The University of Zambia Lecturers’ and Researchers’ Union (UNZALARU) joins other stakeholders in condemning provisions of the Constitution of Zambia (Amendment) Bill. We have studied the contents of the Bill and we call for the withdrawal of the Bill. Our position is informed by a number of retrogressive provisions that are contained in the Bill starting with those that affect our core constituency, the workers.
(a) The Bill seeks to amend Article 2 to delete the reference to Zambia as “multi-religious” in the preamble and simply call it a “Christian” nation. This not only negates the building of an inclusive society in which all citizens are guaranteed equal citizenship, but also offends the protection of the freedom of conscience which includes freedom of thought and religion protected by Article 19 of the Zambian Constitution. Freedom of conscience, thought and religion are the hallmarks of academic freedom which by definition entails the freedom to teach or communicate ideas or facts, including those that are offensive to political or religious groups or authorities, without fear of repression, intimidation, harassment, imprisonment or being targeted for loss of employment. Academic freedom must be protected by all means to promote human development which is key to sustainable development. Any proposal that contravenes or has a likelihood of contravening any provisions of the Bill of Rights is null and void.
(b) In addition, Article 8 would be amended to include “Christian morality and ethics” as a national value. This is a very broad label. Christianity is not the only acceptable religion in Zambia and beyond. Further, Christianity does not have a single set of moral standards as each denomination may have standards not acceptable to others. Care must be taken to ensure that such proposals do not offend the spirit of the Bill of Rights, which can only be modified by a national referendum. While national values do not form part of the substantive provisions of the Constitution, it is undesirable to have national values that contradict the entrenched provisions of the Bill of Rights. We therefore strongly object to this provision because it could be applied in a manner that interferes with the freedom of conscience.
The Bill seeks to delete Article 189 (2) which mandates employers to retain a person who is owed pension benefits on the employers’ pay roll until that person is paid his/her pension benefit. This provision was included in the current Constitution as a result of the majority submissions in previous constitutional review processes. It is intended to safeguard workers who lose employment from destitution and extreme poverty where employment ends and terminal benefits are not paid. We reject the proposed change and recommend that the provision in the current law be maintained.
The Bill seeks to amend Article 186 by inserting a sub article (3) which requires workers in the public sector seeking election to public office to resign at least two years before the date of elections in order to be eligible as candidates. We reject this proposal because it is discriminatory since other public sector workers such as Ministers and Member of Parliament (MPs) may be permitted to stay in office until the Election Day if the proposed Articles 81 and 116 are passed.
The Bill proposes to repeal Part XVII and abolish service commissions that are meant to provide checks on the exercise of executive power in relation to the appointment and discipline of public service workers. We reject this proposal on the grounds that it would concentrate power in the Executive. It is also our considered view that the proposed amendment risks compromising the professionalism of the civil service by exposing workers to political manipulation contrary to the people’s submissions in the last constitutional review process.
The Bill seeks to abolish the Industrial Relations Court as a specialised division created by Article 120 (3) (b) of the Constitution. We oppose this proposal because the Industrial Relations Court is a specialized court that remains vital to resolving industrial disputes and should not be abolished without wide consultation with all stakeholders including employers and workers’ organisations.
We now address ourselves to other general proposed constitutional provisions, which are as harmful.
The Bill seeks to repeal Article 101 which provides for a second ballot in an event where none of the competing candidates obtains over 50 percent of the total votes cast in the initial ballot. It seeks to instead replace it with clauses that would provide for the formation of a coalition government in an instance where no candidate secures more than 50 percent of the total votes cast in the first round of presidential elections. It empowers the candidate who receives the highest votes, but falls short of the required threshold in the initial ballot, to negotiate with any other rival and form government provided the combined total votes of the two candidates amount to more than 50 percent. We reject this proposal because it is founded on a complete misunderstanding of the presidential system. Under a normal presidential system, the mandate of the winning presidential candidate is not mediated by any entity but is drawn directly from the electorate. In any case, the 50 percent threshold was introduced in the Constitution to cure the problem where elected leaders did not have a clear mandate from the people. The proposed coalition government is a direct negation of this requirement to have a leader with a mandate that is drawn directly from the electorate. It compromises the election of the president in that it permits the rejected candidates to gang up, usurp the will of the people and impose themselves as leaders through the back door.
The Bill seeks to amend Articles 124 and 127 to remove the maximum number of judges (13) that the President can appoint to sit on the Supreme Court and Constitutional Court. It instead arrogates to Parliament the power to prescribe the number of judges. We reject this proposal because it would compromise the independence of the judiciary as Parliament in conjunction with the Executive could decide to change the composition of judges at will.
The Bill proposes to repeal Article 165 which provides for appointment and recognition of chiefs through adherence to the existing local customs culture and traditions of the people concerned. It instead confers the power to recognise and withdraw recognition of chiefs on Parliament. We reject this proposal because it would leave chiefs beholden to the political elites in power. Customary law should be the bedrock that underpins the existence of the chiefly office.
The Bill proposes to amend Article 169 (4) which provides for each province to assume the positions of Chairperson and Vice-Chairperson of the House of Chiefs at least once over a ten-year period. It instead proposes that candidates to these offices shall be chosen by the chiefs in an open and competitive election for a term of five years. We reject this proposal because it undermines the unity fostered by the current arrangement where leadership of the House of Chiefs rotates among the provinces. The proposal further risks creating divisions arising from the removal of the provision that gives chiefs from each province the opportunity to hold these offices notwithstanding the geographical and regional majority in the House.
Other provisions worth mentioning are those which would weaken or destroy the political and institutional checks over government power include the following:
The proposal to abolish Article 63(2) which empowers the National Assembly to approve public debt before it is contracted and to sanction international agreements and treaties before they are acceded to or ratified.
The proposal to repeal Articles 68, 69, 70, 71 and 72 which provide for the composition, qualification and term of office for the MPs. Rather than constitutionalising the composition and outlook of this important arm of government, the Bill relegates this responsibility to Parliament instead. If this proposal is passed, Parliament would in effect be elevated above the Constitution, the law that created it.
The proposal to amend Article 149 to give the president the power to create, divide or merge provinces without the approval of Parliament. Currently, the exercise of this power by the President is subject to Parliamentary approval.
The Bill also seeks to repeal provisions that promote good governance and enhance financial accountability and prudence. These include:
The proposal to introduce the position of Deputy Minister in Article 117A, one that was overwhelmingly rejected by the people of Zambia as an unnecessary expense on the treasury and which for that reason was abolished in 2016 to widespread public acclaim.
The proposal to keep in office Ministers (Article 116) and Members of Parliament (Article 81) until the Election Day. This is contrary to the current constitutional provision which provides for the dissolution of Parliament three months before the Election Day and the consequent vacation of ministerial office. This proposal if passed would represent an unnecessary expense on the Treasury and allow MPs seeking re-election to campaign using public resources.
The proposal to scrap Article 184 (2) (d) which holds the Permanent Secretary of a ministry, province or department responsible and accountable for the proper financial management and expenditure of public resources allocated under their unit.
The proposal to amend Article 193 to effectively merge the Drug Enforcement Commission (DEC) with the Financial Intelligence Centre (FIC). The FIC has proved to be extremely effective while DEC has done very little in investigating high level corruption and money laundering. The proposed amendment is therefore aimed at abolishing the FIC as currently constituted since the statute that establishes the FIC would be made useless by the passage of this constitutional provision. It would also confer secrecy on the investigations into economic and financial crimes, a move that undermines public accountability and transparency.
The proposal to amend Article 252 which provides security of tenure for the Auditor General. The Bill seeks to abolish this tenure and instead proposes a single seven-year term of office. This may leave the office of the Auditor General beholden to the Executive and less likely to perform his or her functions independently. The ultimate effect of this planned change is to weaken the effectiveness of the office.
The Bill seeks to amend Article 266 to insert a new term “legally disqualified”, defined as ‘a disqualification by a court or quasi-judicial body established by law.’ If passed, this ground could be used to disqualify a citizen seeking nomination for election to the office of president. This provision gives a judge or tribunal the unfettered power to wake up on any day and at any time, such as 02:00 am to bar a prospective presidential candidate on any ground or none, and to remove any judge, Speaker of the National Assembly, or Attorney General on any grounds the presiding judge or tribunal can dream of.
Finally the Bill seeks to amend Article 107 that provides for the removal of the President from office on grounds of physical or mental incapacity. We reject this proposal and call for the preservation of the current clause that protects the country from being led by amafontini or people whose mental or physical capacity to perform the functions of the office of president is evidently under serious question and can be manipulated by a cabal within the ruling core.
Nearly ALL the proposed amendments go AGAINST the good provisions in the current Constitution hence the need to reject the amendment Bill in its entirety.
Evans Lampi, PhD Kelvin Mambwe, PhD
UNZALARU President UNZALARU General Secretary