Zambia’s Minister of Justice, Given Lubinda has gone ahead tabling a Bill to amend the Republican Constitution despite the proposed amendments receiving massive public resistance.
The proposed amendments include reintroduction of the position of Deputy Ministers which Zambia did away with in 2016 after years of consistent submissions by the public against the position. The Bill also seeks to remove the description of Zambia as a multi-religious state, extend the life of parliament from one election to another and generally increase the powers of the Executive significantly over other arms of government.
Analysts and think-tanks at home and abroad continue to disapprove of the proposed amendments, citing far-reaching negative consequences should the amendment bill succeed. 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.
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. This power previously sat with the Judicial Complaints Commission.
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.
After government convened a controversialNational Dialogue Forum that produced the unpopular proposed constitutional amendments, there was a terrible backlash from the public who felt betrayed by government to change the constitution in favour of the interests of the ruling elite.
The Oasis Forum a leading people led good governance advocacy consortium in a strongly worded statement signed by its chairman, Eddie Mwitwa who is also President of Law Association of Zambia called for the immediate withdrawal of the Bill from Parliament so that government can undertake proper consultations on the Bill to ensure it meets the barest minimum standards for constitution making.
In a statement released on August 8, 2019 and signed by Oasis Forum Chairperson Eddie Mwitwa, the Forum listed some of the notable intended constitutional amendments of grave concern as; the removal of the classification of the country as a multi-religious State (proposed amendment to the preamble and article 4), increase in the powers of the executive arm of government, mixed member system of electing members of parliament, introduction of a coalition government, the continued stay in office of Cabinet ministers until the next general election, extension of the term of parliament to the next date of the general election, re-introduction of deputy ministers, erosion of the independence of the judiciary according to the proposed amendments to Article 144, removal of parliamentary approval of loans to be contracted by the State and the election of Mayors by Councillors.
The Commonwealth Lawyers Association, the Commonwealth Magistrates’ and Judges’ Association, the International Bar Association’s Human Rights Institute, the International Commission of Jurists, the Judges for Judges Association, the Lawyers’ Rights Watch of Canada and the Southern Africa Litigation Centre are among other international organisations that have condemned the Bill. In its Policy Brief on the possible impacts of the proposed amendments on the judiciary in Zambia, SALC concludes that:
In order to ensure that amendments to the Constitution will uphold the rule of law, law makers in Zambia need to be cognisant of international law principles and standards. It is also important to observe the processes being adopted in neighbouring countries in the region in order to ascertain whether the adoption of new legislation is likely to be effective in the Zambian context. Concerns about the proposed constitutional amendments have been raised by the Zambian Law Society, opposition parties, civil society as well as the public at large. Any threat to the independence of the judiciary is a serious issue that, if left unattended, can result in a grave undermining of the rule of law. Constitutional amendments should accordingly be deliberated on with care to safeguard against this risk.
In a recent editorial Lusaka based News Diggers lamented how as if the cry of the citizens of Zambia, the civil society, the church and local constitution experts was not enough, the Zambian government went ahead to table the rejected Bill in Parliament.
The Newspaper argues that the ruling Patriotic Front (PF) do not want a Constitution which is clear or rigid, instead they want a Constitution that can be manipulated, one which they can tell what to do, not one which tells them how to govern. They thrive on constitution lacunas. In fact, even where the law is clear, they bend the rules to suit their agenda. This has been the habit of the governing party.
This deadly scheme by the system to manipulate the outcome of the Constitution Amendment Bill must be fought by all well-meaning Zambians. We know that it is very complicated for citizens who are watching from a distance to know that their government is up to no good; so, let the intellectuals help in mobilising public awareness. We are under siege as a country, but unfortunately, we do not seem to have the capacity to collectively emancipate ourselves from this evil.
The Oasis Forum also lamented that the Minister of Justice had assured the nation in 2017 that the constitutional amendments would only be to fine tune or refine the current constitution, it was taken aback at the introduction of a number of substantive provisions in the constitution of Zambia (Amendment) Bill, which in fact and in effect will not amount to fine tuning the constitution but would fundamentally alter the basic structure of the Constitution and the three arms of government if enacted into law.
It has since strongly objected to all retrogressive proposed amendments not only to the Republican Constitution, but also to other laws that govern the nation noting that Zambia was not in a constitutional crisis but might be driven into one with the proposed amendments to the constitution.
The Forum has called upon the Executive to withdraw the Constitutional of Zambia (Amendment) Bill NO 10 of 2019 from the National Assembly to allow for broader and meaningful consultations and dialogue on the possible amendments to Part III of the Constitution (Bill of Rights) through a timely and well publicised and properly conducted referendum in the foreseeable future.
A detailed analysis of the Bill by SALC can be accessed here.