By Elias Munshya
Bill 10 is obviously a disaster. You cannot bring together hundreds of people for 14 days and expect that within that time frame, you can come up with anything sensible. That the NDF was a complete sham is seen by the fruits and surrogates it has borne. You shall know them by their fruits cannot be more accurate. The most sensible thing to do when coming up with significant changes to the Constitution of a republic is to take time consulting the people of Zambia. And not choosing Lusaka people, gathering them at Mulungushi, and then thinking that these Lusakans are somewhat representative of the people of Zambia. We, the People of Zambia, in our Constitution, means just that – the whole people of Zambia. Besides, the NDF, at least from the participant’s perspective, was going to depend on the personal pockets of its attendees. In an economy where the President spends lavishly on his jets; there are not enough people to go around. How can ordinary citizens reserve money to fund the NDF, and their attendance of the NDF? The State must fund any serious thing that has to do with the State. That way, you are levelling the field so that Zambians can participate fully.
There are big things that make Bill 10 so bizarre. And then there are small changes that also make it as whacky as it should not be. These subtle changes can pass by very subtly without much notice. But we did a little digging, and we are asking, why this Constitution of Zambia (Amendment) Bill, 2019 should have these changes in the first place.
The first change I would like to highlight is the Bill 10’s proposal to rename the Solicitor General of Zambia to the Deputy Attorney General. This change is entirely unnecessary. As they say, if something is not broken, why fix it? There is nothing broken in calling the Solicitor General, the Solicitor General. The proposed change shows no urgency why the change should be necessary in the first place. For historical reasons, I would argue that the title for Solicitor-General must be maintained. The Zambian legal system currently has very little countenance for the title of a solicitor. Even if Zambian lawyers, or indeed the profession of law can be split into barrister work (going to court) and solicitor work (legal desk work such as drafting contracts); Zambia has wholly ignored the tradition of recognising the “solicitor” title. This is a huge mistake. Lawyers need to be reminded that they are not only “attorneys”, but they are “solicitors” as well. Maintaining the solicitor title in one of the top government lawyers makes sense in that way. Even if the Solicitor General of Zambia’s main job is to deputise the Attorney General, it is entirely unnecessary to change the Solicitor General’s title to that of Deputy Attorney General. Much of the English common law system still maintains a solicitor general. In keeping with this tradition, there really is no need for Zambia to do away with this tittle. If anything – why mending something that is not broken?
The second subtle change has to do with the proposal to give the Attorney-General a term of office. I really cannot understand why this should be the case. Cabinet Ministers do not have a term of office; why should the Attorney-General have a term of office? The proposal is that the term of the Attorney-General will be five years and shall run concurrently with the term of the President. What is Bill 10 trying to fix here? Why should the Attorney-General’s term run concurrently with the term of the President for five years? The Attorney-General serves at the pleasure of the President. In fact, the AG should serve at the pleasure of the President. There is no need to have an enumerated term for an officer who principally serves at the pleasure of the President. This proposed change is just bizarre.
Remarkably, though, Bill 10 goes on further to propose that the Attorney-General can be removed from office by the President; if that is the case, why then should this Attorney-General have a recognisable term of office; if they can be removed from office by the President? Just like many things in Bill 10, it does not appear like much thought was put into any proposals that Honourable Given Lubinda was crafting with a group of pseudo-intellectual quacks. How can an unelected Attorney-General have the security of tenure tied to the President? To be clear; in Zambia’s constitutional structure, an Attorney-General is a quasi-politician who serves at the pleasure of the President and is not independent of the executive. The AG differs, for example, from the Director of Public Prosecutions who must be afforded some independence from the politicians. The AG, on the other hand, is a quasi-politician and so enumerating a 5-year term for the AG is entirely unnecessary and is excessive. But again, just like many things in Bill 10, the drafters seem to have been motivated by immediate short term goals. I cannot find any rational reason why the Constitution must explicitly grant a 5-year term to a government lawyer. Is it pension they are thinking of?
The third subtle proposed change concerns the appointment of the Secretary to Cabinet. Bill 10 is proposing that no one can be Secretary to Cabinet unless they have served in the public service for at least ten years in a senior management position. “Senior management” is not defined in the Constitution and so like many other things, it will be left to speculation. This change unfairly shackles executive discretion. The Zambian State can benefit from a Secretary to Cabinet who comes from the private sector. The Zambian State should have the flexibility needed to bring in talent from the private sector. This proposed change will restrict the talent pool available.
Suggested Citation: Munshya, E. (2019). Some Subtle Proposed Changes that Make Bill 10 Even More Bizarre. Elias Munshya Blog (www.eliasmunshya.org). (August 1, 2019)