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Thursday, 10 October 2013

Legislative Folly in Zambia (Part 3) - Breaking the Cycle

In the last two posts, I have noted that there are many laws that are decidedly anti-poor in Zambia. I focused on two : the criminalisation of those aged between 8 years and 12 years old; and, criminalisation of bouncing cheques. To that we can add a long list including imprisoning people for merely using a rude word about the president! There also many measures in the current draft constitution that will lead to a bloated parliament, public funding of political parties and other costly things funded by cash strapped taxpayers!

But many of you have asked, ‘We hear you, but how do we rescue people from the ignorant menace of the lawmakers?’ It is a fair question and thank you for challenging me on this. I think there are four things we can immediately push for to bring about change in the way legislation is done.

First, we need a new political alignment. At the heart of the Zambian political system is that an imbalance of power heavily in favour of the rich. What is needed therefore is to tilt the balance so that the poor have a greater say in the development of the nation - not just platitudes, but a real and fundamental shift in dynamics. That is our best hope for incentivising government to deliver legislation and policies that are more pro-poor and pro-growth in the long term. An immediate action is that all policies and legislation must be subject to wide public consultation of no less than 90 days. And I mean online and offline!

This would help push of an environment were expensive and foolish laws that are geared merely to support the interests of a small elite of well off Zambians are not implemented without debate. Until we have a new political settlement that recognises the voices of the public, the richer and more affluent Zambians will continue to find ways of making sure that any concessions they make in our evolving political system a re-balancing of power takes place elsewhere in the system that effectively leaves Zambia in a retrogressive political equilibrium, such as the one currently obtaining.

Secondly, there’s need for a new understanding of lawmakers.  When former Msanzala MP joseph Lungu resigned and joined the PF his only reason was that he wanted to “ensure development of Msanzala which had lagged behind for some time”. Mr Lungu said he felt he could not take development to the area as an independent parliamentarian, an idea that PF has worked hard to inculcate in the minds of ordinary Zambians. They are perpetuating the misguided view that the legislature only matters when the representatives in question are members of the current administration. Which reinforces the huge misconceptions people have about MPs.

It is not the primary job of an MP to deliver development. The primary role of an MP is to vote on legislation and make laws on behalf of their constituency (the "legislative function").

MPs also have an additional function of representing the views of their constituency to Parliament e.g. special problems they are facing which the executive branch has failed to address ("advocacy function"). It is not the role of an MP to bring economic development, since in a well functioning society such functions would be performed by an effective local government with appropriate support from central government. The MP's role is simply to ensure that the local preferences are fully reflected in national decisions. Once the MP brings the problem to the attention of the Executive, it is expected that they would follow through where they can.

Unfortunately in our country, the local government is non-existent, due to ineffective capacity and molestation by the Executive (e.g. through large unpaid debts). So the MP has assumed the de-facto role of a leader. MPs have absolutely zero levers to deliver development, besides the Constituency Development Fund, which has its own problems. In fact many spend their personal fortunes to appease their constituency ending up in bankruptcy. MPs regularly tell me that it is tough job being a parliamentarian because you have to be a Banker, Doctor, Marital Counsellor, Father, Wedding Ceremony master, counsellor and Undertaker. They are asked to do things that are simply outside their job description. As a result they underperform everywhere!

Thirdly, there’s need for a new evidence based approach to legislation. The current approach to new legislation is not generally informed by good analytical thinking, particularly cost benefit analysis. Part of the problem is how policy is done, which suffers from significant distorted incentives.

In particular, foreign funding for many things in our nation has distorted the appraisal system. I say this because many of the international donors do not even undertake proper cost benefit analysis (CBA). Do we really think for example donors ask about value for money before they spend their money on giving oversight agencies cash to fight corruption? On what basis would it have been done that? Now if you are GRZ and are deciding whether to accept foreign funding to fight corruption, would you have any incentive to undertake a CBA? No! When the money is not yours you have less of an incentive to undertake CBA because in most cases the "cost" element is zero. It always comes back to whether incentives for evidence exist.

Related to this is the whole issue of foreign influence in legislation. Many of the laws and projects undertaken in Zambia actually are forced on the Zambian people one way or another. Whether through political capture or just general ignorance of the public. This is usually done by "investors" and foreign governments (all roads lead back to the campaign finance pot). A good example is the laws governing Multi Facility Economic Zones (MFEZs). No clear cost benefit analysis has ever been undertaken on the MFEZs policy. The reason is not that it can't be done but because we are "locked in" through the "partnership deals" we have with the Chinese and others. This is especially the case for things like land acquisitions set aside in legislation e.g. oil exploration legislation. They were political decisions driven by foreign interests at the expense of the Zambian people. So it seems again that the poverty of evidence based policy merely reflects a poverty of national consciousness.

Finally, there’s need for a new pro-poor filter for all legislation. A specific test should be developed by Government and agreed with the Parliament that any legislation undertaken by government must not come at the detriment of the poor. That means where laws are being passed they cannot come at the expense of the poorest in society. Such a measure must not only look at outcomes but also procedures. Under this test many of the current laws would be stopped.

The time has come for those who are proposing new laws to start thinking carefully about the various trade-offs involved. Not every small issue requires a criminal offence. Poorly thought out laws without any analytical basis can only cripple our capacity constrained justice system. Now when I challenged the Freedom of Information laws recently I received insults by some NGOs and journalists for bringing economic evidence to bear. Instead of asking GRZ to produce an impact assessment you find rogue elements of the public asking Government to not publish such evidence because it may be counterproductive to their efforts. We need to change our attitude! And for goodness sake don't just implement laws because you have seen a similar law in India or UK

Chola Mukanga | Economist
Copyright © Zambian Economist 2013

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