Highlights of the Submissions:
1. Omission of the Bill of Rights is a blow to the Constitutional Process as media freedom and other related freedoms are not part of the 2010 Draft Constitution Bill – MISA Zambia Chief
2. He further states that 50 plus one does not require to go to a referendum.
3. MISA Zambia Chief commends the documents for providing an extra court of appeal and also for reduction the timeframe for lodging a petition.
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MISA-ZAMBIA CHAIRPERSON’S
SUBMISSIONS TO PARLIAMENT ON
THE CONSTITUTION OF ZAMBIA
FEBRUARY 15, 2011
Opening Remarks
OBJECTIVES OF MISA ZAMBIA
MISA-Zambia is a non-governmental organisation incorporated in the Republic of Zambia
The Zambian Constitution
The legitimacy of any constitution is measured by its ability to command loyalty, respect and confidence of the people.
The opening phrase in the preamble of, “We the People of Zambia
This can, however, only be made possible when the constitution is put through a process of popularisation, as in the absence of this sense of identification, it remains a remote artificial object with no more real existence than the paper on which it is written. Therefore, the constitutional making process must never be a contentious one, but one that is born out of unity of purpose of which every view and opinion counts.
MISA Zambia therefore, commends this consultative process with various stakeholders in ensuring that we give ourselves a durable constitution.
It suffices to mention that similar exercises have been done in the recent past and people’s views, expressions and wishes on the sort of constitution they want have many a time been rejected by the government.
It is unacceptable that Zambia
Before going to the substantive issues, we want to point out that it is a pity that Part III of the Constitution i.e. the Bill of Rights is not part of this Constitution Bill. Indeed we are alive to the need for a referendum as required by Article 79 (3). MISA-Zambia finds this to be a draw back in the constitutional review process, especially with regards to provisions relating to the media. A number of positive recommendations were made in the National Constitution Conference draft Constitution, but unfortunately this will not be considered in this process. This renders the whole exercise a futile and fruitless process, taking into account the time and finances spent in coming up with the recommendations.
We, however, also commend the positive inclusions among so many others; establishment of a constitutional and court of appeal which will enhance the justice delivery system, abridgment of the time within which one can bring a petition, and ensuring disposal of elections disputes within 90 days.
Coming to the substantive issues, we have made a number of observations. The detailed document has been submitted and we therefore just point out salient issues which are as follows;
EXECUTIVE
We made the following observations in this area;
Election of president
With regards to matters relating to the executive, we submit the proposal that a winning presidential candidate must not get less than 50 % plus 1 vote of the total votes cast, and this is an important issue. We note that inspite of this proposal being included in the Mung’omba and the NCC Draft Constitutions, it has been left out in the current Bill. This proposal has been erroneously referred to a referendum as the current Constitution, which is the Supreme law of the land, only requires the amendment to the Bill of Rights and Article 79 itself to pass through a referendum.
Impeachment of the President
We submit that the proposal to give a discretion to the National Assembly to decide whether or not to make a finding that the President has violated the constitution is not a good idea as a concrete finding would have been made by the tribunal. Similarly, raising the threshold to votes of not less than three-quarters for the motion of impeachment of President at the stage of passing the motion is not justified as at this stage the allegations of constitution violation would have been substantiated. Therefore, should remain at two thirds majority.
Presidential elections
The legal implications of Article 38 (2) as against Article 37 is that the constitution makes it possible that a petition can be lodged in less than 24 hours and, therefore before a president elect is sworn in. It is therefore our submission that when this is the case, then the president elect must not be sworn in until the matter is determined by the Constitutional Court
Immunity of the President
Immunity is a privilege which is conferred on an individual serving as President. It is a blanket cover. Therefore, proposing that when immunity is removed a person should only be tried on the criminal charges for which the immunity is removed, amounts to compartmentalisation of immunity which must not be the case.
Furthermore and as already alluded to, Immunity from criminal proceedings is a privilege and not a right. Therefore, once it has been removed it can never be restored because it is only enjoyed by persons holding the office of President or performing the functions of that office.
Ratification
On the issue of ratification, we are of the view that the whole purpose of ratification is to facilitate assessment of a person’s suitability to hold a particular office. It facilitates public scrutiny and allows the general public to participate in the appointment of individuals to public office. Therefore, allowing automatic appointments will defeat the intention behind ratification.
Appointment of Vice President
The will of the People, as expressed in the Mung’omba Draft Constitution, is that the Vice-President shall be elected as a running mate to the Presidential candidate. The rationale being that it gives an opportunity to the people to know the potential presidential candidate, in the absence of the substantive President and also ensures that vice-Presidents objectively serve the nation as they are put in the office in their own right.
Appointment of Ministers
We believe that one of the principles behind the notion of separation of powers is that the same individuals must not serve on the various wings of Government. Therefore, as regards appointment of Ministers, such complete separation can be enhanced by appointing individuals from outside the National Assembly as Ministers instead of within as proposed.
LEGISLATURE
Coming to the legislature, we make the following observations;
Retrospective application laws
Parliament is indeed conferred with power to make laws. However, enacting laws which confer a benefit and with a retrospective effect may open up the state to a lot of liabilities. Such laws to confer a benefit only to an individual go against the legal principle of universal application of the law. Therefore, this provision will yield undesirable effects.
Challenging a Bill
We are of the view that the three days to challenge the bill is, by all reasonable standards, too short a period of time given the logistics of consultation with Lawyers and other practical hurdles of geographical locations. A longer period would be more ideal to cater for this.
JUDICATURE
Under the judicature, we made the following observations;
Leave to appeal to Supreme Court from the Court of Appeal
We are of the considered view that the constitution should deal with substantive matters and not procedural issues which can be dealt with under rules of court. Further, the Court of Appeal is not being established as a final court of appeal and as such its decision even on leave to appeal should be appealable.
Removal of a judge
We submit that the office of judge is of high esteem and should not be brought into disrepute and therefore, grounds for removal should be wider to include issues such as breach of the constitution, corruption e.t.c.
Directive Principals
We are of the view that the initial idea of providing for Directive Principles of State Policy in the Constitution was one step of recognising the social, economic and cultural rights which are not in the current Bill of Rights.
As regards to Article 139 which guarantees access to impartial and competent institutions of justice, it is our submission that the current Constitution already guarantees this right and makes it justiciable. Therefore, it needs not to be provided under Directive Principles of State Policy
CITIZENSHIP
On the issue of citizenship, we submit that the net should not be cast so wide as to jump a generation by allowing a person to trace citizenship to a grandparent as allowed under Article 152 (2).
ELECTORAL SYSTEMS AND PRINCIPLES
Under electoral systems, we observed that Parliament was given power to pass legislation providing for a different electoral system. We, however, submit that since the Constitution has provided for an electoral system, Parliament cannot enact another electoral system that would be different from the one provided for in the Constitution which would be contrary to the notion of supremacy of the Constitution.
Nomination of members
We submit that Chief Justice would nominate people to sit on the committee twice, which would be contrary to the idea behind Article 193 (2) of having different entities nominating members of the committee. It would therefore, be ideal to replace one of these with another body not represented in this committee.
Ratification of ECZ members
We observed that the article does not make any provision of what happens in the event that the names submitted by the selection committee are not ratified by the National Assembly. Therefore, to avoid a lacuna, there is need to provide for this.
Removal of ECZ Members
On the procedure for removal of members of the Electoral Commission of Zambia (ECZ), we submit that a different procedure from that of removing judges be provided as ECZ is not a judiciary and members of the ECZ do not carry out judicial functions.
Settlement of Disputes
It is our submission that what is meant by minor disputes under Article 196 (2) must be qualified.
Registration of Voters
There is a general apathy of voters’ registration, and one of the reasons for this may be that registration is only done in anticipation of election. This is also contrary to what is provided under the current laws providing for continuous registration.
Political Parties
And last but not the least, we submit that the issue of establishing the Political Parties’ Commission which will be in-charge of registration and regulation of political parties may hamper the enjoyment of freedom of association. The registration and regulation of political parties must be done by an independent public office without the interference of either the President or the National Assembly, through appointments and ratification.
Political Parties Fund
We are of the view that the essence of the Fund is to financially assist political parties and not a business venture. The money must be used by political parties and as such the money should be available at all times.
SUBMISSIONS TO THE PARLIAMENTARY SELECT COMMITTEE TO SCRUTINISE THE CONSTITUTION OF ZAMBIA BILL N.A.B No. 59 of 2010 AND THE CONSTITUTION OF ZAMBIA (AMENDMENT) BILL N.A.B. No. 60 of 2010
15 MARCH, 2011
INTRODUCTION
The issue of making a constitution that will stand a test of time has once again come to the fore in Zambia. The Constitutional Amendment Bill 2010 currently under review marks the 5th Constitution that the country will have in the 46 years since independence. We therefore express concern as to why constitutions have failed to stand the test of time as in other countries. Countries like United States of America, has had one constitution since 1787 despite changes of government leaders. In Africa, countries like South Africa had their first interim constitution in 1993 after power was handed over to the African government. The final constitution was made in 1996 and since then they have had the same constitution notwithstanding the change of governments.
We note that the Constitution of Zambia (Amendment) Bill, 2010 traces its existence from the Mung’omba Constitution Review Commission (CRC) which went around the country and codified the various submissions representing the will of the People. After the Mung’omba Review Commission, the National Constitutional Conference (NCC) was set up to come up with the 2010 NCC draft Constitution. From this, we now have the 2010 Constitution (Amendment) Bill. It is, therefore, expected that in view of this elaborate process this Bill must represent the views of the people to avoid any changes in the near future which is a cost to the nation
It, however, suffices to mention that as MISA-Zambia we exist to promote and defend freedom of expression and press freedom. The mandate of MISA-Zambia is to promote a sustainable, non-partisan, independent, plural and diverse media that informs and empowers society, promotes democracy and good governance. The ideals that MISA-Zambia aspires for can only be realised when there is a good Constitution in place.
However, MISA-Zambia has observed that Part III of the Constitution i.e. the Bill of Rights is not part of this Constitution Bill. This is due to the constitutional requirement in Article 79 (3) that any amendment must be subject to a referendum. MISA-Zambia finds this to be a draw back in the constitutional review process especially as regards provisions relating to media freedom and access to information. A number of positive recommendations were made in the 2010 NCC draft Constitution but unfortunately this will not be considered in this process. This has taken away some value from the process, taking into account the time and finances spent in coming up with the recommendations.
In making these submissions on the legal ramifications of the Constitution Bill, we submit that the constitution of any country is not simply a statute which mechanically defines the structures of Government and relations between the government and the governed. It is a document that codifies the ideals and aspirations of a nation. The people must feel a sense of ownership of the document before they can respect, defend and obey it.
It therefore becomes imperative that Zambia adopts a complete constitution within a reasonable time frame and in a holistic manner in order to ensure that all the people’s aspirations are included or taken on board in the new constitution which we are sad to note is not the case with 2010 Constitutional Bill. We feel it is another piecemeal job that will not stand a test of time. It is void of the Zambian people’s aspirations in a number of instances; some of them being the 50% plus 1 vote and the Bill of rights. The Constitutional Bill has even departed in certain instances from the NCC draft Constitution.
We will therefore rely largely on the will of the People as expressed in the Mung’omba Constitution Review Report on what the people want.
In presenting its submission towards the 2010 Draft Constitution Bill, MISA Zambia will first state the Article in contention and thereafter its reasons why the article should be amended or deleted and finally present its recommendations.
The following are, therefore, our submissions;
PART IV – EXECUTIVE
We note that positive changes have been made to various aspects relating to the executive. Most notable is the abridgment of the time within which one can bring a petition. Article 38 now provides that one can bring a petition within 7 days of announcing Presidential results. Another positive step is the Article which now provides that once a petition challenging presidential election results is lodged, the matter shall be disposed of within 90 days. This will ensure expediency in settling of election disputes.
We, however, observe the following;
1. Issue: Article 36 (5) states that The Returning Officer shall declare the candidate who receives the highest number of total votes cast to have been duly elected as President.
Discussion: The will of the People is that a winning presidential candidate must not get less than 50 % plus 1 vote of the total votes cast. This threshold has been referred to a referendum but our contention is that according to Article 79 (3) of the current Constitution, it is only an amendment to the Bill of Rights or to Article 79 itself that must go through a referendum. Therefore, since the requirement of 50% plus 1 of total votes cast was expressed in both the Mung’omba Draft Constitution and NCC 2010 Draft constitution, it demonstrates that it this is what people want.
Recommendation: We recommend that the 50% plus 1 vote threshold must be reinstated in the Bill.
2. Issue: Article 37 provides that the President elect shall be sworn in by the Chief Justice and shall assume office immediately but not later than twenty four hours from the time of declaration of the Presidential election results
Then Article 38 (2) provides that a Petition under this article shall be filed within seven days after the date of the declaration of the Presidential election results.
Discussion: The legal implications of Article 38 (2) as against Article 37 is that the constitution makes it possible that a petition can be lodged in less than 24 hours and therefore before a president elect is sworn in. It is therefore our submission that when this is the case then the president elect must not be sworn in until the matter is determined by the Constitutional Court within 90 days as provided by Article 38 (3). Indeed the question that arises is who runs the nations affairs during this period? We propose that the speaker discharges the executive functions and if not able at the time then the Deputy Speaker does so.
Recommendation: A provision be added to the effect that a president-elect shall not be sworn in where a petition has been lodged and where such a petition is filed the Speaker shall discharge the executive functions and if not the Deputy Speaker.
3. Issue: Article 41 (5) states that If the tribunal reports to the National Assembly that the tribunal finds that the particulars of any allegation specified in a motion have been substantiated, the National Assembly may, on a motion supported by the votes of not less than three quarters of all members of the National Assembly, resolve that the President has been guilty of such violation of the Constitution or, as the case may be, such gross misconduct as is incompatible with the President’s continuance in office as President and, if the National Assembly so resolves, the President shall cease to hold office on the third day following the passage of the resolution.
Discussion: In all the stages in the process where it is alleged that the president has violated the Constitution, the word ‘shall’ has been used and therefore making it mandatory for certain actions to be taken. It is a departure from this spirit for Article 41 (5) to now give discretion to the National Assembly to decide whether or not to make a finding that the President has violated the constitution and yet at that stage the tribunal appointed by it would have substantiated the allegations.
Recommendation: The word “may” be replaced with “shall” in conformity with the spirit of the whole Article.
Article 41 (5) also requires a number of votes of not less than three quarters for the motion of impeachment of President to be passed. In all the other matters in the article it is only votes of not less than two thirds of votes required. It is again a departure from the spirit of this Article to now require votes of not less than three quarters. This is especially so since at this stage the allegations would have been substantiated by the tribunal. So the idea of raising the threshold is not justified.
Recommendation: The number of votes required for impeachment should BE two thirds or a simple majority.
4. Issue: Article 46 (4) states that A notice in writing signed by not less than one third of all the members of the National Assembly may allege that a person who held the office of the President committed a criminal offence in that person’s personal capacity during that persons tenure of office.
Article 46 (6) (b) The Speaker shall, after receipt of the notice submitted under clause 4 within seven days of notice if the National Assembly is sitting submit such notice to the National Assembly.
Article 46 (7) Where the National Assembly receives a notice under clause 6 (b), the National Assembly shall constitute an ad hoc select committee to look into the matter and determine whether or not the immunity of the person who held the office of President should be removed and recommend its decision to the National Assembly.
Discussion: These provisions raise a question in that the National Assembly gives notice to the Speaker in writing, then the speaker after seven days submits the notice to National Assembly and then where National Assembly received such notice shall form an ad hoc committee. It is unusual for the National Assembly to receive a notice from the speaker which notice is written by it. Further this entails that the National Assembly is both accuser and judge in the issue of removal of immunity of a President. This scenario is a departure from principals of natural justice that a man shall not be a judge in his own cause. In view of this it would be more ideal if a notice in writing were given by an independent person, which notice is then submitted to the Speaker who in turn submits it to the National Assembly. Being the supreme law of the land, it is ideal for the Constitution to uphold legal principles as that indicated above.
Recommendation: It is recommended that the President writes the notice and submits to National Assembly.
5. Issue: Article 46 (10) states that Where the immunity from legal proceedings is removed from a person who held the office of the President under clause (9), a court shall try the person only on the criminal charges for which the immunity is removed by the National Assembly.
Discussion: The couching of this provision by use of the words ‘ a court shall try a person only on the criminal charges for which the immunity is removed’ amounts to compartmentalisation of immunity which must not be the case as immunity is a blanket cover and once removed the whole of it is removed.
Recommendation: The provision must be deleted.
6. Issue: Article 46 (11) provides that For the avoidance of doubt, where a court acquits a person who held the office of president of the criminal charges for which the immunity from the legal proceedings was removed by the National Assembly, the immunity of that person shall without further proceedings immediately be restored.
Discussion: Immunity from criminal proceedings is a privilege and not a right. Once it has been removed it can never be restored because it is only enjoyed by persons holding the office of president or performing the functions of that office. Therefore, regardless of the outcome of the criminal prosecution, that immunity can never be restored.
Recommendation: This provision must be deleted.
7. Issue: Article 49 (3) provides that where the National Assembly refuses to ratify the second appointment, the President shall invite the National Assembly to ratify another appointment for the third time, but the third appointment shall take effect irrespective of whether the National Assembly refuses the ratification, or delays it for a period of more than fourteen days.
Discussion: The proposal to appoint the third appointment without ratification can be used for technical advantage since the third appointment is automatic. The whole purpose of ratification is to facilitate assessment of a person’s suitability to hold a particular office. It facilitates public scrutiny and allows the general public to participate in the appointment of individuals to public office. Therefore allowing automatic appointments will defeat the intention behind ratification.
Recommendation: The President must continue submitting for appointment until someone is ratified.
8. Issue: Article 50 (2) The Vice President shall be appointed by the President from amongst the members of the National Assembly.
Discussion: The will of the People as expressed in the Mung’omba Draft Constitution is that the Vice President shall be elected as a running mate to the Presidential candidate. The rationale being that it gives an opportunity to the people to know the potential presidential candidate, in the absence of the substantive President. Further, the appointment of Vice President by the President empowers individuals to exercise executive powers which have not been given to them by the people but by an individual. As a result, the office of Vice president lacks clout because such an appointee owes allegiance to the appointing authority instead of standing in their own right, with power to even differ with the incumbent where need be.
Recommendation: The provision must be changed to read The Vice president shall be a running mate of the President.
9. Issue: Article 52 (1) provides the President shall appoint not more than twenty one persons as Ministers or such number of Ministers as the National Assembly may approve from amongst members of the National Assembly.
Discussion: Appointing individuals from outside Parliament allows the president to appoint technocrats that are suited to run various Ministries although this is not to say that such people cannot be found from within the National Assembly. It enhances separation of powers as members of executive (cabinet) will not be members of the legislature.
Recommendation: The words “from outside parliament’’ should be added after...twenty one persons as Ministers...
Then the part that reads or such number of Ministers as the National Assembly may approve from amongst members of the National Assembly must be deleted.
PART V – LEGISLATURE
The proposed composition of Parliament is commendable as it will provide a balanced representation through the mixed member representation system. We also welcome the provision of challenging Bills before they are enacted into law. This is the only way to guarantee good laws that are in conformity with the Constitution.
We, however, note the following;
10. Issue: Article 65 (1) (c) not more than ten members nominated by the President under Article 68;
Discussion: The rationale behind nominated members of the National Assembly is to bring individuals with special interests or skills. The realities however, is that this has been abused in the past as nominations have not been done for special interests or skills but purely to increase the numbers in the National Assembly. Some nominated members have even been appointed Vice Presidents and Ministers. Furthermore, nominated members usually tend to have allegiance to the appointing authority during voting. It would therefore be prudent to nominate members from outside National assembly to avoid such shortcomings. Such a practice is not alien as other African countries like Namibia have similar provisions in their Constitutions.
Recommendation: Given the mixed member proportional representation character of the National Assembly, our proposal is to do away with nominated members of Parliament. If, however, this has to be maintained, then we propose in that event that those members nominated, as the case is in Namibia, shall have no vote in the National Assembly, and shall not be taken into account for the purpose of determining any specific majorities that are required under the Constitution or any other law.
11. Issue: Article 81 states, Parliament may make laws with the retrospective effect for the purpose of conferring a benefit or advantage but does not have the power to enact any law which operates retrospectively to impose any limitations on or to adversely affect the personal rights and freedoms of any person or to impose a burden liability or an obligation on any person
Discussion: There is a danger for this provision being abused in making laws that will confer a benefit on individuals or institutions as by the use of the term ‘may’ leaves the discretion to Parliament to enact such laws. This will also make the State face liabilities even for issues that were not budgeted for.
Recommendation: The entire provision must be deleted
12. Issues: Article 84 (1) Thirty or more members of the National Assembly or any person, with leave of the Constitutional Court, may challenge a Bill for its constitutionality within three days after the final reading of the Bill in the National Assembly.
Discussion: Three days by all reasonable standards is too short a period of time, given the logistics of consultation with Lawyers and other practical hurdles of geographical locations. A longer period would be more ideal to cater for this.
Recommendation: It is proposed that the period be extended to fourteen (14) days in line with Article 97 (3) dealing with Statutory Instruments which has similar provisions.
PART VI – JUDICATURE
We note and appreciate the introduction of the Constitutional Court and the Court of Appeal which will enhance the justice delivery system.
We, however, note the following;
13. Issue: Article 115 (3) If the Court of Appeal refuses to grant leave to appeal to the Supreme Court on any matter, that decision shall be final and binding.
Discussion: Every person aggrieved of a decision enjoys the right of appeal. In this Constitution, the Court of Appeal is not being established as a final court of appeal and as such its decision even on leave to appeal should be appealable. Furthermore, issues of leave to appeal are procedural matters and not substantive law and as such must not be provided for in the Constitution but in the court rules.
Recommendation: We propose that this sub article be deleted as it will be dealt with in the rules of court that the Chief Justice is mandated to formulate under Article 135.
14. Issue: Article 126 A judge of a superior court may be removed from office only on the following grounds:
Discussion: The use of the word “only” means on no other ground can a judge be removed from office even when his or her conduct has brought disrepute to the Judiciary. Having only two grounds is very restrictive.
Recommendation: The word ‘only’ must be deleted and in its place add on one or more of the following grounds. Furthermore the grounds for removal be expanded to include incompetence, breach of the constitution, corruption etc as provided for under the Mung’omba Draft Constitution.
PART VII - NATIONAL VALUES, PRINCIPLES, OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY
The continued provision for principle objectives in the constitution is an appreciated move. It is our considered view that these national values, principles, objectives and directive principles will give us an identity as Zambia in the conduct of our affairs.
We, however, noted the following;
15. Issue: Article 137. The Directive Principles of State Policy set out in this Part shall not be justiciable and shall not thereby, by themselves, despite being referred to as rights in certain instances, be legally enforceable in any court, tribunal or administrative institution or entity.
Discussion: The initial idea of providing for Directive Principles of State Policy in the Constitution was one step of recognising the social, economic and cultural rights which are not in the current Bill of Rights. These are ideals and aspirations of the state to be realised on a gradual basis. Now that these rights have been recognised in the Bill of Rights which is yet to pass through the referendum, the Directive Principles of State Policy in this Constitution ought to be justiciable and enforceable in the courts of law.
Recommendation: The Directive Principals of State Policy must therefore be justiciable.
16. Issue: Article 139. The State shall ensure access of the people to independent, impartial and competent institutions of justice.”
Discussion: Article 18 of the current Constitution already guarantees to every person this right and therefore should not be provided under Directive Principles of State Policy as this right is already justiciable and enforceable before the Courts of law.
Recommendation: We wish to recommend the complete deletion of this Article as maintaining it will water down an already enshrined right.
PART VIII – CITIZENSHIP
We commend the recognition of dual citizenship. This inclusion will enhance the enjoyment of the citizens’ rights as they will be able to enjoy full rights in their adopted countries without losing their Zambian citizenship. This will facilitate citizens’ participation and contribution to national development as individuals will still identify themselves as Zambians even when they adopt foreign citizenship.
17. Issue: Article 152 (2) states that Subject to clause (5), a person may apply to the Citizenship Board of Zambia to be registered as a citizen if that person was born in or outside Zambia and has a grandparent who is, or was a citizen.”
Discussion: Article 151 already provides for citizenship by descent therefore there is no need for this provision which is casting the citizenship net so wide as to jump a generation by allowing a person to trace citizenship to a grandparent. This creates an unwarranted opportunity for those who become Zambians by registration to in-turn bring their grand children in the Country to claim citizenship.
Recommendation: Sub Article 3 be completely deleted.
PART XI – REPRESENTATION OF THE PEOPLE
ELECTORAL SYSTEMS AND PRINCIPLES
We wish to acknowledge the electoral system being proposed as it will enhance people’s representation in the National Assembly in the development of our democracy.
We, however, submit as follows;
18. Issue: Article 184 (3) Subject to clause (4), Parliament may enact legislation prescribing a different electoral system for the election of members of the National Assembly or a district council.”
Discussion: Once the Constitution has provided for an electoral system, Parliament cannot enact another electoral system that would be different from the one provided for in the Constitution. This runs counter to the supremacy of the Constitution and such a position is therefore void.
Recommendation: Sub articles 3 and 4 of Article 184 must be deleted.
19. Issue: Article 193 (2) The selection committee constituted under clause (1) shall consist of the following members who shall be appointed by the President subject to ratification by the National Assembly:
(a) One member of the Supreme and Constitutional Court, nominated by the Chief Justice;
(c) A member of the Judicial Service Commission, nominated by the Chairperson of the Commission;”
Discussion: It appears the will of the people is to have 5 different entities nominating members of the selection committee but the nominations being referred to in (a) and (c) are being done by the same person i.e. the Chief Justice who is the Chairperson of the Judicial Service Commission. It will be ideal to replace one of these with another body not represented in this committee.
Recommendation: We propose that sub article (c) be replaced with a member from the Civil Society nominated in accordance with the NGO Act.
20. Issue: Article 194 provides for the appointment of the members of the ECZ from the names submitted by the selection committee subject to ratification by the National Assembly.
Discussion: This Article does not make any provision of what happens in the event that the names submitted by the selection committee are not ratified by the National Assembly.
Recommendation: It is proposed that a procedure be provided for to carter for a situation where a name or some names have not been ratified.
21. Issue: Article 195 (2) A member of the ECZ may be removed from office on the same grounds and same procedure as applies to a judge of a superior court.
Discussion: The procedure for removal of members of the Electoral Commission can never be the same as that provided for the removal of judges in Article 127 as the ECZ is not a judiciary. Members of the ECZ do not carry out judicial functions and are not judicial officers who are bound by the Judicial Code of Conduct nor are they amenable to the Judicial Complaints Authority. Members of the ECZ serve on a 5 years term whereas Judges subject to good conduct serve until their retirement.
Recommendation: There is need to provide a specific procedure for the removal of members of the ECZ and the said article must be deleted.
22. Issue: Article 196 (2) The Electoral Commission shall be responsible for-
(e) the settlement of minor electoral disputes;”
Discussion: What amounts to “minor” electoral disputes must be defined so that this does not conflict with Article 38 for Presidential petitions for which the Constitutional Court has jurisdiction and Article 74 for National Assembly petitions for which the High Court has jurisdiction.
Recommendation: These minor disputes must be qualified.
22. Issue: Article 200 (1) Parliament shall enact legislation for the conduct of direct and general elections and referenda including-
(b) the registration of citizens as voters;
Discussion: The current law provides for the continuous registration of voters. This provision is departing from the current legislation.
Recommendation: The sub article should read the continuous registration of voters as that is the current law with regard to registration of voters.
POLITICAL PARTIES
The right to form and belong to a political party of one’s choosing is a fundamental right that is protected and enshrined in the Constitution. It is therefore gratifying that a Political Party Fund has been established to enable political parties disseminate their policies and programmes thereby affording the citizen an informed choice.
We note the following;
23. Issue: Article 202 (1) There is hereby established the Political Parties’ Commission which shall consist of five part-time members who shall be appointed by the President, subject to ratification by the National Assembly.
Discussion: To form and belong to a political party of one’s choice is a guaranteed fundamental freedom and as such the registration and regulation of political parties must be done by an independent public office without the interference of either the President or the National Assembly, through appointments and ratification. A public office is suited for this role as it operates on a full-time basis but the proposed Political Parties’ Commission will be operating on a part-time basis which will seriously violate the right as convening of those meetings might not be regular.
Recommendation: It is proposed that the Registrar of Societies be retained or the functions be handled by the Electoral Commission of Zambia which has got structures in place.
24. Issue: Article 204 (4) The money in the Political Parties’ Fund, not immediately required for payment to political parties, may be invested in such manner as shall be approved by the Minister responsible for Finance.
Discussion: The essence of the Fund is to financially assist political parties and not a business venture. The money must be used by political parties and as such the money should be available at all times. Investments take long to mature and may not yield the anticipated return which may seriously hamper the smooth operation of political parties when the funds are locked up.
Recommendation: It is proposed that this sub article be deleted.
CONCLUSION
We would like to take this opportunity to thank the Clerk of the National Assembly for affording us the opportunity to make the above submissions. We pray that this Committee will consider favourably our progressive proposals.
