By Sunday Chilufya Chanda
Following the UPND Secretary General Mr. Stephen Katuka’s statement glorifying his party’s article 70 which clearly confirmed what the public has always suspected – Hakainde Hichilema is “virtually UPND’s life President”, I turned to Article 60 of the Zambian Constitution. The UPND Secretary General proudly informed the public of their *Article 70* as it appears in the party Constitution which states as follows:
*”A party President shall be eligible for election for an indefinite period subject to this Constitution provided that a Party President who is elected Republican President shall only serve two terms that shall run concurrently with the term of office as Republican President”.*
The question which however begs an answer is whether this is allowed under the current national law. It’s my intention to contribute to the debate and especially that political parties are adequately catered for under the 2016 Amended Constitution. The 2016 amended Constitution of the Republic of Zambia brings political parties under the ambit of national law. *I want to argue that they are no longer mere private clubs as the case used to be*.
Article 60 of the Republican Constitution makes it clear that intra-party democracy is a requirement under the law.
*Article 60 (2)* A political party shall—
*(a) promote the values and principles specified in this Constitution;*
(b) have a national character;
(c) promote and uphold national unity;
*(d) promote and practice democracy through regular, free and fair elections within the party*
It is my argument that Article 70 of the UPND Constitution is inconsistent with the Constitutional provisions and further refuses to promote the values and principles of the Republican Constitution. Unless Article 60 does not political parties accountable to the parent law.
Under Article 60 (2) (e) the Republican Constitution states that a political party shall: “respect the right of its members to participate in the affairs of the political party”
The UPND party Constitution creates a virtually “life Party President” as it disrespects the right for members to effectively participate in the affairs of the party, including aspiring for the party Presidency. This is because it generally gives an incumbent party president the right to indefinitely contest elections. There would in strict sense be nothing unconstitutional about such indefinite contesting although clearly retrogressive as such sham forms of democracies have been relegated to yesteryears and certainty have no support in our current constitutional order. Clear unconstitutional and undemocratic vices can be noted from the fact that having recourse to Article 70 of their party Constitution, the UPND have prevented the party from having regular intra-party elections (democracy). This is because HH has been unconstitutionally held-out as a “virtually life president” who can indefinitely avoid regular intra-party democracy instead of contesting at all.
Further, under Article 60 (3) (a) of the Republican Constitution, the Constitution makes it illegal for any political party to be founded on tribe, ethnicity, among others:
A political party shall not— (a) be founded on a religious, linguistic, racial, ethnic, tribal, gender, sectoral or provincial basis or engage in propaganda based on any of these factors
In the UPND, there is allegedly a Quota system which dictates that only a Tonga can be the president of the party. This probably explains why non-tongas such as Sakwiba Sikota who were rightfully entitled to succeed the late Anderson Mazoka were instead ousted from the party. If indeed such a Quota actually exists, then the UPND may be a party based on ethnic, tribal or other similar factors contrary to the provisions of the Republican Constitution.
Furthermore, the Opposition UPND should also pay attention to Article 60 (3) (b) on Violence and intimidation, including what they are doing to their Vice President Political Dr. Canicius Banda.
A political party shall not: “engage in or encourage violence or intimidate its members, supporters, opponents or other persons.
Further, Article 60 (2) (f) of the Repulican Constitution states that members of a political party have the right to seek redress before the Courts of law – respect the right of its members to seek redress from a court or tribunal when aggrieved by a decision of the political party.
It is clear that the article 70 of the UPND party constitution and other practices of the party are inconsistent with the provisions of the Supreme law of the land.
Accordingly, *Article 1* which deals with the Supremacy of the Constitution of Zambia states as follows:
*1. (1) This Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency.*
*(2) An act or omission that contravenes this Constitution is illegal.*
(3) This Constitution shall bind all persons in Zambia, State organs and State institutions.
In conclusion, it is important that for those members (with Locus Standi) victimised or disadvantaged under the UPND such as its Vice President for Politics Dr. Canicius Banda and others who to aspire to replace Mr. Hichilema can and must take the matter on the article 70 of their party Constitution to the High Court and any member of the party can and must move the Constitutional Court on matters arising from the Republican Constitution for interpretation. The Courts should be in a position to pronounce whether or not it was the intention of the law to place a democratic duty on political parties and yet articles such as 70 of the UPND continue to thrive!