A brief analysis of Zambia’s Constitutional Amendment Bill by the Southern Africa Litigation Centre
The Zambian Constitutional Amendment Bill was released for public comment on 21 June 2019. Section 79 of the Constitution provides that a Bill which seeks to amend the Constitution must be published in the Gazette 30 days before its first reading. On the second and third readings the Bill must be supported by two thirds of all members of the Assembly.
Some of the note-worthy amendments to the Constitution proposed in the Constitutional Amendment Bill are highlighted below. There is concern that this most recent amendment reverses progressive provisions in an already existing flawed Constitution.
In the build up to the most recent constitutional amendment, a forum, known as the National Dialogue Forum (NDF), was created through legislation intended to make proposals to amend the Constitution, as well as to resolve the political impasse between political parties. This forum comprised of members of Parliament, opposition parties, civil society organisations, churches, as well as members of the public. What is concerning is that although the forum was enacted by parliament, it only had a life span of ten days.
The current Constitution defines Zambia as a unitary, multi-ethnic, multi-racial, multi-religious, multi-cultural and multi-party democratic State. The proposed amendments would insert “Christian” before “unitary” and delete “multi-religious”. Similarly, whilst the current Constitution states that the national values and principles include “morality and ethics”, the proposed amendment limits this to “Christian morality”. Instead of the National Dialogue Forum having encouraged a more tolerant society, these amendments raise concern that Zambian society will become less tolerant of the rights of minority groups.
The Bill reduces Government’s financial accountability by abolishing parliamentary oversight over contracting public debt, and even goes in so far as to repeal the clause that stated that the permanent secretary is responsible and accountable for proper financial management of public monies, without stating who this responsibility is now given to. The Bill also removes oversight from the Secretary to the Treasury in the formulation and implementation of the macro-economic framework and socio-economic plans of the Country.
In line with the removal of financial responsibility, the Bill sees the creation of the Anti-Drugs, Economic and Financial Crimes Agency. The introduction of this Agency is questionable as there is already an existing Financial Intelligence Center which is created by an act of parliament and is responsible for investigating financial crimes. The Financial Intelligence Centre has been applauded by the public as it is known to be effective, recent reports have even implicated law firms as well as politicians in suspicious transactions. The concern is that the creation of this new Agency will render the Financial Intelligence Center redundant, facilitating corruption. Furthermore, the new Agency is defined as a national security agency, which means that it will be covered by national security laws and thus any information resulting from investigations may be classified. Another unclear amendment is the removal of service commissions from the ambit of the Constitution.
National Assembly, Parliament and the Judiciary
The proposed Bill has stripped the National Assembly of many of its oversight powers and functions, for instance, it repeals provisions in the existing Constitution which previously gave the National Assembly oversight over approving public debt before it is contracted into. The Bill also now gives the President power to enter into international treaties and agreements without the approval of the National Assembly. The Bill even goes a step further by allowing the President to create a province, or divide or merge a province, without any approval from the National Assembly. Removing National Assembly oversight in this manner deliberately concentrates power in the hands of the Executive.
When it comes to the composition of Parliament, the Bill is vague and leaves it to be enacted into legislation, furthermore, the Bill does not stipulate the number of judges that should constitute either the Constitutional Court or the Supreme Court of Appeal, creating space for political interference in the judiciary. Further room for political interference can be seen where the Bill gives the President power to appoint a tribunal to remove a sitting judge which power previously sat with the Judicial Complaints Commission.
Eligibility for Government Positions
The proposed amendments also see the Zambian Government making it a lot easier to get into strategic positions, such as the position of Secretary to the Cabinet. The proposed Bill no longer requires that such an appointment be made in consultation with the Civil Service Commission and the only requirement now to be considered for the position is that you should have served in a senior management position for a period of ten years. The Bill also removes the qualifications specified for a person to be eligible for appointment as the Bank of Zambia Governor, which will presumably be prescribed in legislation elsewhere.
The Bill proposes that the President appoints Deputy Ministers as he considers necessary. This is a disturbing amendment as Deputy Ministers were previously removed because their positions were seen to be redundant and not cost-effective. This re-introduction is obscure and unnecessary given the fact that Provincial Ministers are already in existence notwithstanding the fact that the money required to appoint Deputy Ministers could be used in much more constructive ways.
Along with removing commissions from the Constitution, the Bill removes their involvement in appointments, including the previous requirement that the Judicial Service Commission recommends candidates for the position of Public Protector, and the State Audit Commission recommends candidates for the position of Auditor-General. The Bill proposes to limit the term of office of the Auditor-General to 7 years or retirement, which could influence the independence of the office.
The Bill proposes a change to the electoral system, from a first past the post electoral system, to a mixed member electoral system. Furthermore, the Bill also makes an allowance for a coalition Government. The Bill does not define a coalition government in the Zambian context, leaving it open to be interpreted in a manner that could serve the interests of any ruling party, and leaving the voter in a position of uncertainty. This means that a presidential candidate who is not supported by 50 percent of registered voters could still be appointed into office through a coalition.
Within seven days of the declaration of President-elect, the Constitutional Court may be petitioned to challenge the election process. Whilst the period provided to the court to hear and determine the petition has been proposed to increase from 14 to 30 days, the initial seven days within which the petition must be filed remains a barrier to access to justice.
When it comes to participation in politics, the Bill states that any public officer who wishes to participate in elections is required to resign at least two years before the elections.
A further concern is that the Bill proposes that Parliament not be dissolved 90 days before the general election, but instead remains operational until the general election. The practice of dissolving Parliament during the electoral campaigning period assists to ensure equity between candidates.
Legally Disqualified Persons
The Constitutional Amendment Bill restricts the exercise of certain constitutional functions in reference to persons who are deemed to be “legally disqualified”. This includes providing for grounds for the removal of the Speaker of the National Assembly, precluding individuals from running as candidates for presidential election, terminating the office of a Minister or the Attorney General, and the removal of sitting judges. The amendments are proposed to replace exclusions in the current Constitution that explicitly preclude participation in these offices on the basis of mental or physical disabilities that render a person incapable of performing the relevant function. While the amendments appear superficially benign by removing overt references to discriminatory, disability-based exclusions, their effect is in fact more cynical for three reasons.
First, the terminology of “legally disqualified” is, in its ordinary meaning, very broad. The Constitutional Amendment Bill defines “legally disqualified” without any specification of the substantive grounds on which an individual is deemed disqualified, merely that it means “a disqualification by a court or quasi-judicial body established by law”. The breadth and vagueness of the terminology of “legally disqualified” threatens the rule of law and separation of powers.
Second, in terms of these amendments, “quasi-judicial” bodies that can disqualify a person from the respective offices are not explicitly limited to those established under the Constitution. Already, the proposed amendments remove clarity on the existence, composition and procedures of a number of quasi-judicial bodies established to ensure checks and balances under the current Constitution.
Finally, the likely more targeted intent of amendments around the term “legally disqualified” can be understood in reference to the recently enacted Mental Health Act. Section 4 of this Act uses the terminology of “legally disqualified” in its discriminatory denial of legal capacity to persons with mental and psychosocial disabilities on the basis of their actual or perceived mental capacity. The effect is to broadly deny legal personhood to persons with psychosocial and mental disabilities and, through this amendment and others, to restrict their political, social and economic participation. The language of “legally disqualified” was similarly used to exclude persons with disabilities in the legislation that established the National Dialogue Forum that determined these very constitutional amendments and is concurrently proposed in the Electoral Process Amendment Bill to effectively prevent the Electoral Commission from registering voters with mental and psychosocial disabilities. These amendments would infringe rights of persons with disabilities as elaborated in the Convention on the Rights of Persons with Disabilities.
It is hoped that there will be broader public consultation on the proposed amendments prior to their adoption.
ISSUED BY THE SOUTHERN AFRICA LITIGATION CENTRE