Who Do You Trust on Whether Cabinet Continues After Dissolution of Parliament? You Be the Judge.
By Dr. Munyonzwe Hamalengwa
May 14th, 2016
As I have previously written, a constitution is a site of political and legal as well as economic and other struggles. Some items in the constitution are drafted ambiguously in order to serve the interests of the government in power or the state in general. Some items are drafted carelessly as an oversight of the legislators, sometimes it is due to incompetence or lack of care.
The new constitution of Zambia, as amended is one of the most inconsistent, contradictory, incompetently, sloppily and flawed constitutional documents that have ever been drawn. A number of excellent constitutional scholars like John Sangwa, and other stake holders have already pointed out the glaring problems with the amended constitution. What I have stated above is not new. This constitution was hurried in order to meet the election deadline so that the President could as he did on May 13th, 2016 at a press conference, state that the Government has delivered on the Constitution and therefore, among other reasons, ” reelect us”. The constitution was a sticking point as everyone knows. The government would have lost the election hands-down without delivering some form of constitution. This constitution is a palliative. It is half-baked and therefore half-eatable. There is a promise that it is a process and that later, a full constitutional amendment will seal the deal. A referendum is to be held on the constitution on the same day as the tripartite election on August 11th, 2016, something that no country in the history if the world has ever done, mixing a democratic election with constitutional matters! The government decided that the constitution should be done in two pieces, even though the draft was in one piece. As everyone knows, a constitution that stands the test of time is usually a one shot document. Even the US constitution which has been amended over centuries was initially a one shot document and does not belong to the category of constitutional miss-mashing that the Zambian government wants us to get used to. In the USA usually the amendment involves just one or two major articles involving the most important developments if the period. The draft of the constitutional document in Zambia was in one piece when presented to the government but it was broken apart for political reasons as stated above. It was supposed to pass through a referendum as the PF had promised under Michael Sata. It was to be scrutinized by the people before hand. This never happened. For political expediency reasons. It is a terrible amendment in many respects, of course it is salvageable.
The reference to what happens to cabinet after dissolution of parliament is as clear as day and night, despite an obvious inconsistency. The relevant and only important article of the constitution as many others have already stated, is that, once parliament is dissolved, the MPs are no more, including Cabinet which is a composition of elected MPS. The branches of a tree do not stand on thin air, suspended, when the trunk of a tree on which they hang, is cut at ground level. Even unelected but appointed members go as well because what enabled them to be appointed is no more. The cabinet cannot be served by other articles or subsections of the constitution which avoids the direct dealings with the effect of the dissolution of Parliament. Lungu and his government are simply wrong on this point.
Since a constitution is a site of political and legal struggles, it is my thesis that the ambiguity was clearly and deliberately put there in order to afford the continuation and operations of cabinet in order to win the next election by the sitting government by hook or crook. The use of gvt vehicles, money and other trappings of power and corruption goes hand-in-hand with maintaining cabinet ministerial posts. Some ministers would continue to commandeer the instruments of propaganda and communication like the Zambia National Broadcasting Corporation (ZNBC), Daily Mail and Times of Zambia by virtue of their being ministers. This attempted or ongoing constitutional coup by the government should be resisted using the rule of law instruments and constitutional provisions like freedom of thought, expression, speech, association, gatherings and transparency in a democracy. This is a struggle worthy fighting for, no matter what the price is. In the end it will strengthen Zambian democracy and a few hijackers should not be rewarded at the expense of hard fought Zambian democracy that we enjoy now. What is happening in Zambia is not what Clinton Rossiter had in mind when he wrote his book, Constitutional Dictatorship. Or is it? This is when a government uses constitutional norms or articles of the constitution to design a dictatorship and people are forced to surrender the rule of law because the constitution allegedly dictates otherwise.
Ask yourself this question, what is the usual practice in Zambia or in other constitutional or parliamentary democracies when Parliament is dissolved? Does Cabinet continue? Ask yourself again, what does the primary article of the constitution of Zambia, say about what happens when parliament is dissolved? Further ask yourself this question, what has civil society, constitutional scholars, regular stakeholders, the opposition and the Law Association of Zambia (LAZ) say about the article dealing with the consequences of the dissolution of parliament? Who would you trust on this matter? The government on the one hand or LAZ and other stakeholders on the other hand? You be the judge.
Dr. Munyonzwe Hamalengwa teaches law at the Zambian Open University School of Law and is the author of The International Law of Human Rights in Africa as well as The Case Against Tribalism in Zambia.