Press Statement dated 23rd March 2020 on the Provisions on Representation of Marginalised Groups in the Constitution (Amendment) Bill

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By Linda Kasonde Executive Director Chapter One Foundation

Chapter One Foundation has heard of calls for the Constitution (Amendment) Bill (Bill 10) to be passed on the basis that it will enhance the representation of women, youth, and persons with disabilities in the National Assembly. Chapter One Foundation wishes to clarify our position on this matter. We believe that the representation of marginalised interest groups such as women, youth and differently-abled people in government is an important aspect of an inclusive democracy. We would like to highlight that the Zambian Constitution, which is the supreme law of the country, already provides that the electoral system must allow for the representation of different interest groups at presidential, parliamentary and local government level. Article 45 (1) of the current Constitution states as follows:

“45. (1) The electoral systems provided for in Article 47 for the election of President, Member of Parliament or councillor shall ensure—

(a) that citizens are free to exercise their political rights;

(b) universal adult suffrage based on the equality of a vote;

(c) fair representation of the various interest groups in society; and

(d) gender equity in the National Assembly or council.”

These constitutional provisions have been in place since the Constitution was amended in 2016 and yet the Government has not implemented them. This shows a lack of political will on the part of the Government. It begs the question why this government is now keen to push this agenda when they have had the power and authority to operationalise the laws that would enhance the participation of marginalised groups for the last four years.

Section 9 of Bill. 10 seeks to amend Article 47 of the Constitution which provides as follows:

“47. (1) Elections to the office of President shall be conducted directly, under a majoritarian electoral system, where the winning candidate must receive more than fifty percent of the valid votes cast, and in accordance with Article 101.

(2) Elections to the National Assembly shall be conducted under a first-past-the-post electoral system in accordance with Article 68.

(3) Elections to councils shall be conducted under a first-past-the-post electoral system and in accordance with Articles 153 and 154.

 (4) A constituency and a ward shall return only one member to the National Assembly and council, respectively.”

It is proposed that section 9 of Bill. 10 will replace Article 47 of the Constitution with the following provisions:

 “Article 47 of the Constitution is amended by the deletion of clause (2) and the substitution therefor of the following:

(2) Elections to the National Assembly shall be conducted under a mixed-member electoral system, as prescribed.”

A mixed‐member electoral system is a mixture of two principles of electoral system design: a majoritarian system, which is what we currently have, where the parties with the most elected officials have the most seats in parliament; and proportional systems where the seats in parliament are divided according to the proportion of the votes that each party receives in a general election.

Subsequently, unlike the provisions of the current Constitution, Bill 10 only provides for a mixed-member system but does not specifically provide for representation of marginalized groups.

The constitutional provisions for the representation of marginalised groups already exists and can be implemented and enforced by the Electoral Commission of Zambia as well as political parties.

Bill. 10 does not address the concerns raised by some sections of the youth, women, and people living with disabilities that they are underrepresented.

The current Constitution is not the enemy of fair representation, it provides clear and mandatory terms that the system of elections “shall” ensure fair representation of various interest groups and gender equity in the National Assembly and the Councils. What is lacking is enforcement of those provisions which the Government has the power to do.

Further, Article 259 of the current Constitution of Zambia provides as follows:

“259. (1) Where a person is empowered to make a nomination or an appointment to a public office, that person shall ensure—

 (b) that fifty percent of each gender is nominated or appointed from the total available positions unless it is not practicable to do so; and

(c) equitable representation of the youth and persons with disabilities, where these qualify for nomination or appointment.

(2) A person empowered to make a nomination or appointment to a public office shall, where possible, ensure that the nomination or appointment reflects the regional diversity of the people of Zambia.”

The Zambian Cabinet has eight female ministers against twenty-nine positions of a possible thirty Cabinet Ministers. There are currently ten provincial ministers that are all male.

From the evidence and trends in appointments, it is clear that Article 259 of the Constitution is not being followed by the Government. Therefore, it is clear that it is not the law that stands in the way of representation of marginalized groups but a lack of political will. Currently, one can legitimately argue that the composition of the National Assembly, Cabinet and many Councils can be said to be unconstitutional where they do not comply with the provisions of the Constitution.

In light of the above, Chapter One Foundation would like to reiterate its position that Bill. 10 should be withdrawn as it is a danger to the principles of democracy and only seeks to undermine the power of the Zambian people.

Linda Kasonde Executive Director Chapter One Foundation