Zambia’s ruling Patriotic Front government is in the process of piloting wide-ranging changes to the country’s constitution into law. The proposed amendments have drawn considerable criticism from political opponents of the PF on grounds of poor drafting, infringement of individual and community rights and of threatening judicial independence, among others. They are also under fire from local and international legal and human rights organisations.

Read the draft Constitutional Amendment Bill

Proposed changes to Zambia’s constitution were released for public comment two months ago. Since then, the amendments have been widely debated, with considerable criticism about the new provisions that, for example, appear to remove the previous sense of religious tolerance, that threaten judicial independence and that give the president the right to delineate new provinces or merge old ones. This last is a particularly touchy subject as it is feared that the semi-autonomy of certain groups will be affected.

No mention

One of the first things that a reader of the ‘objects’ of the proposed amendment will notice, is that there is no mention of any intention to change any aspect of the judiciary or the courts. In fact, neither is mentioned at all. Yet the text of the proposed changes discloses significant alterations to the judiciary.

In a major joint statement outlining their reaction to these changes, seven international organisations focused on the proper functioning of legal systems around the world, have expressed their ‘deep concern’. They say that, if adopted, the constitutional amendment could have a serious impact on judicial impartiality. The organisations are particularly concerned about the proposed changes to the way disciplinary proceedings against judges are handled and about changes to the composition of Zambia’s Supreme and Constitutional Courts.

The seven bodies are the Commonwealth Lawyers Association, the Commonwealth Magistrates’ and Judges’ Association, the Human Rights Institute of the International Bar Association, the International Commission of Jurists, Judges for Judges, Lawyers’ Rights Watch Canada and the Southern Africa Litigation Centre.

Ultimate decision

They are concerned that while the ultimate decision on whether to remove a judge used to lie with the Judicial Complaints Commission, that question would in future be made by a tribunal appointed by the President. The wording of the amendment is broad enough to allow that the tribunal could consist of people all of whom are members of the executive or legislature.

The seven organisations say this would not comply with international standards. To do so, the tribunal would have to be primarily made up of judges, and none of its members – regardless of background – would come from the legislative or executive branches of government. In addition, decisions in such matters would have to be subject to an independent review.

Provisions relating to the Constitutional Court while vague are far-reaching. For example, as the constitution now stands, there is a requirement that there should be at least 11 judges serving on the two highest courts. That is gone. In its place is the requirement that there should be ‘an uneven number of judges, as prescribed’.

‘Legally disqualified’

A third issue that troubles the organisations is that the amendment includes a significant change to the grounds on which a judge might be removed from office. At present four grounds for removal are listed in the constitution. One of these is ‘a mental or physical disability that makes the judge incapable of performing judicial functions’. This would be replaced as grounds for removal. Instead, a judge could be dismissed from office on the grounds of being ‘legally disqualified from performing judicial functions’.

Again, because of the broad and vague wording, the organisations are concerned that the way would be open for removal of judges on politically motivated grounds.

Organisations representing civil society in Zambia have also spoken out strongly against the amendment. They have formed a new consortium that has condemned the planned changes to the constitution, and giving their backing to the position taken by the Law Association of Zambia (LAZ).

Pack the courts

Among the issues of concern to the LAZ and the consortium of other organisations, is that the failure to specify the number of judges to serve on the country’s superior courts would mean the party in power could pack the courts with judges who are sympathetic to the ruling party, thus undermining judicial independence.

President of the LAZ, Eddie Mwita, has issued a statement in which he outlines the potential threats to the judiciary. But he also expresses concern that while most Zambians are desperate for government to make savings so as to improve service delivery to the poor, the amendment would see considerable new spending on deputy ministers. Under the planned changes, these positions, removed in a cost-cutting measure by a previous administration, would now be reintroduced.

Linda Kasonde, executive director of Chapter One Foundation, one of the growing number of organisations in the consortium opposed to the amendment, is concerned that removing the limit on constituencies, as proposed in the amendment, could have dire consequences.

‘Increase MPs at will’

Kasonde, formerly president of the Law Association of Zambia and newly-elected vice president for Africa of the Commonwealth Lawyers’ Association, said that scrapping the limits on constituencies would allow the ruling party to ‘increase the number of MPs at will’ and thus ensure it continues to have a majority in parliament to pass any law.

There is also concern from three significant church ‘mother bodies’ that refused to participate in the government’s discussion about the way forward. They said that what had originally been planning of a national dialogue over reconciliation had become something else. It was now focused on changes to the constitution arising from a meeting of political parties that had taken political resolutions.

* Newsletter, Judicial Institute for Africa (Jifa), 8 August 2018