Transparency International Zambia has wondered why the PF is trying to avoid getting parliamentary approval before loan contraction if it is well intended.

And TIZ has warned that there will be chaos if Zambians started categorizing any part of the constitution they did not like as a lacuna.

On Monday, Chief Government Spokesperson Dora Siliya said government did not need Parliament’s approval to acquire loans because the Republican Constitution contained lacunas on clearly defining the Legislature’s role compared to the Executive.

She was reacting to a question posed by Diggers! on why government did not wait for Parliament to approve the acquisition of a US $30 million loan recently contracted by government to upgrade the Mulungushi International Conference Centre (MICC), among a series of other loans from China.

“I think that we have been going through a window where a number of issues relating to the Constitution are under discussion. And I think there is a good argument going around that, how is it possible that if the separation in government of the Executive, of the Judiciary and the Legislature; and the Executive elected by the people is expected to perform a certain job. And when they perform that job, who should then provide the oversight? It should be the Parliament. And the argument people have been giving is that, if the Parliament is going to participate in a function of the Executive, how then will they supervise the Executive? And I think these are the discussions that are going on and this is why the Minister of Justice (Given Lubinda) has led the way to provide consultation that there are still lacuna’s in our Constitution, and we need to find a way to clear them,” said Siliya.

But responding to a press query, TIZ president Rueben Lifuka wondered why the PF was trying to run away from Parliamentary scrutiny if the loans were well intended.

“In 2014, the PF government approved the National Planning and Budgeting Policy intended to promote a Responsive, Transparent, Accountable and Results-oriented development planning and budgeting process. One of the policy measures proposed is to strengthen National Assembly oversight over public finance. The question therefore -Is the PF government walking away from this Policy and this specific measure on the National Assembly? If these loans are well intended, why is government averse from seeking parliamentary approval? These loans are not repaid from personal finances of our leaders but from public taxes and other revenues mostly raised by the people themselves and it is simply proper that we know what our government is committing us to for the near future,” Lifuka stated.

And TIZ has warned that there will be chaos if Zambians started categorizing any part of the constitution they did not like as a lacuna.

“The Constitution of Zambia (Amendment) No 2 of 2016 is categorical in its provisions and Article 63(2) mandates the National Assembly, in the discharge of its oversight of the performance of executive functions, to approve public debt before it is contracted. This is what the constitution says and this is a product of the PF Government. It therefore behooves Government to abide with every provision of the constitution, regardless of what they now see as lacunas. Until such a time that amendments are proposed and passed by the National Assembly, the PF government should and must conform to the constitution. We wish to remind Hon Dora Siliya and her colleagues of Article 1(3) which indicates that the constitution shall bind ALL persons in Zambia, State organs and State institutions. It will be a sad day for our democracy if this administration is in the forefront of advocating for defiance of constitutional provisions for any reason-real or imagined- without following due process of bringing about resolution of whatever shortcomings the document has. We shudder to think of the chaos that may ensue if citizens who are unhappy with one or two provisions of the constitution, equally adopt the PF Government’s stance to do as they please on the premise that the constitution has lacunas,” Lifuka warned.

“The cure of these lacunas does not lie in ignoring or defying the constitution, but through taking appropriate amendments to the National Assembly. That said, we find the argument being pursued that the approval of public debts by the National Assembly blurs the line between the roles of the executive and the legislature, unfortunate and a deliberate attempt to essentially dilute the requirement for strict checks and balances in the performance of executive functions. Zambia is a Representative democracy and instead of the people directly exercising sovereign authority, this is done by our elected representatives in the National Assembly. Therefore, transparency and accountability are key principles of good governance and since the PF government is procuring public debt on behalf of the people of Zambia, there is nothing unusual that before the Executive goes ahead and signs for loans and other forms of public debt, the people through their representatives should give the necessary approval. It is one of the functions of the National Assembly to ensure equity in the distribution of national resources amongst the people of Zambia. It is equally one of the guiding principles of public finance espoused in the constitution that the Government should ensure sustainable public borrowing to ensure inter-generational equity. Public debt whether for infrastructure development or procurement of services, should be obtained for the sole purpose of advancing the well being of the people and this is the lens that our MPs are supposed to use in determining whether loans or public debt in general, should be procured.”

He noted that Siliya’s arguments raised fundamental questions.

“Some of the arguments advanced by Hon Minister of Information on the role of the legislature vis-a-vis the executive, raise fundamental questions. For instance, is it the role of the executive arm of government to determine how the legislature should conduct its oversight functions or the people of Zambia should be the ones to determine these parameters? And why is it that the executive seemingly have no objections to some oversight functions of the legislature except for the ones relating to approval of public debts? In a few weeks’ time, the Minister of Finance will table before the National Assembly, the 2019 budget -basically estimates of revenue and expenditure. The revenue side includes an indication of the external and internal borrowings that government will seek to obtain to finance the budget. According to Article 202 of the constitution – The Minister is expected to specify the maximum limits that the Government intends to borrow or lend in the next financial year. In essence, it is the Executive determining the maximum limit of borrowing and once the National Assembly approves this, the Executive are expected to work within these limits. Why should the same executive have a problem to go back to the National Assembly when it needs to borrow beyond what was approved in the national budget?” asked Lifuka.

“In Article 211, the Minister of Finance is expected to present to the National Assembly a Financial Report, together with the opinion of the Auditor General, and this report which highlights the performance of the approved budget by the National Assembly, is expected to include information on revenues received by the Republic and the debt repayments made. Now, is it the suggestion of the Executive that it should be possible for them to go ahead and acquire debt/new forms of revenue outside the approved budget and merely go back to report on it in the financial report made to the National Assembly? Government operates on the basis of a budget and one that the people of Zambia approve through their representatives and if for any reason, this budget is inadequate, the executive should seek approval for supplementary budget as well as any public debts procured for the purpose of financing the budget. Transparency and accountability is the bedrock of democracy and the suggestions made by Government will not serve our democracy well.”