By Elias Munshya, LLM, MBA, M.DIV.
The Constitution of Zambia (Amendment) Bill, 2019 has been published as Bill 10. Very soon, it will be presented to the parliament of Zambia for debate, consideration, and possible enactment. To say that Bill 10 has significant problems is an understatement. Bill 10 is a disaster and its effect on the constitutional architecture of the republic will be enormously destructive. The Bill needs to be withdrawn. Here is why.
Mixed Member Electoral System
Bill 10 proposes to scrap our current constituency based past-the-post system for the mixed member electoral system (MMES). Zambians have been long advocating for some form of the mixed member electoral system. However, Bill 10 does not quite deliver what the people envisaged or wanted through the Mung’omba Commission. Instead, Bill 10 is so ambiguous about the electoral system being proposed. First, Bill 10 mentions that the new system will be called the “mixed member electoral system” but does not elaborate on what these terms mean. The Bill goes to lengths defining what the word “youth” means in the constitution while it remains silent on what MMES means. In our opinion, a country’s constitution should be clear and easy to understand. It must be a public document that must be understood by the ordinary person on the Zambian street. MMES requires to be broken down in more manageable concepts for clarity. Second, Bill 10 does not even expand on how the mixed member representation will be achieved in practice. If the goal is to introduce the mixed member system; Bill 10 needs to be more specific about what it is proposing. This critical aspect of the constitution cannot be left to conjecture. Third, if the structure is going to be a mixed system; the constitution must spell out how many constituency-based seats will be maintained and how many proportional seats will be reserved. It is our view that the MMES system must be spelt out in the supreme law of the land.
Bill 10, being an orgy of contradictions, is not relenting in its disappointment. Zambians (through the Mung’omba Commission) favoured the proportional parliamentary representation system of some kind, and they correctly identified that MMES is the best system to represent minority interests in a democracy. However, Bill 10 goes to lengths in banning minority political participation. For example, it prohibits political parties to be formed based on religion, gender, or region. From a constitutional perspective; proportional representation is the best way to ensure that these minority interests are represented in parliament. It is somewhat contradictory that Bill 10 wishes to introduce MMES, while at the same time banning special interest politicking. This begs the questions: what is Bill 10 trying to achieve exactly? Confusion?
Repealing the Articles
Bill 10 seeks to repeal Articles 69, 70, 71,and 72of the Constitution of Zambia. These articles outline the composition of Zambia’s parliament and provide for how members of the national assembly are elected. The proposal to repeal these sections means that the constitution of Zambia will not have a provision for how many members of the national assembly Zambia will have. In our view, a country’s written constitution must provide the composition, powers, and limits of each of the branches of government. Bill 10 proposes to abolish how many MPs Zambia will have, qualifications of those MPs, and how those MPs will be elected to the national assembly if any.
Composition of Parliament
Instead of explicitly providing for the composition and powers of the national assembly, Bill 10 proposes to delegate this responsibility to ordinary statutes to be passed by parliament at a later time. This Bill will repeal essential units of our constitution and in their place, replace them with nothing. We are sceptical about whose interests this scenario serves. The people of Zambia will benefit from the certainty that comes from clear guidelines of their parliament’s composition – who will be members, and how those members will be elected to the august assembly. You cannot leave the composition of parliament to guesswork. Doing so is a recipe for anarchy.
It appears as Bill 10 has deliberately created blanks and lacunae in the constitution. It proposes to fill these holes, lacunae and blanks by ordinary statutes. By doing so, the Bill is relegating what should be constitutional statutes to the status of ordinary statutes. Constitutional statutes require a higher threshold of votes to become law; ordinary statutes, on the other hand, require a simple parliamentary majority. And so, by demoting a bulk of constitutional laws to ordinary statute; Bill 10 is undermining the constitutional integrity of the republic. Let us take the composition of parliament as an example; currently, it will take a 2/3rds parliamentary vote to amend the number of MPs constituting our current parliament. What Bill 10 is proposing is that this number (around 158 members) will be removed from the constitution. The composition of parliament will then be delegated to the ordinary statute. In this scenario; parliament will be able to reduce or increase the number of MPs with just 50% of their vote.
Bill 10 seeks to introduce the concept of a “coalition government”. However, at close inspection, even if the words coalition is used, it really is just a donation of votes from the junior candidate to the senior, with nothing more. The Bill does not elaborate on the obligations and responsibilities of the junior coalition partner. After the junior partner donates their votes to the senior partner to take them across the 50+1 threshold, Bill 10 does not elaborate further on what happens to the junior partner. This is a recipe for disaster, innuendo and misunderstanding. Shouldn’t the supreme law of the land at least provide for how this coalition is going to work?
Bill 10 has equally not addressed how the concept of a coalition government is going to work in a country which is a hybrid of the Washington and Westminster models. Coalition governments are designed for pure Westminster systems. If Bill 10 is trying to create a coalition system in our presidential system – it better rationalise how that is going to be achieved. It is not sufficient to claim that there will be a coalition government, without explaining how that coalition is going to be achieved, and the roles, and responsibilities of the coalition partners.
Bill 10 seeks to dilute the Constitutional Court. There is some justification for having the Chief Justice become a member of the Constitutional Court. However, Bill 10 goes further than that by removing the number of judges expected to comprise the Constitutional Court. Instead of the eleven judges, our current constitution has provided for; Bill 10 will change that to the ambiguous, “uneven number of judges”. As long as the number of judges is “uneven”, Bill 10 seems to suggest everything will be fine. Essentially then, the President of the Republic can appoint judges to the ConCourt at will and can literally stuff and pack the court with his staff. Our constitution must have certainty about the number of judges. This cannot be left to guesswork and to the whims and wishes of the President and her parliamentary majority.
The above are a few examples of how flawed Bill 10 is. A Bill as flawed as this one cannot be saved. It is beyond redemption. The best course of action is to withdraw it immediately and let Zambia continue with the current 2016 Amendment of the Constitution. If and when this government or any other government gets serious about making legitimate changes to the Zambian constitution, they are going to follow proper procedure, open up the dialogue process, consult with the people of Zambia and enact a constitution that is in keeping with constitutionalism, common sense and the rule of law. As for Bill 10, it belongs in the dustbin.
Munshya, E. (2019). The 2019 Constitution of Zambia Amendment Bill Should be Withdrawn: Here is why. Elias Munshya Blog (www.eliasmunshya.org). July 10, 2019