Credit to ConstitutionNet.org
The Zambian government is pursuing a constitutional reform process that has lacked inclusivity and popular engagement. The proposed constitutional reforms would, inter alia, alter state-religion relations and enhance the powers of the executive vis-a-vis the legislature, courts, independent institutions, and provinces. In combination, the reform initiative sets a dangerous precedent and could exacerbate, rather than solve, the ongoing political crisis – writes Professor Cephas Lumina.
On 12 June 2019, the Zambian Government tabled several amendments to the 2016 Constitution. The proposed reforms have raised significant concerns of constitutional regression. Critically, the government is pushing the reforms through a process that does not have the buy-in from the main opposition groups as well as critical non-state actors. The contrived ‘dialogue’ to push through reforms may ultimately undermine constitutionalism. Moreover, while the reform drive was meant to address the divisions and legal lacunae/uncertainties that emerged in the aftermath of the 2016 elections, the content of the draft amendments threatens to reverse the constitutional and democratic gains since Zambia’s return to multi-party democracy.
On 11 August 2016, Zambia held polls to elect the country’s president, members of parliament, mayors and councillors, alongside a failed referendum on changes to the Bill of Rights in the country’s constitution and replacement of the provision governing the amendment of the Constitution. In the tightly contested presidential election, the incumbent, President Edgar Lungu of the Patriotic Front (PF), secured a narrow victory over the United Party for National Development (UPND’s) Hakainde Hichilema. The UPND contested the outcome of the presidential election in the Constitutional Court but the petition was dismissed on a technicality. The Court’s handling of the petition generated much uncertainty and tension in the country, which were aggravated by, inter alia, the detention of Hichilema on treason charges and the temporary suspension of 48 opposition MPs for boycotting the President’s official opening of Parliament. Furthermore, several of the by-elections held since the August 2016 election were tainted by violence and reported malpractices.
Against this backdrop, external and internal actors, including the Commonwealth Secretary-General, made several attempts aimed at addressing the tense post-election situation. Prior to the official launch of the Commonwealth initiative, the ruling PF party indicated that the country’s situation did not require external mediation and expressed its preference for a local initiative. It was subsequently agreed by all parties that a national dialogue would be chaired by the three church mother bodies - Council of Churches in Zambia (CCZ), Evangelical Fellowship of Zambia (EFZ) and the Zambia Conference of Catholic Bishops (ZCCB) – and facilitated by the Zambia Council for Interparty Dialogue (ZCID). But nothing much came out of this.
Political groups had agreed that changes to the constitution should be adopted by a ‘people’s assembly’.
In June 2018, the ZCID convened a two-day meeting of all the major political parties at Siavonga, which adopted a number of resolutions concerning potential constitutional, institutional and electoral reforms (‘the Siavonga Resolutions’), including separation of powers and judicial independence; tolerance, freedom of assembly and civility in politics; and integrity of the electoral process. The meeting unanimously resolved that the national dialogue process should be facilitated by the ZCID and chaired by the church mother bodies. Also of note was the resolution that changes to the constitution should be adopted by a ‘people’s assembly’.
Following the Siavonga meeting, the three church mother bodies initiated a Framework for Dialogue and Reconciliation to be undertaken over two years. The Framework was launched in January 2019 but stalled because the ruling PF did not participate.
The National Dialogue Forum – ‘a theatre of the absurd’?
In March 2019, the government decided to establish a new national dialogue process through a bill (Bill No. 6 of 2019) which was enacted by Parliament a month later as the National Dialogue (Constitution, Electoral, Public Order and Political Parties) Act (’the NDF Act’). The Act established a National Dialogue Forum (‘the Forum’) ‘for the implementation and enhancement of the Siavonga resolutions’ of political parties and for proposals to change the constitution based on submissions from stakeholders and to reform the law concerning the electoral process, public order and regulation of political parties. The Forum was empowered to ‘vary, confirm, add or remove any provision of the draft amendments or repeals and replacements proposed to the Constitution, the Electoral Process Act 2016, the Public Order Act and the Political Parties Bill, 2019’, that it considered ‘appropriate’ and, at the conclusion of its review, to ‘prepare and adopt draft Bills’.
The Forum consisted of all Members of Parliament (MPs) and other members appointed by the Secretary to the Cabinet, including representatives of all political parties, religious organisations, civil society organisations, ministries, the judiciary, statutory bodies, the Electoral Commission of Zambia and traditional leaders. Some citizens who had made submissions on constitutional reform, and were appointed by the Minister of Justice, were also part of the Forum. The chairperson of the Forum was appointed by the President and the appointment ratified by the Forum. Several stakeholders had strongly objected to this provision on the basis that it would render the appointee subject to influence by the appointing authority.
The ruling party dominated the National Dialogue and participation was coerced.
It is widely recognised that public involvement as well as transparency and inclusiveness in constitution-making enhances the legitimacy of both the process and outcome. It is, however, questionable whether the process embodied by the Forum met this standard and, in particular, whether the Forum allowed for inclusive, transparent and meaningful participation by all citizens. While the NDF Act empowered the Forum to ‘require the attendance of any person’, at the commencement of the Forum, President Edgar Lungu declared that the Forum was a ‘quality assurance’ entity and that no one would be allowed to make new submissions.
To start with, participation was, arguably, coerced. The NDF Act provided that anyone required to attend the Forum and who absented themselves from the meeting without reasonable excuse or permission, was liable to a fine or imprisonment for a term not exceeding six months if convicted. By its very nature, this provision offended the principle of dialogue. Furthermore, as noted by some stakeholders in their submissions to the Parliamentary Committee on Legal Affairs, Human Rights, National Guidance, Gender Matters and Governance on the content of the bill, ‘dialogue could not be legislated’.
Significantly, given that the ruling party has 89 seats in the 166-seat National Assembly, that there were numerous government participants and that only 14 of the opposition UPND’s 56 parliamentarians attended, the numbers were clearly skewed in favour of the government. Moreover, the inclusion of MPs in the Forum raises issues of conflict of interest in that the same MPs who participated in the Forum discussions would be involved in the process of passing the Bill into law in the National Assembly and possibly alter agreed outcomes.
The large number of participants made comprehensive consideration and debate on various options unlikely.
It is broadly accepted that the success of any constitutional reform process is strongly dependent on the support it receives from different sectors of society. The fact that several civil society organisations, the main opposition party (UPND), the majority of UPND MPs and the three main church bodies (which had played a prominent role in the pre-Forum efforts at the national dialogue) chose not to participate raises further questions about the legitimacy of the Forum. Indeed, given the historical role that the church mother bodies have played in relation to governance in Zambia, their absence was a significant indictment of the Forum.
It is also debatable whether the large number of participants (arguably many of whom have little understanding of constitutions and constitution-making processes) allowed for a free and exhaustive debate on various options. As stated by Professor Muna Ndulo, there could be ‘no meaningful discussions in such a large forum, especially one completely controlled by the Government’.
A further problem tainting the outcome of the process was the lack of an independent committee of experts to review and refine all proposals before submission to Parliament. It is therefore not surprising that the Amendment Bill subsequently tabled in the National Assembly contains proposals that are completely at odds with accepted constitutional practice and has evoked broad condemnation.
The defective process inevitably produced controversial amendments favouring the ruling party and the incumbent.
In short, the Forum process had a number of deficiencies, leading one observer to describe it as ‘a theatre of the absurd’ which the ruling PF intended to use to manipulate the outcome of the constitutional reform process. Indeed, many feel that the whole constitutional reform process has been initiated to further the interests of the ruling party and to disadvantage the opposition in view of the 2021 general elections.
At the conclusion of its sitting (for a total of 16 days), the Forum adopted nine of the 15 Siavonga resolutions. It also adopted three draft bills: the Constitution of Zambia (Amendment) Bill 2019; an Electoral Process (Amendment) Bill 2019 and the Public Order Bill 2019. Among the constitutional amendment proposals adopted by the Forum were the following: revision of the preamble to confirm that Zambia is a ‘Christian’ nation by removing the phrase ‘multi-religious’; provision for a ‘coalition’ government where no presidential candidate achieves a 50%+1 threshold in the first round of elections; dissolution of the National Assembly only at the date of the general election ‘to allow Members of Parliament to complete their full 5 year term’; revision of the period for hearing presidential election petitions from 14 to 30 days; and provision for appointment of deputy ministers.
The Constitution Amendment Bill – sowing the seeds of (constitutional) crisis?
On 21 June 2019, the Government released the Constitution of Zambia (Amendment) Bill, No. 10 of 2019 for public comment. The Bill seeks to amend the Constitution in several significant respects, some of which were not part of the recommendations of the Forum, including those in relation to the judiciary.
Zambia as a Christian nation
The first proposed change to the Constitution would have significant symbolic implications. In addition to proposing the specific declaration of Zambia as a Christian state in the preamble, the proposals would include ‘Christian morality and ethics’ as one of the national values and principles. While the exact implications of these provisions are not certain, they may undermine the protection of the rights of religious minorities and other vulnerable groups.
It is unclear who the driving force behind the proposal is and whether the non-Christian groups represented in the Forum objected to it. There are, however, sound reasons to conclude that the proposal is a ruling party initiative supported by the Pentecostal church groups. Like Kenneth Kaunda and Frederick Chiluba before him, Lungu has, since the 2016 presidential election campaign, portrayed himself as a devout Christian in order to advance his political fortunes. In October 2016, he re-affirmed the declaration of Zambia as a Christian nation. Shortly after the election, Lungu established a Ministry of National Guidance and Religious Affairs and appointed a Pentecostal pastor, Godfridah Sumaili, to head it. All these actions have enabled Lungu to secure the support of the Pentecostal churches, which during the campaign, portrayed the leading opposition candidate, Hichilema, as a Satanist. On the other hand, the Catholic church (the largest religious denomination in the country) has consistently opposed the declaration. In a statement released on 15 July 2019, the ruling party expressed its opposition to the proposed change
Possibilities for a ‘coalition’ government
The proposed changes anticipate the possible formation of a ‘coalition’ to prevent the need for runoff presidential elections. Accordingly, runoff elections would not be automatic in case of absence of a candidate who secures 50%+1 of the vote. Instead, where no presidential candidate wins a 50% +1 majority, the candidate with the highest share of votes is given the opportunity to negotiate and form a coalition government with another candidate within 14 days. If the combined votes of the coalition candidates exceed 50%, there would not be need for a runoff election. The formulation seems to exclude coalitions of more than two candidates.
This proposal seeks to introduce a novel institutional approach to the problem of repeat elections. While this provision is intended to reduce the chances of a second-round election, it may have the perverse effect of incentivizing the proliferation of candidates and participation of fringe candidates with hopes of forming a coalition. Accordingly, it must at a minimum be complemented with provisions to discourage candidates with little prospects. Moreover, the use of candidate decisions as proxy for popular votes could undermine the desired effects of two-round systems to encourage moderation of candidates to reach out to voters across cleavages. Rather than seeking to reach out to voters outside their stronghold before elections, favourite candidates may now focus solely on bargaining with other candidates after elections.
The ruling party has subsequently abandoned its support for some of the controversial proposals.
Not surprisingly, the proposal for a coalition government has attracted considerable criticism from the opposition, civil society organisations and other stakeholders. For many, the proposal would essentially enable a presidential candidate who does not enjoy the support of 50% of registered voters to become president through a coalition. The lack of a definition of a ‘coalition government’ also leaves the provision open to interpretation in a manner that would serve the interests of any ruling party and generate much uncertainty. The Electoral Commission of Zambia has reportedly objected to the proposal on the basis that it has potential to cause instability in the event that a party to a coalition government decided to withdraw from the agreement after forming government. In an apparent response to the public criticism, the ruling party has declared that it is opposed to the proposal on the ground that ‘the President should draw his or her mandate directly from the people’.
Enhancing the powers of the president
One of the main aspects of the 2016 constitutional reforms was the attempt to constrain the powers of the President, particularly in relation to the appointment of key officeholders. The proposed reforms reverse many of these constraints. The proposal would remove the role of the Constitutional Court to finally resolve deadlock in cases where the National Assembly fails to affirm presidential nominees. The proposed appointment process, while removing the Constitutional Court from political fray, would allow the President to get their way. Accordingly, in case of failure of the Assembly to affirm an appointee, the President would submit substitute appointees where on the third occasion the appointee is automatically confirmed.
Similarly, the proposals would remove the role of the Civil Service Commission in the appointment of the secretaries to the Cabinet and the Treasury; the role of the Judicial Service Commission in the appointment of the Public Protector; and the role of the State Audit Council in the appointment of the Auditor-General. The President would make these appointments on approval of the National Assembly. In addition, the President also gets new powers to appoint deputy ministers as necessary. The 2016 amendments had removed the position of deputy minister as it was generally considered redundant and not cost-effective. It should be noted that, in response to the public outcry, the ruling party has indicated that it does not support the reintroduction of the position because ‘the PF Government is still committed to a lean Government’.
Crucially, the proposed amendments would give the President more discretion in the dismissal of judges. Accordingly, the Judicial Service Commission would only have the power to determine the existence of a prima facie ground for dismissal. Once there is such determination, the power of constituting a tribunal to finally determine the matter and make recommendations would lie with the President. It is crucial to note that the process of removal of judges also applies to some independent organs, such as the Public Protector.
In terms of substantive powers, the proposed reforms empower the cabinet, headed by the President, to approve public loans and guarantee loans contracted by state institutions, thereby removing the requirement for National Assembly oversight. The Bill also gives the President power to enter into international agreements and to create, divide or merge provinces without approval of the National Assembly.
New electoral system for the legislature
The proposals would replace the first-past-the-post with a mixed-member electoral system, and abolish nominated members of parliament. The change is ostensibly motivated by a desire to enhance the participation of women and marginalised groups in parliament and councils.
Threats to judicial independence
It is noteworthy that while the ‘objects’ of the Bill make no reference to any intention to change any aspect of the judiciary, the Bill evinces profound changes to the judiciary, including procedures for removal of judges from office and composition of the Supreme and Constitutional Courts. Under the current Constitution, one of the grounds upon which a judge may be removed from office is ‘mental or physical disability that makes the judge incapable of performing judicial functions’. The proposed amendment replaces this with the ambiguous provision for removal when a judicial officer is ‘legally disqualified’ but does not specify the circumstances that could lead to ‘legal disqualification’. This leaves the provision open to abuse, for example, through removal of a judge on politically motivated grounds.
Regarding the composition of the Supreme and Constitutional Courts, the requirement for a sitting bench of at least 11 judges is replaced with the profoundly vague provision for ‘an uneven number of judges, as prescribed’. As has been contended by several observers, this proposal is inconsistent with the International Bar Association Minimum Standards of Judicial Independence which require that the number of members of the highest court should be fixed and not subject to change except by legislation.
Despite significant public disquiet, the government has tabled the Bill in the National Assembly. The proposed changes do not require a referendum. Nevertheless, to pass, the Bill will require the support of not less than two thirds of all members of the National Assembly (that is 110 out of 166). The distribution of seats in the National Assembly is currently as follows: PF – 89; UPND – 56; Movement for Multi-party Democracy (MMD) – 5; Forum for Democracy and Development (FDD) – 1; and independent – 14. Thus, unless the ruling party can secure the support of all MMD, FDD and independent, as well as the (unlikely) support of at least two UPND MPs, the Bill is unlikely to pass. The government is reportedly seeking to intimidate or bribe UPND MPs to support the proposed amendments, including an offer to pay all allowances and gratuities now rather than at the end of their term in 2021.
The main opposition party has the numbers to block the reforms, if it stays cohesive.
The proposed amendments have drawn widespread criticism, both within the country and from international observers. In early August, seven international organisations expressed their ‘deep concern’ over the negative implications of provisions of the Bill on the independence and impartiality of the judiciary. Of particular concern to the organisations are the proposed changes regarding disciplinary proceedings against judges and the composition of the Constitutional and Supreme Courts.
The Law Association of Zambia (LAZ) and local civil society organisations have also strongly criticised the proposed amendments, with many concerned that the Bill reverses progressive provisions in an existing Constitution that is already deeply flawed. The Oasis Forum - whose members include LAZ, the three church mother bodies and the Non-Governmental Organisations Coordinating Council – and the Zambia Congress of Trade Unions (ZCTU) have all called upon the Government to withdraw the Bill to allow for broader and meaningful consultation.
A case has been filed before the Constitutional Court to halt the proposed amendments.
LAZ has gone further to petition the Constitutional Court for: (a) a declaration that the Respondents’ (the President of the Republic of Zambia, the Attorney-General and the National Assembly) decision to the extent to which it seeks to amend the Constitution in the manner set out in the Constitution of Zambia (Amendment) Bill No. 10 of 2019, is unconstitutional; and (b) an order (of Certiorari) quashing the Bill. LAZ has also formally requested the Speaker of the National Assembly to suspend consideration of the Bill pending determination of the petition, but the Speaker has refused to accede to that request.
Constitutional reform affords an important opportunity for the citizens of a country ‘to create a common vision of the future of a state, the outcomes of which can have profound and lasting impacts on peace and stability’. Nevertheless, as one commentator has aptly observed: ‘[t]he proposed 2019 constitution making process is deeply flawed and will fail to deliver a constitution that is legitimate and provides a framework for the democratic governance’ in the country. If adopted, the Constitution of Zambia (Amendment) Bill 2019 would potentially sow the seeds of constitutional and political crisis in Zambia.
Professor Cephas Lumina is an Advocate of the High Court of Zambia and formerly a Research Professor of Constitutional and Human Rights Law at the University of Fort Hare.