- SERIES 1: IMPEACHMENT MOTION: President Lungu To Be Impeached For Debt Which Parliament Approved
- SERIES 2: IMPEACHMENT MOTION – Did Government break financial regulations and the law on the monies from Mukula logs?
- SERIES 3: IMPEACHMENT MOTION – Is The Frustrated Fire Tender Petition a Basis for Members of Parliament to impeach the President?
- SERIES 4: IMPEACHMENT MOTION – Is UPND turning Parliament into a Court to hear same matters that are before the Constitutional Court?
- SERIES 5: IMPEACHMENT MOTION – How should voting be done on the impeachment motion?
By Isaac Mwanza
When the motion to impeach the President of the Republic of Zambia was submitted to Parliament, a demand was also made, by the petitioners, to the effect that the vote for the motion requesting the Chief Justice to establish a Tribunal to investigate the allegations against the President and his Cabinet, should be conducted by secret ballot.
It should be noted that for the motion to pass, a majority of two-thirds of members of Parliament, must vote in support of the motion.
On the other hand, this demand has also given rise to allegations that the United Party for National Development (UPND) who are the movers of the motion are paying large sums of money to Members of Parliament from both the governing party and Independents to support the impeachment motion. Some online media have given what they claim to be details of the alleged vote – buying meetings by opposition party leaders.
It is common knowledge that the movers of the motion, led by their party president Mr. Hakainde Hichilema, are asking for a secret ballot in the first round of voting on the impeachment motion, even though the Constitution does not provide for a secret ballot in the first round. This is only permitted in the second round. The demand for a secret ballot is therefore being viewed both as a method to protect members of parliament from the ruling party who may vote in support of the motion, that is, who may vote to impeach their own president or as a way to protect those who have allegedly received some payments.
The Question of the Law
With regards to the voting system pertaining to the motion of impeachment, the Constitution of Zambia, provides as follows:
Where a motion, moved in accordance with clause (1), is supported, in the National Assembly, by a resolution of two-thirds of the Members of Parliament the Chief Justice shall immediately inform the President of the resolution, whereupon the President shall cease to perform the executive functions and the Vice- President shall perform the executive functions, except the power to make an appointment; or dissolve the National Assembly”
“Article 108 (8)(a)
Where the tribunal reports that the particulars of an allegation against the President is not substantiated, the National Assembly shall, on a motion supported by the votes of not less than two-thirds of the Members of Parliament, taken by secret ballot, resolve that the President did not commit the violations specified in the motion; and further proceedings shall not be taken with respect to the allegation.”
The Standing Orders of the National Assembly, 2016 provide for two types of voting procedures: the Manual system and the Division
“Order 65 (5)
Unless otherwise ordered by the Speaker, voting in the Assembly shall be done electronically.
When a Division is demanded, the Division bells shall be rung for four minutes. At the end of a further period of one minute, the Speaker shall direct the Bar to be closed and doors locked, and a member shall not, thereafter, enter or leave the Chamber until after the division has been taken.
“Order 68. (1)
When the Bar is closed, the Speaker shall again put the question and shall appoint two tellers for the ‘Ayes’ and two tellers for the ‘Noes’ whose names shall be recorded in the Votes and Proceedings. The tellers shall record the names of the members voting, sign their division lists and hand them to the Speaker, who shall declare the numbers and the result of the division to the House.
In the face of the law as cited above, the UPND Members of Parliament through Mazabuka Constituency lawmaker, Hon. Garry Nkombo, have demanded a secret ballot in the first round, claiming that a secret ballot will allow the governing Patriotic Front (PF) Members of Parliament, to freely vote their conscience in the first round.
According to the governing PF, this demand is nothing more than a thinly veiled cover to facilitate a fraudulent vote obtained through bribery and corruption of its members. According to the PF, its own private investigation has uncovered a plot whereby the opposition UPND are paying ruling party and independent MPs to vote in favour of the motion. But, let us focus on the law.
Section 22(1) of National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia makes it a criminal offence for any person to offer to any member of Parliament any bribe, fee, compensation, gift or reward in order influence such member of Parliament in his conduct as such. A member of the Assembly who accepts in any form, gratification in respect of the promotion of or opposition to any Bill, resolution, matter, rule or thing submitted to, or intended to be submitted to, the Assembly, shall be guilty of an offence. The person who offers such, is liable on conviction to a fine not exceeding five hundred penalty units or to imprisonment with or without hard labour for a term not exceeding three months, or to both.
OPEN VOTING v. SECRET BALLOT
The bigger question is; why did the Constitution of Zambia not provide for secret ballot in the first round of the impeachment motion but provided for secret voting in the second round? The answer partly lies in the current allegations of the alleged bribery of Members of Parliament and in enhancing transparency and accountability of elected officials.
From the onset, the motion of impeachment submitted in Parliament require ascertaining that one-third members duly appended their signatures to the motion in order for it to be valid. The law further require that two-thirds of all members of parliament vote in favour of the motion to authorise the Chief Justice to establish an independent Tribunal to conduct an investigation to ascertain whether or not the President violated the constitution or other law, committed a crime under international law or grossly misconducted himself. In both these stages, the Constitution envisages an open and transparent process.
In that instance, an MP moving the motion cannot claim that the requirement for one-third members have been complied with but that they do not want their names to be known. Equally, members of Parliament who believe that a sitting President should be impeached, must not seek to have their vote in secrecy unless they do not believe in what they are voting. The electorate whom the Members of Parliament represent must, as a matter of fact, know how their MPs are voting on a particular matter, whether it represents their desires and desires or not. Therefore, voting for the process to authorise that a Tribunal must conduct an investigation, should not be a big deal, since the goal is to establish the facts on which the impeachment may move forward or, to the contrary, fail.
On the other hand, voting to remove a sitting President in the second ballot is a big deal, and requires clear minds, unfettered by fear of consequences in case the motion fails.
It may be pertinent, at this juncture, to call the attention of our lawmakers that are demanding a secret ballot in the first round, to the decision of the South African Constitutional Court in the similar case of United Democratic Movement (UDM) Vs. Speaker of the National Assembly and Others  ZACC 21.
On 6 April 2017 the UDM wrote a letter to the Speaker. She was asked to prescribe a secret ballot as the voting procedure for the scheduled motion of no confidence in the President. In substantiation, the UDM cited what it termed the obvious importance of the matter, the public interest imperative that a truly democratic outcome be guaranteed and the high likelihood that the vote would otherwise be tainted by the perceived fear of adverse and career-limiting consequences, instead of being the free will of Members. The oath or affirmation taken by Members and considerations of accountability were added in support of a secret ballot as the preferred voting procedure. While admitting that the Rules of the National Assembly do not make express provision for a secret ballot in that motion, the UDM contended that some direction could be found in sections 57 and 86(2) of the South African Constitution, read with item 6(a), Part A of Schedule 3 to the Constitution and rule 2 of the Rules of the National Assembly.
The Speaker said voting procedures in the Assembly are determined by the Constitution and the Rules of the National Assembly and that none of them provides for a vote on a motion of no confidence to be conducted by a secret ballot.
The Speaker placed reliance on the case of Tlouamma v Speaker of the National Assembly  ZAWCHC 140; 2016 (1) SA 534 (WCC), a decision of the High Court in the Western Cape dismissed an application for an order to compel the National Assembly to vote on a motion of no confidence by secret ballot where the Court said held that there was no implied or express constitutional requirement for voting by secret ballot on a motion of no confidence in the President.
In the South African case, the Constitutional Court was asked to rule on the question of whether or not the Speaker of the Parliament of the Republic of South Africa, was within the law when she refused to permit a secret vote in respect of a motion brought by one of the political parties represented in the parliament, to impeach the President of the Republic of South Africa who, at the time, was Mr. Jacob G. Zuma. On 22nd June, 2017, the Speaker ruled that the vote could not be held by secret ballot and that she had no power to change the rule.
The South African Constitutional Court, even as it stated that a secret ballot would be permissible in a vote on a motion of no confidence against former President Jacob Zuma, did not make such an order‚ given the clear allocation of power by the South African Constitutional itself and the separation of powers doctrine. The Court noted that regarding the removal from office either through an impeachment49 or a motion of no confidence, the Constitution is silent on the procedure (This is a fundamental difference from the Zambian Constitution that provides for procedure).
The South African Constitutional Court, in its ruling, noted that the constitution placed the power over all parliamentary procedures and processes, squarely in the hands of the Speaker of the National Assembly. It was entirely up to the Speaker, under the relevant law and the constitution, to decide the method of voting. Subsequent words as to what might be desirable given the circumstances, do not constitute part of the ruling as they are unsupported by the constitution or the law, and amount to the judge’s personal views.
In the case of our own parliamentary processes in Zambia, the decision will squarely be in the hands of the Speaker of the National Assembly, Honourable Patrick Matibini.
Naturally, the doctrine of separation of powers requires that one arm of government do not encroach on matters which ought to be decided by another arm of government. Let us assume that the Speaker respects the Constitution, which requires that the processes leading to Parliament authorising an investigation, must be done through the transparent process and not a process shrouded in secrecy, can a Court in Zambia order the Speaker to do otherwise? The answer is in Section 34 of CAP 12, which states that the Speaker shall not be subject to the jurisdiction of any court in respect of the exercise of any power conferred on the Speaker or such officer by or under the Constitution, the Standing Orders and this Act.
At a time when the allegations are becoming more pronounced that some Members of Parliament are being paid to influence how they should vote on this particular matter, the wisdom is to allow Members of Parliament to vote using the transparent system of voting as provided in the relevant statutes and rules, for it is only then that lawmakers who believe an investigation must be conducted by the Speaker, can openly do what they believe is right.
Our system of voting in the National Assembly also helps to add legitimacy to the standing of the National Assembly so that it will not be accused of either authorising or failing to authorise an investigation by manipulating the result because of some alleged underhand compensation. An open voting system also helps the electorate to hold their MPs accountable or at best to understand how they got represented in making of the decision. On the other hand, allowing a secret ballot reinforces the idea that some MPs that are said to have been offered the alleged underhand compensation or bribes and will only make a decision based on the alleged rewards and not what they believed in.