POLICY MONITORING AND RESEARCH CENTRE

CONSTIT
UTION

ANALYSIS OF THE CONSTITUTION

AMENDMENT ACT NO.2 OF 2016

Unlocking Zambia's Potential

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JUNE 2016
Prepared by: Salim Kaunda (Head of Research and Analysis) with the support of Bernadette Deka
(Executive Director), Sambo Mwila (Communications Specialist), Miselo Bwalya (Researcher) and
Chileshe Chaunga (Researcher).

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INTRODUCTION
The Constitution (Amendment) Act No. a presidential candidate must have a
2 of 2016 came into effect on Tuesday 5th “running mate” in a presidential election,
January 2016, when President Edgar Lungu who will become the Vice President for
assented to it at the Heroes Stadium in the Republic. The provision is progressive
Lusaka. The Constitution was signed into as it guarantees that Zambia will not be
law with some amendments that largely subjected to Presidential by-elections in
border on the electoral process. Some the event that the sitting president dies,
of the new provisions in the amended as the vice president would immediately
Constitution include, “Dual Citizenship”, assume office. The Constitution has also
which allows Zambians who obtain made provision for the establishment
citizenship in another country to maintain of a “Constitutional Court” to preside
their Zambian citizenship. It also contains over constitutional disputes. Under the
the “50% + 1” clause which requires that a amended Constitution, the minimum
presidential candidate win an election by requirement for people who are
50% or more of the total votes cast. Further, contesting in elections is set at “Grade 12
the amended Constitution stipulates that qualification”.

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 WHAT IS A NATIONAL CONSTITUTION?
The National constitution (highest law of the nation) is the set of fundamental rules
(written or un-written) that control how a government can exercise public power and
authority. The Constitution establishes the mandate of a government by defining the
basic principles to which a society must conform; by describing the organization of the
government and regulation, distribution, and limitations of the functions of different
government departments; and by prescribing the extent and manner in which sovereign
powers can be exercised.

SUPREMACY OF THE ZAMBIAN CONSTITUTION (EXTRACT)

1. (1) This Constitution is the supreme law of the Republic of

Zambia and any other written law, customary law and customary practice that is
inconsistent with its provisions is void to the extent of the inconsistency.

DEFENSE OF THE CONSTITUTION

Defence of 2. Every person has the right and duty to —

Constitution a. Defend this Constitution; and
b. Resist or prevent a person from overthrowing, suspending or
illegally abrogating this Constitution

NATIONAL VALUES AND PRINCIPLES

National 8. The national values and principles are —

values and a. morality and ethics;
principles
b. patriotism and national unity;
c. democracy and constitutionalism;
d. human dignity, equity, social justice, equality and
nondiscrimination;
e. good governance and integrity; and
f. sustainable development.

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016
BASIS OF ECONOMIC POLICIES

National 10. 1. The Government shall create an economic environment,

values and which encourages individual initiative and self-reliance among the
principles people, so as to promote investment, employment and wealth.
2. The Government shall promote the economic empowerment
of citizens so that they contribute to sustainable economic growth
and social development.
3. The Government shall promote local and foreign investment
and protect and guarantee such investment through agreements
with investors and other countries.
4. The Government shall not compulsorily acquire an
investment, except under customary international law and subject
to Article 16 (1).
5. Where the investment compulsorily acquired under clause
(4) was made from the proceeds of crime no compensation shall
be paid by the Government

RESPONSIBILITIES OF A CITIZEN

Renunciation 40. (1) A citizen—

and (a) may renounce citizenship as prescribed; or
deprivation
of citizenship (b) shall be deprived of citizenship if that citizenship was
acquired by means of fraud, false representation or
concealment of a material fact.
(2) The process and procedures to be followed by the
Citizenship Board of Zambia when granting or depriving a person
of citizenship shall be prescribed.

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ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016 |
 BACKGROUND TO THE CONSTITUTION
MAKING PROCESS IN ZAMBIA

Timeline

DRAWING FROM PAST CONSTITUTIONAL COMMISSIONS

THE SIXTIES THE NINTIES

IN 1968 IN THE EARLY 1990s FROM 1993-1996

CHONA COMMISSION MVUNGA COMMISSION MWANAKATWE COMMISSION

A referendum was A new CRC headed by A new commission,

organised and
four years after, a
Constitutional Review
Commission (CRC),
headed by Vice
President Mainza
Chona was established
in a move that opened
the window for the
institutionalization of
one party rule.
Prof Mphanza Patrick chaired by John
Mvunga was appointed Mwanakatwe, was
by Kaunda to draft a appointed in 1993 to
draft a Constitution.
new constitution that
Unfortunately, the process
would restore multiparty failed to win popular
democracy. This was the support and a resulting
Constitution Act that was constitutional amendment
promulgated on August in 1996 was considered
31st, 1991. to lack legitimacy,
as the government
ultimately rejected most
of the commissions
recommendations
presented in 1995.

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016
 POST 2000

ON 17TH APRIL, 2003 ON 16TH NOVEMBER 2011

MUNG’ OMBA COMMISSION SILUNGWE COMMISSION

By Statutory Instrument No. The President of the Republic

40 of 2003, His Excellency the
President, Mr. Levy Patrick
Mwanawasa, SC, in exercise of
the powers under the Inquiries
Act, Cap. 41, appointed a
Commission, chaired by Mr.
Wila D. Mung“omba, to review
the Constitution of Zambia.
of Zambia, Mr. Michael
Chilufya Sata, using his
executive powers vested in
him by the current Republican
Constitution, appointed a
technical committee led by
Justice Annel Silungwe to draft
the Zambian Constitution.

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ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016 |
 UNDERSTANDING KEY CLAUSES IN THE CONSTITUTION
AMENDMENT ACT N0.2 OF 2016
(Focusing on the 2016 General elections)

ELECTION DATE

EXTRACT 56.
(1) A general election shall be held, every five years after the last general
election, on the second Thursday of August.
(2) The day on which a general election is held shall be a public holiday

The new constitution has removed the uncertainty associated with the date of elections.
It provides that the general elections shall be held on the second Thursday of August in an
election year. In the same vein, Zambians will know in advance who the successor would
be, should the office of the Republican President fall vacant for one reason or another.
The introduction of this clause brings an end to uncertainties that have existed in the
past concerning the election date. This clause has leveled the political playing field as all
parties will now be aware of the election date in advance.

PRESIDENTIAL RUNNING MATE

EXTRACT 110.
(1) There shall be a Vice-President for the Republic who shall be the running
mate to a presidential candidate in a presidential election.
(2) The qualifications and disqualifications applying to a presidential
candidate apply to the person selected by the presidential candidate to
be the running mate

In this clause, the Presidential candidate is required to appoint a “running mate” who
will also be elected together with a presidential candidate by the electorate. This means
that the ballot paper for an aspiring presidential candidate will also bear the face of the
running mate. This further means that once elected, the presidential candidate becomes

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016
republican president whilst the running mate becomes the vice president of the republic.
It further ensures that the country avoids an unexpected and costly by-election, in an
event that a sitting president dies. This is similar to the United States of America, Malawi
and Kenya among others. This approach has so far worked well in Kenya but caused a
hitch in Malawi the later. The clause is also expected to add a new dimension to politics, as
candidates will now have to rely not only their strengths but also on the strengths of their
running mates

THE “50+1” CLAUSE

EXTRACT 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

Zambia has been using the First-Past-The-Post (FPTP) or winner takes all systems to
elect a Republican president. This “plurality system” simply awards the presidency to
the individual candidate who receives the most votes in an election. The 50+1 is about
majority. “Majority” is normally defined as 50 per cent plus one vote. This clause simply
means that the candidate must win the elections by more than half of the number of votes
cast in a particular election. Majority electoral systems attempt to provide for a greater
degree of representativeness by requiring that candidates achieve a majority of votes in
order to win. If no candidate gets a majority of votes, then a second round of voting will
be held among the top leading candidates. It is hoped that the newly adopted 50% plus
one vote will assist to minimize presidential petitions, which have been a thorny issue
in some of the past elections held in Zambia. Other African countries which require a
presidential candidate to amass 50 per cent plus one to be voted to the presidency include
Malawi, Nigeria, Central African Republic (CAR), Ethiopia, Senegal, Ghana and Ivory Coast
to mention but few.

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ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016 |
 THE GRADE 12 QUALIFICATION

According to Article 70 (1) (d), a person is eligible to be elected as Member of Parliament,

if that person:

EXTRACT 70.
(b) has obtained, as a minimum academic qualification, a grade twelve certificate
or its equivalent; and

In the constitution, aspiring candidates are required by law to possess a Grade 12

qualification or equivalent (Articles 70 and 100). This clause has been subject to debate
and stakeholders have demanded for the Constitutional court as well as the Electoral
Commission of Zambia (ECZ) to clearly specify further on this requirement. A noted
challenge is that some aspiring candidates may have obtained similar qualifications from
out of the country and such cases need to be clearly interpreted as well.

DUAL NATIONALITY

EXTRACT 39.
(1) A citizen shall not lose citizenship by acquiring the citizenship of another
country.
(2) A citizen who ceased to be a citizen, before the commencement of this
Constitution as a result of acquiring the citizenship of another country, shall be
entitled to apply, as prescribed, to the Citizenship Board of Zambia, for
citizenship and the Citizenship Board of Zambia shall bestow citizenship
on that person.

This clause allows Zambians who obtain citizenship in another country to still hold their
Zambian citizenship. This is timely given that Zambia is currently formulating the Diaspora
policy. Lessons from Kenya, Nigeria and Ghana indicate that once a diaspora policy is on
place, it spurs engagements as well as remittances from a countries citizens in the Diaspora.
This policy decision will also allow for Zambians abroad who have acquired citizenship of
another country not to lose their Zambian citizenship. To this effect, the Government is
currently compiling guidelines that will guide how the processes of dual citizenship will
be affected. This decision has also been well received by the Zambians in the diaspora
and it is purported to promote investments. Further, a citizen is also disqualified to stand
as president if they have dual citizenship (Article 100). For traditional rulers (Chiefs), they are
not qualified to stand as president or MP unless they abdicate the throne but they qualify to
stand as councilors in a local authority (Article 168).

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016
 ELECTORAL CODE

The amended Constitution further provides a new electoral code that stipulates that in
order for a person-contesting for presidency to qualify for a presidential nomination, the
person must have 1000 registered supporters. It also provides guidelines on the issues of
crossing of the floor in Parliament and by-elections among other things.

QUALIFICATIONS OF MEMBERS OF PARLIAMENT

(1) Subject to clause (2), a person is eligible to be elected as a Member of

Parliament, if that person—
(a) is a citizen;
(b) is at least twenty-one years old; (c) is a registered voter;
(d) has obtained, as a minimum academic qualification, a grade twelve
certificate or its equivalent; and
(e) declares that person’s assets and liabilities, as prescribed.

QUALIFICATIONS FOR NOMINATIONS AS PRESIDENTIAL CANDIDATE

100. (1) A person qualifies to be nominated as a candidate for election as President

if that person—
(a) is a citizen by birth or descent;
(b) has been ordinarily resident in Zambia;
(c) is at least thirty-five years old;
(d) is a registered voter;
(e) has obtained, as a minimum academic qualification, a grade twelve certificate
or its equivalent;
(f) is fluent in the official language;
(g) has paid that person’s taxes or has made arrangements, satisfactory to the
appropriate tax authority, for the payment of the taxes;
(h) declares that person’s assets and liabilities, as prescribed;
(i) pays the prescribed election fee on, or before, the date fixed for the delivery of
nomination papers; and
(j) is supported by at least one hundred registered voters from each Province.

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ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016 |
 MEDIA ACCESS

Article 50: of the constitution states that a political party and a candidate contesting an
election shall have access to the media, especially during election campaigns. (The case
of the public order act and fair access to the media) – some people may challenge this
especially fair and adequate coverage of the elections

THE CONSTITUTIONAL COURT

127. There is established the Constitutional Court which consists of—

(a) the President of the Constitutional Court;
(b) the Deputy President of the Constitutional Court; and
(c) eleven other judges or a higher number of judges, as prescribed.
128. (1) Subject to Article 28, the Constitutional Court has original and final
jurisdiction to hear—
(a) a matter relating to the interpretation of this Constitution; (b) a matter
relating to a violation or contravention of this
Constitution;
(c) a matter relating to the President, Vice-President or an election of a
President;
(d) appeals relating to election of Members of Parliament and councillors; and
(e) whether or not a matter falls within the jurisdiction of the Constitutional
Court.

THE BILL OF RIGHTS AND THE NATIONAL REFERENDUM

THE CASE OF THE “BILL OF RIGHTS” AND THE REFERENDUM

The Bill of Rights is a formal list of the
most important legal and civil rights of the
citizens of a country. This piece of legislation
sets out the fundamental individual rights,
freedoms and entitlements of a citizen. The
main purpose of Bill of Rights is to protect
those rights against infringement from both
public officials and private citizens. The
national referendum for the adoption and
enactment of the expanded Bill of Rights is
scheduled to be held simultaneously with
the general elections on 11th August 2016.
It is important to note that the government
opted to use parliament for the adoption
and enactment of the final draft
constitution, with the exception of part 5
which is “the Bill of Rights” and Article 79 of
the previous Constitution because they are
protected and entrenched and cannot be
amended without a holding a referendum.

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016
There is urgent need for the ECZ to
massively sensitize the public on the
contents of the Bill of Rights as well as
ensure that there is a massive turnout in
order for the referendum to be a success.
We must also bear in mind that for the
referendum, any Zambian citizen who
is above 18 years old has the right to
vote even though the individual may not
have registered as a voter. There is also a
governmental commission established to
oversee the conducting of the referendum.
There is need for the Referendum
Commission to ensure that its efforts to
sensitize the public on the referendum
processes are enhanced. To this effect,
the public needs to be fully aware on what
the bill of rights is and also what they are
voting for.
As PMRC, we strongly believe that good
governance is an integral cornerstone in
the foundation of a nation’s development
and economic growth. Therefore, the PMRC
has committed itself to playing a key role
in sensitization and awareness creation
on the amended constitution as well
as the referendum for the Bill of Rights.
PMRC expects to see increased levels of
awareness among the citizens and their
full understanding on key clauses in the
constitution as well as the contents of the
bill of rights. This work ultimately seeks to
promote dialogue and constructive debate
on good governance and the upcoming
elections in general.
The importance of the rule of law, open
and accountable institutions, strong civil
society organisations, and protection
of human rights for all citizens and all
communities cannot be over emphasized.
PMRC is hopeful that by understanding the
key clauses and the bill of rights, citizens will
be empowered with the right information
that will enable them to make informed
decisions and interact more meaningfully
with their leaders at community, provincial
and national levels. This will ultimately
promote increased participation in the
governance and electoral processes and
ultimately play their right as citizens of the
country.

WHAT IS A REFERENDUM?

It is important to note that the PF government, opted to use Parliament for the adoption and
enactment of the Final Draft Constitution, with the exception of part 5 which is “the Bill of
Rights” and Article 79 of the previous Constitution because they are protected and entrenched
and cannot be amended without a holding a referendum. There is however need to build
consensus around what amendments (if any) will have to be made to the Bill of Rights before
proceeding with holding of the referendum.
A referendum is when citizens are requested to vote in deciding whether to accept or reject
a particular proposal or the constitution. It is a form of direct democracy. A referendum is
a national ballot on a question to change a part of the Constitution. In a referendum the
Parliament asks each citizen on the electoral roll to vote. If a majority of people across the
nation as a whole votes yes (called a double majority), then the part of the Constitution in
question is changed.

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ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016 |
 THE REFERENDUM
QUESTION
Do you agree to the amendment to the Constitution
to enhance the Bill of Rights contained in Part 3 of
the Constitution of Zambia and to repeal and replace
Article 79 of the Constitution of Zambia?

YES NO

UNDERSTANDING ARTICLE 79
Article 79 Articles 301 - 303

Process of amending the Constitution and the Process of amending the Constitution and the
Bill of Rights Bill of Rights
Amendments requiring referendum Amendments requiring referendum
nn Bill of Rights 1 - Supremacy of the Constitution
nn Article 79 4 - Sovereign of the Republic
5 - Sovereign authority of the people of Zambia
47 - Electoral System for Presidential and
Parliamentary
10 6 - Tenure of office of the President and
vacancy
110 - Vice Presidency election to office and
swearing in
116 - Ministers (appointment, role and vacancy)
117 - Provincial Ministers (appointment, role and
vacancy part 3 - Bill of Rights Article 301 and 302
Referendum threshold - 50% of eligible votes 303 - Referendum threshold - 50% of registered
voting yes voters voting and more than 50% of the votes
vote in favor
No Time frame 303 - Referendum to be held within 120 days
after first reading of the bill
Requirement - Holder of green NRC and 303 - Requirement - Registered voter
attained the age of 18

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016
 VOTING IN THE 2016 AUGUST GENERAL ELECTIONS

What citizens will be expected to vote for

Presidential candidate + Running mate Executive Mayors

Parliamentary (Member of Parliament) Referendum for the “Bill
Local Government (Councilors) of Rights”

SOME CLAUSES THAT WERE NOT CONSIDERED IN THE NEW CONSTITUTION

1. The establishment of Provincial Assemblies (which would have provided a platform

to enhance citizens’ participation in the governance process at local level). It was
rejected on the premise that it would be too costly a venture.
2. The Cabinet outside Parliament clause (which proposed the enhancement of checks
and balances between the Executive and Parliament and encouraged separation of
powers was equally left out of the Constitution).
3. Mixed Member Proportional Representation clause (aimed at enhancing
representation of marginalized groups such as women, youth and persons living with
disabilities in Parliament).

CONCLUSION
WHAT DOES A PEOPLE DRIVEN CONSTITUTION MEAN FOR ZAMBIA

££ It ensures the separation of powers amongst the various State organs including the
Executive, Legislature and Judiciary, so as to create checks and balances between
them and to ensure accountability of the State and its officers to the people of Zambia.
££ Democracy is essentially built on and sustained by a constitution representative of
the desires of the people and not the desires of the ruling party and its government.
This cements our democracy as a country.
££ It guarantees peace, national unity and integrity of the nation in order to safeguard
the well being of the people.
££ It establishes a free and democratic system of Government that guarantees good
governance, constitutionalism, and the rule of law, human rights, gender equity,
gender equality and affirmative action.
££ It ensures the provision of basic needs of all Zambians through the establishment
of an equitable framework for economic growth and equitable access to national
resources;
££ Promotes national unity, whilst creating an enabling environment for free exchange
of ideas and promotes an environment of free, fair and responsible media.

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ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016 |
ANALYSIS OF THE CONSTITUTION AMENDMENT
ACT NO.2 OF 2016

CONSTIT
UTION

Unlocking Zambia's Potential

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| ANALYSIS OF THE CONSTITUTION AMENDMENT ACT NO.2 OF 2016