Zambian Economist is reviewing the Draft Constitution of Zambia. The first draft has recently been published (April 2012) is embedded below. This page provide ongoing commentary and analysis on key articles of interest. It based on active discussions taking place on our Facebook page.First Draft Constitution of Zambia - April 2012
WE, THE PEOPLE OF ZAMBIA, IN EXERCISE OF OUR CONSTITUENT POWER:ACKNOWLEDGE the supremacy of God Almighty;DECLARE the Republic a Christian Nation, but uphold the right of every person to enjoy that person’s freedom of conscience or religion;
The problem immediately is clear - the use of BUT. It seems to cast the declaration in a bad light. The BUT should be replaced with AND. That may sound academic, but really it is not! The AND changes the assumed meaning. It signals that rather than the Christian declaration sitting uncomfortably with freedom of religious worship, it is actually consistent with it. It is only in the Judeo-Christian worldview historically that freedom of worship has thrived. Secular states have always been oppressors of religious worshipers and freedom. Look at China and many other such regimes which persecute religion. A fuller discussion on the Christian declaration is set out here.
Article 4 on the “Republican status of Zambia” :
(1) Zambia is a sovereign Republic, consisting of the territory and territorial waters described and delineated in an Act of Parliament(2) The Republic of Zambia is a free, unitary, indivisible, multi-ethnic, multi-cultural, multi-racial, multi-religious and multi-party democratic State(3) The Republic of Zambia shall not be ceded, in whole or in part(4) For purposes of clause (3), the entering into a union or other form of inter-state organisation, by the Republic of Zambia, shall not be ceding of the Republic.
This is a little difficult to read at at many levels! If the Republic of Zambia cannot be ceded, then why is there a provision for MPs to define the boundaries under (1)?
Also why MPs? Surely we should make it clear that no boundaries of Zambia can be altered without a Referendum by the people?
Also (4) seems to be a foolish statement (pardon the language). Surely it should read that no international convention (including economic or territorial union) can be entered into without the express will of the Zambian people?
The last Government wanted us to enter a full fledged COMESA economic and monetary union. A pipe dream yes, but a SADC union is not a pipe dream! This Constitution needs to guard against that. We need a much clearer "referendum lock".
Article 9 on “National values, principles and basis of State policy”:
Subject to this Constitution, the national values, principles and the basis of State policy include- (a) morality, Christian values and ethics; (b) patriotism and national unity; (c) democracy, the rule of law, human dignity, equity, social justice, equality, non-discrimination and protection of minority and marginalised groups; (d) good governance, integrity, transparency, accountability, devolution of power, inclusiveness and participation of the people; and (e) sustainable development.
This is cardinal! It sets out clearly what the Zambian worldview under the new constitution will be! In fact we can delete the Christian declaration as long as we retain Article 9 in all its forms. This article is the first semblance of intellectual nuance. Though I should note immediately it was in the NCC draft albeit buried somewhere. When people say Zambia has been declared a Christian nation, they mean the country has committed itself to aspire to be one. It is aspirational and therefore entirely theologically sound. It does not mean we have arrived. It simply says that we as a people wish to be guided along Judeo-Christian principles as set out under Article 9.
Article 16 on “Citizenship by registration” :
Let the flood gates open! Under the NCC draft we continued the highly punitive period of 15 years. With the new draft its only 3 years. The clause is retrospective so anyone currently married to a Zambian for more than 3 years can become a fully fledged Zambian. And given Article 18 already enables dual citizenship, the diaspora’s must be quite happy. The period of years are arbitrary, but what is clear is that Zambia will become a very attractive place to belong to soon.Notwithstanding clause (1), a person who is, or was, married to a citizen for a period of not less than three years shall be entitled to apply to the Citizenship Board of Zambia, to be registered as a citizen, in such manner as may be prescribed by or under an Act of Parliament
Article 18 of the First Draft Constitution provides for Dual Citizenship:
“A citizen shall not lose citizenship by acquiring the citizenship of another country”
Now the main thing to note here is what is missing in the WHOLE document. Under the NCC draft the dual citizen was a second class citizen. She could never be an MP or councillor or hold any high public office.
In the new draft, one can be a Minister and have dual citizenship. In fact one can be Chief Justice and have dual citizenship. The only posts you cannot have dual citizenship for is President, Vice President, Speaker and Deputy Speaker. In theory this represents an improvement but the failure to consider requirements for the Chief Justice who is head of the Judiciary appears to be an oversight.
Article 28 provides for the 'Right to Life'. Two clauses are worth noting.
Clause (1) protects the unborn children :
"A person has, subject to clauses (2) and (3), the right to life, which begins at conception"
No debate here. Well done.
Clause (3) maintains capital punishment :
“A person may be deprived of life if that person has been convicted of a capital offence and sentenced to death”.
This is not progressive. We need to get rid of capital punishment because it is inconsistent with the tenets of a life giving country. My theological position in this area has been shifting in recent years. It is now my considered opinion after much careful study of evidence and the Bible that though governments have the moral authority to take life for crimes committed, taking life itself is not encouraged in Bible. Certainly not by fallen governments outside the Old Testament covenant. The economic evidence for the deterrence effect is also non-existent. In Zambia of course we have the practical problem that this is rarely used.
Both of these issues illustrate why the law is inherently moral, and therefore always assumes a world-view.
Article 35 of the First Draft Constitution provides for “Freedom of religion and conscience”:
(1) A person has the right to freedom of conscience, religion, thought, belief and opinion.(2) A person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, observance, practice or teaching.(3) Clause (2) does not extend to- (a) anti-Christian teaching and practice; (b) propaganda to incite religious wars; and (c) any conduct that infringes the enjoyment of religious freedoms by others.
This is one of the more problematic ones. Clause (3) (a) is difficult to interpret. What is “anti-Christian teaching and practice”? It would be better to rephrase / delete this bit because it is superfluous, given Article 9, and also as drafted it appears contradictory to Article (1). Christian teaching always encourages intellectual challenge. What must be avoided is inciting religious hatred which presumably is what (c) is all about.
Article 37 provides for “Access to information”:
(1) A citizen has the right of access to- (a) information held by the State; and (b) information that is held by another person; which is lawfully required for the exercise or protection of any right or freedom.(2) A person has the right to demand the correction of untrue or misleading information recorded or published with respect to that person.(3) The State has the obligation to publicise any information that is in the public interest or affects the welfare of the Nation.
This is the “freedom of information” clause which lazy journalists have have been calling for. To ordinary citizens it will have zero practical effect. Many can't even get Government to respond to simple pension queries, what more information they don't want to release? We should always remember Government is ultimately funded by tax payers.
The right is necessarily qualified elsewhere e.g. where release of such information damages the public interest presumably it can’t be released. The Courts of course would be the final arbiter. Whether the Executive or Judiciary are best placed to judge the public interest is always a matter of much debate.
It would be better if this was not in the constitution, but taken forward by separate legislation so that such issues can be more clearly delineated. As currently set out it is hostage to fortune and ultimately expensive. These are foreign laws that work best for developed countries. Its not a priority for Zambia.
Article 38 provides for “Freedom of Media”:
(1) Freedom and independence of electronic, print and other types of media is guaranteed.(2) The State shall not- (a) exercise control over, or interfere with, any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or (b) penalise any person for any opinion or the content of any broadcast, publication or dissemination.(3) Broadcasting and other electronic media shall be subject to licensing procedures that are - (a) necessary to regulate signals and signal distribution; and (b) free from political or commercial interference.(4) All State-owned media shall- (a) be free to determine independently the editorial content of their broadcasts or communications; (b) be independent and impartial; and (c) afford fair opportunity for the presentation of divergent views and dissenting opinions.(5) Parliament shall enact legislation to give effect to clause (3).
Clause (4)(a) presumably eliminates the need for state-owned media. What is the point of having state-owned media if the Government can not set its objectives and define how well it meets those objectives? An independent Government owned media is an oxymoron. The owner will always control the content because the appointing authority is always able to exercise authority by shifting chairs and resources.
Also, Clause 5 is very strange in omitting reference to clause (2). It would be good if Clause (5) was redrafted to read: “Parliament shall enact legislation to give effect to clauses (2) & (3)”. Then we can really be clear that the oxymoronic independence is real rather than an impossible aspiration.
Article 41 on “Right to assemble, demonstrate, picket, lock out and petition”:
“A person has the right, peacefully and unarmed, to assemble, demonstrate, picket or lock out and present petitions to public authorities”
Does that really say, what it appears to say? You are free to “picket or lock out”? The dawn of "Occupy Zambia"?
Article 46 on “Fair administration”:
(1) A person has the right to administrative action that is expeditious, lawful, just, reasonable and procedurally fair.(2) A person whose rights have been adversely affected by administrative action has the right to be given written reasons for the action.(3) Parliament shall enact legislation to - (a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; and (b) promote an efficient public service.
It is difficult to know what to make of this right. On the surface Clause (1) appears impractical because much of the administration in Zambia is slow, unreasonable and usually procedurally unfair.
Equally odd is that Clause (3) appears to suggest the only form of recourse is Parliament constituting a tribunal. So it would appear at the surface to have no real practical effect.
Clause (3) should be redrafted to include an obligation on Parliament to enact legislation that ensures penalties for failure in meeting Clause (1) related issues.
Article 48 on “rights of suspects and arrested persons”.
Subject to Article 68, a person who is a suspect, arrested or detained for allegedly committing an offence has the right to – (f) to be brought before a court - (i) within forty-eight hours after being arrested or detained, or to be released on bond or bail; (v) to be tried within ninety days or where appropriate, to be released on bond or bail;
Let the jails open! The Government does not have the capacity to implement clause f(v). Many people are languishing in prisons. The costs of society complying with this provision are huge. We cannot afford this!
It is very desirable to have this in our constitution but just how will it be implemented? A question therefore again must be raised whether the constitution is a right place to have these rights.
Article 52 on “further rights for women” :
Without limiting any right or freedom guaranteed under the Bill of Rights, women have the right to- (f) non-custodial sentences if pregnant or are nursing mothers, except as a measure of last resort for those women who pose a danger to the community.
This is most welcome. We have been fighting for legislation in this area. Again it would be better for this to be done through normallegislation rather than through a constitutional Bill of Rights.
[Article 52(b) gives women the right to change the nationality of their children if in the best interest of their children - what about fathers' rights in this arena?]
Article 54 defines the “Family” :
1) The State shall recognise and protect the family as the natural and fundamental unit of society and the necessary basis of the social order.(2) A person who is eighteen years of age or older has the right to freely choose a spouse of the opposite sex and marry.
Of course in practice what it actually does is define marriage. Marriage can only happen to two people aged above 18 of the opposite sex. Two important implications here. First, the customary law requirements which allows for marriage to happen for people aged 16 is now supplanted. All laws must conform to the constitution. Secondly, it closes the door on non-heterosexual unions.
Article 55 on “Children”.
Every child has a right to be protected from any work that is exploitative or likely to be hazardous or adverse to the child’s welfare.
What does it mean for those many children lining up our roads selling vegetables and chicken on the side? Who will enforce this right?
Clause (5) (g):
“Every child has a right not to be subjected to corporal punishment or any other form of violence, or cruel and inhuman treatment, in the home, school and any institution responsible for the care of children”
This prevents beating your child at home? Presumably much discussion will be had on the definition of “corporal punishment”.
Clause (5) (j):
“Every child has a right not to be incarcerated on account of the mother’s incarceration”
A welcome change. There’s much to be said for this move. But including it here means resources must be ready at the get go! We are far from that at present.
Clause (5) (m) (v):
“Every child has a right not to be detained or imprisoned, except as a measure of last resort, in which case that child has the right to be tried in a Juvenile Court”
A great idea but we have no juvenile courts. What will happen? Much work is needed.
“Children with special needs, orphans, a child whose parent is in prison, children with disability, refugee children and homeless children or children living or who spend time, on the streets, are entitled to the special protection of the State and society”.
The special protection in view here is one which encompasses their overall wellbeing. In short they are supposed to be looked after!
This effectively means there should be no child languishing on the streets. A worthy declaration that unfortunately again is undeliverable.
There’s a sense in which the approach in the Constitution envisages a large welfare estate. The role of BIG GOVERNMENT looms large. Not that there’s anything wrong with big government per se. In fact development theorists agree that in the early stages of the development process there’s a greater role for government to play in aiding the process. The problem with the approach in the current constitution is that enshrining big government within a constitution is hostage to fortune.
The other problem is that in critical areas such as this, group responsibility is not as well emphasised as it should. The trouble with a stronger focus on individual rights is that it leads to not only Government enforcing them, but also fill in the gap where such rights are present. The current constitution is devoid with clear responsibility for families and communities looking after their own. The result is a largely expensive Scandinavian constitution.
Article 58 on “persons with disabilities”:
(1) “Persons with disabilities are entitled to enjoy all the rights and freedoms set out in the Bill of Rights and shall have the right to – (b) access to physical environment, information and communications, public facilities and services, places and transportation;….(i) social security and protection”
There are two issues. The first is that this calls for quite substantial considerations to be given in all spheres of life where services are provided to the disabled. For example, it means when a road improvement is being made, the road infrastructure has to take disability access into account. Similarly, buildings have to be designed in such a way, etc. It is noticeable that this is not restricted to the public sector. The costs could be quite staggering.
The second issue is “social security and protection”. This implies again the idea of a large social welfare system run by Government and funded by tax payers. We should work to help those who are vulnerable, but promises social security may be too much to put in a constitution. Again normal legislation would seem to be the way forward here.
Article 61 on “progressive realisation of economic, social and cultural rights” :
Clause (3): “Where a claim is made by the State that it does not have the resources to implement a particular economic, social and cultural right– (a) it is the responsibility of the State to show that the resources are not available; and (b) the Constitutional Court shall not interfere with a decision by the State concerning the allocation of available resources solely on the basis that the Constitutional Court would have reached a different conclusion”
Taken at face value this implies that many of economic and social rights listed under Articles 61- 67 are therefore purely theoretical because it is very easy for Government to show it is broke. So what then is the point of these economic and social rights?
Article 63 on “economic and social rights”.
Clause (4): The State shall - (a) promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage; (b) recognise the role of science, technology and indigenous technology in the development of the Nation; and (c) support, promote and protect the intellectual property rights of the owner, or the people of Zambia.Clause (5): Parliament shall enact legislation to- (a) ensure that communities receive compensation or royalties for the use of their biological knowledge, medicinal plants and cultural heritage; and (b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics.
Presumably clause (4a) effectively signals Government subsidies for all things traditional especially traditional ceremonies. How else would they be promoted if they are not kept running through tax payer money? Imagine you are a chief and you are aware of this clause, you may even be tempted not to hold your festival until Government pays you. May be Parlimanent will specify differently what "promote" mean!
Many will welcome clause (5) given many documented loses of traditional knowledge. We continue to see traditional knowledge collected and appropriated without little benefit to our people. A typical example is the case of the maheu drink. The Zambian scientist (Bernard Chishya) who "invented" the drink actually got the idea of maheu from Magoye where the local people use a root called mahaabe. He then identified the type of enzymes it contains. To his surprise he found out that a similar root called chifumfula was being used in Chieftainess Nkomeshya’s (Chongwe District). Dr Chishya then engaged engaged an elderly woman from Chieftainess Nkomesha’s area who brewed the maheu drink. After the laboratory analysis of the brew, an alternative technological know-how was developed and the patent was sold to Trade Kings. In short, all Dr Chishya did was identify the type of fermentation that went on in the drink
What is sad of course is that not only are these ideas stolen from rural dwellers, they are also often stolen from the country with the knowledge going abroad. Zambians usually only come to enjoy the end product (e.g Amarula). More pointedly, despite being custodians of such knowledge, in many instances local people and chiefs have not benefited. This knowledge has largely been exploited and our people’s knowledge is being appropriated without benefit.
These problems largely stem from the failure of government to put in place a coherent policy on traditional knowledge. There’s significant poor coordination among major players involved in the process of realising this policy area. A clause in the Constitution won't solve these issues. A national framework policy on indigenous knowledge and other issues is a better way of ensuring that these important issues are addressed.
Article 67 on “Environment”.
“A person has the right to a clean and healthy living environment”
This would be a case where “Article 61” would be used often to argue that it is expensive to clean up. On the flip side, in recent times we have court cases successfully settle claims. The right to a clean environment is therefore already recognised in law. If people suffer damage they can be compensated. So what value does it add here as a standalone statement?
Article 73 on the “Human Rights Commission”:
(1) There is established a Human Rights Commission which shall have offices in all the Provinces and progressively in the districts.(2) In the performance of its functions, the Human Rights Commission shall be subject only to this Constitution and any other law, and shall not be subject to the direction or control of any person or authority.(3) The Human Rights Commission shall be responsible for ensuring that the Bill of Rights is upheld and protected and for such other functions as may be specified by or under an Act of Parliament.(6) Parliament shall enact legislation to provide for the functions, composition, appointment of members, tenure of office of members, procedures, operations, administration, finances and financial management of the Human Rights Commission.
There are two immediate problems here. Clause (3) seems to allocate responsibility to the HRC of ensuring the Bill of Rights is protected, but just how will it do that? Will it bring forward prosecutions? It is unclear, especially since it depends on future legislation. Multiple prosecution streams of course undermine DPP powers and therefore are usually discouraged.
Clause (6) basically kicks the HRC in the park. At present there’s no guarantee the HRC will be independent because it all depends on the legislation Parliament takes forward down the line. This is interesting because the push for reform has been for greater independence, and yet here, on a crucial body, such independence is not immediately affirmed.
Article 74 establishes the “Gender Equality Commission” :
(1) There is established the Gender Equality Commission.(2) In the performance of its functions, the Gender Equality Commission shall be subject only to this Constitution and any other law, and shall not be subject to the direction or control of any person or authority.(3) The Gender Equality Commission shall be responsible for ensuring that gender equality is attained and mainstreamed in public and private affairs and structures, and for such other functions as may be specified by or under an Act of Parliament.(4) The Gender Equality Commission shall, in the exercise of its functions, have power to – (a) monitor, investigate, research, educate, lobby, advise and report on issues concerning gender equality; and(b) take steps to secure appropriate redress in complaints relating to gender equality.(5) The expenses of the Gender Equality Commission, including emoluments payable to, or in respect of, persons serving with the Commission, shall be a charge on the Consolidated Fund.(6) Parliament shall enact legislation to provide for the functions, composition, appointment of members, tenure of office of members, procedures, operations, administration, finances and financial management of the Gender Equality Commission.
Not sure what this is designed to achieve.
If the issue of gender is one of human rights as indicated in prior articles, then what is the purpose of a Gender Equality Commission? If it to do with empowerment then why can't that be done by the relevant ministry? This appears to be an attempt to pandering to certain groups! May be we need a Children's Commission? Why not a disabled one? Why not one for the youth? This is folly.
Article 74 establishes the “Franchise” (VOTING AGE) :
"A citizen who has attained the age of eighteen years is entitled to be registered as a voter and vote in any election by secret ballot"
This is one issue that has always baffled me. The current position is actually inconsistent. You can be taken to prison for murdering someone at the age of 7 (10). You can currently marry if your parents allow you at the age of 16. You can work, well as soon as you are ready! But you can’t vote until you 18. The real question of course is on what basis is the voting age set at 18?
A more serious problem is that keeping the voting age at 18 instead of reducing it to 16 gives the impression to young people and to the rest of society that young people's views are not valid and young people are not real citizens. This all serves merely to perpetuate a society of the old. In Zambia many of the youths are not having a say in the democratic process and it is not surprising that youth unemployment remain high! There’s a strong case for poor countries with low life expectancy reducing the voting age to 16.
The usual reason against reducing the voting age is that young people are ignorant. But if that is the reason, why not educate them more? Repackage the education so that they are better equipped citizens.
At the end of the day of course this is about morality. Denying 16 and 17 year olds is actually no different from the denial of the right to vote for Africans under colonialism. It is strange therefore that the old guard who were not unable to vote freely under colonial rule, now keep many of our young people outside the electoral system. The practice was wrong then, and it is wrong now.
Article 74 on “Electoral systems” :
(1) Elections to the office of President shall be conducted directly on the basis of a majoritarian system where the winning candidate must receive not less than fifty percent plus one vote of the valid votes cast and in accordance with Article 99.(2) Elections to the National Assembly shall be conducted under a proportional representation system where a candidate is elected from a multi-member constituency in an Electoral District, in accordance with Article 135.(3) Elections to district councils shall be conducted under a first-past-the-post system in accordance with Article 214.
The pros and cons of 50% + 1 are well debated and known. The issue of PR for MPs will be discussed later in our ongoing review. There are big problems around constituency offices and knowing your MP. We also have more parliamentarians than currently. We shall come back to this.
The immediate concern under this article is that district councils will NOT move to proportional representation. Which begs the question – why have PR for National Assembly but not for Councils? What is the rationale?
Article 77 provides for the “Electoral Process” (DIASPORA VOTING):
Clause (k) is particularly interesting:
Parliament shall enact legislation to regulate elections and provide for – (k) special arrangements to enable the following persons to vote: (iv) citizens living outside Zambia
A clear expectation is implied that Zambians abroad will vote, but who precisely, how and when is up to Parliament. In theory of course with the Constitutional Court – if Government fails to bring forward legislation in this area presumably it would be in breach of the Constitution. So that would answer the “when” – which is as soon as possible to avoid the legal squabbles.
However, this does not answer the question of the mode through which such voting takes place. It is interesting the wording in no way implies that the diaspora citizens must vote where they live. It simply says citizens living outside Zambia would be able to vote. Which presumably is the case at present. Nothing stops someone outside Zambia voting, except an airfare. Which is actually minimal if people organised their general trips to Zambia to coincide with the vote. In some countries of course, they pay you to travel to your place of your ancestors to cast the vote. In other countries you vote where you live.
It should be noted, that at present there does not appear to be any reason why ECZ, if it had money can’t collect votes from abroad (its one for the lawyers). In the past it has argued mainly on financial grounds that it couldn’t do so. In that sense, the difference between current law and the new Draft is the constitutional force given, subject to new legislation by Parliament.
The big question of course has never been addressed. Should members of the Diaspora vote at all? In short, does diaspora voting make philosophical and economic sense?
The NCC rejected the idea on “financial grounds”. It rejected Mung'omba’s suggestion that ECZ should ensure that "facilities are available for citizens living abroad to vote". The argument being it is not necessary and it is a waste of scarce resources. Alternatively, if the Diaspora want to vote, they should fund the exercise. Others have rejected it on corruption grounds. If voting takes place at embassies, can such embassies be trusted? The Foreign Ministry is regarded as extremely corrupt and run by party cadres. Few would trust any electoral outcome that is held at any of our embassies. In short, voting for voting sake appears not socially optimal.
A more powerful argument against diaspora voting is the philosophical one: should people be shielded from the direct consequences of that voting decision? Zambians abroad may have pride and attachment to Zambia, but their voting decisions won’t affect their everyday life e.g. jobs, children's education, health. They don’t bear the cost of the electoral outcome in a direct way and therefore allowing them to vote may produce sub-optimal outcomes. The issue is that because of their location (outside the country), they're not really part of the "community". They may have different priorities or may not have a clear idea of the consequences of their choices. This is easily proved by checking what Zambians abroad mostly complain about on various websites. It’s things like “look at the airport”, and “potholes”. Not exactly bread and butter issues - or is it chisense and salad?
The counter arguments are many. Including that the obvious point that the fact that the diaspora would not bear the consequences of their decisions may not necessarily be a bad thing. Zambians abroad are more educated on average than Zambians at home. They have more information. They are also beyond the catchments of “commodification of politics”. Not easily corrupted by Zambian politicians because their reservation price may be too high. All these things points to potential for more informed electoral choices relative to Zambians in Zambia – in some critical issues, but clearly not! More importantly the issue is not about incentives but fundamental rights to citizens. So some diasporans have strong argued they should be accorded every opportunity to vote on this basis!
Article 79 provides for “Access to media” during elections:
(1) A political party, an independent candidate and a person contesting for councillorship shall have equitable access to public and private media generally and during election campaigns.(2) Parliament shall enact legislation to give effect to this Article.
It is easy to justify "equitable access" to PUBLIC media, but compelling PRIVATE media to cover parties in the name of fairness is wrong. Say you are NAREP and decide to fund a newspaper that becomes popular, it would be foolish and unfair to then expect that newspaper to cover PF at election times.
Clause (1) should therefore be redrafted without "private". In fact private media should be free to endorse candidates and discourage those who they don't like. Government policy should focus on ensuring a competitive landscape in the media market not introduction of meaningless clauses.
What many people don't realise is that a free private media also means a private media free to be biased whichever way it chooses and at whatever time.
Article 83 provides for “Electoral Commission of Zambia”.
Two clauses appear interesting:
(2) The Electoral Commission shall be national in character, non-partisan and be composed of – (a) persons who have held or qualify to hold the office of judge; and (b) representatives of civil society organisations as specified in an Act of Parliament(6) The President shall appoint the members of the Electoral Commission, on the recommendation of a committee established under an Act of Parliament, subject to ratification by the National Assembly
Clause (2) is worrying. It appears to suggest that for one to be on the Commission they either have to have been a judge or a member of NGO. Now why these qualities? Are all learned people in Zambia only judges or members of NGOs? This is unnecessary discriminatory.
Clause (6) is very convoluted. The process appears to be as follows:
An Act is passed in Parliament that sets up a Committee – no one know who sits on that Committee or whether the Committee is made up wholly of Parliamentarians – we don’t know!
Then, the Committee recommends the person to the President – at this point the President can keep refusing until he gets his man or woman. Once the President and the Committee agree on a name, the President appoints the person subject to Parliamentary ratification. Except Parliamentary ratification is meaningless if the Government has a majority. That's the saving grace.
A better approach may be for the ECZ Act to be drafted in such a way that all positions are held through open competition by professional people. Such a "job competition" could be run by one of the Parliamentary Committees. It is not clear why the President must have appointing powers in this area. The case has not been made.
Article 84 provides for “Delimitation of multi-member constituencies and wards”
Clause (1) provides for “multi-member” constituencies :
"The Electoral Commission shall determine the names and boundaries of Electoral Districts, multi-member constituencies and wards"
At this point it helps to note that this new idea means that new boundaries will be needed. ECZ would also determine how many MPs per constituencies.
The constitution does not specify the number of constituencies. It specifies the number of MPs, but notes that they must be “multi”, which means more than one MP per constituency. Presumably given Article 136 specifies 200 MPs then in theory we are looking at no more than 100 constituencies or may be even 50.
Not sure what this re-organisation aims to achieve. But we know the idea is American where they have 2 senators per state. That of course is among the many American ideas that underpin the draft.
Article 87 provides for “representation of gender, youth and persons with disabilities” in political parties:
(1)A political party shall ensure that in nominations for elections there is equitable representation of each gender, persons with disabilities and the youth.(2) Parliament shall enact legislation to give effect to this Article.
Is there really any point in having this in the constitution? Isn’t it up to political parties to decided what their parties should look like? If someone wanted to have a party only of old people, what is wrong with that? At the end of the day, the party will always gravitate towards where society wants it to be as it searches for votes. The goal again should be to improve political competition, not legislate for representativeness!
Although a case can be made for parties to have a "national outlook", whatever that means, legislating for that simply shows that people still do not understand what is key to ensuring a thriving political system.
Article 87 provides for POLITICAL FUNDING:
"Parliament shall enact legislation to provide for- (c) the establishment and management of a Political Parties’ Fund which shall provide financial support to political parties with seats in the National Assembly"
This is one of those key PF promises in the manifesto. But it is wrong and misguided. I do not think political parties are public goods because there are no incentive problems in having one. Zambia has too many political parties, so why give them money? It is immoral to expect poor people to subsidise failed politicians who are also corrupt. What exactly is the problem which this proposal is designed to solve?
Article 87 provides for limits on CAMPAIGN FINANCE and FINANCIAL AUDIT:
Parliament shall enact legislation to provide for- (d) the limit of money to be used for campaigns during elections; (e) the accounts and audit of political parties which are funded under the Political Parties’ Fund;
(f) the submission of audited accounts as may be prescribed by an Act of Parliament; (g) the sources of funds for political parties;(d) is not necessary if you have (f) and (g). There’s no reason to limit money being spent on campaigns if the source of that money is legitimate. Some may say it is unfair, but the only thing unfair is that a very attractive party is prevented from utilising the full resources at its disposal because it will be make the unattractive party look bad. In any case, clause (d) does not appear easily enforceable.
What we need is a Political Parties Funding Act – we don’t need these provisions in the constitution. They lay down misguided principles without full debate on areas. Some poor things will be included just because we don't want the whole package to fail.
The reading of the constitution so far is that it too bloated!
Article 92 provides for “Ratifications by National Assembly”.
(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 National Assembly refuses or delays to ratify any appointment, 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 or delays to ratify the second appointment, the President shall appoint another person to the office and submit the appointment for ratification by the National Assembly.(4) Where the National Assembly refuses or delays to ratify the third appointment for a period of more than fourteen days, the appointment shall take effect.
There's a principle in game theory we call the "chainstore paradox". 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 up 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. 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 gets his man!
Is there a way out?
Yes! The nomination game should be indefinite for many provisions except a few. That of course was rejected by the NCC without explanation, and that also appears to be the view of the technical committee. 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 Technical Committee do not see the folly of what they have 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
Article 97 provides for qualifications for presidential candidates :
A person qualifies to be nominated as candidate for election as President if that person –(a) is a citizen by birth or descent;(b) does not have dual citizenship;(c) has been ordinarily resident in Zambia;(d) is not less than thirty-five years of age;(e) has obtained, as a minimum academic qualification, a grade twelve certificate or its equivalent;
The list goes up to (l). But the above are the areas of primary interest.
Clause (c) is an improvement on a previous clause that specified a period of 10 years minimum. Unfortunately, it is not clear what “ordinarily resident” means. This should be deleted. If you are Zambian and believed to be, why does it matter where you live?
It should also be noted that clause (e) is a new addition to the NCC draft, which had dropped education requirements for presidents completely after the public outrage. It appears that the powers that be are comfortable with Grade 12 certificates.
Clause (b) is understandable, but it can be improved. I believe the provision should actually allow "dual citizens" to become presidential candidates, but as a compromise ask them to give up alternative nationality if they chose to stand. This could be made clearer!
But the BIG ISSUE is that the approach to issue is all wrong. It is my view that provisions (a) and (b) should be the only requirements for standing as a presidential candidate. I hold this position for four simple reasons.
First, provisions of (b) – (l) qualifications are predicated on the elitist notion that apart from a few, many Zambians are foolish people. It is not necessary to have these provisions for presidential candidates unless you believe Zambians are not capable of distinguishing a good candidate from a bad one. Those of us who continue to believe in the decency of our people hold that Zambians are perfectly capable of distinguishing whether a person who is below the age of 35 (like me) is able to govern the country. Equally they able to distinguish whether a person who has stayed out of the country (e.g Clive Chirwa) sufficiently understands their problems. Zambians are not as foolish as the Technical Committee thinks we are. They can tell a good candidate from a bad one. So why do they need "protection" by these clauses like they were a little child? Isn't the voting age enough?
Secondly, the provisions lack clear positive rationale. Consider the provision of only people above 35 qualifying to stand – what is the rationale that figure should be 35 and not 30 or 40? Why have we settled on 35? Is this based on Tumbuka or Bemba traditional understanding of a capable adult? Incidentally, has anyone checked the life expectancy of typical Zambian?
Thirdly, it is discriminatory to legitimate and law abiding Zambians (it creates a two tier society). I find it puzzling that our constitution could discriminate based on age? Having noted that Zambians would never really vote for a 18 year old, I find it strange that we explicitly discriminate against one! Interesting we see nothing wrong with being governed by 70 or 80 or 90 year old. At least we are consistent with current practice! Similarly, I find it strange that on the one hand we want to encourage people to study abroad and bring back their knowledge, while we are pushing forward provisions that discriminates them based on their aspirations – by insisting on “ordinarily resident”. Does this really make sense to anyone?
Finally, it reduces the pool of good presidential candidates. The purpose of elections is to allow the best candidates to emerge and help manage the affairs of the country. Elections perform this function through fostering competition. The more qualification provisions we have the smaller the pool of quality candidates. The current provisions do not enhance competition, they reduce it. They appear deliberately designed to remove certain candidates in much the same way the now abandoned “education” provisions were intended to.
I would end by noting an obvious point which seems to have escaped the Technical Committee. As a country we need to focus on provisions that alter behaviour in a positive way without reducing the choices of others. People should always be free to stand as presidential candidates and form as many parties as they like as long as tax payers don't have to foot the bill for them. What is important is to ensure that voters are fully informed and presidential candidates are operating within a contestable electoral system. The draconian restrictions being proposed in the current draft do not only make a mockery of our people but they are against the very nature of freedom and justice on which the Preamble is predicated.
Article 120 on Ministerial Appointments:
(1) The President shall appoint not more than twenty-one persons as Ministers who are qualified to be nominated as Members of Parliament.(2) The President shall appoint Ministers from persons who are not Members of Parliament.(7) A Minister shall only attend the sittings of the National Assembly where it is necessary for the performance of a particular function specified under this Constitution or any other law or when required to do so by the Speaker, and the Minister shall, while in attendance in the National Assembly, take part in the proceedings of the National Assembly but shall have no vote.
The upper bound for Ministers is welcome, as is the abolition of Deputy Ministerial post.
The appointment of Ministers who are not members of Parliament helps the President bring in external talent, but makes for difficult choices for people. Someone has to be promised a job as Minister before they decide not to be on the party list as a Parliamentary candidate. It also reduces the pool of good candidates for Ministerial positions. One would have thought most MPs are "tested" politically. The idea of a non-elected Government minister is also quite troubling. There's a sense in which they lack derived legitimacy except that conferred on them by the President. If we are going to have such, presumably they should be ratified by Parliament?
The big thing missing – the Minister does not have the clause which is available for President, VP, Speaker, Judges, etc. In the case of the VP it says : “the Vice-President shall not hold any other office of profit or which pays emoluments”. In other words you can’t be a VP and run your own company. But in the case of Ministers – you can! How so? I believe Ministers should not running companies and be ministers at the same time. It creates too strong a conflict of interest.
Article 122 on “Parliamentary Secretaries” :
(1) The President shall appoint not more than eleven persons, as Parliamentary Secretaries, from amongst the Members of Parliament who are members of the party in Government.(2) A Parliamentary Secretary shall be responsible, under the direction of the Vice-President for - (i) the Government’s parliamentary business in the National Assembly, Ministry or State institution; (ii) overseeing the implementation of Government’s policies by a Ministry or other State institution; and (iii) such other functions as may be assigned by the Vice-President.
This proposal establishes the Parliamentary Secretary role and abolishes the role of a Deputy Minister. The aim appears to be two-fold: having someone in the Ministry that liaises directly with Parliament; and, also to give the Vice President a job! Under this system all the PSs report to him.
It is a bizarre arrangement. The idea of a PS is good as an additional minister but it is not obvious why they are proposing to abolish the deputy minister role completely. It seems to me that you need a PS but equally you need more political deputy ministers to do the running of the minister. What we need are fewer ministries but more deputies.
It is also not clear why a maximum of 11? Why not 10 or 9 or 15? Where do these numbers come from?
Article 136 establishes a new composition for the national assembly:
(1) The National Assembly shall consist of-(a) two hundred representatives, or as may be prescribed, holding seats from the multi-member constituencies;(b) the Speaker; and (c) the First and Second Deputy Speakers.
Article 135 has already defined a new electoral system which is basically “open list proportional representation system”, where a vote for a candidate on a ballot paper is a vote for the party on whose list the candidate appears. Seats which the “multi-member” constituency are allocated based on the proportion of votes.
The big question here is how big the multi-member constituencies are. That will be up to the Electoral Commission of Zambia. It is a big question because the larger the constituencies the less likely that independents will ever get elected, since they would need to campaign across the wider area than at present, on limited finances. Also the larger the area the less connection the represents will have to the area.
The parliament will actually be larger than 200 because it will also have Ministers who will be nominated to Parliament but will not vote but will still be able to debate. So at present we are moving from 158 MPs (MPs + 8 nominated ministers) to 221 MPs (MPs + 21 nominated ministers).
The cost of this could be quite high – my guess is that each MP costs about K120m annually. I’ll leave others to verify that and do the maths.
The Technical Committee need to produce an Impact Assessment of this Constitution. We should demand that Zambians know the full cost annually that will be induced by the constitution. We need to know how much we are taking on annually.
Article 160 provides for the public’s “right to petition” :
(1) A citizen has a right to petition Parliament to enact, amend or repeal any legislation.(2) A citizen may make comments on any deliberation, statement and decision of the National Assembly.(3) Parliament shall enact legislation to regulate the manner of petitioning and commenting referred to in this Article.
This article is designed to encourage the public to get involved in shaping legislation directly. This is welcome but this appears to be an empty Article with no clear framework in mind. Two issues illustrate this.
First, under Clause 3 – Parliamentary legislation appears to relate to the “the manner of petitioning and commenting”. It should be clear that such legislation must deal with putting appropriate mechanisms for petitioning parliament. Right now it is a nightmare to petition parliament directly. There are lessons that can be learnt from other countries on this. It is vital that such legislation set benchmarks for performance.
Secondly, how will Article 160 be enforced? Is this just a theoretical right that will have no practical effect? If we petition for a new law to Parliament, assuming a democratic and accessible process is developed, what happens if nothing happens? How will Article 160 result in tangible citizen driven participatory democracy?
So it appears that a cardinal aspect of bringing Parliament closer to the people is the least thought through of all the clauses.
Article 183 provides for the “Appointment of judges” :
The President shall, on the recommendation of the Judicial Service Commission and subject to ratification by the National Assembly, appoint the – (a) Chief Justice; (b) President of the Constitutional Court; (c) Deputy Chief Justice; (d) Deputy President of the Constitutional Court; (e) President of the Court of Appeal; (f) Deputy President of the Court of Appeal; and (g) other judges.
This Article is of course in existing constitutions but here it specifically includes the new “constitutional court”. The goal of this provision is to ensure judicial independence – but not too independent that judges become a law unto themselves. In other words the three branches of government (executive, legislature and judiciary) are meant to convey legitimacy on one another.
Unfortunately, here it appears the Technical Committee has played another trick. The Technical Committee would argue that the above article maintains the independence of the judiciary for two reasons. First, the Judicial Service Commission comes up with the original candidates, which the President selects. Secondly, Parliament always has the final say through the ratification process. But both of these points are misleading.
The Judicial Service Commission is more or less appointed by the President under Article 194 because the chair and many of the players listed are appointed by him. There are one or two exceptions, but it is fair to say in totality the Judicial Service Commission will be a political beast. Interestingly under Article 194 there’s no ratification of the Judicial Service Commission Chairperson! The President just appoints him or her.
The other point is that the idea of parliament having a final say is a joke. The president’s choice of judges will always be approved by parliament due to the “chainstore paradox” which we have previously flagged up. As we continue to note, 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. Here we see that sadly the Judiciary is not protected.
These challenges are not impossible to overcome. One obvious way to strengthen the appointment process is to remove presidential discretion over the Judicial Service Commission. The other point would be to make it clear in exercising its functions, the JSC should be guided by the need to ensure competitiveness and transparent processes of appointment of judicial officers and other staff of the judiciary. This would essentially mean all the choices they recommend to the President would be based on open competition.
Article 185 provides for the “tenure of judges” :
(1) A judge shall retire from office on attaining the age of seventy-five years and may retire with full benefits on attaining the age of sixty-five years.(2) The Chief Justice and the President of the Constitutional Court shall hold office, as such, for a period of not more than ten years and may thereafter continue as a judge of the Supreme Court or Constitutional Court until retirement under clause (1).(3) A person who has retired as a judge shall not be eligible for re-appointment as a judge.
This provision sets the judicial tenure of judges at age 75 years up from the current 65 years. That presumably is as close as to “life tenure” as one can get. The idea is that this would make judges more independent, since they will be in the job for a very long time.
It is a progressive development, but care must still be exercise to ensure judges perform accordingly. The problem with having “life tenure” or close to it, as proposed, is that it could make judges too independent and unresponsive to what society rightly regards as a correct balance. Judges may even be more lazy and continue playing lost of golf with relatively higher wages. Organisations like the Law Association of Zambia would become our de facto masters. By increasing tenure we may simply replace Ministerial influence with a powerful cartel of unchecked interests. We would swap the treason of the Executive with the treason of judges.
The way to deal with this danger is to ensure have robust process for judicial appointments. If Judges are going to be for 40 years plus, there must be checks and balances at the point of appointment. Let us have something akin to the American system where judges go through open scrutiny, particularly in relation to Supreme Court and Constitutional Court judges.