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Tuesday, 26 April 2011

PF Manifesto: Legal and Constitutional Reforms

For the next series of manifesto reviews, we shall focus on the proposals related to governance and justice. This is the most contentious area and it is vital that we are clear on what the parties propose and why. We begin with legal and constitution reforms. Here we focus on PF, a separate post to follow on MMD proposals. 

What are the main specific policy proposals?

The main PF proposals in relation to legal and constitutional reforms can be grouped under the following areas:

Constitution Review: The PF intends to establish, following consultation, a “Committee of Experts” to review the recommendations of all previous Constitutional Review Commissions. It will then subject these to a referendum and subsequent enactment by the National Assembly.

Access to Justice: There specific proposals to establish an Office of Public Defender in "every district" to replace the current dysfunction system of legal aid support. It also plans to deploy government sponsored law graduates to public legal institutions (e.g. magistrates, Office of Public Defender and even local authorities).

Law Reform: There’s proposal to enhance the capacity of the Law Development Commission in order to enhance law reforms. In particular, to pursue the harmonisation of the principles of customary law and statutory law.

Human Rights: The proposals in this area are more generic. They relate to codification and domesticate of international conventions on human rights that Zambia has ratified. PF also intends to introduce legislation to "enable Zambians have access to the African Commission on Human and People’s Rights by way of appeal on decisions concerning human rights". The first we have come across this proposal by any of the parties. 

What is the rationale?

The underlying problems identified by the PF relate to the following:

Absence of credible constitution: The PF believes that under the MMD administration “the opportunity to have a new Constitution that reflects the will and aspirations of the people, and which could stand the test of time has once again eluded the Zambian people”. In their words, “this failed process has been nothing but a betrayal of the Zambian people”.

Colossal waste of money: The PF estimates that the recently failed national constitutional process gobbled up around K135 billion and represents an unprecedented waste of resources that could have been applied to meaningful national development. In our view this appears to be a conservative - more credible puts the NCC loss at around K200 billion. We also have to remember that taken together  the constitution process as a whole has now gobbled up K500bn. That is before we begin to count other huge welfare losses. 

Weak rule of law: PF believes Zambia suffers from weak rule of law characterised by a compromised system of the justice delivery.

What is our main assessment?

The PF have clearly given some thought to this area and this is reflected in their assessment of what is currently wrong. The current situation in Zambia is one characterised by poor weak rule of law. This website has trailed the poverty of justice system from poor laws to crowded prisons. It is good to see them giving space to these areas.

It is also welcome that PF have recognised the massive amounts of money wasted on the NCC process and previous attempts. It is major scandal what has taken place. A backdoor robbery of the poor organised by the elite. Our people need a credible constitution that clearly sets out the rules of governance and ensures that those in power exist to serve the ordinary citizen. We have previously noted the poverty of the Constitution of Zambia Bill 2010 and it was good it was shot down.

The question is whether PF has proposed a way forward that would reduce waste in the constitution process; and, whether they have good solutions in terms of improving the justice system. Our view is that they do, though greater thought is still needed.

The commitment to have a panel of experts is welcome, as is the commitment to consult the people. However, it is vital that such a “panel of experts” is not just made of the same bunch of people than now sit on the failed APRM Zambia. We seem to see same folks who have no fresh ideas for Zambia parading as experts in national affairs. We would like to see greater diversity and fresh minds attend to these and other issues. Similarly, there’s a commitment to consult “stakeholders”. That is welcome but it must be genuine. The NCC also “consulted” but went on to ignore everyone.

It is an absolute delight to see PF turning its attention to three key areas championed by Zambia Economist. First, law reform. Many of laws on the statute books are not needed (e.g. a law against bouncing cheques). Similarly, we have strong tensions between customary and statutory law. These needs to be resolved and the PF proposals to expand capacity at LDC are welcome. Secondly, more legal aid support. This is very important. We have no justice in Zambia for the poor because the poor never have legal counsel and also have their cases delayed. The PF proposal to review substantially legal aid support is fantastic. Finally, the PF push for greater support for human rights is welcome. 

That said, there remain critical areas which need careful thought in this area. The most obvious issue is funding. The proposal to expand legal aid will cost money. Similarly greater legal capacity will demand new resources. PF have not said where this will come from. This remains a weakness but perhaps more pertinent in the legal sector where the role of the market may be more limited if access to justice is the goal. The other issue is the proposal to “introduce legislation to enable Zambians have access to the African Commission on Human and People’s Rights by way of appeal on decisions concerning human rights”. This will no doubt be welcomed by some. It is a situation that exists already in Europe with most domestic courts subject, in the area of human rights, to the European Court of Human Rights. But such commitments have their drawbacks and one hopes PF if it were to proceed would consult thoroughly in this area. 

In general, this looks like an exciting agenda PF is promising the Zambian people. It would be interesting to see what they propose with respect police and other oversight institutions. We hope to examine this under  “good governance and public service reforms”. 

Zambian Economist is currently reviewing manifestos of leading political parties in Zambia. All posts in this ongoing review can be found at Manifesto Analysis

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