THE REFERENDUM ISSUE: WHY THE PRESIDENT AND HIS DISSOLVED CABINET HAVE GOT IT WRONG!
[By Brig Gen Godfrey Miyanda – 29th May 2016]
This is an abridged (shortened) version of my paper of the same title. The paper arises from a robust “blog debate” on the Lusaka Times on 27th May 2016, following my article titled “Brigadier General Godfrey Miyanda Responds to LT Bloggers”. I undertook to submit this as a follow up paper. I learnt a lot, including a new phrase which I liked “Keyboard Warriors” (courtesy of @A Phiri anabwela on 27th May at 12.23 pm). I shall regard these as guerrillas on the internet since they follow no rules, respect no rules and respect no one; I shall stay out of their line of fire!
I suspect that the Constitutional Court (CC) will come like a thief in the night, probably after the election or just before – hence I am rehearsing my case in the Lusaka Times Court (LT CC)! I know that the judges in the LT Court are ruthless, especially the Deputy Chairperson, Her Ladyship @Mushota. Many of these LT judges pass judgement without considering the Applicant’s submissions.
I have arranged this paper as follows: Introductory; Nature of My Referendum Argument; The Law as to Referenda in Zambia; The PF Government’s Case; Why the President and His Dissolved Cabinet Are Lost Over the Election-cum-Referendum Clone.
The decision to combine the 2016 general election with a referendum is rather casual and too serious to be left floating all over the country unchallenged. This is an undemocratic, inconsiderate and insensitive political ploy by the PF Government to get votes.
THE NATURE OF MY CASE
On or about 15th March 2015 the Cabinet declared the holding of the ‘Referendum alongside of General elections in 2016’. The Cabinet also approved amendments to the Referendum Act 1967 to cure some alleged inconsistencies. The amendment was actualised through Act Number 5 of 2015, whose purpose was to amend the Principal Act in part. This Act was assented to by the President on 14th August 2015. Since 15th March 2015 nothing tangible has been done to effect the Statutory Order to hold the Referendum contemporaneous with the President’s opinion and decision – they are still fidgeting today, 15 months later!
The President assented to the “new constitution” on 5th January 2016. On 11th April 2016 I filed a petition in the Constitutional Court established under Article 128 of the Amended Constitution.
The Petition contains 17 challenges; the Referendum issue is just one of them. It is my position that these challenges should and ought to be heard and determined BEFORE the combined election and referendum is conducted otherwise the case will become a mere academic exercise.
Meanwhile the President and his Vice President, who are a party to the case, have been publicly canvassing and insisting that the Referendum will go ahead simultaneously with the 2016 elections. Also the Vice President informed Zambians in London on 26th April 2016 about the forthcoming combined General election and referendum.
The ECZ recently announced the purported referendum question consisting of a “Two-In-One” question:
“Do you agree that the Constitution be amended to expand the Bill of Rights and to amend Article 79 of the Constitution?” (not exact words).
On or about 21st May 2016, during the launch of the PF manifesto, the President answered his own question and said he was going to VOTE YES and directed the audience to do likewise because the PF Central Committee had so decided; he repeated this instruction on another live broadcast during the Africa Freedom Day at State House on 25th May 2016.
I object to this cloned election-cum-referendum because the whole process is inconsistent with the Constitution and the Referendum Act, even as amended. The President has abdicated his heavy responsibility of complying with the Referendum Act and is attempting to annul the entrenched Article 79, a protective provision, without alerting the citizens about the implications of VOTING YES for this multi-dimensional question. The question goes against the public policy rendered to the National Assembly on or about 30th November 2015 concerning single issues by the Minister of justice. At that time he indicated that only single issue questions should be subjected to a referendum and NOT multi-dimensional ones. Once again the Zambian people have been deceived and are being manipulated by the Custodian and Defender of the Constitution who, having decided in March 2015 to order the holding of a referendum, has refused or neglected to comply with the provisions of the Referendum Act. THIS IS MY CASE.
THE LAW AS TO REFERENDA IN ZAMBIA:
The law regarding the holding of referenda in Zambia is found in the Republican Constitution as well as the Referendum Act CAP (Chapter) 14. In the said Constitution the relevant provision is Article 79 (3); in the Referendum Act the relevant provision is Section 2. The Executive have since amended in part CAP 14, to suit their electoral schemes in total disregard of the letter and spirit of the foregoing provisions.
THE GOVERNMENT CASE THUS FAR:
In their public justifications the Executive do not seem to have a constitutional or legal basis for their decision to try to clone the general election with the referendum. The only reason given publicly and defended vehemently is one of COST!
GODFREY MIYANDA’S CASE:
For ease of reference I have classified my “referendum argument” in two parts. I have named Article 79 (3) as “The Mandatory Referendum” (excuse my layman’s language). I have named Section 2 of the Referendum Act as “The Discretionary Referendum”:
a. The Mandatory Referendum: Article 79 gives power to Parliament to alter the Constitution, subject to restrictions indicated in the provision. The relevant and specific article for my argument is Article 79 (3) which provides that “A bill for the alteration of Part III of this Constitution or of this Article SHALL NOT BE PASSED unless before the first reading of the bill in the National Assembly it has been put to a National Referendum with or without amendment by not less than fifty per cent of persons entitled to be registered as voters for the purposes of Presidential and Parliamentary elections.”
I contend that Article 79 (3) is a protective provision to ensure that no one, not even the President, tampers with Part III, which I submit is the fortress of the current Fundamental Rights and Freedoms. The Executive are not only trying to amend Part III but, by their mischievous Double Tobela question, they want to remove the protective. This is tantamount to a parent advising his children NOT to put a lock on the money safe while the robbers are around. Article 79 prevents even Members of Parliament from making any changes to Part III without consulting the citizens who are the masters and employers. This scheme by President Lungu and his dissolved Cabinet is an attempt to overthrow THE PEOPLE who are the “Class A shareholders”!
b. The Discretionary Referendum: The power to order a referendum under the Referendum Act is vested in the President. The relevant provision is Section 2 (1) which reads “The President may, IF IN HIS OPINION it is necessary or desirable so to do, by Statutory Order, direct that a referendum be held on any question or questions specified in the order.” This power is exclusive to the President and to no other person or body. I contend that he may consult but must make the decision and issue the order under his hand.
Additionally, I contend that the question conjured up by the Minister of Justice, in collusion with the ECZ, is definitely NOT a single issue, hence it is not suitable as an issue under the Discretionary Referendum. The current Part III contains at least 32 articles and thus is multi-dimensional. These articles will increase should the proposed clauses, which are not yet published, be added. The majority of our citizens are illiterate so they will do as they have been directed by the President without knowing what they are voting for. What stubbornness is this, following the mess that has been created in the last voting in the National Assembly during the passing of the so-called new constitution?
WHY THE PRESIDENT NAD HIS DISSOLVED CABINET ARE LOST OVER THE ELECTION – CUM – REFERENDUM ISSUE:
I submit that the President, who is the Custodian, Protector and Defender of our Constitution, has failed to carry out his duties in terms of Section 2 (1) of the Referendum Act. The Act grants power to the President to order or direct that a referendum be held on any question that he has specified in a Statutory Order; I further contend that he has no power to delegate the powers under Section 2 (1) to another person or body. Further, since it is him who decides whether to hold a referendum or not, the President has the initiative and the time to choose when to hold it and to mobilise funds before he orders the referendum to be held. No one was holding a gun to his head to call for a referendum in the manner that he and his dissolved Cabinet have willingly acquiesced.
I contend that under this Discretionary Referendum, formulation and determination by the President of the referendum question is a condition precedent to the ordering of the referendum.
Last but not least I submit that in terms of Section 2 (1) the Double Tobela question schemed by the Minister of Justice and the ECZ is unconstitutional and illegal. It is irrational for the President to ask other persons or bodies to formulate an opinion on his behalf. This defies logic and is inconsistent with Section 2, the power to order a referendum. This amounts to refusal to carry out the President’s constitutional and legal obligations.
Those bishops urging citizens to VOTE YES are equally lost and are misleading their flock.
CONCLUDING THE MATTER:
The live directive by President Lungu to the whole nation at Heroes Stadium, sometime in May 2016, is inconsistent with the cited provisions herein. This was done in bad faith as part of the PF campaign strategy and message, turning the Referendum issue into a partisan PF affair. It is strange that the very person who wants to know the answer to a question he formulated has provided the answer and is telling citizens to vote accordingly; he did so on at least two occasions (at Heroes Stadium and State House on Africa Freedom). I regret to describe this act as duplicitous and a betrayal of the people’s trust.
CONSTITUTIONALISM, CONSTITUTIONALISM, CONSTITUTIONALISM!
I REST MY CASE
A VERY CONCERNED CITIZEN
[29TH MAY 2016]