A good number of citizens have expressed concern that the debate around the Constitution Amendment Bill number 10 of 2019 has stayed among a few who are able to interpret the legal jargon, leaving the rest of the population behind. We agree that many people including some members of parliament who will deliberate on this Bill have very little or no understanding of this document.
Today, we have elected to help our fellow citizens understand what this bill is about by removing all legal jargon and explaining the amendments that the Patriotic Front would like to make to the Republican Constitution, on the basis that this is what the people of Zambia want. There are about 79 amendments in total, but we have only selected the most contentious which we could fit on this page, and gone further to explain (using examples) why they are disastrous to democracy.
Right now, there is a provision in the Constitution which states that when a presidential candidate files in his or her nomination papers to take part in the elections, anyone who thinks such a candidate is not eligible to be Republican President can go to court within seven days and challenge the candidate in question. The Constitutional Court would then look at the grounds presented and decide. Once enacted, Bill 10 will remove this provision. Under Bill 10, there will be no room for anyone to challenge a presidential candidates’ eligibility, anyone aggrieved can only challenge the outcome of the election.
Now, remember that in the case of Danny Pule and others, THE CONSTITUTIONAL COURT DID NOT DECLARE PRESIDENT EDGAR LUNGU ELIGIBLE TO STAND IN 2021. The Constitutional Court could not have declared President Lungu eligible to stand because he is not the one who was in court and he was not joined to the case. It is when President Lungu files his nomination papers in 2021 when the people of Zambia can now go and challenge his eligibility and drag him personally to the Constitutional Court if they so wish. If Bill 10 is enacted, citizens who are opposed to the third term will be denied an opportunity to challenge President Lungu.
Through Bill 10, the Patriotic Front is proposing a coalition government so that if a political party fails to get 50 per cent plus one, there should be no rerun. Instead, the President can decide to form a coalition government with another small political party in order to cross the 50 plus one threshold. This is designed to rescue the ruling party in 2021. In the last election, President Lungu and the PF retained power by only 50.3 per cent or 13,000 votes. Given what has transpired in Zambia between 2016 and now, chances that the PF can get these 13, 000 votes range from slim to impossible. So President Lungu and his party don’t want a rerun, they want to settle this with a coalition government.
The problem is that if President Lungu is lucky enough and gets 45 per cent, and Nevers Mumba of MMD gets seven per cent (no disrespect intended), the two can enter into a coalition government under the Bill 10 amendment to the law and rule the country without drawing their mandate from the people of Zambia. This means the one who comes out number two and all the other participants in the election are discarded.
Another problem with this system is that in the given example, Nevers Mumba cannot be vice-president because President Lungu will already have a running mate. He cannot be prime minister or even nominated Member of Parliament because there are no such provisions in the law. So what does he become? Bill 10 has no answer to this. Let’s assume that they nominate each other into power without drawing their mandate from the citizens, what happens when Nevers Mumba later differs with President Lungu and decides to withdraw his seven per cent votes or his support from the party? Bill 10 has no answer to this.
In the current Constitution, there is a provision for every political party taking part in the general elections to hold primary elections. This means there cannot be any such thing as sole candidate, no! The Constitution of Zambia, as amended in 2016, says before you can be offered to the nation as a candidate, you must have been internally elected. The principle is that you cannot run a democratic country if you yourself are undemocratic. Bill 10 seeks to remove this provision so that party members who want to challenge President Lungu do not stand a chance of challenging the “sole candidate”.
Stay of Ministers in office:
Bill 10 seeks to allow Cabinet Minister to continue in office after the dissolution of parliament, until the date of the election. This is what the Constitutional Court ruled as illegal under the current Constitution. The problem with this is that ministers will have access to media, government funds and vehicles for campaigns, which kills a level playing field in elections and gives the upper hand to the incumbant government. That is not Democracy.
The Bill also proposes the reintroduction of deputy ministers. Despite the huge cost that this position brings to the government, proponents of Bill 10 argue that the running of government is difficult without deputy ministers. But among other consequences, if approved in its current state, Bill 10 will see deputy ministers double the number of government officials campaigning for the party in power using government resources.
Control of the Judiciary:
The Constitution currently provides for an independent Judicial Complaints Commission that looks into the conduct of judges. PF, through Bill 10 wants to change this and revert to the system where the President retains the power to appoint his desired tribunal members for a specific case. Further, under Bill 10, the Chief Justice will be part of the Constitutional Court, thereby taking away the autonomy, reduce the status of the court and the powers of the Constitutional Court president.
Role of the Speaker during election petition:
The law currently says once the election of a president-elect has been challenged in court, the Speaker of the National Assembly must assume the role of acting President until after the election dispute is settled or until the next election is held. PF wants Bill 10 to amend the law so that the sitting President retains all the Executive powers and functions during the whole process, which takes away a level playing field.
Payment of retirees:
The Constitution, as amended in 2016, dictates that when a person is retired, they must stay on the payroll until all their retirement benefits are settled. Bill 10 wants this provision amended so that retirees can be removed from the payroll on the last day of work without their benefits so that they can go home and wait in their poverty. Here, government is the biggest culprit at failing to pay retirees, and civil servants will be discarded from employment while some will die before getting their retirement benefits.
Current law says that before government goes ahead to borrow, there must be approval from Parliament. It’s a way of checking on the Executive to make sure that it does not contract debt recklessly. Once enacted, Bill 10 will remove Parliamentary approval for debt contraction. This means the US$2 billion that Honorable Vincent Mwale would like to borrow for the construction of a railway line from Chipata to Serenje will go ahead unopposed. Right now, lending money to Zambia is risky and the lenders know that such loan is illegal if it has no backing from Parliament. But Bill 10 will allow Cabinet to contract as much national debt as they please.