On 5 January 2016, President Lungu presided over a historic ceremony at the National Heroes Stadium in Lusaka, when he signed the draft constitution into law. This is probably the closest Zambia has ever been to having a people-driven constitution, although the Grand Coalition for a People-Driven Constitution boycotted the ceremony, arguing that it was “a PF government-driven constitution”. The late President Sata promised to enact a people-driven constitution within 90 days of assuming office in 2011, but it took over four years – and a change in president – before Zambia got a new constitution.
Zambia Weekly highlights interesting and/or controversial clauses:
ZAMBIA REMAINS A CHRISTIAN NATION
But the constitution upholds the right to enjoy freedom of conscience, belief and religion.
The constitution confirms the equal worth of women and their rights (Preamble). Importantly, it also sets statutory law above customary law (see below). In addition, it directs that the electoral system must ensure gender equity in parliament and councils (Article 45), and provides for a Gender Equity and Equality Commission to be established.
Article 1 of the constitution states that any other law or customary practice that is inconsistent with any of its provisions is void. As such, it has done away with the criticised Article 23 of the previous constitution, which allows customary law to discriminate against women on issues such as property grabbing, sexual cleansing and polygamy. In addition, Article 118 specifies that traditional dispute resolution mechanisms shall not contravene the Bill of Rights or be inconsistent with the constitution or other written law.
Allowed for Zambians but not for foreigners (Article 39). If holding dual citizenship, one cannot run for president or serve in the defence forces.
Contrary to today’s ‘first past the post’ system, the new constitution prescribes the ‘50% + 1’ system, which may result in a re-run between the two candidates with the most votes within 30 days after the first round (Articles 47 and 101). The requirement that a presidential candidate must have Zambian parents by birth or descent has been removed. Instead it is now sufficient that the candidate is a citizen by birth or descent (Article 100). Other new requirements dictate that a president must have completed Grade 12, and be supported by 100 registered voters from each province (up from 200 voters in total).
SET ELECTION DATE
General elections shall be held every five years on the second Thursday of August (Article 56).
NO TRIBAL POLITICAL PARTIES?
A political party shall have a national character – and shall not be founded on a religious, linguistic, racial, ethnic, tribal, gender, sectoral or provincial basis or engage in propaganda based on any of these factors (Article 60).
EVEN PLAYING FIELD FOR POLITICAL PARTIES
The constitution prescribes the establishment of a Political Parties’ Fund to provide financial support to political parties with seats in the National Assembly. In return, the parties must submit audited accounts to reveal the sources of their funds (Article 60).
Parliament has been increased from 150 to 156 elected MPs, while the president can still appoint up to 8 MPs (Article 68). However the suggestion to add 100 MPs chosen from party lists was dropped.
All members of parliament and local government councillors must now posses a minimum of Grade 12, or equivalent (Articles 70 and 153). This is currently one of the most controversial clauses, as only 35 of the 150 current elected MPs have completed Grade 12, according to Lusaka Times. This has led to all sorts of confusion, especially after the Examination Council of Zambia clarified that aspiring candidates would not be able to write a GCE mid-year examination and get their results in time to contest the general election on 11 August 2016. There were allegations that the ruling PF party had ordered the council to produce fake certificates for its political candidates, while the main opposition UPND party asked the Law Association of Zambia to clarify the requirement.
NO MORE PARTY JUMPING
If a constituency-based seat falls vacant, a by-election shall be held, but a person who causes a vacancy shall not be eligible to contest an election, or hold public office, during the term of parliament, which is meant to stop the ruling party from tempting the opposition with government positions (Article 72).
A PRESIDENT CANNOT SUE
A person may not sue the president in respect of anything done or omitted to be done by the president in his/her private capacity – AND the president shall not, in his/her private capacity, sue a person (Article 98). It caused quite a debate when President Sata sued the Daily Nation, and appeared in court as a witness.
GRACE PERIOD BEFORE SWEARING-IN
Today a new president is sworn in within 24 hours, but from now on a president-elect can only be sworn in on the Tuesday following the 7th day after being declared winner – if no petition has been filed (Articles 104 and 105).
MORE CERTAINTY ABOUT THE VICE-PRESIDENT
Contrary to today, a republican vice-president shall be elected as a running mate to a presidential candidate (Article 110).
POOR COUNCILS TO BE HELPED BY RICH COUNCILS
The constitution decrees the establishment of a Local Government Equalisation Fund (Article 163).
MORE INFLUENCE TO CHIEFS
The number of representatives in the House of Chiefs has increased from 3 to 5 chiefs from each province (Article 169). Chiefs may also be elected as a councillor – without having to abdicate their thrones (Article 168) – in contrast to the current constitution that bars chiefs from active politics.
2 NEW COURTS
The judiciary now consists of Supreme Court (chief justice, deputy chief justice and 11 judges), Constitutional Court (court president, deputy president and at least 11 judges), Court of Appeal (at least three judges), High Court (chief justice and a prescribed number of judges), subordinate courts, small claims courts and local courts. The Constitutional Court, which has the final jurisdiction in interpretation of the constitution, ranks the same as the Supreme Court. Its decisions cannot be appealed. The Court of Appeal shall have jurisdiction to determine appeals from the High Court and other courts. Its decisions can be appealed to the Supreme Court. The High Court will be divided into Industrial Relations Court, Commercial Court, Family Court and Children’s Court (Part VIII).
The controversial Barotseland Agreement of 1964 is not acknowledged in the constitution. It does, however, state that Zambia shall not be ceded in whole or in part (Article 4).
NEW PUBLIC PROTECTOR
This new office has been set up to improve administrative justice in all state institutions. The Public Protector has the same powers as the High Court to investigate an omitted or unfair action or decision. The Public Protector shall be appointed by the president, on the recommendation of the Judicial Service Commission, subject to ratification by the National Assembly (Article 243).
The Finance Minister must submit government’s financial report, including an opinion from the Auditor-General, to the National Assembly within 6 months after the end of a financial year. Furthermore, the financial reports must include gifts, donations and aid-in-kind and how they were disposed of, debt repayments and payments made for purposes other than expenditure (Article 211).
The constitution dedicates a new part, XIX, to Land, Environment and Natural Resources.
Article 253 states that river frontages, islands, lakeshores and ecologically and culturally sensitive areas must be maintained and used for conservation, preservation activities, public access and enjoyment – and not leased, fenced or sold (which may affect tourism investment).
Environment and natural resources
The constitution states that natural resources have environmental, economic, social and cultural values, and that polluters are responsible for paying for the damage. It also imposes the cautious principle that lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. It directs the promotion of energy saving, renewable energy sources and waste minimisation, protection of genetic resources and biological diversity, and implementation of mechanisms to address climate change.
GOVERNMENT SHOULD NOT BE USED FOR ENRICHMENT
A person holding a public office shall, before assuming office or leaving office, make a declaration of their assets and liabilities, as prescribed (Article 263).
Parliament dropped five clauses from the draft constitution, including provincial assemblies, proportional representation in parliament, ministers appointed from outside parliament, land being vested in the president, and budgeting in simple majority.
In addition, the Bill of Rights is not included, as it will be subjected to a referendum on 11 August 2016. The draft publicised last year included more rights for women, children, youths, persons with disabilities and older people. It also clamped down on child marriages (increasing the legal age of marriage to 19 years) and on defilement (protecting a child from sexual exploitation or abuse). The draft also expanded basic rights to include healthcare, decent housing, food of acceptable standard, clean and safe water, decent sanitation, social protection and free primary and secondary education. Finally, it specified rights to information, justice and life, with implications for abortions and death sentences.