By Paul Shalala
 |
| Andrew Ntewewe |
The Young African Leaders Initiative (YALI) has proposed the reduction of the requirement for one to stand as President from the current 35 to 18 years.
YALI President Andrew Ntewewe says reducing the presidential age to 18 will allow competent young men and women to run for office and lead the nation.
Mr Ntewewe, who said this when he appeared before the Parliamentary Committee on Legal Affairs, Human Rights, Gender Matters and Child affairs, said Articles 46, 70 and 100 must be amended to allow Zambians who have attained the age of 18 to stand as Councillors, Members of Parliament and President.
He also told parliamentarians that several articles in the current constitution must be amended to recognise children as those people who have not attained the age of 18, youths as those between the ages of 15 and 35 while adults as anyone who is above 18 years.
Among other observations the organisation made to the Constitution of Zambia Bill 2015 which Justice Minister Dr. Ngosa Simbyakula presented to Parliament recently, are its support of the majoritarian electoral system (50+1) and the election of a Vice President as a running mate.
Below is the full submission by Mr Ntewewe to the Parliamentary Committee on 31 October, 2015:
Submission on Constitutional Amendment Bill No.
17, 2015
Introduction
This is a submission by the Young African Leaders Initiative
(YALI) the Parliamentary Committee on Legal Affairs, Human Rights, Gender
Matters and Child Affairs on the Constitution Amendment Bill No. 17, 2015 as
presented to Parliament by the Minister
of Justice, the Honourable Ngosa
Simbiyakula, SC on 15th October 2015. The submission
responds to the invitation by the National Assembly of Zambia to our
organization to share its views and reflections.
We are indebted to the Speaker of the National Assembly for
the invitation, and we have gladly compiled some of our perspectives
for sharing with our
leaders, through your Committee. YALI recognizes the contribution of
Progressive Citizens (a group comprising Zambians at home and in the
Diaspora) towards this submission.
From the outset, allow us to put on record our profound
support for Zambia’s
Constitution-making
process, given the supremacy of the Constitution in our life
as a nation state, and therefore to our well-being as a nation. The
quest for the country to have a new Constitution that addresses the many issues
of concern by a diversity of stakeholders cannot be overemphasized. Against a
background of many attempts in developing a new constitution, YALI sees the
current process as an opportunity that we all need to support. We note the
divergent views around how it will be enacted. Notwithstanding, process and
content are issues requiring greater balance. We are happy that the Bill has
been presented, and our earnest appeal is that a
win-win situation should be achieved.
Our presentation is in eight (8) parts.
Part 1
Part 1: Statement
on Support of Amendments of the Constitution of Zambia, Act. 1991 by Parliament
Both YALI and Progressive Citizens share a common belief and
understanding that provisions of Articles 62, 78 and 79 of the Constitution of
Zambia, 1996 mandates members of the Zambian Parliament, as people’s elected
representatives with the exclusive mandate to alter the Zambian Constitution
which includes amending, repealing and re-enacting the Constitution of Zambia
Act.
Since 1964, the
Zambian Parliament has contributed towards enacting a new Constitutional order
when it re-enacted the new Constitution of Zambia Act, 1973 on 25 August 1973,
abrogating the original 1964 constitution. The new constitution and the
national elections that followed in December 1973 were the final steps in
achieving what was called a “one-party participatory democracy”. On 24 August
1991, the Zambian Parliament, once again, repeal the Constitution of Zambia
Act, 1973 and enacted the Constitution of Zambia Act, 1991 that confirmed a new
Constitutional order to revert Zambia to multi-party politics.
We therefore unanimously support the current process of
giving Zambians a good and progressive Constitution as a step towards the enactment of the new Constitution after the National
Referendum which will
allow Parliament to repeal the Constitution of Zambia Act, 1991 and re-enact
the new Act.
Part II
Specific focus of submission to the
Committee:
Given that YALI’s constituency focuses on the youths of
Zambia, we have taken keen interest on issues pertaining to youths,
particularly around youth
participation in decision-making, democratic governance and development issues. Our submissions are
consistent with some of the key issues that we highlighted and engaged with
during the nationwide consultative process on the Constitution, where YALI in
collaboration with other youth organisations,
namely Young Women In Action and Zambia
Rainbow Coalition, took an
active role. To this effect, YALI's bias towards those areas will be evident in this submission.
Below, we submit
on specific provisions of the Bill by:
a)
Quoting the provision of the Bill
b)
Providing
our Observations; and
c)
Giving
our Recommendations the provision
Part
III: On Youth, Child and
Adult
The Constitution
Amendment Bill presents an opportunity for lawmakers in Zambia to align the
national law, policies and definition with the provisions of the African Youth
Charter.
In defining
“Youth”, Article 276, page 112, line 14 and 15 of the Bill states as follows:
“Youth” means a person who has attained the age
of nineteen years, but is below the age of thirty-five years.
The Bill has
further made provisions that anybody who has attained the age of the youth i.e.
19 years, is therefore a mature adult
and anybody below the age of youth, that is to say 18, is a child as provided
below:
Page 104, line
20:
“Adult” means a person who has attained, or is
above, the age of nineteen years;
Page 105, line 5
“Child” means a person who has attained, or is
below the age of eighteen;
Observation:
Finding the
right definition of who is a youth, is very important whenever government is
designing programs and policies that target the youth. Zambia, like many other
countries, has been struggling to define youth-hood as can be seen from the
many inconsistencies in different policy and thematic documents used by various
Ministries, departments and agencies. Lawmakers have a mandate to help bring to
this discourse to an agreed closure.
Without
prejudice to other definitions by the United Nations (UN) Member States, the UN
for statistical purposes, defines the “youth”, as those persons between the
ages of 15 to 24 years and this was reiterated by the General Assembly
Resolution 50/81 in 1995 during the adoption of the World Programme of Action
for the Youth to the Year 2000.
The following
table summarizes the differences
|
Entity/Instrument/Organisation
|
Age
|
Reference
|
|
SADC
|
15 - 35
|
Adopted from the
African Youth Charter
|
|
African
Youth Charter
|
15 – 35
|
African Union, 2006
|
|
UN
Secretariat/UNESCO/ILO
|
15 - 24
|
UN Instruments,
Statistics
|
|
UN
Habitat (Youth Fund)
|
15 – 32
|
Agenda 21
|
|
UNICEF/WHO/UNFPA
|
15 - 24
|
UNFPA
|
|
2015
National Youth Policy (Zambia)
|
15 - 35
|
August 2015, National Youth
Policy
|
|
UNICEF/The
Convention on Child Rights
|
Child until 18
|
UNICEF
|
There is
generally an agreement on the African and International Community that youth
begins at the age of 15. Zambia is a signatory to the African Youth Charter
(AYC) which defines the youth as persons from the age of 15 to 35. The African
Youth Charter was signed by Zambia on 10th April 2008 and ratified
on 16 September 2009. The Charter is a political and legal document which
serves as the strategic framework that gives direction for youth empowerment
and development at continental, regional and national levels. The AYC aims to
strengthen, reinforce and consolidate efforts to empower young people in Africa
through meaningful youth participation and equal partnerships in driving
Africa’s developmental agenda.
Recommendation:
It is hereby
recommended that Parliament:
1.
amends
provisions of Article 276, page 112, line 14 and 15 of the Bill to read as
follows:
“Youth” means a person who has attained the age
of fifteen (15) years, but is below the age of thirty-five (35) years.
2.
amends
provisions of Article 276, Page 104, line 20:
“Adult” means a person who has attained, or is
above, the age of eighteen years;
This amendment, as shall be explained
below is premised on the fact that the right to franchise, set at the age of 18
by provisions of article 46 of the Bill, is a right reserved to adult universal
suffrage and not children as stated in Article 45(b) of the Bill. It can
therefore be argued that the youth and children below the age of 18 are not yet
adults and, as such, not qualified to make such important decisions as voting.
3.
Retain, with slight amendment, the provision of Article 276, Page 105,
line 5
“Child” means a person who has not attained, or
is below, the age of eighteen (18)
This retention will be consistent with
the provisions of the UN Convention on the Rights of a Child to which Zambia is
a signatory.
Part IV: ELECTORAL SYSTEM
We affirm our
approval of the current Electoral System and process as provided under current
law, with a call for some amendments as recommended below:
(a)
Right to Franchise
Page 10, Article
46 of the Bill read as follows:
A citizen who has attained the age of eighteen years
is entitled to be registered as a voter and vote in an election by secret
ballot.
Proposed amendment
We proposed that
Parliament amends this article to read as follows:
A citizen who has attained the age of eighteen years, shall be entitled to be registered as a voter,
to vote and to hold elective office as
Councillor, Member of Parliament or
President as provided under this Constitution, either by secret ballot or by
any other method to be prescribed under this constitution or by an Act of Parliament.
Observation
The primary
principle of constitutionalism is that persons shall not be
discriminated
against, among other
things, based on age. As submitted above and on the basis of Article 46 itself
and Article 45(1)(b) of the Bill, a person who is 18 years has the right of
franchise on attainment of adulthood at the age of 18 years.
Although
it is accepted that, by way of exceptions stated within the constitution, that a certain amount of discrimination
is
permitted by the constitution itself prescribing the age at which one qualifies
to register as a voter or to stand as a candidate for election to the office of
member of parliament or president of the Republic, our views regarding
discrimination on grounds of age is guided by the rationale that if we, Zambians,
consider an 18 year old to be sufficiently responsible to exercise the right to
vote, then we should recognise such level of responsibility to be sufficient to
enable such a youth to stand for any elective office for which such a youth is
a voter.
In
other words, if they are old enough to elect, then they are old enough to be
elected, too.
It
is our view, therefore, that
those discriminatory provisos within
the constitution, should be removed so that any person who is a citizen, who is an adult and is registered
to vote, should also be qualified to stand for ANY elective office for which
they are registered to vote.
An adult who is
viewed as capable of making sound decisions at the ballot, that is, by voting,
must not be discriminated against in pursuing public or elective office on the
grounds of age. The decision for any adult not to be elected into any office of
the Republic must be left to the choice of the people. If society is convinced
that an adult who is, say 18 or 55 years is capable of leading them as
President, Member of Parliament, Councillor etc.,
age must not be a factor to prevent the electorate from choosing their
preferred leader, young adult or old adult.
We therefore
propose that the wording in Article 46 should read
as follows:
Recommendation
A citizen who has attained the age of eighteen years
is entitled to be registered as a voter, to vote and to hold elective office as Councillor, Member of Parliament and President as provided
under this Constitution, by secret ballot or any other method as prescribed by
this Constitution or by an Act of parliament.
This will afford
all adults who are viewed as competent by the voter, an opportunity to offer themselves for elective
offices in the Republic as provided by the Constitution.
(B). Elections
of the President by majority:
Page
10, Article 47, Clause 1 of Bill:
We support that the President be elected
by a majority of more than 50 per cent of all valid votes cast. However, we
recommend that Parliament must consider ways to strengthen this majority system
by providing for an election result that has a national character.
(C).
By-Elections
Page 12, Article 57, Clauses 1 to 3 of
the Bill, states as follows:
Where
a vacancy occurs in the Office of Member of Parliament, mayor, council
chairperson or councilor, a by-election shall be held within ninety days of the
occurrence of the vacancy being declared.
A
by-election to fill a vacancy in the office of Member of Parliament or
councillor, shall not be held if such vacancy occurs or is declared within one
hundred and eighty days preceding a presidential, general or local government
election.
The
Electoral Commission shall, by proclamation, set the place where, and the date
and time when, a by-election is to be held.
On page 22, Article 72, Clause 9 of the
Bill states:
“Where a vacancy occurs in the National
Assembly for a Constituency based seat, the Speaker shall, within seven days of
the occurrence of the vacancy, inform the Electoral Commission of the vacancy,
in writing, and a by-election shall be held in accordance with Article 57.
Our Observations and Recommendations:
We note that one of the public outcry by
Zambians against the electoral process has been the need to end these costly
by-elections which have consumed billions of Kwacha in taxpayers’ money. The
Committee and Members of Parliament are accordingly urged to pay attention to
concerns by the public and devise ways of minimising
by-elections.
(D). On Political Parties
Page 13, Article 60(1)(a)(b)(c) of the
Bill reads as follows:
(1)
A political party has the right to –
a) disseminate
information on social and economic programmes of national character and of its
political ideology;
b) sponsor
candidates for election or nomination to a State Office in respect of which
elections are required to be held, other than a provincial assembly; and
c) Conduct
primary elections for the selection of candidates.
Observation
Both Clause 1 (b) and (c) are matters
where political parties must be obliged to discharge while Clause 1(a) is the
right necessary to protect the right of political parties to conduct public
activities without undue interference.
While we have reservations in the
categorization of State Officer by the Bill, as shall be explained below, we
submit that this article be retained in the Bill with recommendations to merge
Clause 1, Section (c) with Clause 2, Section (d) while also moving Clause 1,
Section (b) to the same article under Clause 2.
Recommendation
Article 60 (1) must therefore read as follows:
1. A political party has the right to disseminate
information on social, political and economic programmes and of its political
ideology.
On page 13 to 14, Article 60, Clause 2
of the Bill reads as follows:
(2)
A political party shall –
a) promote
the values and principles specified in this Constitution;
b) have
a national character;
c)
promote and uphold national unity;
d) Conduct
primary elections for the selection of candidates through the practice of regular, free and fair elections within
the party;
e)
respect the rights of its members to
participate in the affairs of a political party;
f)
respect the right of its members to seek
redress from a court or tribunal when aggrieved by a decision of the political
party; and
g) Subscribe to and observe the code of conduct
for political parties, as prescribed.
Observation and Recommendations:
In view of the recommendation in the
preceding submission to merge and move clause (1)(c) and Clause 1 (b),
respectively, we recommend the provisions of Clause 2 read as follows:
(2)
A political party shall –
a)
promote the values and principles
specified in this Constitution;
b)
have a national character;
c)
promote and uphold national unity;
d)
promote
and practice democracy through regular, free and fair elections within the
party; (merged)
e)
respect the rights of its members to
participate in the affairs of a political party;
f)
respect the right of its members to seek
redress from a court or tribunal when aggrieved by a decision of the political
party;
g)
sponsor candidates for election or nomination
to offices in respect of which elections are required to be held under this
Constitution, other than a provincial assembly; and
h)
subscribe to and observe the code of
conduct for political parties, as prescribed.
On page 14, Article 60, Clause 3 (a) of
the Bill reads as follows
(3)
A political party shall not –
(a)
Be founded on religious, linguistic, racial, ethnic, tribal, gender, sectoral or provincial basis or engage in
propaganda based on any of these factors
Observation
It appears to us that the article, in
its current form, will take away the democratic right of persons or groups to
form political parties on the basis of religious, gender, and sectoral
principles which form the core values of the political parties. Zambia has for
instance an established political party formed on the basis of Christian values
and principles and another formed on the basis environmental protection which
is sectoral. If women and women organisation,
who represent the marginalised, form a party that on the basis of
promoting equal gender representation and affirmative action, the law must
never interfere with such a right.
Recommendation:
We recommend that the wording of this
Clause be amended to delete, “Religious” “gender” and “sectoral” and read as
follows:
(3)
A political party shall not –
(a)
Be founded on linguistic, racial, ethnic, tribal, or provincial basis or engage
in propaganda based on any of these factors
Part V:
LEGISLATURE
(A). On
Elections and composition of the National Assembly
On
Page 18, Article 68(2)(a)(b) of the Bill read as follows:
(2) The National
Assembly shall consist of –
a)
One hundred and fifty-six members
directly elected on the basis of a simple majority vote under the
first-past-the-post system and representing Constituencies;
b)
Ninety-four members elected from party
lists submitted to the Electoral Commission by political parties contesting the
elections, in accordance with Article 69 and allocated in accordance with
Clause (3).
Observations
The
people through a thorough consultative process that led to the production of
the Draft Constitution and the Bill under scrutiny had categorically submitted
that the Constituency-based seats shall comprise 150 elected MPs while the
party-list system shall comprise 100 members. There is no plausible reason to
deviate and outdo the will of the people as expressed on this provision
contained in the Final Draft Constitution.
Recommendation:
We
recommend that Parliament amends this provision and upholds the will of the
people by reverting to the previous proposal as contained in the Final Draft
Constitution, to read as follows:
(2) The
National Assembly shall consist of –
a)
One
hundred and fifty members representing constituencies and
elected directly by the people on the basis of a simple majority vote under the
first-past-the-post system;
b)
One
hundred members elected from party lists submitted to the
Electoral Commission by political parties contesting the elections, in
accordance with Article 69 and allocated in accordance with Clause (3).
(B).
On Allocation of seats
On page 18,
Article 68(3) of the Bill reads as follows:
(3) The number of seats
to be allocated to a political party, for purposes of clause (2)(b), shall be
calculated by multiplying the figure one hundred by the percentage of the total
aggregate vote, obtained by a political party in the National Assembly
elections vote, using the largest remainder formula, as prescribed.
Our Observations
The true picture as to the appeal of a
political party and the extent to which such a party represents the people is
not dependent on elections to the National Assembly only. There is a
possibility that the electorate may have more following with a political
party's presidential candidate and less following with its candidates to the
National Assembly. It is equally possible that an independent candidate may
have a greater appeal than party-sponsored candidates.
We therefore observe that allocating seats in
Parliament based on the total aggregate vote to the National Assembly elections
to the exclusion of votes in Presidential elections may not represent the true
picture of a political party, its popularity and representation. We therefore
propose to calculate the percentage based on the total average aggregate for
elections to the National Assembly and President.
The table below shows an imaginary sample
from an election during a General Election for President and Parliament in the event that there are 100 seats to be allocated
based on the party –lists.
|
TOTAL NUMBER OF VOTERS
|
|
|
300,000
|
|
|
Name of
Party
|
Election for
|
Result
|
Percentage (%)
|
Seats allocated out 100
|
|
PARTY A
|
Presidential
|
150,000
|
50
|
|
|
|
Parliamentary
|
65,000
|
21.7
|
22
|
|
|
Average
|
107,500
|
35.83
|
36
|
|
|
|
|
|
|
|
PARTY B
|
Presidential
|
125,000
|
41.67
|
|
|
|
Parliamentary
|
145,000
|
48.33
|
48
|
|
|
Average
|
135,000
|
45
|
45
|
|
|
|
|
|
|
|
PARTY C
|
Presidential
|
25,000
|
8.33
|
|
|
|
Parliamentary
|
90,000
|
30
|
30
|
|
|
Average
|
57,500
|
19.17
|
19
|
Further and most important in our
submission, the distribution of the seats which the party wins under the party
list, is not defined to provide for inclusiveness
and prioritisation of marginalized
groups.
According to the SADC protocol on women
representation, member States must strive to have an equal number of
representation in decision making, thus the need to have 50% of the total
number of the proposed seats allocated to women. The youth – men and women –
also constitute a large number of the population who must be given preferential
treatment in decision-making. This requires that political parties also prioritize the allocation of seats to the youth
under the party list system.
It is important that the allocation of seats must be
blended to respond to the need for equal representation of both gender as well
as provide for 30% of such seats to the youth.
Recommendations:
We recommend therefore that Parliament
amends this provision to read:
(3)
(a) The number of seats to be allocated to a political party, for purposes of
clause (2)(b), shall be calculated by multiplying the figure one hundred by the
percentage of the total average
aggregate vote, obtained by a political party in the National Assembly and Presidential elections, using the
largest remainder formula, as prescribed.
(b)
the seats won and allocated under clause 3(a) shall be distributed equally to
each gender with thirty percent allocated to youth and persons living with
disabilities.
(C). Nominations under Party List
Page 18, Article 69(2)(b) of the Bill reads as
follows:
(2)
A party list in Clause (1) shall –
(b)
Contain the names and portraits of the person appearing in order of preference;
Observation
While we accept this provision and
submit the need to retain it in the Bill, we observe that it does not address
the need to prioritize marginalized groups such as youth, women and persons
living with disabilities from being given preferential treatment in the
promotion of affirmative action.
Recommendation
We recommend that this provision be
adopted with an addition of the words: “that
prioritizes marginalized groups who include the youth, women and persons with
disabilities” and must read as follows:
(2) A party list in
Clause (1) shall –
(b)
Contain the names, portraits, gender and age of the person appearing in order
of preference that prioritizes
marginalized groups who include the youth, women and persons with disabilities;
(D). Qualification
age for MP
Page 19, Article 70(1) of the Bill
Reads:
(1)
Subject to clause (2), a person is eligible to be elected as a Member of
Parliament, if that person –
a)
Is a citizen;
b)
Is at least twenty-one years old;
c)
Is a registered vote;
d)
Has obtained, as a minimum academic
qualification, a grade twelve certificate or its equivalent; and
e)
Declares that the person's assets and
liabilities, as prescribed.
Observations
As we observed and submitted on the
right to franchise above, we maintain that there is no need to continue
discrimination of adults based on age. We therefore propose the deletion of
Clause 1(b) under this article.
Recommendation
That Parliament deletes the age
requirement under this article and the article therefore read as follows:
(1) Subject to clause (2), a person is
eligible to be elected as a Member of Parliament, if that person –
a)
Is a citizen of the Republic of Zambia;
b)
Is registered to vote;
c)
Has obtained, as a minimum academic
qualification, a grade twelve certificate of education or its equivalent; and
d)
Declares the person's assets and
liabilities, as prescribed.
(D). Qualification
Age for President
On page34, Article 100, Clause 1 (c)
provides the minimum age for one to be elected to the office of President of
the Republic.
Observation and
Recommendation
As observed under the right of
franchise, we recommend the deletion of Article 100(1)(c) which provides for
the minimum age for one to be elected to the office of President of the Republic
We further recommend that the current
status quo in the Constitution of Zambia that provides for the person to be a
member of, or to be sponsored by a political party, be introduced as Article
100(1)(c).
On page 35, Article 101, clauses 1 to 3,
refer to our submission on Elections of
the President by 50% +1 majority system under Article 47
(E). Vice
President as Running Mate, and Removal of Vice President
Page 43, Article 110 provides for the
Vice President to be a running mate to the President candidate, while article
111 (4) provides for the removal of the Vice President.
Our
Submission and Recommendation
We affirm our support for the provision
to be retained in the Bill where the Vice President is the running mate.
We further recommend that Parliament
provides that if the Vice President is expelled from the political party which
sponsored him or her as a running mate, and where such expulsion is confirmed
by the High Court, or if the Vice President forms his or her own, or joins
another political party against the party that sponsored him/her, he or she
shall cease to be Vice President of the Republic.
(F). Cabinet
Ministers and Parliamentary Secretaries
Page 46, Article 116 (1) for the
appointment of cabinet ministers:
Our
Submission and Recommendation
We support that this provision be
retained in the Bill where the :President appoints a prescribed number of
persons, who are not Members of Parliamentary but who qualify to be Members of
Parliament, as Ministers, subject to ratification by the National Assembly.
Part VI. Provincial Assemblies
Page 60, Article 153 (1) (g) - (j)
reads:
Article
153 (1) There shall be established, in each province, a Provincial Assembly
consisting of the following members:
(a)
the Members of Parliament from within the Province;
(b)
the mayors or council chairpersons of all the councils in the province;
(c)
three chiefs representing chiefs in the Province
(d)
three representatives of the organisation representing persons in commerce and
industry operating in the Province;
(e)
three representatives of faith-based organisations operating in the Province;
(g)
two representatives of organisations representing women operating in the
Province;
(h)
two representatives organisations representing of youths operating in the
Province
(i)
two representatives of organisations representing persons with disabilities
operating in the Province;
(j)
two representatives of organisations representing older members of society
operating in the Province
Observation
The article has reduced the number of
representatives of organizations representing women, youth, and persons with
disabilities as well as older members of society. Further, we observe that Article 153(1)(c)
has made provision for three chiefs representing chiefs in the province.
Our
Submission
We support the provision with regards to
the composition of the Provincial Assembly, but we recommend that it be
retained in the Bill with amendments to the number of representatives in
article 153 (1)(g)(h)(i) and (j) to increase the number of women and youth
representatives from two to three, so as to harmonize the representation of
stakeholders in the Provincial Assembly.
On the second observation, we submit
that representation of chiefs in the Province be amended to Chiefs’ Proxies
Recommendation
We propose an
amendment that shall read:
Article
153 (1) There shall be established, in each province, a Provincial Assembly
consisting of the following members:
(a)
the Members of Parliament from within the Province;
(b)
the mayors or council chairperson of the council in the province;
(c)
three chiefs proxies representing
chiefs in the Province
(d)
three representatives of an organisation representing persons in commerce and
industry operating in the Province;
(e)
three representatives of faith-based organisations operating in the Province;
(g)
three representatives of
organisations representing women operating in the Province;
(h)
three representatives organisations
representing of youths operating in the Province
(i)
three representatives of
organisations representing persons with disabilities operating in the Province;
(j)
three representatives of
organisations representing older members of society operating in the Province
PART VII: Election of Councillors,
composition of Councils and tenure
(A)
Article
162 (1) Reads: A councillor shall be
elected in accordance with Article 47(4) by registered voters resident within
the district.
(2)
A council shall consist of the following councillors:
(a)
persons elected in accordance with clause (1);
(b)
a mayor or council chairperson elected in accordance with Article 163; and
(c)
not more than three chiefs representing chiefs in the district, elected by the
chiefs in the district.
(3)
The system of electing chiefs specified in clause (2) (b) shall be prescribed.
(4)
A person qualifies to be elected as a councillor, excluding councillors
specified under clause (2) (b), if that person –
(a)
is not a Member of Parliament;
(b)
is eighteen
years of age or older;
(c)
has obtained, as a minimum academic qualification, a grade twelve certificate
of education or its equivalent;
Observation
Under Article 162(2)(c) the chiefs
represent almost all persons in the councils considering that the others are
representatives of the residents of the districts. Our submission is that the Chiefs be
represented by proxies.
Further, Article 162 (3) refers to
clause (2) (c) for prescribing the system of electing chiefs to be specified.
Article 162 (4) needs to be amended as
in Article 162(3) on the clause numbering
Our
Submission and Recommendations
We propose an amendment to read:
Article
162 (1) Reads: A councillor shall be
elected in accordance with Article 47(4) by persons who are registered voters
resident within the district.
(2)
A council shall consist of the following councillors:
(a)
persons elected in accordance with clause (1);
(b)
a mayor or council chairperson elected in accordance with Article 163; and
(c)
not more than three Chiefs' Proxies
representing chiefs in the district, elected by the
chiefs
in the district.
(3)
The system of electing chiefs specified in clause
(2) (c) shall be prescribed.
(4)
A person qualifies to be elected as a councillor, excluding councillors
specified under clause (2) (c), if
that person –
(d)
is a citizen of the Republic of Zambia, or is a holder of a permanent residence
permit, resident in the district; and
(e)
has a certificate of clearance showing the payment of council taxes, rates and
personal levies as applicable.
(5)
A council may invite a person, whose presence is in its opinion desirable, to
attend and to participate in the deliberations of the council but that person
shall have no vote
(6)
The term of a council shall be five years commencing from the date the
councillors are sworn into office after the Local Government election and ending on the date on which
Parliament is dissolved.
Our
Observations
The Constitution does not grant the
right of franchise to foreign nationals to vote in an election and yet clause 4
(d) above grants foreign nationals who are holders of resident permit but have
no citizenship to stand for elections as a councillor.
Recommendations
we recommend that Clause 4(d) be deleted as those who have no right to vote
cannot seek the right to contest elections.
In the alternative, all persons who have
the status of, and hold a permanent residence permit, should be allowed to
register as voters for purposes of Local Government elections which are in fact
held under the Local Government Elections Act.
(B). Page
67, Article 163 reads as follows:
163.
(1) There shall be a mayor and deputy mayor or council chairperson and deputy
council chairperson for every council, as prescribed.
(2)
A mayor and council chairperson shall be elected –
(a)
directly, in accordance with Article 47(4) during elections for councillors, as
prescribed; and
(b)
for a term of five years and may be re-elected for one further term of five
years.
(3)
A deputy mayor and a deputy council chairperson shall be elected by the
councillors from amongst themselves.
Observations
The election of the mayor by a
collective mandate and will of the people from Constituencies that form the
District as provided in Clause 2(a) as compared to election of Members of
Parliament mandated with enactment of national legislation, brings in the
question of hierarchy and points in the direction of a Mayor or Council
Chairperson having more responsibility, requiring to have executive powers and
benefits.
There is no lacuna which we can claim to
be curing, in having a mayor or council
chairperson subjected to election by the entire district.
The position of Mayor or Council
Chairperson is simply to preside over the meetings of the collective, the
Council, and not to create another centre of power and public expense.
It is our submission, therefore, that
the current system of election of the Mayor, Council Chairman and their
deputies, is sufficient for the purpose and should be left as it is in the
Local Government Act. We see no need to enshrine
this in the Constitution
Recommendation
We recommend that the current status quo of electing the mayor and the council chairperson
as provided in the Local Government Elections Act be maintained where councillors who are independent from political
influence or sanctions.
The article should be deleted.:
163.
(1) There shall be a mayor and deputy mayor or council chairperson and deputy
council chairperson for every council, as prescribed.
(2)
A mayor and council chairperson shall be elected –
(a)
by the councillors amongst themselves
during elections, as prescribed; and
(b)
for a term of five years and may be re-elected for one further term of five
years.
(3)
A deputy mayor and a deputy council chairperson shall be elected by the
councillors from amongst themselves.
Part VIII: On
Distinction between “Public Officer” and “State Officer:”
Page 110,
Article 276, line 11 – 13
“Public
officer” means a person holding or acting in a public office but does not
include a State officer, councillor, a constitutional office holder, a judge
and a judicial officer.
Page 111,
Article 276, line 16 to 22
“State
Officer” includes the Office of the President, Vice President, Speaker, Deputy
Speaker, Member of Parliament, Minister, Provincial Minister, Provincial
Speaker, Parliamentary Secretary, Provincial Deputy Speaker, and Member Of the
Provincial Assembly
Our
Observations
We note that the Bill has made a
distinction between a Public Officer and State Officer. The introduction of
this new category of “State Officer” will pose a challenge in the fight against
corruption as it will create a comfort zone for State officers. This comfort
zone was seen when the Anti-Corruption Commission failed to successfully gain a
conviction in the prosecution of late former President Fredrick Chiluba because
even the courts have not been effectively guided to remove such comfort
zones.
In The People V. Chiluba & Others
(2004) Magistrate Chinyama held (among other things) that:
"...The
Constitution does not say that the President is a public officer. He is not
answerable to and cannot be disciplined by the Public Service Commission. His
office is elective...In the circumstances, I am satisfied that the President of
Zambia is not a public officer..."
In
Miyanda v Attorney-General (2009) the Supreme Court stated that:
"...this
position is fortified by the State Proceedings Act, which has brought the
President within the realm of a public officer. The President is not above the
law...”
Due to such kind of comfort Zone, the
Anti-Corruption Act was amended in 2012 to include elected officers as public
officers and strengthened the fight against corruption when it read, "public officer means any person who is
a member of, holds office in, is employed in the service of, or performs a
function for or provides a public service for, a public body, whether such
membership, office, service, function or employment is permanent or temporary,
appointed or ELECTED...".
The all-inclusive definition in the
Anti-Corruption Act. No. 3 of 2012 is in line with the African Union Convention
on Preventing and Combating Corruption which Zambia Signed on August 3, 2005
and ratified on 30 March 2007, the SADC Protocol Against Corruption signed on
14th August 2001 and ratified on 8th July 2003 as well as the United Nations
Convention Against Corruption signed on 11 December 2003 and ratified on 7th
December 2007.
Parliament must therefore reject the
categorization between State and Public Officers which will weaken the fight
against corruption.
Recommendations
We recommend that Parliament discards
the categorization of State Officers and maintain the universal categorization
of all officers, including elected officials, as Public Officers
Conclusion
YALI is alive to
the fact that he Constitutional reform process has not been smooth sailing. In
fact, there have been a number of hiccups along the way to the extent that
citizens have little confidence that this process will be completed amicably.
Citizens cannot be blamed for such a perception for members of Parliament may
not have done the correct thing. Now is the time for Members of Parliament to
act in the best interest of the people of Zambia and enact the Constitution
Amendment Bill as tabled and with suggested amendments that clean up the Bill.
If we are to pursue a smart Zambia as captured in the Presidential Speech to
the august House, we must change the way we doing things. This Constitution
Amendment Bill therefore sets a standard on whether Zambia can set a tone for a
developed nation by 2064. We must create a strong foundation by enacting this
Constitution amendment Bill that will improve Zambia’s democratic governance
that will result in national development and quality service delivery.
Signed:
ANDREW
NTEWEWE
YALI
PRESIDENT
