By Isaac Mwanza

Introduction

On 21st June, 2019, the Constitution of Zambia (Amendment) Bill No. 10 of 2019 was gazetted which paved way for its tabling in Parliament for First Reading. Almost one year later, Minister of Justice Given Lubinda announced the re-gazetting of Bill 10 to reflect the amendments which the government intends to move in the National Assembly. This move to re-gazette the Bill, with proposed amendments, has attracted questions from some civil society activists as to which law could have been used to re-gazette a Bill when it has not passed through the Second Reading.

Whether to gazette and what to gazette

In response to the reactions of what law has been used to re-gazette the Bill which is still on the floor of the House, the Kabwe Central lawmaker, Mr. Tutwa Ngulube, asked pertinent questions whose answers can settle this debate: Which law has been breached? Where does it say that the government must pass any amendments through the first reading [before re-gazetting the Bill], which law says that the government cannot gazette new amendments which it proposes to present to the House for its consideration and debate?

The starting point should be to understand what the Government Gazette is, what government can gazette and what law the Government uses to gazette matters that it gazettes. Black’s Law Dictionary defines a gazette as “an official newspaper of the [British] government in which acts of State, Crown appointments, notices of bankruptcy, and other legal matters are reported.” Indeed, without going into all other available definitions, the Gazette in which Bill 10 was published and re-published is simply an official journal or publication for the purpose of notifying the public of the actions and decisions of the government.

The Gazette is usually required because it validates, authenticates and it makes effective various kinds of Government decisions, rules, orders and law. The importance of the gazette as a public journal lies in the printing of official notices from the government. It is the only publication that is authentic in content, accurate and strictly in accordance with the Government policies and decisions.

In South Africa, for example, the notices which the Government can gazette take various forms. It can be a Regulation Gazette (RG), Board Notice (BN), General Notice (GeN), Government Notice (GoN), Proclamation (P), or Warrant (W) . For example, The South African Government gazetted the White Paper on the Road Accident Fund in the Government Gazette No. 170 of 1998. These same standards apply to Zambia and many other countries in the Commonwealth.

What Government Gazettes in Zambia

Over the years, the Government has gazetted ordinary Bills which are considered and approved by Cabinet for tabling in the National Assembly, as a way of informing the public at large, of matters which the government intends to put before parliament for its consideration as the supreme legislative organ of the Republic. It gazettes notices of a minister leaving the country or another person acting as President when the President is out of the country. The current issue under discussion is one in which the Secretary to Cabinet, Dr. Miti, caused to be published, Government Notice No. 534 of 2020 which reads as follows:

“Notice is hereby given that the Constitution of Zambia (Amendment) Bill, 2019, with proposed parliamentary Amendments is published as a supplement to this Gazette”

When it comes to amending the Constitution, Government is mandatorily required to gazette a Bill to amend the Constitution at least 30 days before the Bill is tabled for First Reading in Parliament. Once the Bill is tabled and goes through all stages in Parliament from First Reading to Third Reading, Article 79(6) of the Constitution states that nothing in Article 79, “shall be so construed as to require the publication of any amendment to any such bill as is referred to in clause (2) [in the Gazette] proposed to be moved in the National Assembly.”

So in view of this provision in Article 79(6), why has the Government decided to re-gazette the Bill, with a focus on proposed amendments, as was announced, since the law says there is no requirement to publish, in a Gazette, any amendment in a constitution Bill which are proposed to be moved in the National Assembly?

First, Members of Parliament and CSOs having questions on this must acknowledge the fact that Cabinet made a decision to amend Bill 10 when the stage for amending it comes up in Parliament. The Minister of Justice informed the House by tabling the notice of amendments before Parliament in the last session.

As seen from the above, government decisions can be published in a gazette, which is an official journal or publication for the purpose of notifying the actions and decisions of the government. To do this does not require any law to support the publication. The matter to be published in the gazette should fall on those matters that the Government can publish in the Gazette, which includes its decisions.

Therefore, while there is no law for publishing the decisions Government makes with regard to Bills to be presented to, or currently before parliament, except with regard to the constitution prior to First Reading, and while it is also true that no Member of Parliament or Government is required by any law to publish proposed amendments to the Constitution of Zambia Amendment Bill, it is nevertheless perfectly in order for the Government to make public, the proposed amendments which it intends to move in the National Assembly.

Clearly, such a decision does not violate any law. In the current climate of suspicion and misinformation, it is good for the country in that it informs the public of the government’s intended next steps, and such information can be published in the Gazette. The proposed amendments can be published with or without the Bill itself. In the current case, Government has decided to publish those proposed amendments alongside the Bill which is before the House, to give assurance that it has taken into account the concerns of both the House itself and the public with regard to the initial Bill, by publishing the proposed amendments alongside the original amendments so that the citizenry can compare for themselves, whether the government has taken the expressed concerns into account.

In our country’s path to amending the Constitution, the Government has always issued a White Paper reflecting its policy decisions on which parts of the Bill it does not agree with, subject to amendment in and by the House which is the final authority on all legislation. Some of these amendments have, in the past, been published in the Gazette while others have not been published.

When the Chona Commission presented its Draft Constitution and recommendations in its report, Cabinet gave its response through the White Paper published in the Government Gazette No. 1 of 1972 in which it accepted the one-party state, the creation of the position of Prime Minister with substantially reduced powers, inclusion of the philosophy of humanism in the preamble but rejected proposals to reduce presidential powers and for the party to present three candidates to the electorate in favour of a single candidate, for the people to either accept or reject by a 50% +1 majority. As they say, there is nothing new under the sun.

Research will show that, again, the adoption of the alterations to the Constitution followed the usual pattern in which the Cabinet, through a White Paper published in Gazette No. 1 of 1995, which rejected most of the provisions proposed by the Mwanakatwe Commission. For instance, the Cabinet rejected the provision and recommendation to adopt a new constitution through a broad-based Constituent Assembly and for future amendments to be approved by the people through a national referendum.

In 2015, the author sat in the gallery of Parliament and witnessed the Minister of Justice submit a White Paper which contained what the Government had rejected in the Constitution of Zambia Amendment Bill, 2015. That decision by the Government was not published in the Gazette.

This time, we see Government has published in the Gazette No. 534 of 2020, the proposed replacement of the contentious provisions proposed by the NDF which were all contained in the Bill (NAB 10 of 2020). Government has elected to demonstrate, through the proposed amendments, that it does not agree with all the proposed amendments arising from the NDF process; the government is also demonstrating that it shares the views of the Parliamentary Committee on Legal(…..), which adopted a position broadly similar to the government.

Perhaps we need to remind ourselves that the government’s ruling Party, the Patriotic Front, made its position public with regard to the NDF’s proposed amendments and followed up with a presentation to the Parliamentary Committee in which the Party, PF, presented a position which was very similar to the views expressed by most of those who made submissions on the now infamous Bill 10.

Prominent among PF’s submissions was that PF rejected the re-introduction of Deputy Ministers, it rejected the proposal to form a presidential coalition if no party’s candidate won a 50%+1 majority.

It is obvious that the PF party’s position, reflected the position to be taken by the Cabinet and the government itself.

We have established the fact that government does not require the backing of any law to publish any matter in the Gazette; on the other hand, there is no law which prohibits or even limits what the government can publish in the Gazette, which is the government’s official instrument for informing the citizenry of government’s decisions or intentions, when it sometimes publishes a notice inviting public views on specific matters.

Order 112 of the Standing Orders

Order 112 of the National Assembly of Zambia Standing Orders, 2016, states as follows:

“112. A Bill referred to an appropriate committee and reported with amendments shall, if the Speaker so directs, be reprinted as amended and a copy of the amended Bill delivered to every member of the Assembly. The Bill, whether amended or not, shall stand committed to a Committee of the Whole House on a day the member in charge of the Bill appoints.”

Standing Orders 107 to 115, which includes Order 112 fall under the legislative process referred to as the Committee of the Whole House stage. The famous Bill 10 has not reached this stage of Committee of the Whole House to trigger actions in Order 112. It is the author’s understanding that Order 112 and 113 should in fact have fallen under the “Report, Report Stage and Recommittal” Stage of the Bill.

The re-gazetting of the Constitution of Zambia (Amendment) Bill, 2019, with proposed parliamentary Amendments, has nothing to do with Order 112. In fact, Order 112 does not override Article 79(5) of the Constitution. Order 112 is meant to facilitate the re-printing of the Bill, where the Speaker’s so directs, the circulation of copies to all Members of Parliament and not necessarily in the Government Gazette. Even then, the publication of the same in the Government Gazette, does not and cannot conceivably, be said to amount to a breach of the Constitution or any other law.

Conclusion

In response to some of the cynicism on re-publication of Bill 10 i.e. with proposed parliamentary amendments taking into account the views expressed at various fora and the Cabinet’s own decision by to reject or accept some provisions of Bill 10, Government does not need the backing of any law to issue a Government Notice of the proposed amendments in the Gazette. The current constitution reform process is one in which Cabinet had not taken a position; rather, Cabinet had decided to let the parliament process run its course without cabinet exerting any pressure by way of a White Paper, but has now decided to publish its proposed amendments in the Gazette, notifying the public of the amendments it intends to move.

The publication of intended amendments to Bill 10 does not violate any law or parliamentary process, nor does it in any way undermine Parliament or the Speaker’s authority. At least twice in our constitution-making history, in 1972 and 1995, the Government published its rejection of clauses in the Gazette and, on other occasions,, it did not. Finally, Order 112 of the Standing Orders has no bearing on the re-gazetting of the Bill with proposed amendments. Those amendments published by Government could either have been done independently of the Bill or together with the Bill as is the current status, but only for purposes of showing the public which parts of the Bill Government has pronounced itself on.

The author is Governance activist whose legal thesis for his degree was entitled, “AN EXAMINATION OF CHALLENGES IN THE MAKING AND ADOPTION OF THE CONSTITUTION OF ZAMBIA”