If passed, Constitution Amendment Bill can make Zambia slip into one party state – Mwansa

Constitutional Law expert Ernest Mwansa has warned that if passed, the Constitution Amendment Bill will grant the Executive more powers which will likely slip the country into a one party authoritarian state.

And Mwansa says National Dialogue Forum (NDF) delegates should inform the nation who included the proposal of deputy ministers to the bill since PF is now rejecting the proposal.

Meanwhile, Alliance for Community Action executive director Laura Miti has urged Members of Parliament to reject the whole Constitution Amendment Bill saying it is an evil and selfish document.

Speaking during a public discussion organised by the Linda Kasonde-led Chapter One Foundation, Wednesday, Mwansa said if the proposed amendments were passed, the Legislature and the Judiciary would be unable to provide oversight on the Executive, making it too powerful.

“The proposed amendment bills when [and] if passed will remove power of checking on the activities of the Executive from both the Legislature as well as the Judiciary. In other words, we can see in the provisions the removal of certain of the powers that the Legislature and Judiciary had to check the president taken away. And we can also see clearly that the powers of the Executive are going to increase, very clearly as well, there is no doubt about it if this amendment passes, the power increases. Reposing too much power into one arm of government defeats the doctrine of separation of powers whose intent is to ensure that no single arm of government becomes to strong as to be uncontrollable. I would also add that it is in concentrating to much power in an individual or a single arm of government that leads to creation of discord,” Mwansa said.

“Our lack of objectivity when it comes to dealing with issues that disadvantage us when we are enjoying will one day lead us to disastrous consequences. We are creating a government that is constitutionally looking like a tad pole, one side extremely big the other side is thin. We are headed that way, take powers from the other arms of government and give to the Executive, the Executive becomes a big head. The rest of us have to survive on the tail of the tap pole. At the rate we are proceeding in constitution amendments and in the matter we are concentrating powers in a single institution I am sorry but we are on a very dangerous slope to a single party authoritarian system. This may not come through the law, remember that there may never be a law that creates a single party which is the deju party it could well happen de facto where in practice, we have become a single party. It is up to us, it is our country we can do what we want and let us just be ready to face the consequences of the decision that we make.”

He said if the bill passed, citizens would have to rely on the President’s goodwill.

“The proposed amendments in Article 92 (C) is intended to remove the power of the National Assembly to ratify or international agreement of treaties. This power has become the President’s alone to be exercised with dignity, leadership and integrity. How can you be convinced that what is going on is dignified? [That] the decision of the President is with integrity? My humble view is that dear friends, we must just trust the good judgement of the President. We just have to, we have no choice anyway,” he said.

“Secondly, under the proposed article 94 when the President makes an appointment or takes a measure that is subjected for approval by the National Assembly. National Assembly if given two chances to reject the appointed person or the measure to be taken. If on the third time the proposals made are rejected by the National Assembly, the appointment or measure will never the less stand. The current Constitution on the other hand provides that if National Assembly refuses to give its approval, the President has to refer the matter to the Constitutional Court for its decision on the matter and the Constitutional Court decision is final. And thirdly, the proposed amendments in article 1013 if they pass will give the Presidential Candidate with the highest number of votes a chance to form a coalition government with one of the opposition political parties which will help him or her to pass majoritarian threshold required by the constitution for one to become President. The is a Constitutional challenge to this arrangement of a coalition government, remember that our constitution says that a Presidential candidate will appoint a running mate, but even more confounding constitutionally that only one person is given the right to form a coalition government that is person with the highest number of votes.”

He explained some of the contents of the proposals in the Constitution Amendment Bill of 2019 how they would affect the country.

“In Article 65 in the current constitution, Parliament has power to approve public debt before it is contracted, also the power to approve international agreements and treaties before they are assented to or ratified. You can find that in article 35. It is now proposed that this power to approve or reject this contraction of debt and to approve and reject international agreements or treaties before they are assented to or ratified are going to be repealed. In other words, the Executive is going to have a free hand in borrowing whether locally and internationally. Firstly, in article 127 which talks on the number of judges, it is currently 11 but there is a provision for that number to increase. But now we are removing the number 11 and just leaving it open. So it will become a duty of those who appoint to determine the number of Judges. Article 143 prescribes when a Judge can be relived from office. The proposed amendment is to remove (a) mental disability of a Judge as to seek his removal and replacing those words with the following words legally disqualified from performing judicial functions. What does that mean? We have removed things that may have helped us which is mental problems with a Judge is very clear it is easy to do with,” Mwansa said.

And Mwansa asked NDF delegates to inform the nation who included the proposal of deputy ministers since the PF was now rejecting it.

“Many are denying that the proposed amendments were as discussed during the NDF. Now even the PF has joined in to deny some of the contents of this amendment. So this begs the question where then did these emanate from? If the government are saying that ‘we are not the ones’, and the others who were there are saying ‘we are not the ones, where did the come from?” he asked.

Meanwhile Miti urged MPs to reject the whole constitution amendment bill saying it was an evil and selfish document.

“The selfishness in this document is outstanding and again I say it is written for the people in power today, it is so myopic, it is so short sighted because again it chooses to forget the bigger the picture. It is under pined by bad will. It is in informed by those in power wanting more power. And generally, the constitution that is under pined by impossibilities it can create anarchy. When you read it as a coherent document it sounds as though those who wrote this constitution neglected to find someone even with basic constitutional writing. I am not a lawyer and it doesn’t make sense to me, I don’t know how the lawyers are feeling they must be having headaches. It is a kind of document in the nations of sane people they will laugh at us if we pass these proposals. It needs to be rejected,” said Miti.

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Kanyata Mubita
Kanyata Mubita

The answer to Mr Mwansa’ s question as to who inserted the Clause about Deputy Ministers is simple. Although it is directed to the delegates, I can safely say that the one who employs the Ministers is the one who inserted that Clause. So the Minister who it was his responsibility to put up the NDF charade must provide the answer. If he doesn’t give the answer, he must do the honourable thing and resign. Those Government offices are not for pursuit of selfish and parochial political agendas.

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