RENOWNED constitutional lawyer Muna Ndulo says Bill 10 is a manipulative document seeking to establish a constitutional dictatorship.
In his critique titled: BILL 10, IF ENACTED, WILL INSTAL A CONSTITUTIONAL DICTATORSHIP AND UNDERMINE DEMOCRACY IN ZAMBIA, the Cornell University-based law professor praised everyone who has so far spoken against the document.
“The objects of Bill 10 would seem innocuous to an untrained eye. But this is a deeply manipulative document that seeks to establish a constitutional dictatorship in Zambia. This should startle anybody who deeply cares about constitutionalism and democratic governance. In this paper, I shall draw your attention to some salient and far-reaching issues inherent in the proposed amendments. I salute all Zambian men and women who, despite the uncalled for insults hurled at them, have spoken out against this insidiously immoral project. At times like this silence in the name of neutrality means betrayal of the nation,” he said. “There are numerous amendments – dealing with almost every aspect of state powers and public life in the country. It pertains not only to the principles and values of the Constitution of Zambia, but also deals with the National Assembly including its membership, dissolution, the period of hearing, determination of the hearing, determination of presidential election petitions, creation of office of deputy minister, functions of public protector and banking and the Auditor General. Moreover, there is an omnibus clause – ‘provide for matters connected with, or incidental to, the foregoing.’ See paragraph p of the AGs proposal. The proposed amendments are too broad and overreaching.”
He called on people to ask for a new Constitution instead of sweeping amendments as proposed in Bill 10.
Prof Ndulo argued that if passed, the Bill would among other things disenfranchise many voters.
“Zambians might as well look for a new Constitution instead of these broad sweeping amendments with no direct gains for democracy. To really have a meaningful deliberation on all these provisions is doubtful, thus it is fair to assume that the government wants to sneak in changes to the Constitution without the possibility of thorough examination. This may well explain the conflation of all manner of issues including banking and fiscal policy into this proposed amendment,” Prof Ndulo explained. “It is apparent that the time and timing of this amendment is rather suspect. Elections are just around the corner and the attempt to hurry through some fundamental amendments to the electoral process is suspicious to put it mildly. It would seem that the aim is rather parochial. Most importantly, the logistics to give the people a voice in the process of deliberations are not in place. Thus, with no time to prepare for the radical changes and requirements, Zambians may become disenfranchised. To avoid this possibility, issues that involve qualification and disqualification for participating at any level of the electoral process should not be hurriedly passed as a constitutional amendment.”
On removal of the President from office, Prof Ndulo questioned the relevance of stopping people from inquiring into the head of state’s physical and mental status as proposed in the Bill.
“The instant provision in Article 107 of the Constitution of Zambia provides that: ‘107 (1) A Member of Parliament, supported by at least one third of the Members of Parliament, may move a motion for the investigation of the physical or mental capacity of the President to perform executive functions’ (Emphasis supplied). The proposed amendment says “Article 107 of the Constitution is amended by the deletion of the words ‘physical or mental’ wherever the words appear.’ (SeeArticle 31, lines 5-9 of the proposed Amendment) [emphasis supplied] Zambians may well ask: what is the essence of stopping Parliament from inquiring into the physical or mental health of the president even if such a president can no longer perform the duties of the high office of the president of Zambia?” Prof Ndulo asked. “One thing is clear here, the present government and her coterie are envisaging a Zambia where even a vegetative president would not and cannot be removed from office since Parliament cannot inquire into the health status of such a president. This applies mutatis mutandis to the Vice-President as well. This is dangerous for democracy because nobody in the land and no organ of the state can investigate the health of the two principal officers of the state – the President and his Vice.”
On impeachment of a President, Prof Ndulo proposed that the current provision be maintained.
He said the proposed clause would give too much protection to both the President and the Vice-President even if they breached the Constitution.
“For the avoidance of doubt the proposed amendments states ‘Article 108 of the Constitution is amended by the deletion of— (a) clause (8)(a) and the substitution therefor of the following: (a) is not substantiated, the National Assembly shall not take further proceedings in respect of the allegation; or; and (b) by the deletion of clause (9) and the substitution therefor of the following: (9) The President shall, on the passing of the resolution in accordance with— (a) clause (8)(a), resume to perform the executive functions; or (b) clause (8)(b), cease to hold office and be amenable to prosecution without the need to lift the immunity under Article 98. (emphasis supplied) see Article 32 (paragraph 10-24) of proposed amendment)’,” he said. “What this provision does is to remove the capacity of Parliament to vote by secret ballot to resolve whether the findings of a tribunal brought before Parliament substantiates the allegations against the president or otherwise. The legislative intention in the existing law is that Parliament should have the final say via secret ballot as to whether the findings have made out the allegation or not. To remove this power is to make it possible for findings of a tribunal to have the air of finality. It removes the capacity of the peoples’ representative – the Parliament to ratify or vary the outcome of such tribunals. I need not say how much this consolidates powers in the hand of the President and also puts pressure on any committee or tribunal that might be asked to investigate allegations of misconduct. Indeed, the President can manipulate, or intimidate both the constitution and findings of such a tribunal.”
On elections, Prof Ndulo said the proposed mixed member proportional representation in the National Assembly would bring confusion.
The mixed-member proportional representation is an electoral system in which voters get two votes: one to decide the representative for their single-seat constituency, and the other for a political party.
In this case, seats in the legislature are filled firstly by the successful constituency candidates, and secondly, by party candidates based on the percentage of nationwide or region-wide votes that each party received.
“Article 81 (3) provides that the President may dissolve Parliament if the Executive cannot effectively govern the Republic of Zambia due to the failure of the National Assembly to objectively and reasonably carry out its legislative function. This is a most unusual provision and clearly sends the message that the Executive is superior to Parliament. The only control on the President is that he or she shall inform the public and refer the matter to the Constitutional Court,” noted Prof Ndulo. “In Article 9, Bill 10 provides that the constitution is amended to repeal Article 51 and the substitution thereof of the following: (2) Elections to the National Assembly shall be conducted under a mixed member electoral system as prescribed. This is an attempt to introduce proportional representation. No details are given as to how this complicated system of elections is going to be implemented. Countries that have proportional representation have detailed provisions in the constitution as to how lists of candidates are to be made and the threshold for getting a seat. This gives the impression of an inadequately thought out provision.”