ZAMBIAN CONSTITUTIONAL AMENDMENT BILL No. 10

Introduction

What is Bill.10 and why is it causing so much noise? I am going to try to explain as accurately as I can from the perspective of a Constitutional Law student. Unfortunately, the attitude that most Zambians have towards such matters is “Let the intellectuals handle it, our job is only to vote”. Not to sound cynical but that point of view is dangerous as it is poisonous.

Another reason to take interest in this issue is that the Constitution is a document of the people. It’s our document to put it more accurately. That is why it is stated in its preamble

“We, the people of Zambia, hereby give unto ourselves this constitution.”

What is a Bill?

You know, when I first heard this word, I immediately thought of an electricity bill. Initially, I thought people were arguing over an electricity bill because of the Zambia Electricity Supply Corporation Limited (ZESCO) load shedding. My lack of Civic Education was clearly evident. So, your confusion is shared and you should feel at home because you are in the right hands.

Contrary to what I previously thought, a bill is not a nudge urging you to pay some company what is due to them. However, Constitutional (Amendment) Bill No.10 is as problematic as the ZESCO bills. Both of them are products of the same bitter drink of poor leadership that has plagued Zambian politics since the days of President Banda.

So, just to clear the air, a bill is simply a proposed law. Supposing parliament wants to make a law that prohibits the drinking of alcohol, (I know, that can’t happen), they will create what is known as a bill. This bill will then be debated in parliament and if it manages to pass through all the necessary stages, it will become law upon its assent by the president. Bills come in three types: Government Bills, Private Members’ Bills and, Private Bills. Government and Private Members’ Bills are called public bills because they affect the public. An example of a public bill is Constitutional (Amendment) Bill No.10. Now, a Government bill is presented by a Government minister. In this case, Constitutional Bill (Amendment) Bill No. 10 was presented by the Minister of Justice, Honorable Given Lubinda. So, when the government argues that they didn’t propose Bill No.10, that’s a lie because this proposal came directly from the cabinet.

A DIVE INTO HISTORY

Before I give you my analysis of the Constitutional (Amendment) Bill No. 10, I think we must take a little dive into history. It’s with a heavy heart that I have come to realize that Zambia has been looking for a people-driven constitution since the days of independence. However, for some reason, the dry bones in the valley have never become flesh. Previous governments have misused their political power to create amendments to the Constitution that best serve their interests. It’s almost as if every government that comes into power looks at the Constitution as a permission slip, not as a document of the people.

Our dive into history begins with Zambia’s first Constitution which is also known as the Independence Constitution. The Independence Constitution was a document that was put into effect by an Order-in-Council of the British Parliament at Westminster. It had put a lot of power in the President. In fact, it could be safe to conclude that the functions of Governor of Northern Rhodesia (as Zambia know before 1964) were effectively passed down to that of the President. This overwhelming power of the President is still present in the Constitution we have today. In 1969, there was an amendment to individual rights which gave the government powers to nationalize private companies. Then came the famous 1973 Constitution which made Zambia into a one-party state. History teaches us that this decision wasn’t made because of the people’s will but rather it was put in place to secure the ruling party’s hold on power and to silence political opponents. The 1973 Constitution came into force upholding some of the recommendations of the Chona Commission while rejecting others. This commission recommended that the creation of a prime minister, who would be the official leader of government business in parliament and also shared some of the executive powers of the president. Not surprisingly, the government of the day accepted the idea of a prime minister but quite blatantly refused to share some of the executive powers.

Not everything in this Constitution was bad, however. One thing I liked about it was its imposition of the Leadership Code and the office of the Investigator General. These two provisions helped to curb corruption and theft by people in public office. In fact, do you know that when President Kenneth Kaunda left his office, he only had $8,000? This is an incredible achievement given the fact that he was the leader of hundreds of nationalized companies. Politicians of today, not only in Zambia but Africa as well, could do well to learn from this great man. Anyway, I digress.

After the 1973 Constitution, there came the Constitution of 1991 which was amended in 1996. In my opinion, I think that the Constitution as amended in 1996 could have resolved the many constitutional issues of today had the government of the day took the recommendations of the Mwanakatwe commission. This commission was arguably the most extensive of all the commissions that came before it. For example, it was the first to propose the institutionalization of the Constitutional Court. A recommendation that was rejected by the ruling government. It was also clear from the recommendations that the people of Zambia preferred a Constitution to be adopted through a Constituent Assembly. But in contradiction to this proposal, the government of the day adopted the Constitution as amended in 1996 through Parliament. The Achilles’ Heel of the commission, however, was its partisan motivation of restricting the qualifications of Office of the President. It required that both the person and the parents who wished to run for president to be Zambian. This move was clearly politically motivated to bar the former president, Kenneth Kaunda, from returning to politics because his parents were Malawians. Twenty years later after the 1996 constitutional amendment, the constitution was amended yet again. The constitutional amendment of 2016 has received its fair share of criticisms over the years with some claiming that it increased the powers of the president. It’s a common trend in Zambian politics that a constitution can never be amended without some form of political gain to the ruling government and Constitutional (Amendment) Bill no.10 is no different.

What we need to understand is that political gain is only temporary but the effects of constitutional reform can last for several years. Moreover, the history of the constitution cannot be relegated to the sands of time. The lessons are there for us to learn and to learn hard. What most politicians don’t understand is that a constitution is truly a document that transcends time; It will affect our children and their offspring long after we have passed on. In a debate with Judge Steven A. Douglas, Abraham Lincoln once said

“It makes little difference, very little difference, whether Judge Douglas or myself is elected to the United States Senate; but the great issue which we have submitted to you to-day is far above and beyond any personal interests or the political fortunes of any man. And that issue will live, and breathe, and burn when the poor, feeble, stammering tongues of Judge Douglas and myself are silent in the grave.”

Abraham Lincoln- 16th President of the U.S

The constitution will live on for as long as the Republic of Zambia is still on the face of the earth. Meaning that one day, you and I will become subjects of history. The question then that we must ask ourselves is what will our grandchildren say about the Constitution? Will they applaud it as a document that understands their needs or maybe they will come to think of it as a relic of the days gone by. None of us is immortal nor can we secure tomorrow. Who knows what tragedies tomorrow may bring?

The National Dialogue Forum

For onlookers, the legal jargon that is thrown around the Bill. 10 discussions can be imagined to be nothing short of chaotic. Famous Lawyers like Honourable Tutwa Ngulube go on and on about what seems to the general public as a foreign language that no one understands. Don’t worry, this post is here to help. One of the words that gets thrown around and which most people don’t understand is the National Dialogue Forum. To put it in simple terms, the National Dialogue Forum was a forum. Encarta Dictionaries defines a forum as a meeting to discuss matters of general interest. In this scenario, the matters that were under discussion were to amend the Constitution. On 12th June 2018, secretary generals of political parties, chiefs, and other important people were called to the discussion to adopt what they called the Siavonga resolutions. Why the funny name you might ask? Well, its because all of them met in Siavonga and were tasked to come up with ‘resolutions’ to amend the Constitution. A resolution is simply a formal expression of consensus or agreement at a meeting which is arrived at after discussion.  After they had agreed on what they wanted to be in the Constitution, this was later tagged as the Siavonga resolutions. In 2019, Parliament passed an Act to facilitate the implementation of those resolutions called the National Dialogue Act. According to section 4 (1) (a) of this Act, one of its functions was to alter the Constitution based on the Siavonga resolutions. According to Schedule of the Act, there were a total number of 101 institutions and individuals who made their submissions. What is surprising, however, is that one of Bill. 10’s bitterest critics like the United Party for National Development (UPND) and the Law Association of Zambia (LAZ) also filed their submissions in Siavonga. If you read the schedule of the National Dialogue Act, there are clearly listed there. This can mean a lot of things. It could dispel that what came out of the National Dialogue Forum is not what most of those guys wanted. Moreover, if you are going to ask my opinion about this, I would say that how can 101 institutions and individuals represent an entire nation’s say on such a prestigious document as the Constitution? It doesn’t make any sense. Even if this approach was taken seriously, we could still argue that it wasn’t inclusive enough because the average Zambian didn’t even know that there was a dialogue forum in Siavonga. People who support Bill No.10 always say that they made ‘clarion’ calls for people to participate but to be honest, that’s not true. Come to think of it, the sensitization of the public about the referendum in 2016, petty as it was, clearly was more effective than the National Dialogue Forum. I personally came to know of the National Dialogue Forum in an assignment at Law school. Now imagine what a Zambian in Vubwi who can’t read nor write must feel.

Now, I should mention right here that not everything in Constitutional (Amendment) Bill No.10 is bad. There are actually some parts to it that are beneficial. For example, the extension of the time for hearing an election petition in the Constitutional court and some other politically neutral provisions. After all, even the devil has some good old friends in heaven, right?  However, pound for pound and tooth for tooth, this Bill will only make things worse.

Now, let us consider, in more detail the impacts of the Bill on the Legislature, Executive and the Judiciary.

IMPACTS OF THE BILL ON THE THREE BRANCHES OF GOVERNMENT

The impact of the Constitutional (Amendment) Bill No.10 on the Legislature can be described as radical for lack of a better term. If the Bill goes through, the Legislature will invariably lose most of its functions to subsidiary legislation. This type of legislation also includes Statutory Instruments, which could be easily put into force by a Minister. Now, I may not be an expert but I don’t think that’s a good idea. I don’t think we have developed the level of trust high enough to the point that we could trust our leaders to do the right thing with that kind of power. Like I said previously, not everything in Constitutional (Amendment) Bill No.10 is bad. In a debate at the Intercontinental Hotel dated 17th February 2020, Honourable Makebi Zulu had postulated something that I think makes sense. He said that Article 9 of the Bill seeks to amend Article 47 of the current Constitution by replacing a First-Past-the-Post electoral system with a Mixed Member electoral system. What does that mean you might ask? According to Honourable Makebi Zulu, it means that people who ordinarily find it difficult to get representation in Parliament like women would find it easier to secure a seat in Parliament under this kind of electoral system. I believe that’s a good thing…However, I think it would be unwise to just look at this one good thing and base your decision on it. The dark side of the Bill far outweighs the good side. For example, Article 114 of the current Constitution gives the power to Parliament to approve loans and guarantees on loans contracted by State institutions or other institutions (Cabinet included). Article 36 of Bill No.10 removes Parliament’s powers to ratify loans and debt completely. Meaning Cabinet can contract loans indefinitely without any prior approval from Parliament. That’s tremendous power for Cabinet to handle. In the debate I mentioned earlier, Honourable Makebi Zulu pointed out that this particular provision is subject to Article 207 of the current Constitution which has not been touched by Bill. 10. He said that Parliament would still be approving these loans because there’s an Act of Parliament that specifically deals with the accruing of loans by the State called the Loans and Guarantees Act. Now, going back to our dive into history, we all saw that it is easier to repeal and amend an Act of Parliament than the Constitution. All it requires is a simple majority vote. So, again, the ruling party can simply amend that Act of Parliament to suit their interests. Now, coming to the Judiciary, Bill No. 10 seeks to put the Chief Justice in the Constitutional Court. This decision I think would create another problem. What will the powers of the President of the Constitutional Court be in that circumstance? It will mean that he would be subservient to the Chief Justice but then again, how is he going to effectively carry out his tasks? However, like I mentioned earlier, Bill. 10’s approach in extending the days of an election petition is a good thing. But like I have mentioned several times in this post, the bad far outweighs the good. We can’t simply overlook the immense power that will be invested in the Executive. Even if we could argue that the current President would do the right thing and not abuse power, who is to say the next President might be so considerate? Historically speaking, we have failed in this arena and I believe that we would be repeating the same mistakes our forbearers made. The very fact that a President’s power to create or divide a province is enhanced in Bill. 10 is a non-starter.  Article 149 of the current Constitution provides that those powers need to be approved by the National Assembly. However, Bill No.10 says that the power to divide provinces will be as prescribed. Indicating that this matter would fall to subsidiary legislation or an Act of Parliament.

Final thoughts

So, in conclusion, Constitutional (Amendment) Bill No.10 has some good qualities and also some detrimental qualities too. If you were to weigh the good and the bad on a scale, the bad far outweighs the good. This reminds me of the Ancient Egyptians and their mythology. They believed that if a person dies, his heart would be measured on a scale. On one side of the scale would be a feather and on the other, would be the dead person’s heart. If the heart is generally evil, it will outweigh the feather and the Egyptian gods would condemn the person to hell. If the heart is generally good, it will not outweigh the feather and the dead person will be sent to paradise. In the same light, Bill No. 10 is generally not a good law. It has potential to cause tension in our country. The best that we can do is not to completely withdraw the Bill but lobby for the repeal of those specific provisions which are problematic and leave the good ones. This all bolts down to our able-bodied Members of Parliament. If they could just work together for once, it could turn out to be a progressive bill. But judging by our history, working together in Parliament has never really been our forte, and therefore its best to just withdraw the Bill completely. Looking to the future, there’s no doubt that we will continue to look for a people-driven Constitution and I am supremely confident that Constitutional(Amendment) Bill No.10 doesn’t come close to achieving that goal.

DEVOLUTION IN ZAMBIA: A CONSTITUTIONAL PERSPECTIVE

The Constitution of the Republic of Zambia is what is termed by scholars as Unitary. What that means is that its system of governance is centralized and all decisions in effect come from the President and his cabinet. In my few years of law school, I have heard some views saying that the country would do better if it changed to a federal system. By definition, a federal-state is one in which governmental power is not centralized in one entity. But rather it is shared among the semi-autonomous states with a governor as the leader of that state. Examples of federal states are Nigeria, India and of course, the United States of America (I mean, it’s in the name, right?)

States in Nigeria

In an article by the Lusaka Times dated 4th March 2012, Wynter Kabimba remarked that a federal system of government in Zambia wouldn’t work. He cited his reason to be that the population of Zambia is just too small for a federal state. He made his remarks to a response made by Zambia Direct Democracy president, Edwin Sakala, who had called on the government of the day to consider introducing a Federal system of governance. Mr. Sakala’s bone to pick was that under the current system of governance, government resources are not well spread out.

Come to think of it, there is some truth to Mr. Sakala’s line of thinking. However, I agree with Mr. Kabimba when he said that it would be quite an enormous task for the country to change to a federal state. First and foremost, this would mean that the constitution has to be amended (I know right? More drama…) to provide for a federal government and the removal of a devolved system. A devolved system of government is the current type of government system that Zambia has. By definition, ‘it is the delegation by the Central Government to a regional authority of legislative or executive function (or both) relating to domestic issues within the system.’ That’s according to the learned author Mulenga Besa.

In our current Constitution, the system is introduced in Article 147 (1), which says that “The management and administration of the political, social, legal and economic affairs of the State shall be devolved from the national government level to the local government level.”

Although we do have this provision, it is most unfortunate that attention has been paid more to the central government than the local government. It is true that perhaps we cannot afford a change of a complete system of government. But, I think leaders should put more power to the people by empowering the local government.

I was born and raised in Chachacha in the city of Kitwe on the Copperbelt Province of Zambia and during my time here, I have never heard of a councillor or mayor that is, call a meeting when there’s a crisis like an unanticipated shortage of water for a week. People just have to figure out what they will do.  Isn’t that odd?…

Problems like this are rampant on the copperbelt

 It really doesn’t reflect the principles of democracy. There’s no system in place for lodging complaints either and even if they are put forth, it is with a doubtful spirit that I think they would go far.

We shouldn’t blame the people we put in power for this. I think we should blame ourselves. We should really start holding the people we put in office accountable because they are our servants. This principle is as old as democracy itself.

So, in conclusion, I think the people of Zambia should start participating more in the running of this country. Not through politics per se but through accountability and objectivity. For that is indispensable to democracy and the Vigilante Scholar.