The Constitutional Court of Zambia on November 29 missed a golden opportunity on Zambia’s constitutional debate to pitch tents with the populace by inking its name in gold for posterity. The contentious bill has created a stir in Zambia’s political landscape and has continued to trend on Zambia’s social media space with mounting petitions against the passage of the bill by the country’s National Assembly.
Zambian musician, Chama Fumba, also known as Pilato had recently triggered a yellow card social media campaign to protest against corruption and raise public awareness about the proposed legislation which he said could crumble the country’s democracy.
While the Zambian government is subtly trying hard to push the bill through parliament to change the constitution, civil society groups including the local chapter of Transparency International in Zambia contend that the changes sought will effectively increase presidential powers in ways that will be inimical to democracy through the concentration of powers in one arm of government.
The Constitutional Court had in its judgment last week said that there was nothing in Article 128 or any other provision in the Zambian Constitution that affords it jurisdiction to interrogate the contents of a Bill or to declare it unconstitutional while it was still undergoing legislative procedures.
Judge Enock Mulembe in a lead judgement on behalf of six others said the Constitutional Court had no jurisdiction to hear a matter concerning the bill which was nothing but a mere proposal or an intention to amend the law thereby endorsing the earlier decision of the Court of Appeal in the 1972 case of Nkumbula versus the Attorney General in which the Court stated that “it would be premature to come to Court before the Bill had been given its third reading.”
The court thereby dismissed the petitions, for lacking merit, by the Law Association of Zambia (LAZ) and Chapter One Foundation Limited which had challenged the government’s decision to alter the Constitution of Zambia through the Constitution (Amendment) Bill 10 of 2019.
Justice Mulembe said although the Constitutional Court had a very wide jurisdiction, the jurisdiction was still limited by the Constitution itself in Article 128 and could only exercise it based on the powers given to it by the same Constitution.
The judge said whereas the court sympathised with the reliefs sought by Chapter One Foundation, the remedies were not available to it because the court did not have jurisdiction.
In the words of seasoned academic and historian Sishuwa, “the bill is the gravedigger of Zambia’s democracy and the country’s worst constitutional amendment since the achievement of independence in 1964,”
Proponents say that Bill 10 will ensure the delimitation of constituencies, which will take development closer to the people. It also seeks to increase the number of days in which a Presidential Petition could be heard. The current law prescribes 14 days while Bill 10 proposes 30 days.
Why is Bill 10 problematic?
The biggest problem with Bill 10 changes to the constitution, which has passed the first reading in parliament, is that it centralises powers in the executive and dilutes the powers of other state organs, such as the National Assembly and Judiciary, to offer effective checks and balances. The proposal increases presidential powers by allowing the President to nominate Judges and Ministers, change electoral policies and increase controls over the Central Bank.
Critics say the introduction of deputy ministers in Bill 10 is one that would balloon the Zambian government’s expenditure in an era that countries across the world are working towards leaner governments. The lack of clarity in the composition of the parliament also gives opponents the opportunity to throw more punches at the proposed legislation.
Many who are against the reforms worry that the bill will sail through parliament, which is dominated by President Edgar Lungu’s ruling Patriotic Front (PF) party, and eventually be signed into law.
The centralisation of powers in the executive remains the crux of the matter and this has made civil society groups to kick against the amendment. When power is overcentralised, a country expects unquestioning obedience to its leadership and therefore segues into despotism with a lasting consequence for societal growth and development.
Many make the common mistake of thinking that elections alone mean a democracy exists. But while elections can be tools for responsiveness and accountability, polls could also be manipulated by dictators as we have seen across Africa, to drive a pretentious democracy to promote personal ambitions through the use of gullible parliaments that have been caged. Many countries abound across the globe that are not democracies but hold elections. This is the underlying problem with Bill 10.
Another problem with Bill 10 can be characterised by asking the question: is an independent institution stronger if established and provided for in the Constitution or subsidiary legislation?
Basically, any law should only be changed to enhance democratic governance. This means that such a law should only be changed to strengthen institutions, promote social inclusiveness and participation, promotion of civil liberties, and the protection of rights. But where such a law is altered to eliminate or downplay executive accountability by promoting the concentration of powers in one arm of government, then the alarm bells would naturally ring.
Many believe that President Lungu is terrified about the likelihood of being hounded or prosecuted for criminal misuse of power, corruption, and misappropriation when he exits the presidency. To protect himself, instruments and processes such as Bill 10 are now being infused through cronies to ensure that he remains in power or through the backdoor. To further safeguard himself, a pliant successor that will be loyal to him and his inner circle may be under consideration if the rumour of a third term presidency fails hence the haste to pass Bill 10 amendments.
One loophole that would be exploited once the constitutional amendment is passed is that because the number of parliamentary and judicial seats are not stipulated in the constitution outright, the President or ruling party, through a simple majority vote in parliament, would then create new seats in the party’s stronghold, or increase the seats of the nominated members of parliament. This could open the country to further constitutional deviations in favour of the ruling party at any time.
Although Zambia has been historically stable, Lungu’s government has shown an increasingly inflexible posture towards critics and members of the opposition. Hakainde Hichilema, the president’s main political opponent was jailed for four months following allegations of treason, after failing to concede defeat in the 2016 presidential elections.
Moreover, Zambia’s media has been worse off for it in the past few years, with licenses of some station broadcast stations critical of the government withdrawn or suspended.
There are already allegations of a third term presidency through a constitutional amendment. Opponents say Lungu’s attempt to procure the third term is part of a strategy by a clique in the ruling class seeking to ride on his presumed popularity to control levers of state to retain their positions of influence for the purposes of unchecked aggrandisement.
The likes of Tourism minister, Ronald Chitotela and Minister of Health Chitalu Chilufya, who double as Members of the National Assembly are also rooting for Lungu hoping that, in the event that Lungu stands in 2021, either of them might be nominated as running mate – a position that would give them great leverage in a future presidential bid.
Although the battle has now shifted to the National Assembly, the founders of democracy make clear, distinctions on the separation of powers but Bill 10 seeks to ensure that the executive swallow other arms of government thereby setting cinders on the feet of democracy.
The people of Zambia must deploy people’s power to voice out their demands and let politicians realise ultimately that power lies in the hands of the people. It must prevent the regression of democratic ethos, lest it slips into another Zimbabwe.
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