Constitution Amendment Bill number 10 of 2019 is illegal, say lawyers

Constitution Amendment Bill number 10 of 2019 is illegal, say lawyers

Two constitutional law experts have observed that the proposed Constitution Amendment Bill number 10 of 2019 is illegal.

US-based law Professor Muna Ndulo and locally based constitutional lawyer John Sangwa featured on a public discussion at Southern Sun Hotel in Lusaka.

Discussing the topic: The Danger of Enacting Bill No. 10, Sangwa, a State Counsel, and constitutional lawyer, explained that the proposed constitution amendments were about the ruling party’s desire to win the 2021 general election.

While praising President Edgar Lungu for boldly assenting to the 2016 Constitution Amendment Bill which ushered in, among others the 50 per cent plus one threshold for a winning presidential candidate, Sangwa lamented that the Head of State was now reversing the scores he made that time.

‘’Let’s look at this issue as purely a national issue. Whatever political tag you carry is inconsequential. Zambia is bigger than all of us, and the Constitution is the soul of this country. So, it is dangerous to allow this bill to become law,’’ he said on Friday evening.

‘’This constitution amendment is about power; it is about winning the 2021 election no matter how you try to mask it. It is about winning elections in 2021. The Bill is about reversing whatever advances we made in 2016.’’

And responding to Kabwe Central PF member of parliament Tutwa Ngulube who insisted that the Bill had a lot of progressive provisions, Sangwa disagreed strongly.

As Ngulube tried to defend the Bill, members of the audience heckled and jeered him, with some asking him to sit down.

‘’Like I said at the beginning, I’m looking at this issue purely as a national issue. I’m not wearing any partisan lenses or anything like that. There’s one thing I will say, though, which is that I have taken the liberty to examine every provision in the Bill. And I can tell you without any doubt that there’s no single progressive provision in that Bill; zero!’’ Sangwa argued as the audience applauded.

‘’What you’re trying to do is to undo the progress we have made, which you shouldn’t. It [current Constitution] is not the best, but it’s something we can do with; it’s better than where we have come from.’’

Sangwa acknowledged the constitution making process had always been political.

He said it was unfortunate that whoever was in power looked at their own interests instead of national interests.

‘’The making of a constitution has always been a political decision. Whoever is in power makes that decision and they have themselves in mind when drafting the constitution, or their enemies in mind. They never have the general interests of the country at hand, that is the problem,’’ Sangwa said.

‘’So, we need to find ourselves in a situation whereby whoever is in power will put aside his own personal interest and then be able to facilitate a constitutional process that is beneficial to the country, without factoring his own interests into the equation, which is the problem with this particular exercise. So, for me, this [current] Constitution as it stands is more than suitable, more than adequate for the next election. You don’t need to change anything.’’

He wondered why presidents always found it easy to manipulate people’s will.

‘’Why is it that presidents find it so easy to change the constitution? It’s a trend now, every president wants to change the constitution. Now, why is it so? There’s only one explanation: we have elected bad people. We have elected bad people to the office of president. If you put criminals in power, no matter how good your Constitution is they will pull it down,’’ Sangwa said as the audience cheered on.

‘’But I have confidence in Zambian voters because they are smart. If they were not smart [Dr Kenneth] Kaunda would have been president after 1991. If they were not smart, [Frederick] Chiluba would have succeeded with his third term bid. If Zambians were not smart, Rupiah Banda would have won the 2011 elections. And the same can happen in 2021, that’s how smart Zambians are.’’

On the proposed clause for a coalition government, Sangwa described it as madness.

‘’Coalition government? This is the craziest idea, this is madness because, like Professor [Ndulo] said, I don’t think those people even understand what they’re talking about. What is a coalition? In what instances do you have the coalition government?’’ Sangwa asked. ‘’Now, what is the plot behind this coalition government? You know what the problem is? They want to find a formula to beat the 50 percent plus one requirement; that’s the idea. Now, if the law says you have to get 50 per cent of the vote, you don’t get that 50 per cent, what does that mean? It means the people have rejected you. So why do you want to go and strike some deal somewhere with somebody so that you go above the threshold? It’s crazy!’’

He argued that the current system would not support a coalition government.

Sangwa said for those who failed to reach the required threshold the best thing to do was go for a rerun.

‘’Now, has anybody ever thought how this coalition arrangement is going to work? What happens if at all the top two candidates get similar votes, for example? Who will go first?’’ he asked.

‘’Now, in a proper system you have the head of state. The head of state will give you mandate to say, you, can you form government! Now you have a Head of State who himself is an interested party, do you think he can allow another person to form government? So, it’s crazy! It doesn’t help the country in any way. The system we have is better.’’

And Sangwa said the country had bigger problems to sort out than the Constitution.

‘’In any case, ladies and gentlemen, we have bigger problems to address. Between the Constitution and the economy, I would prefer that we address the economy. It is about priorities as a country, even at a personal level we have priorities,’’ said Sangwa. ‘’Right now, if you ask an average Zambian what is his major priority, is it tempering with the Constitution? No. He wants to eat; that’s the priority. They want jobs, and they want to find out who owns the 48 houses, anyway!’’

And Prof Ndulo said the Bill was seeking to undermine the basic structure of the current Constitution.

‘’The constitution of any country, including ours, has a properly defined structure. We have the Executive, the Legislature, and the Judiciary; that’s is the structure of our Constitution. But this proposed Bill is a project to put more power on the Executive and disadvantage Parliament. Therefore, the whole process is unconstitutional,’’ Prof Ndulo argued.

‘’For example, Article 107 seeks to stop Parliament from inquiring into the physical and mental condition of the President. It is taking away the power of Parliament. When you go further, the Bill seeks to remove presidential tenure limits. We are literally saying we want to have a life president. Secondly, it is taking away parliament’s power to approve debt that the government wants to contract. The Bank of Zambia amendments are also really terrible. They want to take away the Bank of Zambia’s supervisory role over the economy, yet, it is Central Banks that control the economy all over the world.’’

When a member of the audience challenged him that the National Dialogue Forum process which brought about the Constitution Amendment Bill was inclusive, Prof Ndulo disagreed.

‘’Actually, when you have achieved inclusiveness you don’t even debate it. The fact that people are saying it’s not inclusive shows you that there is a problem. Like I pointed out, if you look at the Namibian process, the Kenyan process, the South African process, it’s an ‘everybody get on board’ process,’’ he explained.

‘’So, there’s no point in trying to prove that it was inclusive. If you are educated people will know that you are educated, but if you try to prove that then there’s a problem. My hope is that one day in this country we will have a constitution which is embraced by everybody because I see countries where constitutions are embraced. People walk around with their constitutions, and they are proud. What you should remember also is that there is a direct relationship between development and governance. There’s no way you can have development without good governance; the two are interrelated.’’


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