THE CONSTITUTION ON PRESIDENTIAL CANDIDATES

By Gershom Ndhlovu


The late Levy Patrick Mwanawasa, when he was first sworn in as Zambia’s third President, told the nation that his would be a government of laws and not of men. This became the mantra of all those he appointed to serve with him and so it was for the seven years he led the nation.
Barely 18 months after his demise in August 2008, it appears that the “government of laws” has been thrown out the window and “the rule of men” is back. I refer here to the fragrant disregard of the Constitution with regards to PF leader Michael Sata’s apparent incarceration in the late 1950s or early 1960s for unknown reasons which the MMD government wants to use to bar him to contest next year’s presidential elections.
Unless the Chifumu Banda-led NCC is in the process of altering what has always been a fundamental part of Zambia’s past constitutions including the 1996 one, a simple search of the Constitution of the Republic of Zambia (as amended by Act No. 18 of 1996) on the National Assembly website reveals the following provisions on the requirements for the eligibility of contesting the presidency.
Clause 34 states that “(1) The election of the President shall be direct by universal adult suffrage and by secret ballot and shall be conducted in accordance with this Article and as may be prescribed by or under an Act of Parliament.
(2) An election to the office of President shall be held whenever the National Assembly is dissolved and otherwise as provided by Article
38.
(3) A person shall be qualified to be a candidate for election as President if-
(a) he is a Zambian citizen;
(b) both his parents are Zambians by birth or descent;
(c) he has attained the age of thirty-five years;
(d) he is a member of, or is sponsored by, a political party;
(e) he is qualified to be elected as a member of the National Assembly; and
(f) has been domiciled in Zambia for a period of at least twenty years.
(4) A candidate for election as President (hereinafter referred to as a Presidential candidate) shall deliver his nomination papers to the Returning Officer in such manner, on such day, at such time and at such place as may be prescribed by or under an Act of Parliament.
(5) A Presidential candidate shall not be entitled to take part in an
election unless-
(a) he has paid such election fee as may be prescribed by or under an Act of Parliament on or before the date fixed by the Electoral Commission in that behalf;
(b) he makes a statutory declaration, of his assets and liabilities, which shall be open to public inspection at such time and at such place as may be prescribed by or under an Act of Parliament; and
(c) his nomination is supported by not less than 200 registered voters.”

Clause 65 further states that “(1) A person shall not be qualified to be elected as a member of the National Assembly if-
(a) that person is under a declaration of allegiance to some country
other than Zambia;
(b) that person is under any law in force in Zambia, adjudged or otherwise declared to be of unsound mind;
(c) that person is under a sentence of death imposed on him by a court in Zambia or a sentence of imprisonment, by whatever name called, imposed on him by such a court or substituted by a competent authority for some other sentence imposed on him by
such a court;
(d) that person is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Zambia;
(e) that person's freedom of movement is restricted, or that person is detained under the authority of the law; or
(f) that person, within a period of five years before his nomination for election, has served a sentence of imprisonment for a criminal offence. (My emphasis).
(2) A person who holds, or is a validly nominated candidate in an election for, the office of the President shall not be qualified for election s a member of the National Assembly.”
As far as the nation can remember, Mr Sata has not been in jail in the last five years as clause 65 (f) above states which means that he is eligible to contest the election to the office of the President or Member of Parliament. It is wrong for Mr Mangani or whoever it is that is directing this operation, to waste national resources to unearth dusty files of a case that is five decades old.
These resources in terms of time and allowances, can be directed elsewhere seeing that our nation faces a lot of challenges immediate of which are the floods and the concomitant cholera outbreak which is afflicting the flood victims. It is a shame that the new Constitution that is in the process of being formulated is being tuned to fix an individual and at the same time, the existing Constitution is wilfully being ignored.

NCC TAKING AWAY PEOPLE’S RIGHTS

By Gershom Ndhlovu

If the National Constitution Conference (NCC) recommendation that the Vice President should automatically take over the presidency in the event that the incumbent vacates office due to death or incapacity is included in the new constitution, it will mean Zambians losing one existing right and potentially denying them another one.

Firstly, the NCC not recommended that the Vice President be made running mate of the president in an election means that people will be denied the right to elect the vice president by the larger Zambian constituency rather than by a smaller constituency unit. Such a person taking over the presidency would do so without the people’s general mandate.

Secondly, the automatic assumption of the presidency by the Vice President without a by-election has taken away the right of the people to decide who takes over as the current constitution guarantees.

Of course, Zambia has experienced a sad episode of the demise of a sitting president and a by-election, and I am sure that the recommendation comes as a result of that. I am sure that what many well meaning Zambians doubt is whether there is any justification, apart from the costs which are necessary in a democracy, for that fundamental change in the constitution. But coupled with that, is the arrogance with which the politicians from the ruling party are going about it.

What would be the most ideal situation is that such a person is scrutinised by the general Zambian electorate in the first place but, as I have stated above, would have just been elected in one corner of the country or in a worst case scenario, just nominated as Member of Parliament and appointed vice president.

Not taking away anything from him, but President Rupiah Banda is himself a case in point. He was just nominated by the late President Levy Mwanawasa in 2006 and today he has taken occupancy of State House through that fluke appointment less than three years ago.

The NCC delegates should have also looked at the history of instability in the office of the vice president. In the last 17 or so years of the MMD in power, not less than seven people have occupied that office starting from Levy Mwanawasa himself in 1991 to George Kunda today. In between there have been people like Godfrey Miyanda, the late Christon Tembo, Enoch Kavindele, Nevers Mumba, Lupando Mwape and Rupiah Banda himself in that order.

Simply put, there is no security of tenure in the office of the vice president because whoever occupies it, does so at the pleasure of the president who is the appointing authority and can be removed at any time. For this reason, the president could appoint a weak person who would not be inclined to challenge him for any reason, including wrong decisions, for him to continue enjoying the comfort of Government House and other facilities and benefits attached to it.

It appears to me that the MMD members on the NCC and their proxies are not thinking through some of the recommendations they are passing. The motivation is clearly to entrench the MMD in power given the control that the ruling party has on the Electoral Commission of Zambia, an organisation which lacks the full confidence of the people.

The danger is that whoever will come in power after President Banda, especially if it he or she will come from the opposition, will change the constitution. It will be a cycle repeated over and over and it is doubtful if we will ever come up with one that will stand the so-called test of time.

There is equally no guarantee that even an MMD president will not change the constitution. Zambians know that when President Mwanawasa took over from Chiluba, he ripped the Chiluba constitution which is in the process of being re-written. We all thought that this should have been the opportunity to put in a good document especially that the constitution making process costs money which could be better used in other areas of development.

Sadly, Zambians are once more being taken for a ride by the very people they put in office by drafting a constitution that takes away their fundamental rights. One would have hoped that Vice President George Kunda, who is also justice minister, should have done a better job considering that he was once president of that luminous legal body, the Law Association of Zambia.

Equally sad is the fact that most of the people sitting on the NCC are just interested in the huge allowances they are earning when everyone else faces the spectre of joblessness as a result of the global economic meltdown.

……

So President Rupiah Banda knows it when he is being told lies by the people who have access to him? Yes Sir, this type of flotsam has spoiled lives of many honourable men and women of our beautiful country who have wrongly being reported to heads of state who have acted on the information based on lies.

People have lost businesses, professions, jobs, and unfortunate ones, even their lives because of such liars.

The people who tell lies to presidents have probably wanted to win favours for themselves or have done so merely out of jealous and malice. A good President would indeed verify this information through the professional system and if needs be, ask the people so maligned for their side of the story.

Many a time, these lies would be disproved and it would be appropriate if the liars were exposed right there and then, and if needs be, even punished. What is sad in the Zambian case is that even people who have held ministerial positions have done that to settle simple scores with ordinary citizens.

Zambia needs a lot of healing from this type of people and other political misfits who have gotten to the top through deceit, backstabbing and utter lies. And there is no better place from where to start this process than from the President himself.