By Prof. Muna Ndulo
- The Presidency is by definition a dominant feature of a presidential system of government. However, it is unfortunate that the articles in the draft constitution exemplify the extent to which the president can dominate affairs of the state and government. Adequate checks and balances are an important aspect of a democratic presidential system, yet the collective experience of presidential systems has shown that checks and balances can be ineffective without strong oversight institutions. For example, presidential power to appoint persons to official positions must necessarily be qualified and checked by the National Assembly and other bodies as appropriate. Given the history of abuse of power to create ministries, one would have expected the constitution to set an upper limit for the cabinet. A number of countries have done so; a recent example is Kenya’s 2010 Constitution. The United States also has a limit on the number of cabinet posts.
- Article 91 establishes a procedure whereby in cases where Parliament does not approve of presidential appointments the matter is referred to a constitutional court. It is difficult to see the rationale for this approach. Unless the allegation is that the President has not followed the constitution in making the appointment, this is not a judicial decision. In a case that involves a constitutional matter regarding the appointment, the power of the constitutional court already exists through judicial review. Thus this is a political question that requires political accountability rather than judicial arbitration.
- In article 91 (5), where Parliament refuses to approve a state of emergency, that refusal is overcome by the passage of seven days. If that is the case where is the check on presidential power? A better approach would be to allow the emergency to lapse if it fails to gain parliamentary approval, as is the approach in the Kenyan and South African constitutions. Parliament then operates as a meaningful check.
- The same can be said about article 92 (3) and (4). Ratification by Parliament is supposed to be a check on presidential power, and yet this article allows a Parliamentary decision to be easily overcome by the president simply sending a third name. The structure of the current draft constitution is that the president always wins: this is not how you check presidential power. Careful thought should be given to the way in which the National Assembly will actually vet and approve presidential nominees. Specialized committees of the National Assembly, with assistance from professionals in the nominee’s area of specialization, may be needed to create an effective mechanism—as opposed to a rubber-stamping operation—for vetting nominees.
- A common approach adopted by both the Kenyan and South African Constitutions to check presidential power is the requirement that a decision of the president in the performance of any function under the constitution shall be in writing and shall bear the seal and signature of the president.
- Article 96 (1) immunizes the president from civil proceedings. It is not clearly drafted. It leaves in doubt whether the provision covers private acts and what the position is when the president leaves office.
- Generally there is too much emphasis on the president throughout the constitution. The vice-president does virtually nothing.
- One useful limitation that could be introduced on the powers of anyone who acts as president in the absence of the incumbent is that such a person may not exercise presidential powers relating to making constitutional offices, appointing Ministers, conferring national honors, or exercising the prerogative of mercy.
Election of President
- Article 97 (1) (c) needs clarification. It does not state how long one ordinarily needs to be a resident of Zambia to qualify for nomination to stand as president. Although the constitution abandons the parentage clause in the present constitution, it still requires presidential candidates to be citizens by birth or descent. Where does this place illegitimate and adopted children?
- In article 110 (4) it is provided that an Act of Parliament shall provide for the circumstances under which a declaration of war may be made. The decision is made by the president subject to Parliamentary approval. As Parliament reviews the president’s decision, why then is article 110 (4) needed? On the other hand, the circumstances under which an emergency can be declared should be in the constitution. Parliament should operate as a check on the exercise of those constitutional powers by the president.
Cabinet Ministers and Parliamentary Secretaries
48. Article 116, dealing with membership of the cabinet, includes provincial minsters as members. In a devolved system of government, provincial ministers should not be part of the central government; that would completely undermine the concept of devolution. The second tier of government is supposed to be a level of checks and balances and cannot act as such when it is part of the central government.
- In article 120 (7), instead of providing that a minister may attend Parliament where it is necessary for the performance of his or her duties, it should be provided that Parliament can summon a minister to attend Parliament and answer questions about his or her portfolio. That is necessary so that Parliament can exercise effective checks and balances. In jurisdictions where ministers are appointed outside Parliament, as for instance in the U.S., that is the practice.
- Article 121 allows the president to appoint provincial minsters. This should not be permitted as it completely undermines the concept of devolution; the approach being advocated by the draft constitution is the same as the one prevailing in the 1991 constitution. In a devolved system the subnational levels of government are expected to come up with their own leaders; otherwise what you have is decentralization of the center. That is not devolution of power to the provinces.
- Article 121 (6) states that the functions of a provincial minister shall be as specified under this constitution and an Act of Parliament. This again undermines devolution. The powers of provincial ministers should be constitutional and be provided for in regional constitutions. You cannot have a national Parliament regulating the powers of constitutional offices in the provinces in a text committed to the promotion of devolution.
- In article 122 the draft constitution creates a new layer of positions called parliamentary secretary. This appears to be an attempt to have some sort of cabinet in Parliament. Parliamentary secretaries are not running ministries, so how can they be accountable for what is happening in the ministries? The idea of appointing ministers from outside of parliament is to entrench the separation of powers and increase accountability. Ministers should continue to run ministries. Parliament should be able to summon ministers to Parliament if their presence is needed for purposes of accountability. How can parliamentary secretaries oversee the implementation of government policies by a Ministry when they are not in the cabinet? In any case there is a cabinet minister to do that. The Expert Committee would benefit from examining the practice under the Kenyan and American constitutions, both of which provide for the appointment of cabinet ministers from outside Parliament.
- The parliamentary secretaries would clearly not be members of the cabinet. This would lead to a bloated government, which is contrary to the wishes of the public for a lean government.
- Article 125 states that Parliament consists of the president and the National Assembly. How is this reconciled with the doctrine of separation of powers? The fact that the president assents to legislation after it has been passed by Parliament does not mean he or she is part of Parliament. A similar provision in the Kenya constitution reads: “There is established a Parliament of Kenya which shall consist of the National Assembly and the Senate.” In Zambia there is no Senate, so Parliament will be the National Assembly.
- Reading article 138 one gets the impression that there is confusion in the draft with respect to how proportional representation works. The draft sometimes seems to suggest that members of Parliament would be standing as individuals while at the same time talking about party lists. For example, both articles 139 (3) and 140 (1) talk about independent members of Parliament. How is that possible in a proportional representation system? A good example of the proportional representation model is nearby South Africa. Were the Committee of Experts to study the example of South Africa (and other such systems) they would discover that there are no independents in South African national elections.
- The draft abolishes one-member constituencies and creates a two hundred-member National Assembly to be elected on party lists under proportional representation. This seems to be a departure from previous consensus. The Electoral Reforms Technical Committee did a detailed study on this matter and recommended combining proportional representation with the existing one-member constituencies. The provisions on proportional representation are drafted in ambiguous terms and not easily understandable, for example the provision for election to National Assembly on the basis of party lists while at the same time allowing for independent candidates. It is not clear how this would work in practice.
- Article 142 provides for the appointment of a parliamentary secretary to be leader of Government Business in the House; it seems to me that here the draft constitution is creating another vice- president or super minister. How can the parliamentary secretary be leader of the house when he or she is junior to a minister and vice-president? It is best here to look at practices in other jurisdictions. How could such a parliamentary secretary give effective leadership in Parliament and lead the house on government policy when he or she is not a member of the Cabinet?
- In article 152 (4) the president is given power to dissolve Parliament. Why would the president have this power? Without safeguards, this power can be used to manipulate parliament. The grounds stated in the article 152 (4) can easily be abused. How do we determine that “the executive cannot effectively govern the republic” and thereby grant the president authority to dissolve Parliament? Best practice in constitution-making does not grant such powers to the president; neither the South African nor 2010 Kenyan constitutions do this; the same holds true for the American Constitution. Under the South African constitution, after an election, the first sitting of the National Assembly must take place at the time and on a date determined by the President of the Constitutional Court, but no more that fourteen days after declaration of the election result. Once the first sitting has taken place, the National Assembly determines the time and duration of its other sittings and its recess periods. The absence of such a power in the president underscores the separation of powers. Effective democracies have at their core a strong Parliament. This is absolutely a must if there is to be an effective system of checks and balances.
- Article 158 talks about the passing of a vote of no confidence in a provincial minister. In a devolved system of government this should not happen. The appropriate place to pass a vote of no confidence in a provincial minister is in the provincial assembly. This provision and others show that the draft does not fully understand or embrace devolution.
- In article 160 the draft grants a citizen the right to petition Parliament to enact, amend, or repeal any legislation. How is this different from a citizen approaching a Member of Parliament to introduce a bill? The petition will be directed to whom? Citizens can always work through their Members of Parliament to ask them to move bills to change legislation or enact new legislation.
- Perhaps the greatest weakness of the section on the legislature is that it fails to provide any mechanism to ensure accountability of the executive to the legislature. The South African constitution is unique in Africa in that it requires the National Assembly to provide for mechanisms to “ ensure that all executive organs of the state in the national sphere of government are accountable to it: and to maintain oversight of (a) the exercise of national executive authority, including the implementation of legislation,.”
- The importance of a legislature that can act independently of the President to ensure accountability of the President needs no special emphasis, unless parliament is in fact independent of the President, Parliament’s sovereignty simply means the sovereignty of the executive. To secure liberties in an open, plural, and democratic society there ought to be an effective parliament which would not be a focal point of policy, but one that is expected to play a crucial role in the checking and balancing of other powers. No constitution, however strongly entrenched, can be a guarantee against the temptations of power on the part of the executive unless there is an independent legislature to act as a counter poise against such temptation, and unless there is a strong national ethic against executive pretentions, the guaranteeing of rights of individuals is not worth the paper it is written on.
Muna Ndulo is Professor of Law, Cornell University Law School Director, Cornell Institute for African Development Honorary Professor of Law, Cape Town University , Extra Ordinary Professor of Law, Free State University, South Africa