Zambia Constitutional amendments

Last week, Zambia enacted a package of amendments to the constitution that has been years in the making.

Among the amendments are a number of significant changes to the presidency. In the last decade, two early presidential elections (2008 and 2015) were instigated by the incumbent’s death. In the wake of the cost and difficulty of organising these elections, there were calls for the institution of a vice-presidency elected as the president’s running mate and replacing the vice president on a permanent basis. This change was included in the amendments, replacing the previous position of vice president which was appointed by the President and only substituted him on an interim basis.

Another change was to the president’s dissolution power. Under the previous provisions, the President was able to call an early general election at any time, which would include both presidential and legislative elections. The new provisions stipulates that such a dissolution can only be effected “if the Executive cannot effectively govern the Republic due to the failure of the National Assembly to objectively and reasonably carry out its legislative function”, and must be reviewed by the Constitutional Court, which determines whether or not that is the case. This seems to me as rather ill-advised; whether or not parliament fulfils its role ‘objectively’ or ‘reasonably’, and whether or not the President is able to ‘govern effectively’, are fundamentally political questions, and getting the courts involved in that could seriously undermine their neutrality and independence.

Additionally, in response to widespread calls for such a change, the electoral system for president has been changed from plurality to two-round majority. The original draft presented to parliament several years ago also envisioned the adoption of Mixed-Member Proportional for legislative elections, but this was removed from the bill by the National Assembly.

Lastly, in what seems to be a growing trend in new or heavily-amended constitutions, the amendments introduce federalism (seeing as they include lists dividing up competences among national, provincial and local government which are entrenched along with the rest of the constitution), but call it a system of ‘devolved’ governance.

32 thoughts on “Zambia Constitutional amendments

  1. Thanks, MSS [JD, actually], interesting points. Three (3) comments:

    1. “… a vice-presidency elected as the president’s running mate and replacing [the vice – scil “a vacating”?] president on a permanent basis.” – a move away from Alanism towards Carey-Shugartism! Although Zambia’s previous position of combining both (i) a specific office of Vice-President and (ii) immediate special presidential by-elections was very unusual. Most other constitutions either (i) have a designated Vice-President who succeeds for the remainder of the original term, or else (ii) the Speaker of the uppermost chamber of the legislature gets to mind the shop as Acting President for a few weeks until a presidential by-election can be organised for a full new term.

    2. It certainly is unusual at sovereign-state level (national or subnational) to make the conditions for an early election (i) judiciable before the courts but also (ii) vague and subjective (ie, not mechanical, head-counting details like “that a majority of MPs have voted against the Prime Minister” or even “that a majority of MPs genuinely oppose the Prime Minister” – see Germany 1983 and 2005 for the distinction). However, it’s not unusual at the subnational level, albeit that in such cases judiciability falls short of the courts deciding the matter for themselves but instead requires them merely to review a decision made by a Minister at a higher level of government – eg, the federal Territories Minister, advising the Governor-General, in the case of the Australian Capital Territory (ACT) assembly http://www.austlii.edu.au/au/legis/cth/consol_act/acta1988482/s16.html, or the State’s Local Government Minister in the case of Queensland regional [ie, local] councils: http://www.austlii.edu.au/au/legis/qld/consol_act/lga2009182/s123.html.

    3. The litmus for distinguishing “federalism” from “devolution” would be on whether the powers conferred upon, or left to, the regional units (a) are thereby removed from the national legislature, and/or (b) can be revoked by the national legislature. Eg, Westminster may grant Scottish and Welsh assemblies power to regulate schools within those dominions, and Westminster may take care to avoid derogating from this grant when legislating (hence the frequent proviso in many UK statutes that “This Act does not apply to Scotland”). But Westminster can always legislate concurrently on this issues, or even take away those powers, or abolish those assemblies, as Brian Faulkner and Ken Livingstone found to their cost.

    One might then say that “federalism” rather than “devolution” exists when laws encroaching on the devolved powers require a special procedure, not just an ordinary statute. However, the practical difference between an ordinary statute and a “constitutional amendment” may be more theoretical than real. In Victoria, for example, most parts of the State Constitution are “entrenched” only in the sense that they require an absolute majority of both Houses to amend. (Steve Bracks’ government entrenched a more extensive list of limitations, and more substantively, in his 1999-2003 term.) An absolute majority was seen as a substantial barrier in 19th-century colonial days, when party allegiances were fluid, but any 20th century government will almost always, pretty much by definition, have an absolute majority, at least in the Lower House, simply to survive in office. (Some US State Constitutions require an absolute majority to pass a bill through a State legislature: I believe this is why Obama voted “present” to various controversial measures when he was an Illinois state legislator – it amounted to a “no” vote).

    Compare a requirement of a two-thirds majority in each national chamber to amend the Constitution. (Granted, in many federations some form of State ratification is also required to take powers away from the regional level). In Germany, with a PR-elected Bundestag, a two-thirds majority is a substantial hurdle. But in India, with first-past-the-post voting – at least for the first two decades after independence, when the Congress Party was dominant – two-thirds majorities were easy to obtain for the majority party. (Congress held 70 to 80 percent of the seats, on 43% to 48% of the votes, in four of the first five Lok Sabhas, from 1951 to 1971).

    • Yes, those are the same criteria for federalism I had in mind. Zambia passes on both counts now; it has lists of concurrent and exclusive Provincial powers, so certain areas have now been removed from the national legislature’s purview, while these lists are as constitutionally entrenched as the rest of the document, taking a two-thirds majority to change.

      • Small correction: there are three lists: exclusive national functions, concurrent national and provincial functions, and exclusive local authority functions.

    • I think that, at least according some theories, “federalism” requires some kind of participation of the “states” in a process to alter (and specially to remove) their powers, be by a rule “a constitutional amendment should be aproved by two thirds/three fifths/etc. of the sates” or at least by a vote in a second chamber with representatives of the states (but perhaps almost all countries with big descentralization meet this last point).

      • The draft amendments actually did include such a provision: “A Bill to amend a provision of this Constitution which is on the objectives, principles or structures of local government, shall not be introduced in the National Assembly unless the Bill has been approved by a resolution of not less than two-thirds of all councillors of the district councils. “

      • Query whether a nation with an entrenched constitution, and with each national chamber elected on a per capita basis, would qualify as “federal” if the said constitution were to (1) specify the existence, the autonomous functioning, the territorial borders, and the reserved powers of regional governments, and to (2) require a supermajority of the national legislature, and/or a popular referendum (51% nationwide), to pass constitutional amendments. (Some US States, with “home rule” for counties and municipalities entrenched in their State Constitutions but with “one person, one vote” required of them by the Supreme Court’s reading of the federal Constitution, would approximate this position).

        In other words, is it “federalism” simply to put the powers (etc) of the regions beyond an ordinary national legislative majority (taking account of the fact that, depending on the electoral system used, most governments may quite well enjoy, say, 55% support in each chamber)? Or does “federalism” require that each region be given greater voting power – if not over all national laws, then at least on the above matters of regional powers (etc) – when its population is less than the average? If so, how much extra per-State loading is sufficient? Does it need to be an equal vote per State (as in distinct stages of both the legislative and the constitutional amendment processes in the USA and Australia), or is the German Bundesrat model (3 to 6 votes per State) enough? If the German Bundesrat model is enough to be federal, what about its Austrian equivalent, with 3 to 12 votes per Province – a much wider variation that differs by only a few seats from a per capita allocation? In other words, is Austria “federal”? No wonder countries don’t want to buy into this conceptual quagmire by using the “F Word” in their Constitutions or associated founding documents.

      • I’ll stick to the first line of thinking. Federalism does not require bicameralism of any kind. There are examples (though perhaps problematic) of federations without an upper house (St. Kitts and Nevis, Iraq, Venezuela), as well as bicameral federations whose upper houses are very weak (Belgium, Austria) or whose ‘federal’ nature is very questionable (Canada, Malaysia) (I’m putting aside for the moment my criticism of equal-representation, directly-elected upper houses as being questionably federal). But even if that weren’t the case, the key question is: would India, Germany or even the US (the original federation) cease to be federal is their upper house were abolished tomorrow? I find it very difficult to believe that.

      • Both India and USA requires, I think, that constitutional changes should be voted by a qualified majority of state parliaments – they can be considered “federal” by this point, even without a second chamber; but a federal country without second chamber and without need to constitutional changes being aproved by the “states”, what will be the difference from an unitary state with some local autonomy? After all, the existence of “municipios” (counties) is also estalished in the portuguese constitution (well, I think that the specifical powers of the municipios are not in the constitution – perhaps this could be a difference).

      • “the specifical powers of the municipios are not in the constitution” – yes, that’s a much more useful differentiation. If the powers are not entrenched, the national legislature can just change these at will.

  2. There’s a growing tendency for judicial certification of grounds of impeachment. For example, in Indonesia the lower house must refer an impeachment to the Constitutional Court for certification before an impeachment can proceed. Ghana has a similar rule as does Russia.

    Judicial certification of dissolutions does not seem to me to be necessarily a bad idea, although the definition offered to the courts in Zambia’s new constitution are remarkably vague and would be difficult to certify. The expanded role of the constitutional court and its separation form the supreme court are becoming somewhat of an African pattern of government.

    The requirement for supermajorities before the parliament can disallow executive acts or censure a minister is fairly disturbing and I’d think would make dissolutions very rare events.

    • While impeachment is for having committed some kind of offence (‘high crimes and misdemeanors’), often against the constitution, the conditions included in the Zambian amendments for dissolution are almost purely political.

      • Ghana requires judicial certification that there is a prima facie case for removal, The grounds that a special tribunal of the chef justice and the four most senior justices must certify are:

        1. The President shall be removed from office if he is found, in accordance with the provisions of this article-
        a.to have acted in willful violation of the oath of allegiance and the presidential oath set out in the Second Schedule to, or in willful violation of any other provision of, this Constitution; or
        b.to have conducted himself in a manner-
        i.which brings or is likely to bring the high office of President into disrepute, ridicule or contempt; or
        ii.prejudicial or inimical to the economy or the security of the State; or
        c.to be incapable of performing the functions of his office by reason of infirmity of body or mind.

        Subsections b.1. and b.ii are better drafted than the Zambian dissolution conditions, but in reality they are almost as vague. I do think the Zambians have done a great job of drafting but I don’t know that it’s an inherently bad idea.

        Interesting footnote is that providing for a medical examination of the president (sometimes ad hoc, sometimes annual, sometimes both) appears to becoming a characteristic of newer constitutions.

  3. A lot of constitutions say something tautological like “there shall be regions government, with such powers as they have by law.” Less common is entrenchment of the number and/or boundaries of the regions.

    I can imagine, on the back of an envelope, a hybrid sort of Constitution that says something like:

    1. The national legislature can only pass general laws that apply uniformly across the nation. It cannot make different provisions for different regions.

    2. However, national laws may leave details to be determined by subordinate legislation – whether by-laws made by regional councils, or regulations made by the national executive.

    3. For the purposes of Kelsenian hierarchy of norms, regional by-laws override national regulations except in certain narrowly-defined areas of core national responsibility like defence. Otherwise, national ministers’ regulations are valid only when in regions where there are no by-laws on the matter made by that region’s council.

    4. By-laws made by a regional council must also operate uniformly across the whole of that particular region. They cannot make different provisions for different localities within the region. (So, eg, a large, sparsely-populated rural region could implement national policies in different ways from the council of a small, densely-populated urban region. But the national legislature itself can’t pick and choose among regions).

    [FN: Though query how far “uniform” national laws could get specific before they might be held to be discriminating in impact. Eg a national law that says “either 100,000 residents of that region, or 10% of the population of that region, whichever is less” (c/of the minority-language ballots threshold tin the Voting Rights Act 1965) could be viewed as a reasonable attempt to secure uniformity. But suppose the national legislature were to stipulate, eg, “Firearms (other than revolvers with magazines capable of holding fewer than seven bullets) are prohibited in every region with an area under X thousand square kilometres and a population greater than Y thousand people.” You could justify this as policy that guns are less dangerous in the “Red States,” where they’re used for hunting venison, than in the “Blue States,” where they’re used for violent crimes. However, you might conclude that a distinction this sharp needs to come from the bottom-up, ie to be made by regions rather than the national legislature.

    5. Regional councils, and the boundaries of their respective territories, are determined by national statutes but at any given time every part of the nation must be within one and only one region. Ie, the national legislature can rearrange regions by statute but not wholly abolish them in some or all parts of its bailiwick.

    In other words, a Constitution could give local/ regional governments some legal teeth without impeding the ability of the national legislature to rearrange their borders, put all of Albury-Wodonga or Delmarva or Toronto-Hull into a single region, that sort of thing.

  4. I agree with jdmussel (18/01/2016 at 3:47 pm) : the essence of federalism is the entrenched division of competences. I have to admit Switzerland then becomes debatable : the entrenchment is ‘imperfect’ because the federal court (Bundesgericht) cannot review federal acts.

    • I would add that the subcentral governments need their own revenues. Here is not the place to examine Australian fiscal federalism (the last person to master the details was immediately admitted to an institution for the hopelessly bewildered) but subcentral governments dependent on the federation for discretionary financial grants cannot really be regarded as autonomous units.

      • Bancki:

        I think the question of whether or not constitutional review is allowed or possible is best left separate, though it could most certainly be relevant for whether a country is federal in practice. However, I think it’s safe to say that the Swiss confederation, which one of the world’s most decentralised countries, is federal, despite the lack of constitutional review of the competencies or any other section of its constitution.

        Alan:

        Agreed. The ultimate source of Australia’s problems in that regard, it seems to me, is that the federal government created by the country’s charter is in charge of appointing the judges who determine whether its decisions are in line with that charter. But that, of course, is a problem with federations more generally. In some federations, due to various other factors, this has formed less of a problem. In Belgium, for instance, the regions/communities are overwhelmingly funded by the federal government (at least 80%, I think), but the threat of secession probably keeps the federal government cautious about trying to put too many conditions on that funding.

      • I think the problem is the allocation of revenues rather than the judicial appointments. The constitution is simply inadequate to the contemporary revenue situation. The sad result is what Gough Whitlam called ‘federalisation by treaty’ where the federation uses its fiscal whip to bring the states into line.

        This results in fairly bizarre arrangements, such as universities (clearly a state matter in terms of the constitution) requiring approval by a federal minister before they introduce a new course.

        I would argue quite strongly for a constitutional provision that requires the SCGs be assigned revenues (not grants) adequate to perform their functions.

      • Would you say that the current arrangements accurately reflect the constitution’s clauses governing competences (including prohibitions concerning state legislative power)? The ruling on which state taxes count as excise, which redefined long-standing state taxation as excise taxes, thus banning them and only allowing the federal government to levy such taxes (if I remember correctly, this was not too long ago) seems to me as an obvious example of where state involvement in the appointment process would have prevented such an outcome.

  5. Tom is more expert with these matters than I am and is better placed to comment particular decisions. The high court has based a series of decisions on finding that the constitution provides for a system of representative democracy. Strangely they have not felt bound in the same way to take notice that the constitution provides for a system of federal representative democracy, even though federalism is explicitly mentioned and representative democracy is not.

    I agree about state involvement. There is a particularly strong case for state involvement because, unlike the US supreme court, the high court hears appeals from state supreme courts on state matters, not just federal or constitutional matters.

    • But just in general; when you read the Australian constitution, do you find it provides for the extent of power and control the federal government has compared to the states?

      I will defer my comments on the question until we’ve heard from Tom, but I’ve probably already betrayed my doubts. To comment on a case I know a little better, I see the US federal government today as straying very far from the division of power between it and the states set out in the constitution and I think that owes a lot to the fact that the federal government itself gets to appoint the judges who are supposed to oversee and preserve that division. I think that danger is probably relevant for the vast majority of federations.

      • Neither the US nor the Australian constitution envisaged the massive expansion of the public sector in the last century. That does not mean the expanded public sector is a plot against the constitution. There was a Great Depression, there were two world wars, (or one by some counts interrupted by an extended truce) there was a Cold War, there was a technological revolution, there were unprecedented needs for public services that did not exist in 1787 or the 1890s. We cannot go back to the golden age of hereby Hoover and most of us would not think that a golden age in any serious sense.

        I do not think either constitution has been particularly successful in maintaining a balance between the federation and the states. The Australian constitution is probably the less successful of the two. Actual Australian governance looks nothing like the constitution and unfortunately the constitutional convention delegates built that into the document by writing a constitution that provides for democracy without ever daring use the word. It is undoubtedly no accident that these two rather ceremonial constitutions are both very difficult to amend.

      • No matter how much change there has been, there are a great many things the federal government does today that has no basis in the constitution. If I grow marijuana in my back yard and use it for personal consumption or even sell it to my neighbour, that is simply not interstate commerce and no technological change has managed to alter that. (Hoover, as I pointed out in the other thread, had nothing to do with ‘the golden age’; if anything, he helped end it.)

        I think the interstate commerce clause would not have been as radically redefined in the 30’s had the states appointed the Supreme Court rather than the President and Senate, and/or later cases would have reverted some of the change. So even if Wickard v. Filburn had been decided the way it was in 1942 (which I doubt), Gonzales v. Raich (2005 – if not an earlier case) might well have overturned it, at least partly. I doubt the

        “Actual Australian governance looks nothing like the constitution and unfortunately the constitutional convention delegates built that into the document by writing a constitution that provides for democracy without ever daring use the word.” But that was intentional, and the situation has never been other than the disconnect you describe. The founders never meant for the Governor General to actually govern the country, they fully expected and intended for responsible government to emerge, as indeed it did. Did anyone seriously object to this as being counter to the constitution? Would have been a funny scene had that come to the High Court, what with some of the founders themselves seated on the bench.

    • While I think the states should gave a role in appointing top courts, I do not accept that there is some fixed permanent reading of the constitution and that the actual reading is therefore illegitimate.

      Ancient constitutions are pretty much a myth. The English civil war was fought, among other things for an alleged ancient Anglo-Saxon constitution that had been corrupted by the evil Normans who suppressed popular election of kings and a number of other things that, in reality, had never existed. Henry VIII claimed to be restoring the ancient church of Alfred the Great. The US civil war was allegedly fought for an ancient constitution that the evil Lincoln was about to or wanted to suppress. Within months Davis’ opponents in the Confederacy were claiming that the evil Davis was about to or wanted to suppress the ancient Confederate constitution of about 3 months standing. It is not uncommon in Australia to encounter gun enthusiasts who have convinced themselves that the US Second Amendment applies in Australia. Quite a lot of the people of Norfolk Island believe fervently that there is a document deliberately concealed in the British, Australian or NSW archives by which Queen Victoria granted them independence.

      If the US supreme court had been appointed differently is not really a useful premise. If the British had won the War of Independence I’d think the US constitution would look quite different. But the British lost…

      • Previous interpretations of constitutions are not the same thing as mythical, speculative or imaginary documents that never really existed.

        A constitution has a purpose in terms of the working of government. If a constitution comes to be interpreted in a way that deeply undermines its operation in either empowering or limiting officeholders, that interpretation is of questionable legitimacy. If officeholders can change the meaning of the document that is supposed to limit and bind them, they are not truly bound by it. Are you really saying, for instance, that the Indian Supreme Court was legitimate in saying it has to approve all appointments to it? Inevitably, in practice, someone indeed does have to interpret the document. And often that will entail giving theoretically near-absolute power to the constitutional court with regard to constitutional interpretation, subject only to constitutional amendments (although the Indian case shows how even that may not hold). My concern is about how to ensure the appointment of officeholders who will preserve the basic workings of the constitution as much as possible, allowing for the amendment of those working via consensus-driven constitutional amendment through the procedures set out by the constitution itself.

        I offer counterfactuals simply as illustrations of how it might have been otherwise, of how the US constitution might have been fashioned in such a way that would not ultimately have failed in preserving its workings. You say “you can’t”, I say you can, and this is how it might work – what happened in reality was by no means an inevitable result of the social, economic or technological changes that had occurred in the early 20th century. Outcomes are also the result of institutions. Would introduction of such a system today have the same effect as if it had been in place all along? I don’t know. But I think it might help establish a better balance than exists currently.

      • In the middle ages the law was said to exist in gremio judicium, in the bosom of the judges. The judges were said to ‘find’ the law and not to make it. We no longer use latinisms to describe this mythology, but the process of determining which of the multiple available meanings of a constitution is to prevail remains pretty much a matter of bosom-diving.

        I’ve been a victim of these self-delusions myself. Gough Whitlam put out an idea (that I once took seriously) that the powers of the senate to block supply were an example of a mistake in the constitution, which he justified by the British rejection of supply crisis in 1909, claiming that if the conventions had any idea that upper houses could or would block supply then the Australian constitution would contain provisions like the Parliament Act 1911 (UK) which abolished the house of lords budget powers and restricted them on other natters to a suspensory veto with certain limited exceptions.

        Whitlam’s theory cannot be accepted, or even really taken very seriously. Most colonies had seen upper houses reject supply. Some of the convention delegates had taken part in these crises and the almost invariable result was that the premier advised a dissolution. Victoria was particularly prone to supply crises that exactly replicated 1975 in the colonial period. The conventions debated these situations rather extensively. Giving the senate powers over supply was a conscious decision, not an unhappy accident.

        I don’t think counterfactuals are illegitimate. I merely argue that the US constitution, like other constitutions, has no single reading that ‘should’ prevail over all others or that this single reading exists in the bosom of state-appoined judges more than the bosom of federally appointed judges. The elliptical drafting does not help. There are competing meanings for ‘natural-born citizen’ and that piece of hoary old language is suddenly of large significance.

        Ever since the unfortunate business of Thomas Becket kings and presidents and even governors have been discovering that chancellors and judges do not always have quite the bust that was expected.

      • Again, your main example is of a view that is based on flimsy evidence and can be easily discredited, as you yourself show.

        I agree that not every provision of a constitution is unambiguous or straightforward. I never meant to say otherwise. Nor did I say that change in judicial interpretation was never warranted. However, when the language in question governs the basic structure of the constitution, is relatively straightforward, if it has been interpreted in a certain logical, reasonable and straightforward way for a long time (especially if since the founding of the constitution), has a strong basis in the sources we have concerning the intention of the framers and/or ratifiers, and lastly, if a decision to change this interpretation would have a large structural impact on the structure and functioning of government – then a change is of questionable legitimacy.

        These criteria may not be perfect. They are not unambiguous. Questions of legitimacy rarely are. But their specifics are not terribly important to the case I’m trying to make for a different judicial appointment mechanism. Far more importantly, it would be very difficult to enforce those (or indeed any) criteria institutionally – I absolutely realise that, as I have already stated. However, the institutional design itself, while it can’t absolutely ensure that the exact specific interpretation of any provision, can be structured so as to direct the interpretations in a certain general direction, at least in relative terms. The identity of the judges does matter, as Canada’s experience of shifting from the Privy Council to the Supreme Court. What matters is ultimately not so much the legitimacy of any particular decision, but the substance. There’s no such thing, in the abstract, as an appointment mechanism that ensures the judges appointed are the ones that ‘get it right’. But if you are framing a constitution, which presumably means you know what kind of structure you intend the constitution to establish, than there are different ways of appointing judges, some of which more than others would be likely to yield the kind of interpretations and rulings that are in line with your intentions with regard to the structure of government.

  6. A federal system may be defined most simply as one with multiple levels of sovereignty. To be sovereign is to be legally empowered to make binding decisions. So in a federal political system–which we can also term a federation–not only is the national government sovereign , but there is also a level of sovereign intermediate governments in territorial entities typically known as states or provinces. In a federal system, ultimate sovereign power resides in the central government, but there exists also a range of policy questions upon which the intermediate-level governments hold sovereignty, implying that in these areas, the central government is constitutionally barred from overturning the decisions taken at the intermediate level.

    Taylor, Shugart, Lijphart, Grofman (2014): 85.

    All the rest is detail.

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