Alliance of NGOs says president will have too much powers under draft constitution

Alliance for Good Governance (AGG)

Launch of the Alliance

And First Reaction to the First Draft of the Zambian Constitution

11th May 2012

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Welcome !

Representatives of the Alliance member organizations from the Foundation for Democratic Process (FODEP), Zambia Congress of Trade Unions (ZCTU), Press Association of Zambia (PAZA),  Zambia Federation of the Disabled (ZAFOD), Operation Young Vote (OYV), 2410, and the Evangelical Fellowship of Zambia (EFZ).

Members of the press, invited guests, brothers and sisters.

Today, we meet to officially launch the Alliance for Good Governance (AGG) which is a coalition of the church and civil society organizations namely the Foundation for Democratic Process (FODEP), Zambia Congress of Trade Unions (ZCTU), Press Association of Zambia (PAZA), Zambia Federation of the Disabled (ZAFOD), Operation Young Vote (OYV), 2410 and the Evangelical Fellowship of Zambia (EFZ).

The key objective is to forge a formidable coalition that will provide a strong contribution towards fostering good governance, accountability, democratic values and a people driven republican constitution.

We wish to express our immediate reaction on the process of drafting the Republican Constitution that was launched by the Technical Team of experts on 30th April 2012. At the same occasion, the 40 days of public debate and reaction to the draft constitution was also officially launched.

The current constitutional making process has almost clocked a decade and the failure of the previous government to come up with a new constitution in 2010 made the current process inevitable and justifiable undertaking.

Firstly, we wish to commend the technical team of experts assigned with the task of drafting the new constitution that they have taken time to read the mood and the expectation of the Zambian people on their constitution and therefore have sought to address some of the very critical issues. The current draft constitution is a good ‘draft’. It forms a good basis for debate by the general public. As a foundation, it will only be good enough depending on what we build on it. It is still a work in progress.

We observe some of the positive issues that have been addressed in the current draft constitution such as the following:

  1. The recognition of the Supremacy of God and the retention of the declaration of Zambia as a Christian nation in the preamble of the constitution.
  1. The appointment of the cabinet outside of parliament (article 120)
  1. The 50% + 1 threshold for the election of Republican President and the Presidential running mate for the position of republican Vice President. This will ensure that a President is popularly elected (article 99).
  1. We endorse the presetting of the date of the election and for making it a public holiday as this will ensure fairness in the preparation for elections by all participating political parties and independent aspiring candidates as well as increase the voter turnout (article 82).
  1. We endorse the progressive decision to not hold by-elections as this will save the nation a lot of money that would normally be spent on by-elections (article 139).

However, in spite of these positive aspects of the current draft constitution, we raise a series of concerns in areas where we seek to increase accountability and democratic governance. In a democracy, power should never be concentrated in an individual as this leads to serious compromise and potential abuse of office.  We are concerned about the excessive powers invested in the President in the current draft constitution for instance, the appointment of the members of the Local Government Service Commission, the Judicial Service Commission, the Emoluments Commission, Electoral Commission of Zambia, Permanent Secretaries etc in addition to exiting powers of the President.

In addition, the President has power to appoint the Attorney General, the Director of Public Prosecution (DPP), the Solicitor General and all the ten Parliamentary Secretaries, President of the Constitutional Court. Such a provision raises a serious concern on the separation of powers and the need to provide independence and autonomy of these organs of government.

The Constitutional court is supposed to preside over any Presidential election petition. Zambia has a lot to learn from the Ivorian scenario over such an arrangement.  The creation of, altering of our internal boundaries, merger and division of districts and provinces must be done in consultation with traditional leaders and other interest groups in the affected regions.

Although there is provision for ratification by parliament, such a process would be highly ineffective in times when the House is pre-dominated by one political party. In such times, the Parliament would only be used to rubber stamp the decisions of the Executive. We observe that ratification by Parliament is an inadequate provision to ensure balancing the Presidential powers. In addition, article 92 gives the President power to override the National Assembly. In the past, the National Assembly was overlooked in some circumstances in spite of the constitutional provisions.

We recommend that a selected team such as an ‘Ad hoc Appointments Committee’ involving all stakeholders such as political parties, the independent civil society organizations and the church should participate in recommending the initial list from which the President should nominate persons to preside over such constitutional offices. The same should apply to the public media and all parastatal institutions.

Part one of the Constitution rightly acknowledges that the Constitution is the supreme law of the Republic of Zambia and that any other law or customary practice that is inconsistent with any of its provisions is void to the extent of the inconsistency. (2) An act or omission that contravenes any provision of this Constitution is illegal.

This undertaking does not resonate with article 38 (1) on Freedom and independence of electronic, print and other types of media.

The act specifically says that the State shall not exercise control over, or interfere with, any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium and gives several other progressive provisions.

However section 4 says, “All State-owned media shall be free to determine independently the editorial content of their broadcasts or communications”.

This is contradictory as there is no way that the media which has been classified as state-owned can be independent and impartial and afford fair opportunity for the presentation of divergent views and dissenting opinions.

We feel that the media referred to as state-owned media should (instead) be referred to as public media. In addition, article 1(3), (5) contradict each other because on one hand, the constitution cannot be challenged while on the other hand the constitutional court has power over the constitution. This needs to be harmonized.

On the provisions for the conduct of elections, we recommend that the registration of voters should be changed to continuous voter registration.

We hold reservations on article 79(1) of the draft constitution which states that a political party, an independent candidate and a person contesting for councillorship shall have equitable access to public and private media generally and during election campaigns.

The use of the word equitable access to media must be rephrased to fair and equal access to the media. Equitable access gives advantage to some political parties or individuals as it pre-supposes that space must be provided on the basis of the size of a political party or the status of an independent candidate.

Article 83 (6) which gives powers to the President to appoint the members of the Electoral Commission of Zambia needs revisiting. The recommendation provides that the appointment be made by a committee established under an Act of Parliament, subject to ratification by the National Assembly.

We recommend that a public body involving political parties, civil society, the Law Association of Zambia should identify and submit a list of names to the President for him to nominate and later referred to the Parliament for ratification.

Further, section 99 which states that if a presidential candidate who has qualified for a second ballot (presidential election rerun), dies or is disqualified for any reason under this Constitution or any other law from standing for election to the office of President before the taking of the second ballot, the next candidate with the highest number of valid votes cast in the initial ballot shall assume the place of that candidate.

We feel this is recipe for manipulation because a sitting candidate can scheme flimsy reasons to disqualify a potential challenger in the election run-off. For a person to qualify in the initial poll means that such a person also qualifies for the rerun. We propose that this provision should be removed because it is recipe for chaos in the event that the challenger to the incumbent can be disadvantaged.

Section 249 (1) has made it clear that subject to this Constitution, the power to appoint a person to hold, or act in, any public office, to confirm appointments, to exercise disciplinary control over persons holding or acting in those offices and to remove any of those persons from office vests in the President, acting in accordance with the advice of the Service Commission concerned. This again confers the President with excessive powers.

Added to that, under article 256 (1) the draft proposes the establishment of the Anti-Corruption Commission, the Anti-Drug Abuse Commission, the Anti-Financial, Economic Crimes Commission, the Police and Public Complaints Commission whose heads and their deputies will be appointed by the President.

We have reservations on article 291 which allows for the Bank of Zambia governor to be appointed by the President instead of independent economic institutions and individuals. The draft further provides that the governor shall also be the chairperson of the board. Such a structure does not allow for the provision of accountability and checks and balances. This can be a recipe for abuse and we submit that these provisions be amended.

Article 75 (3) and article 135 are inconsistent with the recommendation of the Mung’omba Report which recommended a Mixed Member Proportional Representation (MMPR) rather than open list Proportional Representation (PR).

The Mung’omba draft constitution recommended a ‘Recall vote’ for non performing MPs and councilors. This omission in the current draft constitution needs to be addressed because it is important in the electoral process to boost confidence of the electorate in the country.

It is unfortunate that the draft constitution has missed the opportunity to address the issue of Barotseland Agreement of 1964 in order to resolve it.

Alliance for Good Governance congratulates the technical committee for including provisions that seek to empower women such as guaranteeing that the appointing authorities shall ensure that at least fifty percent of each gender is represented in appointments, ensure that equitable consideration is given to persons of both gender and consider the youth and persons with disabilities.

We urge the Technical Team to ensure that the copies of the draft constitution are quickly distributed to all parts of the country. This will accord the Zambian people an opportunity to study and understand the content of the draft constitution so that they can react more effectively and in a timely manner before the expiry of the 40 days window for public debate.

Finally, we urge the Zambian people to take the draft constitution seriously and make time to critically study and react to it. This will ensure their participation in the constitution making process and guarantee that the final constitution is people driven and people owned.

 

May God bless our great nation Zambia!

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