Wednesday 18 November 2015

Zambia Records 1.2 Million New Voters Ahead Of 2016 Polls

By Paul Shalala
Sylvia Bwalya


The Electoral Commission of Zambia (ECZ) has disclosed that it has registered 1, 2 46, 626 new voters ahead of the 2016 general elections.

Zambia already has 5, 166, 088 voters registered during the 2010 registration exercise which preceded the 2011 general elections.

This brings the total number of registered voters in Zambia to 6, 412, 714.

The ECZ embarked on a voter registration exercise from 11 September to 14 November with a target of capturing 1.5 million new voters.

With a shortfall of about 200, 000 voters to reach its target, the electoral body has announced an extension to the voter registration exercise to commence on 23 November to capture more voters.


ECZ Spokesperson Sylvia Bwalya also said 1, 235, 633 people updated their voter details while 23, 783 people on the old voters register were struck out on account of death.

She further released the provincial registrations as follows:

Lusaka Province: 241, 301 new registrations, 166, 461 updates and 2, 030 death notices.

Southern Province: 205, 259 new registrations, 184, 715 updates, and 2, 217 death notices.

Central Province: 138, 649 new registrations, 124, 850 updates, and 2, 205 death notices.

Eastern Province: 133, 786 new registrations, 136, 586 updates and 1, 727 death notices.

Copperbelt Province: 123, 039 new registrations, 150, 539 updates, and 2, 405 death notices.

Newly issued voters cards and National Registration Cards
Northern Province: 116, 016 new registrations, 98, 151 updates, and 3, 189 death notices.

Western Province: 97, 582 new registrations, 117, 812 updates, and 4, 408 death notices.

Muchinga Province: 77, 790 new registrations, 70, 392 updates, and 2, 066 death notices.

Luapula Province: 61, 000 new registrations, 97, 597 updates, and 2, 029 death notices.

North Western Province: 52, 204 new registrations, 88, 530 updates and 1, 507 death notices.

Sunday 8 November 2015

YALI Proposes 18 Years Olds To Stand As President, MP, Councillor

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