Infringement on democracy, human rights and the rule of law through constitutional amendments: What mechanisms exist to restore Zambia?

Author: Juliet Nyamao
Human Rights Attorney, Kenyan Bar

The first Constitution of the Republic of Zambia (1964) established a multiparty system of government. However, increasing tensions between the ruling party and the opposition parties compelled the first president of the Republic of Zambia, Kenneth Kaunda, to institutionalise a one-party rule through the enactment of the Constitution of Zambia Act, 1973. The presidential rule in Zambia was reinforced, with the president as the sole player on the political scene. Following the collapse of the Soviet Union and the end of the cold war in the early 1990s, a wave of multiparty democracy swept across the African continent leading to emergence of political pluralism. Many countries in the Southern African region adopted constitutional dispensations that allowed political pluralism and cemented the roles of the different branches of governments. Zambia, a former British colony, was no exception to the wind of change; they adopted their new Constitution of Zambia, 1991 that restored multiparty democracy. Thereafter, the Constitution of Zambia (Amendment) Act No. 2 of 2016 spelt out the roles and mandates of the different branches of government and directed that all State organs and State institutions abide by and respect the sovereign will of the people of Zambia. This Constitution ensured separation of powers between the various branches of the government, which is crucial to uphold democracy, human rights and the rule of law.

Recently, the Attorney General of Zambia, Likando Kalaluka, issued the Constitution of Zambia (Amendment) Bill, 2019 whose object is to amend key provisions of the Constitution. Some of the major changes proposed include changes to the judiciary, the executive and the legislative branches of government. The Bill introduces opportunities for the Executive’s influence in the Judiciary through several  proposed changes including changes in the disciplinary proceedings against judges and the composition of the Supreme and Constitutional Courts. Article 143 (a) of the present Zambian Constitution stipulates a judge may be removed from office on grounds of “mental or physical disability that makes the judge incapable of performing judicial functions”. However, amendment 48 of the Bill introduces a legal uncertainty by proposing to replace the “mental or physical disability” ground with “legally disqualified from performing judicial functions”. This proposal threatens to violate the principle of legal certainty and the rule of law by exposing the judiciary to interference from the executive or legislature, thereby undermining the independence of the judiciary. Additionally, the Bill proposes to reduce the government’s financial accountability by abolishing parliamentary oversight over contracting public debt. The Bill further grants the Presidency power to enter into international treaties and agreements without the approval of the National Assembly.

According to Southern Africa Litigation Center, the proposed radical changes seek to derail the progressive effort towards improving accountability, democracy, rule of law, and realistion of human rights, which are enabled by implementation of the present Zambian Constitution. The International Bar Association, in collaboration with other organisations, publicly condemned the move to introduce the proposed changes to the present Constitution stating that the Bill would have far-reaching unfavorable consequences on the independence and impartiality of the Judiciary. This Bill also threatens to greatly reduce the National Assembly’s oversight powers and functions. These two arms of government, Judiciary and National Assembly, are crucial to provide the much-needed checks and balances to the powers of the Executive. The elimination of the National Assembly’s oversight, as well as the impeding of the independence of the Judiciary, would greatly undermine the sovereign will of the people of Zambia and the preservation of the rule of law, which is essential for upholding democracy, good governance and protection of human rights.

Over the past years, many leaders in Sub Saharan Africa have increasingly secured immense power through constitutional amendments that extended their terms in office. In 1998, Namibian president Sam Nujoma attempted to extend his term in office. Although the move got international and domestic criticism, he was nevertheless re-elected into office the following year. In 2002, Togolese president Gnassingbe Eyadema abolished term limits through a constitutional amendment and was re-elected in 2003. One year later, the Gabonese parliament voted to remove term limits from its constitution, allowing President Omar Bongo to run for a sixth term. In 2018, a Ugandan constitutional court upheld a constitutional change to do away with the presidential age limit to allow the incumbent President Yoweri Museveni to extend his 32-year rule. A constitutional amendment in Rwanda, apparently approved by 98% of voters, also ended a two-term limit for presidents, permitting President Paul Kagame to extend his rule into the third term with almost 99 percent voter’s support amid allegations of fraud and intimidation.  Pierre Nkurunziza of Burundi, Angola’s dos Santos, and former Senegalese President Abdoulaye Wade, among others, ran for additional terms arguing that the term limits that were passed during their mandates should only apply to future president’s. Efforts to extend presidential terms have become the norm in many African countries including Angola, Burkina Faso, Burundi, Cameroon, Chad, Djibouti, Equatorial Guinea, Guinea, Niger, Nigeria, the Republic of Congo, Rwanda, Senegal, Sudan, and Uganda.

In the face of all these prevailing challenges of presidential excesses in Africa, there exists regional mechanisms for addressing impedance to democracy and the rule of law. In 2007, Member States of the African Union (AU) adopted the African Charter on Democracy, Elections and Governance. This instrument has been ratified by 34 members states of the African Union, including Zambia, which ratified the Charter on 31 May 2011. This regional Charter, which came into force on February 15, 2012, calls on its member states to identify illegal means of accessing power or staying in office, including refusals to relinquish power following free and fair elections. Any constitutional amendments that infringed upon “the principles of democratic changes of power” would draw sanctions from the AU to those responsible. Similarly, Economic Community of West Africa States (ECOWAS) called on Member States to adhere to the spirit of their constitutional dispensations. Recently, in the Gambia during the disputed presidential elections, ECOWAS sent troops to Gambia to compel former President Jammeh to go into exile and leave the presidency to Adama Barrow, who had legitimately won the elections.

On the international arena, the European Union has imposed sanctions on a number of African countries including Burundi, the Democratic Republic of Congo, and Zimbabwe, with regard to hampered political transitions or fair elections. Likewise, the United Nations Security Council has imposed several sanctions to a number of African countries including Zimbabwe, South Africa, Angola, Rwanda, Sierra Leone, Somalia, Eritrea, Ethiopia, Liberia, DRC, Côte d’Ivoire, Sudan, Guinea-Bissau, Central African Republic, South Sudan and Mali. These sanctions vary from far-reaching economic and trade sanctions to more targeted measures such as arms embargoes, travel bans, and financial or commodity restrictions. Additionally, the Security Council has applied sanctions to support peaceful transitions, deter non-constitutional change and protect human rights.

Where the will of the people has been trampled on by the presidential excesses, and domestic mechanisms have failed, the international community must rally support to restore democracy and the rule of law in Africa. Several regional as well as international legal instruments can be empowered and enforced. African states must join hands to curtail the unending habit of constitutional amendments to amass executive power and increase presidential terms. The separation of powers of the various branches of the Zambian governments and the independence of the Judiciary should be safeguarded at all costs, as espoused in domestic, regional and international legal instruments. The Legislature and the Judiciary play a crucial role in safeguarding the interests of the people of Zambia and checking presidential excesses. Therefore, a unified call to ensure that the proposed changes in the Constitution of Zambia (Amendment) Bill, 2019 adhere to the spirit of the constitutional dispensation, will exert the sovereign will of the people, and uphold democracy, human rights and the rule of law.

About the Author:
Juliet Nyamao is a Human Rights Attorney admitted to the Kenyan Bar. She received her LLB from Moi University School of Law (Kenya) and LLM from Georgetown University Law Centre (USA). Juliet completed her fellowship in Leadership and Advocacy for Women in Africa at Georgetown University Law Center. She is currently a fellow at the American Bar Association-USA.