The Imperative for Constitutional Reforms: Addressing Gaps and Ensuring Justice
The Constitution of Zambia (Amendment) Act No. 2 of 2016, has become a subject of considerable debate and scrutiny among stakeholders. While it introduced several progressive provisions, it equally presented significant lacunae hindering the development of tenets of democracy and governance of the country.
A critical examination of the Constitution reveals that it is the cornerstone of Zambia’s democracy, and outlines both the rights and responsibilities of citizens and the framework for governance. However, contemporary challenges justify the urgent need for constitutional reforms.
Transparency and Accountability
One of the most pressing issues is the lack of adequate provisions for transparency and accountability. Despite existing anti-corruption frameworks, the enforcement remains weak. The Constitution in its current state has not sufficiently made provisions for the fight against corruption, hence a pervasive culture of impunity by Public Officers in the management of public resources. To a larger extent this has led to citizens’ increasing frustration with a system that seem to allow Public Officials to operate without sufficient oversight control. This continued frustration has triggered public discontent and disapproval leading to citizens’ demands for accountability and justice in the governance system. Questions arise such as:
- Why is there a perception that serving public officials implicated in corrupt activities are only arrested and prosecuted after leaving office?
- Does this entail the protection of corrupt government officials?
- Does this mean that institutions of governance such as the Anti-Corruption Commission and the Judiciary lack the requisite independence to execute their mandates effectively to combat corruption and uphold the rule of law?
- Is it the case that there is political interference in execution of their functions thereby limiting their ability to combat corruption and uphold the rule of law?
- Where does democracy, separation of powers, constitutionalism and the rule of law sit in this scenario, if at all?
Constitutional provisions that guarantee the independence of the above institutions are vital in fostering a robust governance framework. For instance, It has been argued that the strengthening of the legal status of the Anti-Corruption Commission would protect it from possible political interference, thereby improving its effectiveness in the fight against corruption.
Strengthening the separation of powers
The concentration of power in the Executive branch by the constitution renders accountability and checks and balances of no effect. The power of the executive to appoint the majority of those in decision-making positions weakens the independence of key oversight institutions such as the Anti-Corruption Commission. Recent developments such as the dissolution of the Board of the Anti-Corruption Commission and the removal from office of the three Constitutional Court Judges demonstrate the unbalanced power among the three arms of government and its risk to the Governance of the country.
- How possible is it for the President to appoint the head of the Judiciary, and where the head of the Legislature is sworn in by the Presidency and still call this separation of powers among the three wings of Government?
Reforming the constitution to delineate the powers of the executive clearly and enhancing the role of other branches of government is essential. Strengthening parliamentary oversight can ensure that executive actions are subject to scrutiny, reducing the risk of autocratic governance and fostering a culture of accountability.
Political Party and Campaign Financing
The current political landscape is characterized by intense partisanship and limited accountability among political parties and unregulated spending in campaigns. The absence of regulatory framework has led to allegations of corruption and unethical behaviour within political organisations.
- How possible is it for a political party that was funded by private funders (an individual or business entity) to insulate itself from state capture by those funders?
- How do you expect a politician who spends every penny to convince citizens to vote for them to ensure proper public resource management?
- Is politics a money-making venture?
It is imperative that our Constitution make provisions for the registration and public funding of political parties, intra-party democracy, and representation for marginalized groups, including youth, women, and persons living with disabilities. The regulation of campaign spending, auditing, and the use of public funds for political activities must be addressed to ensure fairness and accountability in our political environment. This is because trust in political parties is compromised when their internal democratic processes lack transparency. There is need for Constitutional reforms that establish clear regulations for political parties in order to enhance accountability and transparency, leading to more responsible governance and greater public trust.
Human Rights Protection
For decades now there has been a call to review Part III of the Constitution which houses Human Rights. One of the arguments advanced is that marginalized groups lack the protection necessary to ensure that they contribute adequately to the governance of the country. The inadequate anti-discrimination clauses could lead to unequal protection of rights.
- Just to think of it, how can citizens be arrested for simply asking questions?
- Why should they be detained for standing or walking next to a monument and be arrested for more than 14 days without bail?
- What message is being sent out there?
- Why is it that the law demands that an investigation must be conducted before an arrest is effected on the accused person, but the arresting authorities do the opposite?
- Does this mean that we have gaps in how the judiciary interprets the law and how the executive enforces it?
- How difficult is it to have a Constitution that can be easily understood by all?
- Does our constitution serve the people or those in power?
The failure to address these disparities undermines the principles of democracy and good governance. The perception that journalists, who are essential to a thriving democracy, face harassment, and dissenting voices being silenced, waters down the government pronouncements on the desire to adhere to the rule of law in the governance of the country. The environment for information dissemination has become uncertain leading to questions about what can be published and how. Thus, revising the constitution to enshrine robust protections for Human Rights and media freedoms is crucial. Upholding these rights can empower citizens and the media to hold the government accountable, with freedom of expression being foundational for a healthy democracy.
Citizen participation
The current Constitutional framework also lacks mechanisms for effective citizen participation in governance. This disconnect has fostered disillusionment with democratic processes, as citizens increasingly feel their voices are excluded from decision-making. This apathy undermines the health of our democracy and must be addressed through reforms that enhance participatory governance.
Zambia is grappling with severe challenges related to land access, management, and environmental sustainability. Issues such as illegal land allocation and deforestation persist, often driven by unclear legal frameworks and a lack of accountability. For young people and marginalized communities, acquiring land in their own country can seem nearly impossible, especially given the prevailing economic challenges. Recent conflicts in Lusaka over land ownership highlight the urgent need for transparent processes that protect community rights and the environment. It suffices not to state that the Land’s Tribunal has been created to address disputes relating to Land. Constitutional reforms could establish clearer land rights and responsibilities, ensuring sustainable resource use and fostering responsible stewardship.
The gaps in Zambia’s Constitution pose significant challenges to governance, accountability, and the protection of rights. As TI-Z advocates for reforms in these critical areas, it is crucial to recognize that a revised Constitution can provide the groundwork for a more transparent, accountable, and democratic Zambia. Engaging stakeholders and the public in this reform process is vital for creating a legal framework that genuinely reflects the will and needs of the Zambian people. Only through concerted efforts to address these Constitutional gaps can Zambia achieve sustainable development and uphold the democratic values foundational to its future.
We need to realize that the fight for Constitutional reform transcends politics; it represents a necessary movement towards Justice, Equality and Accountability. Reforming the constitution is essential for restoring public trust in institutions and fostering a more inclusive society. By prioritizing constitutional reforms, we can establish a framework that better reflects the aspirations of all citizens, ensures robust protection of rights, and upholds the Rule of Law.
Looking towards the future, a collective effort and commitment to reform through meaningful dialogue can help us build a stronger, more equitable Nation for generations to come. The strength of our democracy hinges on a Constitution that embodies our highest aspirations and tackles our most pressing challenges. As we stand at this crossroads, let us seize the opportunity to renew our commitment to Justice, Equity, and Resilience, forging a path towards a reformed Constitution that serves every Zambian. The time for action is now, let us unite to champion the cause of Constitutional reform and safeguard our democracy.
