SUBMISSIONS TO THE PARLIAMENTARY SELECT COMMITTEE ON THE PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA- AMENDMENT BILL N.A.B 10 OF 2019

1. Introduction

 

The MMD under the “safe hands working for you” slogan is a party enshrined in the values of democracy, of compassion and choice with responsibility. We continue to support and respect the greater contact and interaction between politicians and the people we are privileged to lead and serve. It is for this very reason that the MMD believes that economic prosperity for all can be best created by free men and women through free enterprise; by economic and social justice involving all productive resources – human, material and financial, and by liberalising industry, trade and commerce, with the Government only creating an enabling environment whereby economic growth must follow as it has done in all the world’s successful economies. The MMD believes that constitutional reforms are necessary and important for any country to meet changing times as the constitution of any country is the bedrock of that country’s prosperity and that of it’s people.

 

2. Current Legislation and Proposed Amendments

 

2.1 The Preamble

 

The starting point of our submissions this morning in respect of the pertinent proposed amendments pursuant to Bill Number 10 of 2019 is the preamble of the current Constitutional dispensation in Zambia. The relevant portion of concern of the preamble of the Constitution of the Republic of Zambia states that;

 

“WE, THE PEOPLE OF ZAMBIA: ACKNOWLEDGE the supremacy of God Almighty; DECLARE the Republic a Christian Nation while upholding a person’s right to freedom of conscience, belief or religion;”

The proposed amendment to that this provision of the supreme law of the land as canvassed in Section 2 of bill number 10 of 2019 states that; 

 

“The Preamble is amended by the deletion of the words “multi-religious” and the substitution therefor of the word “Christian”.”

 

Honourable Members of this Committee, it is the position of the MMD that we entirely support this amendment to our Republican Constitution as canvassed in Section 2 of Bill Number 10 of 2019 as the said proposed clause removes the manifest ambiguity in the current preamble of the Constitution of the Republic of Zambia. In addition, it is our submission Honourable Members that the proposed amendment creates the much needed identity as a basis for formulating values and principals upon which the Constitution will be anchored. 

 

It is cardinal to submit further that the argument that the proposed new amendment will be detrimental to non-Christians on account of being discriminatory is one in our opinion that does not hold water. We submit that the rights of non-Christians will remain protected as has been the case from time in memorial as Article 19 of the Constitution guarantees one’s freedom of conscience. 

 

Honourable Members, Article 19 of the Constitution states that; 

 

“(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this Article the said freedom includes freedom of thought and religion, freedom to change his religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance. 

 

(2) Except with his own consent, or, if he is a minor, the consent of his guardian, no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion other than his own. 

 

(3) No religious community or denomination shall be prevented from providing religious instruction for persons of that community or denomination in the course of any education provided by the community or denomination or from establishing and maintaining institutions to provide social services for such persons. 

 

(4) No person shall be compelled to take any oath which is contrary to his religion or belief or to take any oath in a manner which is contrary to his religion or belief.

 

 (5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in 14 question makes provision which is reasonably required: (a) in the interests of defense, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practice any religion without the unsolicited intervention of members of any other religion; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justified in a democratic society.

 

Clearly, the provisions of Article 19 as enshrined in the bill of rights provide sufficient protection to non- Christians in the Republic of Zambia as the case has been since time in memorial especially in so far as being discriminated against.

 

2.2 Deputy Ministers 

 

Section 38 of the Bill proposes to make an insertion in the Constitution Act of new Article 117A giving powers to the President to appoint a prescribed number of Deputy Ministers.

 

We propose that this provision should not be effected with the current size of Cabinet in place.  We further propose that if this provision is to be passed, it should be accompanied with a provision limiting the size and number of Cabinet Ministers that may be appointed.  

 

Amoing the refinements that can be considered is to firstly, reduce the Number of Ministries.

 

Zambia currently has 40 Ministers (of which 30 are Portfolio and 10 are Provincial).   A number of larger economies, have fewer Cabinet Ministers for instance, the Kenya constitution allows a maximum of 22 Ministries, although on 19 have been appointed.  South Africa (with a population 4 times Zambia’s) has 28 Ministers; the United Kingdom (population 4 times ours) has 22 Cabinet Ministers; France, a country synonymous with bureaucracy has only 16 Ministers. India, with a population 78 times ours, has 30 Cabinet Ministers; Nigeria (population 11 times ours) has 23.  Rwanda (18), New Zealand (10), Germany (15), Turkey (18), Spain (19) and Singapore (20).

 

We believe that these numbers illustrate that there is scope to consider reducing the number of Cabinet Ministers which can be done by combining some portfolio functions.

With a provision reducing the number of Ministries, Deputy Ministers could then be re-introduced to ease the workload in those Ministries classified as Economy and Commerce as well as those in Natural Resources Management.

 

2.3 Loan and Guarantees

 

Section 13 of the Bill proposes the amendment of Article 63 of the Constitutional Act by the deletion of provisions requiring National Assembly oversight over contraction of public debt and ratification of international agreements and treaties

 

It is our considered view that National Assembly oversight is critical over these important public functions in a democratic dispensation like ours. The peoples’ representative in Parliament should have an opportunity to scrutinise the intended purpose(s) of any public debt as well as international treaties which bind and/or imposes obligations on the Republic. 

 

A brief background on why Parliamentary oversight over debt contraction is necessary. In the 1600s, in Britain, there was a crucial shortcoming of parliamentary control as it did not extend to Royal borrowing on the monarch’s personal credit. After Charles II claimed the throne in 1660 parliament started to demand estimations of cost before voting money to be granted to the King. To evade expenditure control, a popular Royal tactic was to resort to borrowing and hope that parliament would later consent to the raising of funds to repay such loans.

 

But this practice was not sustainable when parliament refused to oblige. In 1672 the British government in effect declared the only state bankruptcy in British history when payments on loans from City bankers were suspended initially for twelve months, which was later renewed repeatedly. Only after 1688 was executive borrowing tied to parliamentary consent, which restored trust with lenders and ensured large-scale access to finance over the following centuries

 

Honourable Members may wish to note that in 2011, the World Bank published a survey that more than half of the 99 countries (59 percent) surveyed, had laws that required Parliaments to ratify loan agreements before they become effective, while 49% did not have. Furthermore, low-income countries are most likely to have a legal framework that gives parliaments a role in loan ratification: 61 percent of low-income countries have such a law in place. 

 

Some examples of countries were Parliament approval is required prior to contracting loans or providing state guarantees include the following:

 

Ethiopia and Tonga where only loans above a certain threshold – approximately $5 million and $8.5 million, respectively – must be ratified by parliament.

 

Cameroon the government proposes a debt strategy that includes the profile, the amount, and potential lenders through the finance law that parliament is required to approve.

 

Mongolia, the government has no power to negotiate loan agreements without the authorization from at least three standing committees of the parliament. The final legal agreements between the government and the lender, have to be ratified by parliament.

 

Iceland: The Ministry of Finance is responsible for issuing debt and government guarantees. But it can only do it on the basis of a special legislation being passed by the Icelandic Parliament in each instance. However, before a bill can be presented before the Parliament, an expert opinion must be submitted on certain criteria regarding the proposed debt or guarantee, the criteria includes creditworthiness of the borrower seeking the government guarantee ability of the loan to be repaid from the project, assessment of collateral offered.

 

Sweden: Parliament decides on state guarantees and loans with respect to the purpose, amount and type of the instrument. The Budget Act contains general rules on how such guarantees and loans are to be handled

 

Equally, there are examples of countries where the executive has contracted debt without Parliamentary oversight as illustrated below:

 

Mozambique: In 2014, Mozambique contracted a loan without Parliament approval which has now left the Mozambique people paying between $1.7 billion and $2.2 billion for a $760 million loan which they have not received any benefit from. Meanwhile, companies who now own the debts are set to make large and potentially huge profits. The debt came from a loan of $760 million in 2014 to a Mozambique state owned company, Ematum. The loan was supposedly built to invest in a tuna fishing fleet, but $500 million has never been accounted for. The Mozambique government says it was spent on military equipment, but no evidence of this has ever been presented. The tuna fishing fleet sits unused in Maputo harbour. The face value of the initial loan was $850 million, but $90 million of this was spent on “fees” to the banks which arranged the loan – London based branches of Credit Suisse and VTB Capital. This was a way to make it look like the loan had a lower interest rate than the reality.

 

Togo:  Government had pre-financed debt in 2015—a form of de facto government debt which was not reflected in official government debt statistics, amounting to 7 percent of GDP at end-2016.

 

Ecuador: Data was published on other liabilities that are not considered public sector debt under the official debt definition, including advance oil sales, short-term treasury certificates, which were previously not transparently disclosed. Those liabilities represent about 9 percent of GDP.

 

Republic of Congo: Pre-financing contracts with oil traders were contracted by the oil state-owned enterprise on behalf of the government, but remained undisclosed to Parliament, for over two years, as they were considered to be outside Parliament’s mandate.

 

Accordingly, we are of the view that Parliament Oversight is crucial for the following reasons:

 

1. Government borrowing can put upward pressure on interest rates so as to ‘crowd out’ private sector investment. In other words, when government uses most of the capital available on the borrowing market, less is available for the private sector to borrow in order to expand its activities. This can dampen economic growth.  

 

1. Deficit spending is expensive. Because government will have to put aside a proportion of funds to service its stock of debt, there will be less money for service delivery. Reductions in service delivery programs affect vulnerable groups in society that are most dependent on the state. 

 

1. When international financial institutions attach stringent conditions to loans, parliament’s role might be severely diminished to rubberstamping budgets that reflect prior agreements between lenders and the executive. 

 

1. It is unfair if extensive borrowing forces future generations to make sacrifices so that they effectively pay for spending that we enjoy today. This problem is exacerbated when borrowed funds are not invested productively.  

 

1. Excessive deficits are associated with inflation. Some governments have resorted to ‘printing money’ in order to meet debt servicing obligations. However, this strategy is difficult to pursue when the central bank enjoys entrenched independence from the government both legally and in practice.

 

Finally on this point Honourable Members, it is cardinal to emphasize that in our opinion as a Party, there exists urgent need for the legislature to consider amending the Loans and Guarantees Act Chapter 366 of the Laws of Zambia. This becomes apparent especially so when one reads the provisions of Parts II, III and V of the said Act as against the provisions of the current Article 63 of the Constitution which in our opinion raises several inconsistencies rendering many provisions in the said Act unconstitutional and as such null and void at law. It is paramount therefore for the Executive and the Legislature, as a matter urgency, to put in motion a process to amend the said Act in order to maintain Constitutionality when dealing with loans and Guarantees. 

 

2.4 Retirees and Benefits

 

Pension – Section 67 of the Bill seeks to amend by the repeal of Article 189 and the substitution therefor of the following: 189. A pension benefit shall be paid promptly and regularly.

 

This proposal is welcome as Section 189(2) of the current constitution seeks to unduly impose sanctions on an employer as opposed to protecting employees from poorly managed Pension Funds. Section 189 (2) – provides that where a pension is not paid on a person’s last working day, that person shall stop work but the person’s name shall be retained on the payroll, until payment of the pension benefit based on the last salary received by that person while on the payroll

 

The proposal to repeal Section 189 will allow for the intended principal of providing for the pensions to be paid promptly and regularly. This will allow for the details on adequately protecting pensioners to be provided for in subsidiary legislation, in this case the Pensions and Insurance Act. Such protections could include sanctions on the Pension fund managers, payment of interest, protection of employees in the event of liquidation of an employer and other measures.   

Honourable members, while we agree with the proposed amendment, we propose that we have a clear statutory definition of the time frame that constitutes regular and prompt payment of retirement benefits. We propose that the same be legislated in order to avert any ambiguousness and to avoid the Judiciary having to step in and provide judicial interpretation as to the time frame of what is considered regular and prompt.

    

2.5 Qualifications of Members of Parliament 

 

Honourable Members, the current qualifications for one to be a Member of Parliament in Zambia are provided for under the provisions of Article 70 of the Constitution which enact that; 

 

 “(1) Subject to clause (2), a person is eligible to be elected as a Member of Parliament, if that person— 

 

(a) is a citizen; 

(b) is at least twenty-one years old; 

(c) is a registered voter; 

(d) has obtained, as a minimum academic qualification, a grade twelve certificate or its equivalent; and 

(e) declares that person’s assets and liabilities, as prescribed.”

 

It is also cardinal to note that the qualifications for one to become a Councilor in Zambia are provided for under the provisions of the current Article 153 (4) of the Constitution of the Republic of Zambia. 

 

The proposed amendments as canvassed in Sections 15 and 16 of Bill Number 10 of 2019 proposes to repeal the current Articles 70, 71 and 72 and to provide that the said qualifications be relegated to subsidiary legislation, in this case, an Act of Parliament. The proposed new Article 68 as canvassed in Section 15 of the Bill provides for the qualifications for election to the office of Member of Parliament and states that;

 

“Subject to Article 47, the election, nomination, qualification and vacation of office of a Member of Parliament shall be as prescribed.”  

 

We wholly oppose this amendment especially that the current bill does not seek to amend the current Article 153 (4) in so far as it affects Councilors. It is our submission Honourable Members that the proposed amendments will create a situation which is manifestly absurd in reality and at law where the qualifications for election to the office of Member of Parliament are provided for by subsidiary legislation prone to amendments by simple majority of Parliament while those of Councilors will continue to be enshrined in the Constitution. This in our opinion is not only absurd but creates a clear conflict in the law applicable to Members of Parliament and to Councilors. We therefore support the current status quo of the law as enshrined in Articles 70 and 154(4) of the current Constitution of Zambia. 

 

2.6 Coalition Government

 

Honourable Members, the law governing one’s ascension to the office of the President of the Republic of Zambia is one provided for by the provisions of Article 101 (1), (2) and (3) of the Constitution of the Republic of Zambia.  In this regard the current provisions state that;

 

“(1) A President shall be elected by registered voters in accordance with Article 47 (1) and this Article.

 

 (2) The Returning Officer shall declare the presidential candidate who receives more than fifty percent of the valid votes cast during the election as President-elect. 

 

(3) If at the initial ballot a presidential candidate does not receive more than fifty percent of the valid votes cast, a second ballot shall be held within thirty-seven days of the initial ballot, where the only candidates shall be the presidential candidates who obtained—

 

 (a) the highest and second highest number of valid votes cast in the initial ballot; 

or 

(b) an equal number of the valid votes cast in the initial ballot, being the highest votes amongst the presidential candidates that stood for election to the office of President.”

 

Honourable members, the proposed amendment to the Constitution in so far as this provision is provided for under Section 30 of Bill number 10 of 2019 which proposes to repeal Articles 101 to 104 of the Republican Constitution in their current form and provides a new Article 101 which states that;

 

“(1) A President shall be elected by registered voters in accordance with Article 47(1) and this Article.

 

 (2) The Returning Officer shall declare the presidential candidate who receives more than fifty percent of the valid votes cast during the election as President-elect. 

 

(3) If at the initial ballot, a presidential candidate does not receive more than fifty percent of the valid votes cast, the candidate with the highest number of vote cast shall, within fourteen days of the declaration by the Returning Officer of the presidential election results negotiate and form a coalition government with a presidential candidate that participated in the initial ballot, except that the combined votes of that presidential candidate and the preferred presidential candidate forming the coalition government meet the threshold of more than fifty percent of the valid votes cast. 

 

(4) Where the candidate with the highest number of votes fails to form a coalition government within the period specified in clause (3), a second ballot shall be held within thirty-seven days of the initial ballot, where the only candidates shall be the presidential candidates who obtained— (a) the highest and second highest number of valid votes cast in the initial ballot; or (b) an equal number of the valid votes cast in the initial ballot, being the highest votes amongst the presidential candidates that stood for election to the office of President. 

 

(5) The Returning Officer shall declare as President elect—

 (a) the presidential candidate who obtains more than fifty percent of the valid votes cast;

 (b) in the event of the formation of a coalition, the presidential candidate who obtains the highest number of valid votes cast; and 

(c) in the case of a second ballot, the presidential candidate who obtained the majority of the valid votes cast in the second ballot. 

 

(6) A losing candidate may petition a presidential election in accordance with Article 103.”

 

Honourable Members, it is our position that we support this proposed amendment to the current provisions of Article 101 as the proposed amendment represents a welcome measure to curb unnecessary costs associated with a re-run where no candidate attains the required number of votes to represent 50 plus 1 of the total number of valid votes cast in an election.

 

 It is important to emphasize in our view that the cost of a re-run is not only a drain to the national coffers but for all parties involves especially the candidates and their parties participating in an election. Furthermore, a re-run unnecessarily prolongs the period during which normal government functions are hindered due to elections. 

 

Honourable members, while we agree with the proposed amendment, we propose a slight amendment to the proposed amendment to the extent that a winning Presidential candidate who does not attain the threshold of 50 plus 1 be allowed to negotiate the formation of a new government with not one candidate but several candidates. Furthermore, that legislation be passed for the purposes of providing a clear path to the formation of a government in the event of a scenario envisaged under the proposed Article 101 (3) by clearly providing for a coalition agreement and for conflict resolution.

 

2.7 Electoral Systems

 

Honourable Members, Section 9 of the Bill in its current form seeks to amend the current Article 47 (2) of the Constitution of the Republic of Zambia by deleting the same and replacing it with a new Article 47 (2).  

 

The current Article 47 (2) states that; 

 

“(2) Elections to the National Assembly shall be conducted under a first-past-the-post electoral system in accordance with Article 68.”

 

Conversely, the proposed new Article 47 (2) states that; 

 

“(2) Elections to the National Assembly shall be conducted under a mixed member electoral system, as prescribed.”

 

Honourable Members, the proposed new provision effectively creates a mixed member proportional representative type of National Assembly. We as a party wholly support this proposed amendment as it seeks to address matters of the marginalized and disadvantaged in society ranging from our women and youths as well as the disabled and less privileged in society. We note and submit that the mechanics of how to give operational efficacy to the said clause if enacted into law can best be provided for under the Electoral Process Act as amended. 

 

Honourable members, while we agree with the proposed amendment, we propose that Constitutional legislation be passed for the purposes of eliminating all by elections at Ward, District and Parliamentary to avert a scenario of having costly by elections to elect Councilors, Mayors and Members of Parliament.

 

2.8 Reconstitution of the Drug Enforcement Commission 

 

Honourable members, Section 69 of the Bill proposes to amend Article 193(1) of the Constitution of Zambia by providing for the establishment of the Anti-Drugs, Economic and Financial Crimes Agency.

 

We note that the specific roles of the Anti-Drugs, Economic and Financial Crimes Agency have not been stated as is the case for all others created by the same Article, such as, the Zambia Police Service (Article 193(2), Zambia Security Intelligence Service (Article 193(3), and the Zambia Correctional Service (Article 193(4)).

We therefore do not support the proposed amendment in so far as attempts to duplicate the roles and functions other entities especially the Financial Intelligence Centre. The DEC functions are already duplicated in other institutions such as ZP, FIC, ACC etc. To establish the Drug Enforcement Commission as the Anti-Drugs, Economic and Financial Crimes Agency and redefine its function as a national security service will not allow DEC to be specialized. The perception is that it will create a perception that we want to annihilate the FIC, and in an environment where we are dealing with cooperating partners who are more likely to misunderstand this amendment as it relates to financial crimes that are currently making headlines. 

 

In addition Honourable members, it is cardinal to note that the current FIC provides a number of services to the nation which this clause seeks to cloth the Drug Enforcement Commission within its proposed new status as the Anti-Drugs, Economic and Financial Crimes Agency. In this regard, Section 5 of the Financial Intelligence Centre Act number 4 of 2016 states that; 

 

“(1) The Centre is the sole designated national centre authorised to receive, request for, analyse and disseminate suspicious transaction reports, including information from foreign designated authorities, made to the Centre under this Act or any other written law. 

 

(2) Despite the generality of subsection (1), the functions of the Centre are to— 

 

(a) receive, request, analyse and evaluate suspicious transaction reports and information from any other source authorised under any written law to make a suspicious transaction report including a foreign designated authority to determine whether there are reasonable grounds to transmit reports for investigation by law enforcement agencies or foreign designated authorities; 

 

(b) disseminate information to law enforcement agencies where there are reasonable grounds to suspect money laundering or financing of terrorism or proliferation; 

 

(c) provide information relating to suspicious transactions to any foreign designated authority, subject to such conditions as the Director General may determine, in accordance with this Act; (d) provide information, advice and assistance to law enforcement agencies in furtherance of an investigation; 

 

(e) educate the public and reporting entities of their obligations and inform them of measures to detect, prevent and deter money laundering and financing of terrorism or proliferation; 

 

(f) provide information to investigating authorities, supervisory bodies, law enforcement agencies and any other competent authority to facilitate law enforcement for prevention of money laundering and financing of terrorism or proliferation; 

 

(g) ensure compliance with this Act and regulations, directives, determinations, notices and circulars issued by the Centre or supervisory authorities, and give guidance to reporting entities to combat money laundering or financing of terrorism or proliferation activities;

 

 (h) facilitate effective supervision and enforcement of this Act by supervisory authorities; and

 

 (i) perform such other functions as are necessary to give effect to this Act.”

We therefore hold the opinion and submit that any proposed amendments to the law in so far as the Drug Enforcement Commission should not curtail the powers of the FIC or duplicate the said powers and functions of the FIC as currently provided by law. 

 

2.9 The Bank of Zambia 

 

Honourable Members, bill number 10 in its current form under Section 71 seeks to repeal Article 213 (2) of the Constitution of Zambia by repealing the said clause and providing a new Article 213 (2).

 

In this regard, Article 213 (2) in its current form states that;

 

“The functions of the Bank of Zambia are to— 

(a) issue the currency of the Republic; 

(b) determine monetary policy; and 

(c) regulate banking and financial services, banks, financial and non-banking institutions, as prescribed.”

 

Conversely, the proposed new Article 213 (2) states that;

 

“(2) The function of the Bank of Zambia is to formulate and implement monetary policy.”

 

We hold the view that any amendment to the current provisions governing the functions of the Bank of Zambia should limit itself to this primary objective of any central bank and that is to anchor monitory policy with variations to suit a particular country. 

 

2.10 Election of Executive Mayors

 

Honourable members, bill number 10 in its current form under Section 53 seeks to repeal Article 154 of the Constitution of Zambia by providing for the election of mayor and deputy or council chairperson by the Council.

 

To this effect, Article 154 of the Constitution in its current form enacts that; 

 

“(1) There shall be a mayor and deputy mayor or council chairperson and deputy council chairperson for every council, as prescribed. 

 

(2) A mayor and council chairperson shall be elected— 

 

(a) directly, in accordance with Article 47 (3) during elections for councillors, as prescribed; and 

 

(b) for a term of five years and may be re-elected for one further term of five years. (3)A deputy mayor and a deputy council chairperson shall be elected by the councillors from amongst themselves.”

 

Conversely, Section 53 of the Bill proposes and states that; 

 

 “(1) There shall be a mayor and a deputy mayor or council chairperson and a deputy council chairperson for every council, as prescribed. 

 

(2) A mayor and deputy mayor or a council chairperson and deputy council chairperson shall be elected- 

 

(a) by councillors among themselves, as prescribed; and

 

 (b) for a term of five years and may be re-elected for one further term of five years.”

 

Honourable members, we support this provision in that Councilors are elected by the public and as such can mandate a member among them to chair the council. This will also reduce unnecessary costs on the fiscus. In addition, the proposed amendment will curtail the absurdity created by the question as to who must exercise executive powers in councils between executive mayors and town clerks. 

 

The proposed amendments equally cure the problem of duplicity of roles of Members of Parliament, Councilors as against executive mayors elected to preside over councils in districts, which districts have constituency and ward representation through Members of Parliaments and Councilors respectively.

 

2.11. The Presidential Election Petition

 

Honourable members, an election petition arising out of a dispute as to the legitimacy of the election of a President-Elect is provided for under the current provisions of Article 103 of the Constitution of Zambia.

The said Article states that; 

“(1) A person may, within seven days of the declaration of a President-elect, petition the Constitutional Court to nullify the election of the President-elect on the ground that— (a) the person was not validly elected; or

 (b) a provision of this Constitution or other law relating to presidential elections was not complied with. 

(2) The Constitutional Court shall hear an election petition relating to the President-elect within fourteen days of the filing of the petition. 

 

 (3) The Constitutional Court may, after hearing an election petition— 

(a) declare the election of the President-elect valid; or

 (b) nullify the election of the President-elect and VicePresident-elect. 

(4) A decision of the Constitutional Court under clause 

(3) is final. 

(5) Where the election of the President-elect and VicePresident-elect is nullified by the Constitutional Court, a presidential election shall be held within thirty days from the date of the nullification.”

 

Honourable members, the proposed amendment pursuant to Section 30 of the bill states as follows; 

 

“(1) A losing candidate may, within seven days of the declaration made under Article 101

(2) and (5), petition the Constitutional Court to nullify the election of a presidential candidate who took part in the initial ballot on the ground that— 

(a) the person was not validly elected; or 

(b) a provision of this Constitution or other written law relating to presidential elections was not complied with. 

The Constitutional Court shall hear and determine an election petition filed in accordance with clause (1) within thirty days of the filing of the petition. 

(3) The Constitutional Court may, after hearing an election petition— (a) declare the election of the President-elect valid; 

(b) nullify the election of the President-elect; 

(c) disqualify the President-elect from being a candidate in the second ballot; or

(d) grant any other relief the court considers just. 

(4) A decision of the Constitutional Court made in accordance with clause (3) is final.

 (5) A losing candidate may, within seven days of the declaration of President-elect, by the Returning Officer following the second ballot, petition the Constitutional Court to nullify the election of the President-elect on the ground that— 

(a) the person was not validly elected; or 

(b) a provision of this Constitution or other written law relating to presidential elections was not complied with. 

(6) The Constitutional Court shall hear and determine an election petition relating to the President-elect within thirty days of the filing of the petition. 

(7) Where the election of the President-elect and Vice President is nullified by the Constitutional Court, a presidential election shall be held within sixty days from the date of the nullification.”

 

Honourable members, it the position of the party that we agree with this proposed amendment to Article 103 and the provision of a new Article 103. In our opinion, the notion of hearing and determining a Presidential Petition within 14 days is impractical and in-fact permits a miscarriage of justice by potentially, as history has shown, allows for a scenario where an aggrieved party is not provided with enough time to be heard by our courts. In addition, allow me to add that the only way one can gather enough evidence and prepare their case under the current provisions of Article 103 is if a candidate collects evidence while participating in the election to become President of the country. Honourable members, such a scenario is an impractical one and if at all attempted, can only be achieved with a defeatist mentality by a candidate running for President of the Republic of Zambia.

 

3.0 Conclusion  

 

In conclusion, allow me to thank this select committee for according us an opportunity to air our views and submissions in respect of Bill number 10 of 2019 which seeks to amend the Constitution of the Republic of Zambia. We recognize that while the process to adopt the new provisions has this far not been smooth sailing and that we will not actualize the dream to have a perfect Republican Constitution as no country can actualize the same, we as a party have elected to embrace this opportunity to advocate and support for the adoption of some of the provisions highlighted today and agree with them as they represent, in our opinion, necessary progress for the proper functioning and development of our young democracy. In the same vain, we have rejected and will not support the highlighted clauses which in our opinion are retrogressive in nature for reasons highlighted. 

 

I thank you once again