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INTRODUCTION
The constitution of any country is sacred and the foundation on which a country rest. Constitutions determine the social setup of any country/society and how a country is governed. Accountability and good governance, do not come about because of good men that may be elected to public office. The nature of government power many a time, has transformed good people into dictators once exposed to the instruments of power. A man’s magnanimous nature may not be depended on for the good of society as a whole. Institutions properly established by law with clear demarcation of functions and powers and a reliable enforcement mechanism where there is a breach, most often guarantee good governance and accountability in the governance of a country.
The constitution of a country becomes the bedrock for guaranteeing a level of accountability and good governance as would be desired by the people in a country. The extent to which a constitution becomes the bedrock by large, is dependent on the contents that is, whether they are a reflection of what the aspirations of the people in a country are. The constitution, important and sacred as it may be, can equally become a double edged sword in that, constitutions legitimise government actions and powers that, where a constitution’s provisions of bad, there is bound to be bad governance which shall still be constitutional as it shall be done according to the constitution. Conversely, good provisions in a constitution guarantees good governance and accountability as decisions made in governance, shall conform to the provisions contained in the constitution. In this regard, it is imperative for any society, Zambia in particular, that as the country embarks on reforms to the constitution, it is critical that whatever suggested reforms are made, they must ensure to focus on provisions that would foster accountability and good governance in the governance of the country.
This LAZ organised stakeholders’ consultative workshop on constitution reforms, yet again presents an opportunity for the country to rediscover itself by identifying articles/clauses of the constitution that have been impediments to the desires of the people for accountability and good governance in the governance of our country
ISSUES OF CONCERN IN THE CONSTITUTION
It would be deduced that the most effective way to address a problem, is by knowing what the problem actually is. For whatever reforms the country has done now and in the past, it is imperative that first, issues that have hindered good governance and accountability arising from the constitution, are properly identified and consensus is built around them then embarking on reforming them in a manner that would be acceptable to a majority of the people in the country.
This write up highlights some of the issues that would be said to have contributed to the elements that have caused accountability and good governance to elude us as a country and which, hopefully through this consultative workshop, solutions presented would be taken up and form part of the reforms in the constitution for the good of the country.
Among issues to be considered important and for urgent reforms are:
1. SEPARATION OF POWERS
There seem to be a misconception on this very important doctrine of governance. It has, on a number of occasions been thought that separation of powers entails there having to be a
complete separation among the three organs of government without there being any interference among them. The actual meaning of separation of powers in fact espouses a form of interference that is mutual among the three organs of government. Example, there has been a realisation in the Zambian constitution that mutual interference among the organs of governance is in fact the basis on which separation of powers ought to be founded. A quick examination of articles 63 and 114 will reveal that indeed separation of powers entails existence of some form of mutual interference among the organs of government and in the context of the articles referenced, the executive and legislature.
The current constitutional arrangement in Zambia however does not support what has in fact been acknowledged as being the foundational base of separation of powers which is, checks and balances as acknowledged in articles 63 and 114. The current arrangement contained in article 116 of the constitution seems to be a defeat of what would be considered progressive provisions contained in articles 63 and 114 of the constitution. Were the state of affairs under article 116 in relation to the judiciary, it most definitely would have fallen under the fundamental rule of natural justice, nemo judex incausa sua.
The essence of the relationship between the two organs of government (executive and legislature) is for the exertion of checks and balances which results in accountability and good governance. However, the current set up is such that, the body that ought to be checked is part of the body that ought to be checking it and exerts influence on the body that is supposed to be checking, through the concept of collective cabinet accountability.
Separation of powers is one cardinal prerequisite to accountability and good governance in the governance of any country. Existence of the following in the constitution entails effective separation of powers and should be identified as among the reforms to be effected in the constitution in the quest to bring about accountability and good governance:
i. Separation of personnel – No one person to be found in more than one organ of government;
ii. Separation of functions – No one organ of government to perform the functions of another;
iii. Co-equal power – No one organ to have more power than others but that all should have exactly same amount of power
With the three effected, cabinet shall have to be appointed from outside the National Assembly and the National Assembly shall have the function of overseeing the performance of functions by cabinet as designed in articles 63 and 114. This arrangement would give the President as appointing authority, a wider pool of competent and better qualified persons to select the cabinet from as qualifications for appointment would not be based on Membership of Parliament.
Bills shall have to be initiated from within the National Assembly and passed there then presented to the President for assent. The President shall have the power to either assent or withhold assent which shall present an opportunity to the President to check the legislative powers of the National Assembly by ensuring the laws being proposed and passed are in consonant with the constitution which the President swears to uphold and protect. Because Acts of Parliament are meant to regulate the executive in the performance of its administrative functions, the executive cannot be the one to initiate Bills and see them through the passage into Acts of Parliament and expect the Acts passed to effectively regulate the exercise of executive power in a manner that would, inter alia, effectively curb corruption which is mainly perpetrated in the executive wing of the government.
2. PUBLIC PROTECTORS OFFICE
The office of Public Protector is a force for good in the promotion of accountability and good governance in the country. The potential however that the institution has, has been undermined by the fact that the institution has been precluded from investigating certain offices including ministers etc. which have been thought to heavy in perpetuating corruption and malafides in the country
The office should not be a career job subject to retirement but should have a limited tenure of a number of years without subject to renewal. This arrangement will give the office holder to operate effectively knowing they have no one appease in the hope of having their contract renewed as the case is currently.
3. LOCAL GOVERNANCE
Any society that desires to develop itself pays attention to governance at local level. Local governance is an area that has been given full recognition in the constitution but which has not been implemented to a point where the benefits of the system can be seen in the country. There are three (IX, X, XI) parts of the Zambian constitution that have been dedicated to local governance thereby acknowledging the importance that is attach to the system. The reality however is different as, the country’s local governance structures are almost none existent.
To ensure local governance flourishes and contributes positively to the development and the growth of democracy, it is imperative that the current legislation in the country as amendment and aligned to the constitution.
3.1 Possible Reforms To Local Governance
– There must be amendments to the Local Government Act 2019 to align it to the constitution by conferring more power to elected offices such as the Mayor to have executive power as opposed to the situation currently
– There must be amendments to the Constituency Development Fund Act by repealing the section establishing Constituency Development Committees to which currently Constituency Development Funds are disbursed, abolish them as they are selected and therefore unaccountable then establish democratically elected and accountable Township Councils in the constituencies to which Constituency Development Fund would be disbursed.
– A Member of Parliament should not be responsible for administering the Constituency Development Fund. A Member of Parliament belongs to the Legislature and their function is legislative whereas Constituency Development Fund is meant to enhance development in the communities which must be a function of the executive through the councils.
CONCLUSION
As the Stakeholders Consultative workshop considers submissions, it is hoped that these submissions would add value to what eventually would be agreed upon at the workshop.
Mulenga Besa
Constitutional Law Lecturer – Lusaka Goldsmiths University
26th January 2023
The constitution of any country is sacred and the foundation on which a country rest. Constitutions determine the social setup of any country/society and how a country is governed. Accountability and good governance, do not come about because of good men that may be elected to public office. The nature of government power many a time, has transformed good people into dictators once exposed to the instruments of power. A man’s magnanimous nature may not be depended on for the good of society as a whole. Institutions properly established by law with clear demarcation of functions and powers and a reliable enforcement mechanism where there is a breach, most often guarantee good governance and accountability in the governance of a country.
The constitution of a country becomes the bedrock for guaranteeing a level of accountability and good governance as would be desired by the people in a country. The extent to which a constitution becomes the bedrock by large, is dependent on the contents that is, whether they are a reflection of what the aspirations of the people in a country are. The constitution, important and sacred as it may be, can equally become a double edged sword in that, constitutions legitimise government actions and powers that, where a constitution’s provisions of bad, there is bound to be bad governance which shall still be constitutional as it shall be done according to the constitution. Conversely, good provisions in a constitution guarantees good governance and accountability as decisions made in governance, shall conform to the provisions contained in the constitution. In this regard, it is imperative for any society, Zambia in particular, that as the country embarks on reforms to the constitution, it is critical that whatever suggested reforms are made, they must ensure to focus on provisions that would foster accountability and good governance in the governance of the country.
This LAZ organised stakeholders’ consultative workshop on constitution reforms, yet again presents an opportunity for the country to rediscover itself by identifying articles/clauses of the constitution that have been impediments to the desires of the people for accountability and good governance in the governance of our country
ISSUES OF CONCERN IN THE CONSTITUTION
It would be deduced that the most effective way to address a problem, is by knowing what the problem actually is. For whatever reforms the country has done now and in the past, it is imperative that first, issues that have hindered good governance and accountability arising from the constitution, are properly identified and consensus is built around them then embarking on reforming them in a manner that would be acceptable to a majority of the people in the country.
This write up highlights some of the issues that would be said to have contributed to the elements that have caused accountability and good governance to elude us as a country and which, hopefully through this consultative workshop, solutions presented would be taken up and form part of the reforms in the constitution for the good of the country.
Among issues to be considered important and for urgent reforms are:
1. SEPARATION OF POWERS
There seem to be a misconception on this very important doctrine of governance. It has, on a number of occasions been thought that separation of powers entails there having to be a
complete separation among the three organs of government without there being any interference among them. The actual meaning of separation of powers in fact espouses a form of interference that is mutual among the three organs of government. Example, there has been a realisation in the Zambian constitution that mutual interference among the organs of governance is in fact the basis on which separation of powers ought to be founded. A quick examination of articles 63 and 114 will reveal that indeed separation of powers entails existence of some form of mutual interference among the organs of government and in the context of the articles referenced, the executive and legislature.
The current constitutional arrangement in Zambia however does not support what has in fact been acknowledged as being the foundational base of separation of powers which is, checks and balances as acknowledged in articles 63 and 114. The current arrangement contained in article 116 of the constitution seems to be a defeat of what would be considered progressive provisions contained in articles 63 and 114 of the constitution. Were the state of affairs under article 116 in relation to the judiciary, it most definitely would have fallen under the fundamental rule of natural justice, nemo judex incausa sua.
The essence of the relationship between the two organs of government (executive and legislature) is for the exertion of checks and balances which results in accountability and good governance. However, the current set up is such that, the body that ought to be checked is part of the body that ought to be checking it and exerts influence on the body that is supposed to be checking, through the concept of collective cabinet accountability.
Separation of powers is one cardinal prerequisite to accountability and good governance in the governance of any country. Existence of the following in the constitution entails effective separation of powers and should be identified as among the reforms to be effected in the constitution in the quest to bring about accountability and good governance:
i. Separation of personnel – No one person to be found in more than one organ of government;
ii. Separation of functions – No one organ of government to perform the functions of another;
iii. Co-equal power – No one organ to have more power than others but that all should have exactly same amount of power
With the three effected, cabinet shall have to be appointed from outside the National Assembly and the National Assembly shall have the function of overseeing the performance of functions by cabinet as designed in articles 63 and 114. This arrangement would give the President as appointing authority, a wider pool of competent and better qualified persons to select the cabinet from as qualifications for appointment would not be based on Membership of Parliament.
Bills shall have to be initiated from within the National Assembly and passed there then presented to the President for assent. The President shall have the power to either assent or withhold assent which shall present an opportunity to the President to check the legislative powers of the National Assembly by ensuring the laws being proposed and passed are in consonant with the constitution which the President swears to uphold and protect. Because Acts of Parliament are meant to regulate the executive in the performance of its administrative functions, the executive cannot be the one to initiate Bills and see them through the passage into Acts of Parliament and expect the Acts passed to effectively regulate the exercise of executive power in a manner that would, inter alia, effectively curb corruption which is mainly perpetrated in the executive wing of the government.
2. PUBLIC PROTECTORS OFFICE
The office of Public Protector is a force for good in the promotion of accountability and good governance in the country. The potential however that the institution has, has been undermined by the fact that the institution has been precluded from investigating certain offices including ministers etc. which have been thought to heavy in perpetuating corruption and malafides in the country
The office should not be a career job subject to retirement but should have a limited tenure of a number of years without subject to renewal. This arrangement will give the office holder to operate effectively knowing they have no one appease in the hope of having their contract renewed as the case is currently.
3. LOCAL GOVERNANCE
Any society that desires to develop itself pays attention to governance at local level. Local governance is an area that has been given full recognition in the constitution but which has not been implemented to a point where the benefits of the system can be seen in the country. There are three (IX, X, XI) parts of the Zambian constitution that have been dedicated to local governance thereby acknowledging the importance that is attach to the system. The reality however is different as, the country’s local governance structures are almost none existent.
To ensure local governance flourishes and contributes positively to the development and the growth of democracy, it is imperative that the current legislation in the country as amendment and aligned to the constitution.
3.1 Possible Reforms To Local Governance
– There must be amendments to the Local Government Act 2019 to align it to the constitution by conferring more power to elected offices such as the Mayor to have executive power as opposed to the situation currently
– There must be amendments to the Constituency Development Fund Act by repealing the section establishing Constituency Development Committees to which currently Constituency Development Funds are disbursed, abolish them as they are selected and therefore unaccountable then establish democratically elected and accountable Township Councils in the constituencies to which Constituency Development Fund would be disbursed.
– A Member of Parliament should not be responsible for administering the Constituency Development Fund. A Member of Parliament belongs to the Legislature and their function is legislative whereas Constituency Development Fund is meant to enhance development in the communities which must be a function of the executive through the councils.
CONCLUSION
As the Stakeholders Consultative workshop considers submissions, it is hoped that these submissions would add value to what eventually would be agreed upon at the workshop.
Mulenga Besa
Constitutional Law Lecturer – Lusaka Goldsmiths University
26th January 2023
