoral information to allow individuals to make well informed decisions.

Perhaps the most important argument put forward for lifting the current constitution restriction is the “transition benefits”. As we have seen although chiefs have little de-jure political power, their de- facto political power has been on the rise. Chiefs have become more influential in elections and are now beginning to leverage more resources. If we accept that their de-facto power will continue to increase rather than wane, there may be a strong case of “managing” this rise in power through opening up the system to greater involvement, rather than leave chiefs to create their own parallel structures of influence.

In this analysis, we have focused on the credible impacts of allowing chiefs to compete for political office rather than patently misguided reasons for or against. However, it is worth highlighting one specific misconception which has pervaded the discussions in the media. It is often suggested that chiefs should not take part in politics because they would damage themselves and their institutions from political insults. Whether this is true or not is debateable, but what is clear is that it does not matter. If chiefs decided to take part in politics, they would be making a rational decision to do so. Unless we believe chiefs are ignorant and incapable of making decisions for themselves.

Now there may instances where their subjects might not want them to take part. If that was the case, any institutional legislation simply needs to empower locals to express their choice more freely to ensure that if a chief was going to take part and the locals did not want him or her to remain a chief, there would be mechanisms to dethrone the chief. Indeed in many cases traditional councils already provide mechanisms of handling such disputes. The point is that these should be decisions for locals and not used as the basis for barring chiefs from political office. The role of the constitution is to provide mechanism that empowers locals to have ownership of determining their destiny.

In light of the above assessment, it is apparent that the broader impacts of allowing / banning from chiefs from holding political office are complicated and require society to make clear trade-offs, as well as having a clear understanding of the current political power that chiefs wield in secret. In contrast to the simple way in which the media and the NCC presented this issue as simply being the case of keeping chiefs under control or the individual pursuit of political power by overly vocal chiefs, this review of the current clause has hopefully demonstrated that the issues are far more complicated. More importantly, our discussion appears to suggest that whilst the rationale for allowing chiefs to participate are clear any approach to this issue needs to be part of a broader reform agenda on how chiefs relate to development. Allowing chiefs to compete for political office may have large benefits to society, but it also has the potential to reinforce economic inequality as the new power may reinforce the de-facto power they hold in other areas of society, principally through their control of land and other resources. A holistic approach to chiefs and development is therefore needed.

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. “A person shall not, while remaining a Chief, join or participate in partisan politics.”

    Now we have “A person shall not, while remaining in Zambia in 2011, join or participate in addition of figures”

    I wish we can amend what the president said that it’s an offense to add figures. Criminalizing mathematics??? What is wrong with someone just adding figures? It’s just simple arithmetic. The raw data upon which the addition (computation or tabulation or whatever fancy terminology you want to give it) is the official election results of the polling stations. So what’s wrong with this simple arithmetic of addition?

    PVT is an exercise attempted to mirror the official count of all polling stations. PVT is an election observation methodology that is employed for independent verification (or challenge) of election results. It involves observation of the voting and counting of ballots at the polling stations, collection of official polling station results and independent tabulation (totaling or summation) of these results, parallel to election authorities. If the PVT is performed on statistical sample of the polling stations, it is called Quick Count.

    In Zimbabwe’s 2008 elections, with the help of the then President of South Africa, Thabo Mbeki, a concession was arrived at to have PVT. Results at individual polling stations were displayed on the outside of the polling stations. MDC supporters took pictures, often with camera phones, and sent these to a central location (in Johannesburg), where the results were tabulated. PVT showed that Tsvangirai had polled 50.3% of the vote. However the official result still showed Mr Tsvangirai securing the majority vote at 48.6% of the votes thus forcing a runoff election which Mr. Tsvangirai refused to participate and he argued that he had won the election with a 50 plus 1.

    Back home in Zambia, during 2008 Presidential By-elections, PVT was held spearhead by FODEP with the help of an American organization in which all the stake holders such as the relevant Zambian NGOs, opposition parties and ruling party worked together. During the counting at the Totaling Center, the official results by ECZ was showing that Sata was leading as most results from the rural areas had not yet come in. PF carders were excited and but there was panic in the MMD. However PVT results were showing that MMD and PF candidates were at par which lead to the then FODEP president Stanley Mhango to announce to the nation that the election at the moment then with most of the results in was a “close tie” and could go either way.

    Remember one of the reasons why RB fired Mulongoti. It had to do with PVT. RB must have liked the results of PVT which were favorable. He didn’t like Mike Mulongoti’s close friend Chitala Mbita’s advice that RB should prematurely announce to the nation that he had conceded defeat.

  2. Its unfortunate that some elements within MMD think that PVT can cause anarchy in the management of the elections. What I don’t understand is why these people in MMD are jittery about PVT when in actual fact PVT proved to have worked well for RB as I have shown above. By the way, why condemn the Americans for “meddling” in our affairs when in actual fact the perceived “meddling” validated ECZ final results?

    Since most rigging happens during transporting results or ballot boxes to the totaling center, the parallel vote tabulation (PVT) can play a significant role in preventing outright electoral fraud and goes a long way even to help to ascertain the credibility of the elections and not just underpinning prevention of fraud.

    Even if we risk the disadvantage that if there is no consensus among stakeholders, PVT would become a source of conflict, the courts are there to adjudicate for how else we will know the validity of an election results and on what basis can they be challenged?

    NOTE: During the writing of this note RB’s official position on PVT wasn’t known. But yesterday 15th March, 2011, during inauguration of the new chairperson of the Electoral Commission of Zambia (ECZ) justice Ireen Chirwa Mambilimanew chairperson of the Electoral Commission of Zambia (ECZ) justice Ireen Chirwa Mambilima, he warned advocates of the parallel vote tabulations (PVT) that anyone that will compute and tabulate results of the forthcoming tripartite elections will be committing a criminal offence Why does RB invite international election observers to monitor an election and deny them PVT which is a great system for observing an election? Doesn’t it defeat the whole purpose of inviting the election observers/monitors? This is tantamount to tying someone’s hands yet subjecting them to a fight in a boxing ring. I can’t invite you to a meal and refuse you to open your mouth when eating.


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