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2016 Constitution is inept, badly drafted, embarrassing – Prof NduloBy Mukosha Funga on 6 Mar 2018
Cornell University Law Professor Muna Ndulo says the 2016 Constitution is inept, badly drafted, embarrassing and needs to be overhauled.
In a paper titled “Zambia’s unfulfilled struggle for a democratic Constitution: Comments on the 2016 Constitution” which he shared with News Diggers, Sunday, Prof Ndulo also observed that the 2016 Constitution concentrated power in the presidency more than the 1991 Constitution did.
Meanwhile, Prof Ndulo says the Constitutional Court has made the Supreme Court redundant, adding that conflicts could arise in the Judicial system from having the two courts which rank the same.
“A recent statement by the Minister of Justice Given Lubinda, a man with at best a modest understanding of legal concepts and constitutionalism, that the 2016 constitution is a mess is an understatement, it is inept, incompetently conceptualized and badly drafted. Rather than reducing presidential power, it concentrates power in the presidency more than the 1991 constitution did. Its deficiency will not be cured by the removal of what the minister calls “lacunas.” In our view, it is an embarrassing document not befitting country like Zambia,” Prof Ndulo stated.
“It needs a complete overhaul to be done by experts. A stable political order can only be achieved by establishing a constitutional order that is legitimate, credible and enduring, and which is accessible to the people. The stark lessons learned from various constitutional processes in other parts of the world are that the process of adopting the constitution is as important as its substance. The process must be legitimate for it to be acceptable to all stakeholders. In order for the process to be legitimate, it must be inclusive. No party, including the Government should control it. A constitution should be the product of the integration of ideas from all stakeholders in the country, including political parties both within and outside parliament, civil society and individuals in society and experts. The new Zambian constitution was developed by a process that was deeply flawed and ignored the above principles. The result is an unworkable, poorly integrated, and unsatisfactory document that leaves the desire by Zambian people for a democratic constitution unfulfilled.”
On the Executive, Prof Ndulo questioned the framing of executive power under article 90 (2).
“Article 90 (2) vests executive authority in the President. Executive authority should be ‘exercised by’ and not ‘vested in’ the President. This is more in line with the principle of the sovereignty of the people. Framing executive power that way emphasizes the supremacy of the people, and not the supremacy of the President,” he stated.
He observed that there was a violation of the doctrine of separation of powers in Article 94, saying it exposed the Judiciary to unnecessary political pressure.
“Article 94 (1) (2)2 (2) which deals with a situation where executive action which requires parliamentary approval fails to get the necessary parliamentary approval. The approach of Article 94 (20) is to have such a situation referred to the constitutional court to decide whether the refusal by Parliament to approve such action is justified. This is a violation of the doctrine of separation of powers. Additionally, it exposes the Judiciary to unnecessary political pressure. The judiciary is forced to side with one party over the other on issues that may be entirely political. Transferring a political matter to court makes judges to have to adapt their procedural tools to political ends- for which the tools are wholly inappropriate,” he stated.
“This subsection is furthermore wholly unnecessary- the business of co-ordination between the Executive and the Legislature is by and large political, and the leadership qualities of the leaders in both arms of government are aimed at harnessing political synergy to achieve their goals. As such, no safeguards are necessary to ensure action. An alternative of a mutually assured destruction has been developed in other countries to counter this situation- provisions to the effect that if the legislature and executive fail to co-operate to form a cabinet within a specified period (maybe 60 days), Parliament stands dissolved and the entire government goes back to a re-election. As the election activities are costly- in terms of time and money- and nothing is assured at the ballot, this provides an impetus to both groups to co-operate: an impetus to the President to choose candidates who are reasonably acceptable to a varied and divided Parliament, and an impetus to Parliament to reasonably consider the President’s nominees.”
Prof Ndulo questioned the rationale behind Article 95 of the Constitution which could allow a President to appoint an unacceptable candidate without needing Parliament ratification.
“Article 95: Establishes a procedure whereby in cases where Parliament does not approve of presidential appointments or a measure requiring Parliamentary approval before it takes effect, the president can nominate another person to replace the failed nomination. Where the National Assembly refuses or delays the ratification of the measure or appointment for the third time, that measure or appointment takes effect. It is difficult to see the rationale for this approach. The procedure outlined in this Article can be used as a political ploy- the President can lay out three wholly unacceptable candidates with no chance of making it through Parliament- while ensuring that the 3rd candidate, who is herself unacceptable on an obvious standard- let’s say nepotism, goes through without need for ratification by Parliament. This is another example of the dominancy of the presidency over the legislature that is evident throughout this constitution,” he stated.
With regards presidential immunity, Prof Ndulo stated that a president should not be immune to criminal proceedings after leaving office as this could encourage corruption.
“Article 98 deals with immunity of the president from civil and criminal proceedings. Article 98 (2) provides that the president shall not in his or her private capacity during the tenure of office as President, institute or continue civil proceedings against him. In 98 (4) it is provided that except where the immunity has been removed by parliament, the president is immune from criminal proceedings which immunity continues after that person ceases to hold or perform the functions of that office. With respect to 98 (2) it is not clear if this is an absolute ban. What about divorce proceedings? Can they go on? The President should not be immune from criminal proceedings after leaving office. This will encourage corruption and impunity,” Prof Ndulo stated.
“No one should have the opportunity to commit crimes, whether as a President or as a layman, without incurring liability. These sections are an affront to the country and to the rule of law. You do not see this kind of provision in the South African or Kenyan constitution for example. No person, however powerful, should be allowed to act as if he or she were superior to the law of the land.”
Prof Ndulo stated that it would have been good for the Constitution to limit the size of Cabinet.
“Given the prevalence of patronage in the appointment of the cabinet, it would have been a good measure for the constitution to limit the size of the cabinet. It would prevent a bloated government. The constitution does not state the number of ministers to be appointed (article 113 (c) and article 116 (1). This is left to legislation to be enacted. Article 116 (1) provides that the president shall appoint a prescribed number of ministers. Article 266(definition article) states that “prescribe” means prescribed by an Act of Parliament. Parliament needs to pass a law to prescribe the number of ministers. In relation to provincial ministers, the constitution is specific, they must be one provincial minister for each province (article 117(1). It is doubtful that legislation has been passed. Section 21 of the Constitution, states that an article of the constitution does not come into effect if such article requires prescription by an Act of parliament unless such legislation is actually passed,” he stated.
Meanwhile, on the Legislature, Prof Ndulo observed that there was no Constitution which allowed the President to dissolve Parliament if the Executive “could not effectively govern the country due to the National Assembly’s failure to reasonably and objectively carry out its legislative functions”, like Article 81 (4) did.
“This is a most unusual provision in a constitution. I know of no constitution with such a provision. The section unnecessarily infringes on the independence of the legislature by allowing the President to make quality assessments about work of Parliament – its inability to “objectively and reasonably carry out its legislative function.” The executive cannot and should not police the legislature as it carries out its functions. This clearly undermines the separation of powers,” he stated.
“Effective democracies have at their core a strong Parliament. This is absolutely a must if there is to be an effective system of checks and balances. The importance of a legislature that can act independently of the President to ensure accountability of the President needs no special emphasis, unless parliament is in fact independent of the President, parliament’s sovereignty simply means the sovereignty of the executive…No constitution, however strongly entrenched, can be a guarantee against the temptations of power on the part of the executive unless there is an independent legislature to act as a counter poise against such temptation, and unless there is a strong national ethic against executive pretentions, the guaranteeing of rights of individuals is not worth the paper it is written on.”
He stated that to ensure its independence, the President was not supposed to be part of Parliament.
“Article 62 (1): states that Parliament consists of the President and the National Assembly. How is this reconciled with the doctrine of separation of powers? The fact that the president assents to legislation after it has been passed by Parliament does not mean he or she is part of Parliament. A similar provision in the Kenya constitution reads:” There is established a Parliament of Kenya which shall consist of the National Assembly and the Senate.” In Zambia there is no Senate, so Parliament should be the National Assembly. Parliament should be independent. Greatest possible independence of Parliament is essential if Parliament is to be able to act as a check and balance to the Executive. An independent Parliament contributes to a more accountable government and increases the legitimacy of government actions. Actions of the Executive approved by Parliament are seen as having the approval of an independent house representing the interests of many varied positions in the country. This legitimacy and transparency should not be tainted by unnecessary intrusions into Parliament by the Executive,” he stated.
He argued that Article 72 (2) (c) (e) which provides that a member of parliament loses his or her seat if he or she is expelled from the party which sponsored his/her election to the National Assembly threated the stability of people’s representation in the Parliament.
“A Member of Parliament’s seat is not only derived from his or her political party but also from his or her electorate. As such, the party should not be able to deprive the electorate of their elected representative by ejecting him or her from the party during the life of parliament,” Prof Ndulo stated.
Meanwhile, on the Judiciary, Prof Ndulo observed that the Constitutional Court had made the Supreme Court redundant.
“The new structure in Zambia has made the Supreme Court more or less redundant. The current arrangement means that Zambia’s most experienced judges do not preside over the most important cases (constitutional cases) that come before the courts. It would seem to us that what Zambia needs is to have the Supreme Court, constituted to have a larger bench whenever the hearing of a constitutional matter arises. Furthermore, there are other problems associated with vesting jurisdiction to special courts only over constitutional matters,” he stated.
“There is no neat division between constitutional and other legal issues, and lawyers will always find a constitutional issue inextricably interlinked with banking, commercial law, company law and customary law disputes. It is worth bearing in mind that the jurisdictions with the greatest number of constitutional cases-United States, Canada, and India do not have constitutional courts separate from the Supreme Court.”
He wondered what would happen if the Supreme Court failed to apply a decision of the Constitutional Court.
“Articles 121 states that “the Supreme Court and the Constitutional Court rank equivalently”. This can lead to conflicts in the judicial system. What happens when there are conflicting decisions from the Supreme Court and the Constitutional Court? What if the Supreme Court refuses to certify a constitutional question to the Constitutional Court? What if the Constitutional court gives a decision and the Supreme Court fails to apply it? In every judicial system in the world, there is clear hierarchy of courts. Also contrary to the trend elsewhere in the world, the 2016 in Article 125 (3) states that the Supreme Court is bound by its decisions. This can cause unnecessary delays in the development of the law. This provision means that you would need parliament to change precedents which are no longer just given changes in society. Law must not stand still. The UK abolished this rule with respect to the House of Lords in 1966,” he stated.
“Articles 120 (1) creates the Supreme Court and the Court of Appeal. This is an unnecessary duplication of courts. To create a Supreme Court and a Court of Appeal as just another level of appeals is an unnecessary lengthening of litigation. The Supreme Court should be the final court. International best practice also gives it the power to hear cases on referral that are of great importance. The work of a Constitutional Court can be divided between the Supreme Court and the High Court, which should be able to interpret the Constitution in the normal cause of litigation. Interpretative certainty on constitutional matters can be achieved by giving a right of appeal to the Supreme Court at the top of the court hierarchy. Furthermore, any specific references required for the Constitutional Court can be achieved by the top hierarchical court, whatever name it may assume.”
He observed that in modern Constitutions, appointment of judges was a public process rather than a president’s role.
“The process of appointing judges should be transparent and be clearly spelt out. In all modern constitutions the selection of judges is a public process (Kenya, South Africa, and Zimbabwe.) There should be clear nominating processes that include public interviewing of persons being considered for appointment to judicial office to guarantee competence and integrity in the men and women appointed as judges. In Zambia the President has unchecked power to appoint whoever he or she wants to be judge in total disregard of the competence of the individual. The result is there for all to see. The ratification by parliament as currently structured is meaningless and is in fact a political process devoid of any serious evaluation of the suitability of the candidates for judicial office,” he stated.
And on the preamble of the 2016 Constitution, Prof Ndulo observed that it was contradictory to declare Zambia a Christian nation whilst, at the same time, guaranteeing a person’s freedom of religion, conscience and belief.
“Declaring Zambia a Christian state, promotes the pernicious idea that non-Christians are in some way second-class citizens in their own country. It is contrary to best practice in constitution making. Why would a religious faith need state support to propagate its faith? No other African country has declared itself a Christian state,” he stated.
“Article 8 gives a number of national values and principles. It includes “morality” as a national value. Morality is incapable of definition and is a subjective standard. In a multicultural society, there is more than one standard of morality in play, coming from different religions and belief systems. It is therefore unfavorable to have it as a national value. Article 7 declares that the laws of Zambia consist of (a) this constitution; (b) laws enacted by parliament, (c) statutory instruments; (d) Zambian customary law;(e) the laws and statutes which apply or extend to Zambia as prescribed. A major source of law: The Common Law and Doctrines of Equity are omitted. The Common Law was applied to Zambia by the 19 11 English Law Extent of Application Act. Previous constitutions have acknowledge this as one the major sources of our law.”
He stated that Article 10, which guaranteed investors’ protection from nationalization did not belong in the Constitution.
“A constitution, according to Black’s Law Dictionary (9th Edition), is “the fundamental and organic law of a nation or state that establishes the institutions and the apparatus of government, defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties. Its main scope is to define a government’s duties and obligations to its citizenry, and the process of becoming a citizen, and citizens’ rights and duties.” It is outside the scope of a constitution to create promises to investors in commercial transactions with the State. The concerns of foreign business with regard to the risk of nationalization are met under the protection of the right to property provisions in the constitution,” Prof Ndulo stated.
He wondered whether the ‘responsibilities of citizenship provided for under Article 43 were enforceable.
“Article 43 provides a long list of “responsibilities of citizenship.” They include: (a) to be patriotic and promote development, (b) protect and conserve the environment, (c) maintain a clean and healthy environment, etc. Are these enforceable or are they general aspirational guidelines to citizens? If they are enforceable, they may well infringe on freedoms of conscience and expression. However, if only aspirational guidelines, they should then be accommodated in the national values in Article 8,” he stated.
Prof Ndulo stated that the provision which promised gender equality in the National Assembly was impractical without spelling out how this would be achieved.
“Under the heading of electoral system, Article 45 (1) promises fair representation of various interest groups in society and gender equality in the National Assembly and in other elective positions. It does this without spelling out how this will be achieved. If mechanisms are not established or required to be established by Parliament, this promise of fair representation will not be achieved and will remain hollow,” stated Prof Ndulo.
“Article 50 guarantees access to the media. A constitution cannot guarantee access to the media of a political candidate- this is based on commerce and the capability of the candidate to secure funds for the media campaign. However, the constitution can guarantee equality of access of all candidates in a political election- so that it is prohibited to deny one access to the media because of one’s political affiliation.”
About Mukosha Funga
Mukosha Funga is a Zambian journalist interested in good governance and anti corruption reporting.
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