Thread by @JosiahKalala

I have been reading the various posts on the Constitution of Zambia (Amendment) Bill No. 10 of 2019 and would like to do a thread highlighting reservations with the Bill. @LindaKasonde @LauraMiti @nalucha_ziba @CofZambia @PamChisanga #Bill10 #Zambia

Important to note before going into the content of Bill 10 is what a Constitution is. It is in the case of Zambia a document that creates the State Organs and State institutions, defines their power and authority and describes their interaction with each other and the individual.

The Constitution binds all persons, State Organs and State Institutions. Critical to any constitutional democracy is the limits it places on all people, State Organs and State Institutions. It is the underlying basis of the country's legal system.

The Constitution of Zambia (Amendment) Act No 2 of 2016 introduced various provisions to the constitutional framework including the introduction of various values and principles that guide different State functions. Article 8 of the Constitution lists some of them as follows: -

(a) morality and ethics;
(b) patriotism and national unity;
(c) democracy and constitutionalism;
(d) human dignity, equity, social justice, equality and nondiscrimination;
(e) good governance and integrity; and
(f) sustainable development.

Article 9. (1) The national values and principles shall apply to the —
(a) interpretation of this Constitution;
(b) enactment and interpretation of the law; and
(c) development and implementation of State policy.
This covers all if not most aspects of State operations.

Further, the Constitution has principles that govern the exercise of authority under the Constitution. Note, the application of the values and principles in the exercise of the authority under the Constitution is mandatory (SHALL).

Article 61 provides, that the legislative authority of the Republic derives from the people of Zambia and shall be exercised in a manner that protects this Constitution and promotes the democratic governance. Legislative Authority vests in the President and National Assembly.

Article 90 provides that the Executive authority derives from the people of Zambia and shall be exercised in a manner compatible with the principles of social justice and for the people’s well-being and benefit. Executive Authority vests in the President.

Now, the law making process in Zambia ordinarily begins with the Executive who draft Bills to be considered by National Assembly and then acceded to by the President. Throughout the process, every individual, State Organ and State Institution is bound by the Constitution.

They must apply the values and principles and exercise the authority under the Constitution in the manner the Constitution provides. This means, if they do no, they have contravened the Constitution. The values and principles provide a substantive limit on authority. Now, Bill 10

Section 5 of Bill 10 substitutes “morality and ethics” with “Christian morality and ethics” as a National Value. Now what are Christian morality and ethics? Christianity is not homogeneous. How will Christian morality and ethics be applied in accordance with Article 9?

How can for example the courts interpret the law in accordance with Christian morality and ethics? Does this mean, divorce for example will be unconstitutional? Does this render the entire penal system useless, after all the Christian way is to forgive?

Section 9 of Bill 10 introduces a seemingly progressive mixed member electoral system. The Constitution just like any other law must be clear to avoid ambiguities and application to benefit or prohibit one person or group from unfair application of the law.

Bill 10 fails to describe the mixed members it introduces and allows Parliament to prescribe for the system of elections. This means a party with a simple majority can enact legislation that allows for increment in numbers of people that fit the party agenda.

Remember, when enacting law, the principle of good governance must be applied. This means laws should strengthen governance and not allow for even the potential abuse of authority. Mixed member systems are a mixture of two or more principles. What mixture will Zambia get?

Section 13 of Bill 10 deletes National Assembly oversight over debt contraction and international agreements. This means, Cabinet can approve debt with no oversight from the National Assembly. The quorum for Cabinet is the President plus one.

This means the President can approve debt he or she wants... National Assembly oversight allows for public scrutiny over debt because Cabinet processes are confidential while National Assembly often shares information with the public for comments.

With regards to public finance, there can never be too much accountability. The Executive cannot be given a free reign when contracting debt. Arguments may be made that Parliament (President and National Assembly) set a limit for debt contraction through statutes.

This fails on account that the President and his party in our dispensation will always have a simple majority. Imagine you could borrow as much as you wanted and the debt was to be paid by someone else. Now imagine you have been told to place a limit on yourself.

By requiring National Assembly approve debt, the you and me can interrogate the debt proposed to be contracted or the international agreements to be entered into. Remember, a few years ago this government undertook a process to leave the Rome Statute.

That is the International Agreement that creates the International Criminal Court. Remember, you and me are responsible for paying back any debt, you and me will have no recourse at the international level for abuses here.

Removing National Assembly oversight only works to weaken the confidence we have in the public institutions and ultimately National Assembly's mandate.

Section 22 of Bill proposes that MPs should remain in office during the campaign period up until the next election. It also proposes subjective grounds for the dissolution of Parliament by the President. This heavily favours incumbency.

This must be considered together with the proposal that the Public Order Act will not apply to MPs. This means if you are vying for election you will be subject to the Public Order Act against a candidate that will not. We all know how that goes.

Section 26 of Bill 10 removes National Assembly oversight relating to International Agreements. You can refer to the tweet on debt contraction. Also note that many of the infrastructure projects today are based on multi-million dollar agreements.

Agreements over which the Executive wants no accountability.

Section 27 of Bill 10 limits National Assembly oversight over Presidential Appointments and Measures. It basically provides that if National Assembly rejects 3 appointments or measures, such appointment or measure will take place. This is not accountability.

Section 30 of Bill 10 allows the candidate with the highest number of votes in a Presidential Election to negotiate with any candidate the possibility of forming a coalition government. The proposal does not define the parameters of such coalition.

What happens if after a year the party that brought 1% of the votes to form government wants to leave the coalition? What happened to the people electing their leaders and not leaders negotiating their way into office?

Section 32 of Bill 10 removes limits National Assembly power to determine whether or not the President can be impeached. Impeachment is a function of National Assembly, world over if I am not mistaken.

Section 35 of Bill 10 introduces Deputy Ministers. This is a further stress on a strained treasury. Remember, sustainable development is a principle to be used when enacting legislation. Section 35 further introduces the Chief Whip as a member of Cabinet.

Note that the current Chief Whip was a member of Cabinet prior to being appointed Chief Whip. So the amendment is simply to allow one person to remain a member of Cabinet. Note the functions of Whips and the fact that the Vice-President is the leader of Government business.

The introduction of the Chief Whip smacks of an amendment of convenience and does not protect the Constitution or democratic governance. The Party in Government is not government.

Section 37 of Bill 10 proposes the stay in office of Ministers during elections. This is to clarify the position given by the Constitutional Court in the Ministers case. We must note that we must not use the law to make legitimate what is not legitimate.

Autocratic legalism is the use of legal means and instruments to create an authoritarian regime. Ministers in office during elections allows them to use government resources during elections. We cannot say, "that is why election Petitions exist". We must stop it from occurring.

Section 42 of Bill 10 proposes the deletion of the number of judges to comprise the Supreme Court and Constitutional Court. Best practice is that the number of judges in the superior courts is set in the Constitution. This is to allow security of tenure.

This also stops the Executive from picking a Judiciary that will reflect its wishes. You will note the furor caused by the selection of a Supreme Court Judge in the USA. The Judges that comprise of the highest courts being defined in the Constitution provides the highest security

Section 49 of Bill 10 increases Executive interference in the removal of judges. This weakens judicial independence and goes against common best practice in ensuring judicial independence.

Section 51 of Bill 10 vests in the President authority to divide or merge provinces. The President, by this proposal will not be accountable to anyone least the people that will be affected by his division of merging of provinces.

Section 53 of Bill 10 proposes the revision of the system of electing Mayors and Council Chairs. This erodes the system of representative democracy considering the importance that local authorities are supposed to play in a devolved system of governance.

Section 61 proposes the deletion of the role of the Civil Service Commission in the recruitment of the Secretary to Cabinet. This means the President can employ anyone who meets the set qualifications but lacks the integrity and professionalism to lead the civil service.

Section 64 of Bill proposes the deletion of the role of the Civil Service Commission in the recruitment of the Secretary to the Treasury. This means, the President can recruit anyone who meets the qualifications but lacks the integrity and professionalism required.

Section 66 of Bill 10 restricts people from running for office. This means proposal infringes on ones right to participate in the governance of the Country. It goes against human rights agreements Zambia has signed.

Section 67 of Bill to proposes the removal of people from the payroll where Pension benefits are not paid. This contravenes the principle of human dignity by subjecting people not given a pension benefit on time to often untold suffering.

Section 74 of Bill deletes some of the provisions of the Constitution relating to Service, Investigative and Other Commissions. This weakens oversight over Executive functions which is the main role of independent Commissions.

There can never be too much accountability! Concentrating power in the Executive creates an authoritarian regime. The Constitution states that we can only amend laws to protect the Constitution and make our democracy stronger.

Many provisions of Bill 10 go beyond the Constitutional limits on the enactment of legislation and how legislative authority is to be exercised in my opinion.