According to Article 78 of the Constitution (that is under the Schedule to the Constitution of Zambia Act Chapter 1 of the Laws of Zambia) the basic function of the legislature is to make laws, amend them or repeal them. The process of law making or the legislative process, in relation to the National Assembly, may be defined as the process by which a legislative proposal brought before it, is translated into the law of the land. All legislative proposals are brought before Parliament in the form of Bills. A Bill is a statute in the draft form and cannot become law unless it has received the approval of not less than a two –thirds majority of the House and the assent of the President of the Republic of Zambia.
The process of law making begins with the introduction of a Bill in the National Assembly and such a Bill can be introduced either by a Minister or a Member other than a Minister. In the former case, it is known as a Government Bill and in the latter case, it is known as a Private Member’s Bill.
For the purposes of this discussion issues shall be narrowed down to address a critical question that has been raised by the Petitioner Brigadier General Godfrey Miyanda in his Petition dated 30th November 2015 with regard to the procedure that has been adopted by Government in its quest to “present “the Constitution of Zambia Bill N.A.B Number 16 and the Constitution of Zambia (Amendment) Bill N.A B Number 17 to the National Assembly for debate.
What are the issues?
- a) That the question of whether the Constitution of Zambia Bill and N.A.B Number 16 and the Constitution of Zambia (Amendment) Bill N.A B Number 17 have been properly presented before the National Assembly and that debate on the two Bills should be allowed in view of the fact that the Minister of Justice has not stated the position of the Executive in so far as it relates to their (Executive) stand point on the Constitution.
- b) As a sequel to the foregoing, is the Minister of Justice in order to maintain that National Assembly should proceed to enact the non-contentious clauses without clearly indicating what these non –contentious clauses are and over and above having earlier stated that Government has no position on the matter when GRZ appeared at Committee stage to give their submissions on the two Bills.
- c) If Government has no position on the Bill ,why then are they, through the Minister of Justice proposing to move the House to enact a Bill into law and holding themselves out to be a sponsor for a Bill that they have nothing to do with or rather have already abandoned in principle;
- d) That can Government (i.e Executive) really and rightly so purport that they are presenting or tabling a the Bill in Parliament on which they have no position and are they truly representative of the will of the people;
- e) That when it comes to the stage of debating and/or voting on the clauses in the Amendment Bill will the executive be entitled to vote since they do not have a position in the matter or declare an interest in the matter; and
- f) Other matters raised in the Petition relate to the appointment of opposition Members of Parliament and the framing of the referendum question on the 322 provisions of the Constitution Bill. There is no space here to deal with these two issues but they shall be dealt with in another article.
These questions are inter-related and are dealt with accordingly.
As earlier stated when a Bill is presented before the National Assembly it is introduced by a Minister and in this case since the Bill is of a legal nature and goes to the core of the proposed constitutional governance of this nation, the initiating Minister is the Minister of Justice.
The main reason as to why there has been a concern raised by the Petitioner is with regard to what happened at Committee stage of the legislative process where the Executive stated that it has “no position” on the matter of “the Constitution Bill and the Constitution (Amendment) Bill.” As to whether the position referred to is with regard to the clauses under the two Bills we shall take it as such based on the verbatim transcript at page 2 where the Honorable Chairperson of the Committee intimated that the witnesses that appeared before the Committee failed to reach consensus on a number of critical issues in the Constitution of Zambia (Amendment) Bill N.A B Number 17. Despite this statement having being made, the Executive has gone ahead to present a Bill where they have “no position” and have further averred that they propose that the recommendation of the Committee on Legal Affairs, Governance, Human Rights and Gender matters to have the Bill withdrawn should be overruled by the House.
The starting point in this discussion is whether the Constitution of Zambia Bill and N.A.B Number 16 and the Constitution of Zambia (Amendment) Bill N.A B Number 17 have been properly presented or introduced before the National Assembly and that debate and or vote on the two Bills should be allowed in view of the fact that the Minister of Justice has not stated the position of the Executive in so far as it relates to their (Executive) stand point on the Constitution.
It is trite that within our jurisdiction the main Bills that constitute the Government’s legislative programme are announced during the Ceremonial Opening of Parliament and there have been several commitments to enact the new Constitution of the Republic of Zambia.
There are various ways in which Bills are introduced and of significance in this case is what is embedded in the Manifesto of the Patriotic Front which is a social contract that they made with the people of Zambia on the political, social, legal and economic measures that they were going to undertake to improve the lives of the Zambian people once elected into office. This is what precipitated the establishment of a Technical Committee to draft the Zambian Constitution.
The practice in Zambia as in other Commonwealth jurisdictions has been to introduce a Green Paper (i.e. budget legislation) or a White Paper as a preliminary to the actual introduction of the Bill before Parliament. The White Paper usually contains in depth proposals for the legislation to be introduced in Parliament. It is in this document that stakeholders know what the position of Government is and clearly as stakeholders in the legislative process they must surely have a standpoint. The introduction of a White Paper is made by the Minister responsible for sponsoring the subject matter and the introduction usually includes a statement concerning the contents of the White Paper and its implications for future legislation.
From the foregoing one can see that there is a nexus between the sponsor of the Bill who in effect in this case is presenting the Bill in Parliament on behalf of the Executive and the need for them to state what their position is so that they can also engage in a meaningful debate and be amenable to vote on a motion that is tabled before Parliament.
Thus to go ahead and aver that Government has “no position in the matter and go further to present a Bill that has been technically abandoned at Committee stage which is very critical in the legislative process is a clear dereliction of duty and flies in the face of parliamentary practice and procedure with regard to the introduction of Public Bills in Parliament.
In other words if one has “no position” on a Bill as the sponsor of the Bill it would not be right for them to even proceed to debate or vote on a Bill with respect to its form or content.
To go forth and contend that bringing a White Paper before Parliament derails the Constitution making process should be dismissed in the public interest because what is contained in the White Paper are just proposals from the Executive and are ordinarily not supposed to have a bearing on the voting result for as long as there are no machinations to circumvent the principle of democracy, transparency, accountability and good governance.
This takes us back to the issue of the reconfiguration or redesign of Cabinet which was spotted as a maneuver to create a “shadow National Assembly” to ensure that a new Constitution is passed in the National Assembly however correct or incorrect it may be in its content and form. Also regardless of whether the procedural aspects of ensuring that the text is enacted in a transparent and accountable manner that is representative of the will and interests of the people. This unlawful redesign of Cabinet was done by extending an invitation to Deputy Ministers and Provincial Ministers to be a constituent part of Cabinet notwithstanding the fact that the Constitution of Zambia does not recognize them in any form as such.
Having established that it is critical that the Executive states what its proposals and positions are prior to introducing the Constitution of Zambia Bill and N.A.B Number 16 and the Constitution of Zambia (Amendment) Bill N.A B Number 17 which are of national importance; the question then is; whether the omission is so fatal that the procedure that has been adopted should be declared a nullity? Or should the House be moved before the Third Reading Stage to engage in debate and have a motion laid on the Table to reverse or overrule the decision of the vote at Second Reading so that Government can state its position and allow for debate on the general principles of the Bill?
It is trite as has been stated earlier that the motion to consider the Bills requires Members of Parliament to put the Bills to a vote and since the Executive has stated that they have “no position” should they really be entitled to vote on a Bill they have no position on? Because how can you vote if you have no position or have not been swayed to hold a position?
The other aspect is that; since there was an unlawful reconfiguration of Cabinet where Deputy and Provincial Ministers were invited into Cabinet allegedly as ‘observers’ is it now in order that these junior ministers should vote or consider a matter that is before them in Parliament which came from Cabinet since they are bound by the principle of collective responsibility and consequently have lost their independence which requires them to place the interests of the people above politics. It is contended that having lost their independence by attending and possibly participating in Cabinet meetings junior ministers must now declare an interest or perhaps abstain from voting on the Constitution Amendment Bill when it is out up for a vote . As to whether this will garner or adversely affect the two –thirds majority requirement that again is an issue that is very clear and does not need a great mathematician to solve.
Even if the Executive has taken the “no position” standpoint as a way either to pre-empt the question of independence of junior ministers in Parliament or to hoodwink the people of Zambia into thinking that they are purely a vehicle for spearheading the enactment of the Constitution, the Executive are still duty bound in the spirit of transparency to advise which clauses are contentious or non-contentious and why. This is in addition to providing advice on which three hundred and twenty two (322) possibly non–contentious clauses are going to be enacted coupled with an unqualified justification being given as to why the proposal from the Committee is being ignored when it is clear that there is still no consensus on the critical issues in the proposed Constitution Amendment Bill.
Furthermore it is well known that the sponsor in this effect represents the Executive (Cabinet) and it is in Cabinet where a standpoint is debated and adopted on the Constitution making process and as such the sponsor cannot be said to be representing the will or the views of the people of Zambia since the sponsor has a political agenda distinct from the will and interest of the people. This confirms the reason why during the constitution making process stakeholders have persistently called for debate on the mode of adoption of the Constitution as well as a road map. Sadly the plea fell on deaf ears and it is representative of a clout on democratic governance and transparency for the Executive to come back later in the day and still claim that they have “no position “in the matter.
We have attempted to narrow the discussion to the main fundamental issue that goes to the core of the constitution making process vis a vis the legislative process that is currently underway following the petition of one Brigadier Godfrey Miyanda. It is a disgrace that fifty (50 ) years after independence Zambians are yet again being denied the chance to have a document living amongst them that will guide and protect as well as promote their well-being in society. That is, having a Constitution in place that is a document for their development and self-sustainability rather than a political document for exerting power in exchange for patronage.
By Zambian citizen