Zambia National Constitutional Conference – An opportunity for harmonising constitutional matters

THERE is no doubt that by now, the majority of the people in Zambia are aware that the National Constitutional Conference (NCC) is making steady progress in its resolve to come up with a truly people's Constitution to stand the test of time.

Although the NCC has representation from a very wide cross-section of society, it still needs some input from many other people on various issues which require special attention.

Among the issues that in the immediately come to one's mind are the swearing in of the president-elect and qualifications of presidential candidates.

These issues which will be discussed in detail in this article will therefore need to be harmonised by the ongoing Constitution making process through the NCC.

Qualifications of a presidential candidate

This is a vexing issue which requires careful handling by the Conference.

On this issue, the Electoral Reform Technical Committee of 2005 chaired by renowned lawyer, Mwangala Zaloumis, agreed and recommended the view of the majority of the stakeholders who felt that a presidential candidate should posses a full grade 12 certificate or its equivalent recognised by the Government.

In addition, an aspiring presidential candidate should raise 200 supporters from at least five of the nine provinces.

Some stakeholders had earlier proposed that a presidential candidate should be supported by at least 500 supporters from each of the nine provinces.

The idea behind such a requirement is that a person who seeks to be Republican president should have the widest support going beyond tribal, racial, religious and regional considerations.

On the other hand, the Mung'omba Draft Constitution states that a presidential candidate should be a Zambian citizen by birth or descent, does not have dual citizenship and has been ordinarily resident in Zambia for a continuous period of ten years immediately preceding the election.

Other requirements as recommended by the CRC are that a presidential candidate should not be less than 35 years of age and should be in possession of a minimum academic qualification of grade 12 certificate or its equivalent.

A candidate must also be conversant with the official language of Zambia and must declare assets and liabilities as provided by the Constitution and by or under an Act of Parliament.

The Mung'omba Draft Constitution however, goes a step further by spelling out conditions under which one shall be disqualified from being elected as president and the following are some of the conditions.

A candidate should not hold or act in any office that is specified by an Act of Parliament the functions of which involve or are connected with the conduct of elections; is of unsound mind; is undischarged bankrupt or insolvent; is serving a sentence of imprisonment or is under a sentence of death; has, at any time in the immediate preceding five years, served a term of imprisonment for the commission of an offence the sentence for which was a period of at least three years; has been removed from public office on grounds of gross misconduct, or has been found guilty of corruption by any court or tribunal.

A person serving in the defence forces and national security agencies, public service, and commission among others can not seek election to the position of Republican president.

Swearing in of a president-elect

A number of proposals have been put forward on this matter hence the ERTC recommended that a president-elect whose election is being petitioned should not be sworn in until the election dispute is resolved.

Prior to this recommendation, there were a number of arguments for and against this school of thought by some stakeholders.

One stakeholder who did not support the recommendation felt that failure to swear in a president-elect would be a recipe for anarchy because political parties which have lost an election may use the period of a vacuum to incite violence and frustrate the efforts and smooth governance of the country.

Another stakeholder who also opposed the recommendation submitted that to avoid a vacuum and a possible constitutional crisis, a president-elect must be sworn-in immediately the result is declared by the returning officer.

However, the majority of the stakeholders who commented on the recommendation, supported it with one of them proposing that elections should be held 90 days before the expiry of the term of the outgoing president so that disputes are resolved before swearing in is conducted.

The stakeholder further proposed that if the disputes remain unresolved after the 90 days period, the president-elect must be sworn in but the petition should be allowed to run its full course so that no vacuum is allowed, as it would pose a security risk.

The committee as already indicated, retained the recommendation and in so doing, it was noted that the implementation of the recommendation would help reduce tension in the nation and ensure legitimacy in the presidency.

It was further noted that a vacuum in the presidency would not arise, as the sitting president would continue holding office until the expiry of the term and as such there will be enough time to resolve an election dispute through a fast track ad hoc special presidential election tribunal.

It was therefore, in light of the aforesaid that the ERTC retained the recommendation.

What then does the Willa Mung'omba Draft Constitution say about this same issue?

The draft Constitution says the president – elect shall be sworn in by the Chief Justice and shall assume office 90 days after the declaration of the presidential election results.

It further says the incumbent president shall from the date the presidential election results are declared perform any of the executive functions except the power to make appointments or dissolving the National Assembly.

In the event of an election petition being filed against the president-elect who happens to be the incumbent president, the speaker of the National Assembly shall perform the executive functions of the President during the period of the petition.

In the meantime, theconstitutional court shall within 90 days of the filing of an election petition, determine the petition and therefore, the decision by the court to nullify or not to nullify the election shall be final.

In the event that the constitutional court decides to nullify the election of the president-elect, then the speaker of the National Assembly shall perform the presidential executive functions or if the speaker is not able to do so for any reason, then the deputy speaker shall perform such functions until fresh elections are held within 90 days from the date of the nullification.

Having discussed what the ERTC and Mung'omba Draft Constitution are saying about the president-elect and qualifications of the presidential candidate, one may wish to understand what the current constitution also says about them.

On swearing in of president-elect, the current constitution says a person elected as president shall be sworn in and assume office immediately but not later than 24 from the time of declaring the election.

On qualifications of presidential candidate, the constitution states that one shall not be entitled to take part in an election unless 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; 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 his nomination is supported by not less than 200 registered voters.

Going by the scenarios drawn, it is crystal clear that the NCC needs to harmonise a number of constitutional issues and consequently settle for the ones which will better serve the interests of the nation. – Times of Zambia

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