The Constitution of Zambia (Amendment ) Bill No.10 of 2019
I write to you as part of my efforts to defend the Constitution and safeguard your legacy. Mr.President, most emerging democracies in Africa are in regression. I beg you to uphold the Constitution by withdrawing the Constitution of Zambia (Amendment) Bill No.10 of 2019 and accepting that having been elected twice to the office of President of Zambia, you are not eligible for a third term.
I have been a keen follower of constitutional developments in this country for the last thirty years and I can attest to the fact that you have done more for Zambia in this area than all your predecessors combined. This is a legacy worth defending. I will highlight the significance of what you did on 5th January 2016, when you signed the Constitution of Zambia (Amendment) Bill No.2 of 2016, into law. Through the amendment, you introduced a transformational constitutional order, which all your predecessors failed to achieve.
The constitutional changes that occurred between 1964 and 1972, culminating in the Constitution of 1973,were all about undermining the will of the people and the rest of the institutions of government while vesting more power in the office of the President. President Kaunda rejected most of the progressive recommendations of the Chona Constitution Commission designed to limit the powers of the President. Today,we remember only the last few years of President Kaunda’s reign characterized by mismanagement and wastage and his spectacular defeat in the elections of 1991.
President Chiluba ignored the advice of the Mwanakatwe Constitution Commission to have the new Constitution approved by the people through a referendum and rejected all the recommendations intended to reduce the powers of the President and correspondingly increase the powers and stature of the Judiciary and the National Assembly. In the end, we had an amendment to the Constitution, which disadvantaged Dr.Kaunda, as a presidential candidate and increased President Chiluba’s chances of re-election in 1996. We remember President Chiluba for his quest for a third term and his questionable prosecution, all of which have overshadowed everything he did for this country including the tough decisions he made in liberalizing the economy.
President Mwanawasa delayed the implementation of the recommendations of the Mung’omba Constitution, which would have seen the powers of the President considerably reduced and other institutions of government strengthened.
Unlike you Mr.President, President Banda failed to complete the exercise that President Mwanawasa started. He failed to implement the recommendations of the Constitutional Conference,which would have addressed the concerns over the powers of the President in the country’s constitutional order and maintained the status quo.
You, on the other hand Mr.President, finished what President Sata started and in the process gave the people of Zambia what your predecessors had denied them. On 5th January 2016 when you signed the Constitution of Zambia (Amendment) Bill into law at the Heroes Stadium, you did something that perhaps no sitting African President had ever done out of his own free will. The ideal would have been to have a totally new constitution making. Be that as it may, you did what all your predecessors failed to do. You signed a law that reduced the powers of the President. I take the liberty to highlight some of the progressive changes that have come about, which can only be attributed to you.
There is clarity on the exercise of the sovereign authority of the Republic, which is derived from the people. This has been distributed among the various institutions of government and for the avoidance of doubt; the residue remains with the people who will exercise it though a referendum.
National Values and Principles.
The exercise of the sovereign authority of the people is no longer subject to the will of those in whom it is vested. We have national values of morality and ethics, patriotism and national unity, human dignity, equity, social justice and non-discrimination and sustainable development, which must be applied in the interpretation of the Constitution, enactment and interpretation of the law, and in the development and implementation of policies.
The Courts have always treated political parties as private clubs with the consequence that they had little or no say on their internal affairs. This has changed: political parties are now subject to the jurisdiction of the Constitutional Court. Whilst the country can be described as an emerging democracy, the Constitution as amended has brought about stability in political parties by addressing problems, which have plagued them over the years.
Since Independence the National Assembly has been a rubber stamp, which endorsed the decisions of the President without question. You changed that. You strengthened the National Assembly by giving it oversight on the operations of the executive branch of government. The National Assembly now oversees your office in the discharge of the executive functions by ensuring equity in the distribution of national resources amongst the people of Zambia; appropriating funds for expenditure by State organs, State institutions, provincial administration, local authorities and other bodies; scrutinizing public expenditure, including defence, constitutional and special expenditure; approving public debt before it is contracted and approving international agreements and treaties before these are acceded to or ratified. You have turned the National Assembly into the people’s institution by empowering the citizens to petition the National Assembly to initiate the enactment, amendment or repeal of legislation; to comment on deliberations, statements or decisions of the National Assembly. The National Assembly is now mandated to facilitate public involvement in the legislative process.
President Mwanawasa was elected with less than 30% of the votes. You have changed that. Never again will anyone ascend to the office of the President after such a dismal performance at the polls. During your presidency the electoral system has changed. Effective 5th January 2016, elections to the office of President are conducted directly, under a majoritarian electoral system, where the winning candidate must receive more than fifty per cent of the valid votes cast. The presidential by-elections have been abolished. The people directly vote for the President and the Vice President. The Vice President will now be sworn into the office of President in the event of a vacancy, instead of performing the functions of that office until a new President is elected.
You have transformed the Judiciary with the creation of the Constitutional Court with original and final jurisdiction to hear any matter relating to: the interpretation of the Constitution; violation or contravention of the Constitution; the President or the Vice President; election of the President; appeals relating to election of Members of Parliament and Councillors; and whether or not a matter falls within the jurisdiction of the Constitutional Court. Its overriding responsibility is to protect and enforce the Constitution.
You have guaranteed the Judges both functional and financial independence. You have strengthened the security of tenure of Judges by requiring Judges to serve until attaining the age of seventy and retire early with full benefits upon attaining the age of sixty-five. You abolished the previous suspicious and non-transparent system, which enabled the President to strike deals with certain Judges who had reached retirement age to continue in office for a maximum period of seven years.
Since the reign of Dr.Kaunda there had been talk about decentralization of power in the country but there was no political will to do so. You have implemented that by introducing devolved government through the creation of provincial, district and ward administrations.
Values and Principles of Public Service.
You have strengthened the public service by prescribing the values and principles of public service, which include: maintenance and promotion of the highest standards of professional ethics and integrity; promotion of efficient, effective and economic use of national resources; effective, impartial, fair and equitable provision of public services; encouragement of people to participate in the process of policy making; prompt, efficient and timely response to people’s needs; commitment to the implementation of public policy and programmes; accountability for administrative acts; proactively providing the public with timely , accessible and accurate information; merit as the basis of appointment and promotion; adequate and equal opportunities for appointments, training and advancement of members of both gender and members of all ethnic groups; and representation of persons with disabilities in composition of the public service at all levels. These values and principles are to be applied in provision of services at national, provincial and local government levels; and by all State organs and State institutions.
Until 2016, both public and private sector employees retired, in certain instances, without immediate payment of their benefits. You changed that. All employees, including public officers and constitutional office holders have the right to a pension benefit, which cannot be withheld or altered to the employee’s disadvantage. Pension benefits are now required to be reviewed periodically to take into account actuarial assessments and are exempt from tax. Furthermore, they have to be paid promptly and regularly. Where the pension benefits are not paid on a person’s last working day that person has to stop work but remain on the payroll, until payment of pension benefits based on the last salary is received.
Independent Service Commissions.
You have created independent commissions that are only subject to the Constitution and law: Judicial Service Commission, Civil Service Commission, Teaching Service Commission, Zambia Correctional Service Commission, Zambia Police Service Commission, Local Government Service Commission, Electoral Commission of Zambia, Human Rights Commission, Gender Equity and Equality Commission, Emoluments Commission, Police Public Complaints Commission and the Public Protector. They are independent because they are not subject to the control of any person or authority in the performance of their functions. They are required to act with dignity, professionalism, propriety and integrity; and be non-partisan and impartial in the exercise of their authority.
These are all developments that can be attributed to you. You iniated them and you received the support of all political parties in the National Assembly because they were progressive and for the benefit of the Republic. They would not have passed if they were not. Unfortunately, because the country is polarized these achievements are buried in partisan noises.
That the people have not yet felt or seen the benefits of the new constitution order and revamped institutions is not the failure of the institutions but the people appointed to these institutions. This is the best constitutional order we have ever had since 1899.It is a legacy to be proud of and worth protecting.
Unfortunately Mr. President, the Constitution of Zambia (Amendment ) Bill No.10 of 2019 seeks to either undermine or destroy these achievements. I have examined it and I can state without hesitation that there is no single provision that is progressive; of benefit to the people; or which improves Zambia’s democratic credentials or gains we have made so far. The opposite is the case.
Areas of Focus.
Mr. President the focus of your government should be to familiarize the people on the content of the Constitution as amended, which amendments were made in their name and for their benefit. The second area of focus should be on planning for another referendum to complete the constitutional process by enacting into law a new Bill of Rights and Article 79 of the Constitution, which are in line with the rest of the Constitution.
Mr. President, a Constitution is not a Cabinet Memorandum, which canbe changed at any time for any reason or for none. Four years is too short a period in which to revisit the Constitution as amended in 2016. The only way the Constitution(Amendment) Bill No.10 of 2019 .is likely to be explained, if not withdrawn, by followers of constitutional developments, is that you never believed in the Bill amending the Constitution you signed into law on 5th January 2016.That you signed it to boost your chances of re-election in 2016 and you want to change it again to further your pursuit for a third term in office in 2021.
Mr. President you have a good legacy worth protecting rather than destroy by the quest for third term in office.
Mr.President, having said that and whatever you decide, I place my faith in the Zambian people ,whom you should not ignore or underestimate. They are smart. If they were not, I have no doubt President Kaunda would have won the 1991 elections and probably ruled until 2001;President Chiluba would have stood for election for the third term in 2001.President Banda would have won the 2011 election; and Mr.Sata would not have been President and you would never have ascended to the highest and most powerful political office in the land.
Mr. President, the measure of a true leader that loves his country is determined by the choice he makes when his interests are in conflict with those of the people he swore to serve. Your predecessors may not have delivered on the Constitution but when their interests and those of the people were not aligned, they respected the will of the people and settled for what was in the best interest of the Republic. President Kaunda became the first incumbent President of an African English speaking country to gracefully hand over power to another President through the ballot; President Chiluba respected the people’s position on his bid for a third term and ultimately the Constitution; and President Banda, the second incumbent President to lose power in an election organized on his watch, followed the example set by President Kaunda in 1991,and gracefully handed over the reigns of power to President Sata.
Many analysts say that what we have is not the best Constitution given the manner it came about. Be that as it may, one thing is certain, Zambia is constitutionally better today than it has ever been.
Mr. President, I beseech you ,do not take Zambia backwards.
Cc: The Speaker of the National Assembly
President – Movement for Multi-Party Democracy
President- United Party for National Development
President – Forum for Democratic Development
Independent Members of Parliament