The Full Bank of Zambia Submission on the Constitution Bill Number 10

BANK of ZAMBIA
THE BANK OF ZAMBIA SUBMISSIONS
TO THE PARLIAMENTARY SELECT COMMITTEE TO SCRUTINISE
THE CONSTITUTION OF ZAMBIA AMENDMENT BILL N.A.B 10 OF 2019

AUGUST 2019TABLE OF CONTENTS

1.0. Introduction……………………………………………………………………………………………………
2.0. Bank of Zambia Comments on Bill No. 10 of 2019………………………………………………
3.0. Conclusion……………………………………………………………………………………..

1.0. INTRODUCTION

1.1. In the last fifty years, Zambia has engaged in numerous efforts to develop a new constitution. Prior constitutions include the 1964 Independence Constitution, the 1973 Constitution and the 1991 Constitution. In addition, there has been significant constitutional amendments, including those of 1969 and 1996. The efforts have been directed at adopting a more democratic structure, as well as political institutions that would be less susceptible to political manipulation. At the core of the demands is a call for the development of viable institutions of state that promote participation, transparency, accountability and devolution in governance. In January 2016, the Zambia Parliament adopted numerous amendments to the 1991 constitution. The Government hailed the amendments as a new era in democratic governance in Zambia. However, the amendments were criticized by some sections of the society both for the way they were adopted and for the substance contained in the amendments. The argument has been that the Constitution is too bulky with too many details covering 117 pages instead merely articulating broad principles on constitutionalism.

1.2. The Bank of Zambia, therefore, welcomes this latest effort by the Government of Zambia to refine the Constitution of Zambia (Amendment) Act No. 2 of 2016 through the Constitution of Zambia (Amendment) Bill No. 10 of 2019, which is aimed at addressing problematic areas in the law, especially conflicting provisions and general flaws. Being the supreme law of the land, the need for the law to be clear and devoid of contradictions inconsistencies cannot be overemphasized. The clarity in the supreme law of the land is critical for the advancement of rule of law, which is the bedrock for economic development that the central bank is charged to support and promote.

2.0 BANK OF ZAMBIA COMMENTS AND/OR AMENDMENTS ON THE CONSTITUTION OF ZAMBIA (AMENDMENT) BILL NO.10 OF 2019

2.1. The Bank of Zambia was initially invited through a letter dated 7th November 2016 by the Minster of Justice to make comments and recommendations on areas of concern following the implementation of the Constitution of Zambia (Amendment) Act, No 2 of 2016. The Bank of Zambia proceeded to make its comments and recommendations by letter addressed to the Permanent Secretary Legislative Drafting dated 18th November 2016.

2.2. The Bank of Zambia also participated in the National Dialogue Forum, where it further repeated its submissions as per the aforesaid letter dated 18th November 2016. It is the understanding that the deliberations at the National Dialogue Forum and submissions received from various stakeholders outlined in the National Dialogue (Constitution, Electoral Process, Public Order and Political Parties) Act No. 1 of 2019, culminated into the provisions contained in the Constitution of Zambia Amendment Bill No. 10 of 2019.

2.3. However, there are some aspects of the Bill which the Bank has identified and recommends their refinement, in a bid to improve clarity. There are also some other aspects of the Bill that the Bank recommends to be modified to address contradictions/inconsistencies, conform to our stated national values and principles, as well as make the resultant Constitution stand the test of time. The following are our comments and/or observations on the Constitution (Amendment) Bill No.10 of 2019:

2.4. Constitutional Provisions Relating to the Central Bank

i. Section 71 of the Bill proposes to amend Article 213 of the Constitution Amendment Act No. 2 of 2016, by deletion of clause 2 thereof and the substitution therefor of the following:

(2) The function of the Bank of Zambia is to formulate and implement monetary policy.

We propose the amendment of the said clause to read:

(2) The primary function of the Bank of Zambia is to formulate and implement monetary policy.

This is to ensure that this clause merely states the primary function of the central Bank while additional functions of the Bank will continue to be subject of an Act of Parliament as per Article 215(a). This submission will align to the provisions in the SADC Model Law for Central Banks adopted in 2009 by the SADC Council of Ministers which outlines, amongst other matters, that all central banks in the region move towards adopting a single, primary objective, separate from the secondary objectives.

ii. Article 215 (e) of Act No. 2 of 2016 reads: “appointment, qualifications, tenure of office, functions and emoluments of the Deputy –Governor”.

We propose the amendment of this Article in the Bill, by deletion of the word “the” before Deputy –Governor and replacing with the word “a” to enhance its clarity as the current wording may be understood to mean that there is only one Deputy Governor.

This should now read:

“appointment, qualifications, tenure of office, functions and emoluments of a
Deputy –Governor”.

2.5.Other Comments and /or Observations on the Bill

i Section 10 of the Bill proposes to repeal Article 51 and replacing it with a new Article 51 providing in part as follows: …. if the person meets the qualifications specified in Article 70 for election as a member of Parliament.

We note that the referenced Article 70 is being proposed for repeal under section 16 of the Bill. We would therefore recommend that the new Article 51 should remove reference to the Article and instead end as follows: ……..if the person meets the qualifications as prescribed.

This will enable Parliament provide the qualifications of members of parliament through an enabling statute. However, we are of the considered view that qualifications for members of parliament is a matter that is best enshrined in the Constitution and not in an Act of Parliament in order to ensure certainty and insulate such provisions from potential constant amendments by whichever party is in power at any given time. ii. Section 12 of the Bill proposes to amend Article 60 dealing with political parties. We note that Article 60(4) of the Constitution Act provides for a number of management issues for political parties including their source of funds. However, the proposed Article 60 removes provisions requiring Parliament to prescribe management issues of political parties which includes an obligation for them to disclose the source of funds.

It is our considered view that the current Article 60(4) gives abundant guidance to Parliament on matters that ought to be prescribed in the management of political parties, including their source of funds. With respect to source of funds, this provision is very useful, especially in the fight against money laundering and terrorism financing and could assist to prevent political players from availing themselves to the proceeds of crime in their quest to raise funds for their political activities. We therefore recommend a retention of Article 60(4).

iii. Section 13 of the Bill proposes the amendment of Article 63 of the Constitutional Act by the deletion of provisions requiring National Assembly oversight over contraction of public debt and ratification of international agreements and treaties.

It is our considered view that National Assembly oversight is critical over these important public functions in a democratic dispensation like ours. The peoples’ representative in Parliament should have an opportunity to scrutinise the intended purpose(s) of any public debt as well as international treaties which bind and/or imposes obligations on the Republic.

iv. Section 15 of the Bill proposes to repeal Article 68 of the Constitutional Act which provides for the composition and election of Members of Parliament and replace it with a new Article 68 providing for election, nomination, qualification and vacation of office of Members of Parliament.

We note that the proposed Article 68 does not say anything about composition of Parliament including the number of parliamentarians. In the absence of an enabling provision on the composition of the National Assembly, we are of the settled view that Parliament would have no power to enact legislation on this matter. Even though an enabling provision were to be provided, we are of the considered view that the matter relating to the composition of the National Assembly is such an important issue which ought to be enshrined in the Constitution and not left for prescription in an Act of Parliament. We therefore recommend the retention of Article 68(2) of the Constitution Act.

v. Section 23 of the Bill proposes to amend Article 83 of Act No. 2 of 2016 and introduces the term “legally disqualified”.

We have noted that “legally disqualified” has been defined, under section 76 of the Bill, to mean a disqualification by a court or a quasi-judicial body. However, there are no stated grounds and/or circumstances in the Bill that will guide the court or quasi-judicial bodies on how to arrive at such a conclusion. This omission may promote the mischief of legal uncertainty and unfettered discretion by the courts of law and quasi-judicial bodies.

We would propose that clear grounds and/or circumstances, such as, mental or physical incapacity, be included in the determination of legally disqualified by the courts of law and quasi-judicial bodies.

vi. Section 27 of the Bill proposes the repeal and replacement of Article 94 of the Constitution Amendment Act which deals with the approval of appointments and measures by the National Assembly and Constitutional Court oversight over the process.

We note that the amendments effectively eliminate the Constitutional Court oversight over the process of appointments and measures. It also dilutes National Assembly oversight power by providing for automatic effect of appointment or measure on third
time.

It is thus our considered view that the checks and balances provided in the National Assembly and Constitutional Court oversight in the current Constitution are progressive in our democratic dispensation as they contribute to ensure that only the suitably qualified candidates are appointed and beneficial measures are implemented.

Vii. Section 38 of the Bill proposes to amend the Constitution Act by insertion of a new Article 117A, which gives power to the President to appoint Deputy Ministers.

This provision will add to the cost of running Government as these office bearers will be an additional charge on Government revenues, which can be well utilized to improve the delivery of social benefits to the citizenry.

It is also not clear how the current arrangement has prevented Government’s ability to function effectively and efficiently. We firmly believe that efforts towards efficiency and effectiveness in service delivery must target the technocrats who are the implementers of Government Policy.

Viii. Section 55 of the Bill proposes to repeal and replace Article 158 of the Constitution Act dealing with by-elections for Mayor, Council Chairperson and Councillor.

We note that while Article 158 of the Constitution Act is being repealed, there is no corresponding replacement of the Article and thereby leaving a lacuna in the law as to what should happen whenever there is a vacancy in the office of the Mayor, Council Chairperson, and Councillor.

We propose that there should be provision in the Constitution for Parliament to prescribe how a vacancy in these offices will be filled.

ix. Section 61 of the Bill proposes amendments to Article 176 of the Constitution Act dealing with qualifications for the Secretary to the Cabinet.

We note that the proposed amendment repeals the requirement for a candidate to the office of Secretary to the Cabinet to have previously served for at least 10 years as Permanent Secretary or equivalent rank before appointment.

It is our considered view that this amendment dilutes the qualifications to that office considering the pivotal role played by the office in the public service.

We also note that the Bill has not defined the new qualifications of having served in senior management in the public service for one to qualify for appointment as Secretary to the Cabinet.

x. Section 65 of the Bill proposes the deletion of Article 184(2)(d), which makes Permanent Secretaries to be responsible and accountable for the proper financial management and expenditure of public monies appropriated.

It is our considered view that the Article proposed to be deleted goes a long way in improving accountability of public funds by making the Permanent Secretary personally responsible for this task. Its deletion without a corresponding placement of this important obligation on another office may erode gains so far made towards public finance management.

xi. Section 66 of the Bill proposes amendments to Article 186 dealing with the participation of public officers in politics.

While the proposed amendment speaks to the introduction of a time limit for resigning, there is lack of clarity on whom the Article applies to in light of Article 186(2) which qualifies that it applies to Constitutional Office Holder. Constitutional office holders, according to Article 266 are only the Attorney General, Solicitor General, Director of Public Prosecutions, Public Protector, Secretary to the Cabinet, Secretary to the Treasury, and Permanent Secretaries.

To eliminate the ambiguity, we would propose that Articles 186(1) and 186(2) are merged to provide that a public officer holding a Constitutional Office who seeks election, or is appointed, to a state office shall resign.

It is also our considered view that the cooling-off period of 2 years is not only too long, but is also discriminatory as it relates to constitutional office holders and does not apply to the entire public service.

Since the cooling off period is a derogation of the affected person’s right to participate in the governance of their country, perhaps a much lower period of say six months to one year may be more justifiable.

Xii. Section 69 of the Bill Proposes to amend Article 193(1) of the Constitution Act by providing for the establishment of the Anti-Drugs, Economic and Financial Crimes Agency.

We note that the specific roles of the Anti-Drugs, Economic and Financial Crimes Agency have not been stated as is the case for all others created by the same Article, such as, the Zambia Police Service (Article 193(2), Zambia Security Intelligence Service (Article 193(3), and the Zambia Correctional Service (Article 193(4)).

It is our considered view that in the absence of clearly stated mandate of this Agency there is likely to be operational interference with the existing Drug Enforcement Commission and the Financial Intelligence Centre, which have been recognized internationally as doing good work for the country.

Xiii. Section 74 proposes to repeal and replace Part XVIII of the Constitution Act without replacing the Gender Equity and Equality Commission

We note that the proposed Article 216(1) is broad enough as an enabling provision for the establishment of any commission, such as, the Gender Equity and Equality Commission. However, the repeal without replacement of the Gender Equity and Equality Commission may be construed as a delegation of its importance and a walk back on the country’s international and national commitments towards gender equity and equality.

Equity and equality remain part of our national values and principles under Article 8 of the Constitution Act and the establishment of the Gender Equity and Equality Commission in the Constitution is an important statement of the importance the country places on gender equity and equality. We are equally alive to the important and unique role that gender equity and equality play in the economic development of any country. We, therefore, propose that the Gender Equity and Equality Commission be retained in the Bill so as not to erode the gains made towards gender equity and equality.

3.0 CONCLUSION

A stable political order can only be achieved by establishing a constitutional order that is legitimate, credible, and enduring, as well as that, is readily accessible to the people without compromising the integrity and effectiveness of the process of governance. The stark lessons learned from various constitutional processes that have taken place all over the world is that the process of adopting the Constitution is as important as its substance, and 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, whatsoever, 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.

We firmly believe the Constitution should be a long-term document for successive governments. It should, therefore, create strong institutions. The non-resolution of creating a lasting constitution has constrained the country’s focus on the urgent and much needed economic development. It is our sincere hope that with these amendments the supreme law of the land will be clearer and devoid of contradictions and inconsistencies. We note that clarity in the supreme law of the land is critical for the advancement of the rule of law, which is the bedrock for economic development.