Does Zambia need another constitutional review?

By Isaac Mwanza

Over the last 30 years, Zambia and the international community have spent colossal sums of money on processes aimed at writing a Constitution, with the hope that it would stand the test of time.

The question is, does Zambia still need to amend its Constitution? The answer is a definite NO!

What Zambia needs is a dynamic Constitutional Court which is committed to bringing clarity to provisions of the Constitution through interpretation that permits the development of the law.

The major excuse for the last constitutional review process was the need to clean that gaps that arose from amendments introduced in 2016.

One of the first visible gaps was the silence in the Constitution on whether political parties retained a right to sponsor candidates to the office of a Councillor, which is not a State office.

The Constitution had defined a state office as including the office of President, Vice President, Speaker, Deputy Speaker, Member of Parliament, Minister and Provincial Minister.

And Article 60(1)(b) of the Constitution limited a right for a political party to nominate and sponsor candidates for election to a State office.

Two Lusaka-based lawyers and a civil society organisation challenged the sponsorship of councillors by political parties, at a time when the Constitution did not expressly provide for such a right.

The Court was resolved the gap by stating that the freedom of association in the Constitution includes the liberty by persons and political parties to secure protection of their interests, which include participation of political parties and their members in democratic elections.

Another gap later arose when National Assembly of Zambia had dissolved but the President, acting on the strength of Articles 116(3)(e) and 117(2)(d) of the Constitution, allowed his Ministers to stay in office.

Under those articles, the Constitution provide for the office of a cabinet minister and Provincial Minister to become vacant when another person assumes the office of President.

The continued stay in office by former Ministers was also facilitated by the Court itself when it refused to grant interim orders restraining the ministers from performing ministerial functions before the matter was determined.

This gap was resolved when the Court decided that Ministers were appointed from among the members of the National Assembly and that when Parliament dissolves, no-one remained except the President, Vice President, Speaker and Deputy Speaker.

The Court thus ordered the Ministers to vacate offices and pay back the money, which they did amidst protests.

Later another gap was noticed in the Constitution when the Mayor of Lusaka died in 2018. His deputy and other councillors desired to contest the ensuing by-election.

However, the Constitution provided that an elected person who causes a vacancy cannot re-contest elections during the life of Parliament, raising a question on whether a councillor can resign and contest a mayoral position which is higher than that of a councillor.

The Court resolved the matter by holding that a mayor or council chairperson is also a councillor and that a councillor who resigns causes a vacancy in the Council, and cannot therefore contest another election during that life of Parliament.

Around 2019, another constitutional gap was identified which bordered on persistent resignations and retraction of resignations by councillors who were elected during the first general election held under the amended Constitution.

The question was whether a person who resigns could rescind their resignation.

The Court resolved the matter by categorically stating that where the Constitution does not provide for rescission of a resignation letter, the resignation cannot be rescinded.

In 2021, another gap on the possible cancellation of an election by the Electoral Commission arose when a candidate resigns, dies or is disqualified by a court or tribunal before the date of an election.

The case to resolve this gap was first presented to court by a Lusaka lawyer, Mutwena but the matter could not be adjudicated because it was not ripe i.e. was based on a situation that was likely to happen or not to happen in future.

In short, it was speculative with no factual situation, forcing the court to decline an invitation to engage in academic exercise.

The matter became ripe when two candidates in the Kwacha and Kabushi by-election had resigned from the race.

But this time, it was Green Party President Peter Sinkamba and this author who decided to sue the Commission for contravening the Constitution by failing to cancel an election.

The Court was also alerted to the fact that the Constitution has fixed a 90-day timeframe within which to hold a by-election. It was thus argued that an election held outside those 90 days was going to be unconstitutional.

The Court partly resolved this gap when it stated the following in the majority Judgment:

“Article 52(6) of the Constitution does not give a time frame within which the dictates (i.e., cancellation of an election and holding of fresh nominations) of clause 52(6) should be implemented by the Respondent [Electoral Commission]…once Article 52(6) is triggered, the ninety-day period for holding a by-election stipulated by Article 57(1) may be affected depending on the timing of the death, resignation or disqualification of a candidate after the close of nominations but before the election is held…It therefore follows that the by-election in those circumstances may be held outside the ninety-day period stipulated by Article 57(1) of the Constitution.”

There still had remained a question though on retraction of resignations by candidates in Kwacha and Kabushi by-election. It was not part of that case.

The Attorney-General had applied to the Court that the question be addressed in the judgment. In its ruling in Ndola, the Court declined that invitation to address the question, stating that the Court ought to be properly moved to address such a question.

The question on the retraction of resignation by those two candidates in Kwacha and Kabushi is now awaiting determination by the Court in a separate matter. This author will make no further analysis on it.

From the above gaps and many others including the one dealt with in the Presidential Eligibility case, it should be clear that the Constitution has and will have gaps, unless it is drafted by angels.

Nevertheless, Zambia’s endless reviews of the Constitution are not a solution to resolving these constitutional. Embarking on another one will result in new and more gaps.

The only way gaps in the Constitution can be addressed is through the Courts which are specially established for purposes of interpreting the Constitution.

In the Unites of America, the Supreme Court of the United States of America [SCOTUS] has the final power of interpreting the Constitution.

The U.S Constitution has, for over 200 years, stood the test of time with only 27 new clauses added because of the admirable work of the SCOTUS.

The SCOTUS has performed its sacrosanct duty of interpreting the Constitution without ducking and keeps addressing difficult questions. It’s works has strengthened America’s constitutional democracy and resulted in good democratic governance.

If the American people were addressing gaps in their most revered Constitution every time a gap was spotted or new issue arose, the American Constitution would have been a useless document and not worth the paper it was written on.

Similarly, the superior Courts in Kenya have, over the last 12 years, exceptionally done well in bringing clarity to the Kenyan Constitution.

Kenyan courts have developed an admirable constitutional jurisprudence in Africa, set clear lines of separation of powers and contributed to peoples respect for the Constitution.

This is because the Judiciary in Kenya acts independently, boldly and unafraid in checking the excesses of both the executive and legislative arm of government.

The courts in Kenya are the major reason why constitutional democracy is flourishing and shining like the brightest star on this dark continent.

There are no serious calls from non-state actors in Kenya to take a second bite at reviewing their 12-year-old Constitution.

The energies existing among non-state actors and resources from the international community are being directed towards constitutional litigation which clarifies gaps and secure protection of peoples rights and liberties.

In Zambia, the Constitutional Court was solely established by the people of Zambia to hear and determine disputes arising from the Constitution, similar to what the SCOTUS and Kenyan Courts do.

This author is of a very firm view that reviewing the Zambian Constitution, at the moment, is not a priority. This should only be resorted to if the Court fails, ducks or weaves in addressing existing gaps with clarity.

Non-state actors and Zambians generally must utilise our special Constitutional Court to clear the gaps in our Constitution.

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(Published by the Daily Nation, 2023)