REPUBLIC OF ZAMBIA
NATIONAL CONSTITUTIONAL CONFERENCE
NCC
SUMMARY OF RESOLUTIONS OF THE NATIONAL CONSTITUTIONAL CONFERENCE
The Secretariat National Constitutional Conference (NCC) Mulungushi International Conference Centre Lusaka
June, 2010
PROVISIONS OF THE RESOLUTIONS OF THE CONFERENCE RATIONALE/REMARKS ARTICLE NO. MUNG’OMBA DRAFT CONSTITUTION Long Title Long Title of the Constitution of Long Title of the Constitution of Zambia Zambia Bill Bill
An Act to provide for the An Act to provide for the commencement The Conference adopted the Long commencement of the new of the new Constitution of the Republic of Title of the Constitution of Zambia Bill Constitution of the Republic of Zambia; to provide for the printing and without amendments. Zambia; to provide for the printing publication of the Constitution; to provide and publication of the Constitution; for the savings and transitional provisions to provide for the savings and of existing State organs, State institutions, transitional provisions of existing administrations, offices, institutions and State organs, State institutions, laws; to provide for succession to assets, administrations, offices, institutions rights, liabilities, obligations and legal and laws; to provide for succession proceedings; to provide for the repeal of the to assets, rights, liabilities, Constitution of Zambia Act, 1991, and the obligations and legal proceedings; Constitution in the Schedule to that Act; to provide for the repeal of the and to provide for matters connected with, Constitution of Zambia Act, 1991 or incidental to, the foregoing. and the Constitution in the Schedule to that Act, and to provide for matters connected with or incidental to the foregoing. Enactment Enactment of the Constitution of Enactment of the Constitution of Zambia Zambia Bill Bill
ENACTED by the Parliament of ENACTED by the Parliament of Zambia. The Conference resolved to adopt the Zambia provision of the Constitution of Zambia Bill on Enactment without amendments.
1 Section 1: Short Short Title of the Constitution of Short Title of the Constitution of Zambia Title Zambia Bill Bill
1. This Act may be cited as the 1. This Act may be cited as the The Conference adopted Section 1 of Constitution of Zambia Act, 2005. Constitution of Zambia Act, 2010. the Constitution of Zambia Bill with amendments by replacing the year “2005” with the year “2010” to make the Bill current. Section 2: Interpretation of the Constitution Interpretation of the Constitution of Interpretation of Zambia Bill Zambia Bill
2. (1) In this Act, unless 2. (1) In this Act, unless the The Conference adopted section 2 of the context otherwise requires – context otherwise requires - the Constitution of Zambia Bill “Constitution” means the "Constitution" means the Constitution set without amendments. Constitution set out in the Schedule out in the Schedule to this Act; to this Act; "effective date" means the date of the “effective date” means the date of commencement of this Act and the the commencement of this Act and Constitution as provided under section the Constitution as provided under four; section four; "existing Constitution" means the “existing Constitution” means the Constitution of Zambia, 1991 in Constitution of Zambia, 1991 in force immediately before the effective date; force immediately before the and effective date; and "existing law" means the laws of Zambia “existing law” means the Laws of as they existed immediately before the Zambia as they existed effective date, including any statutory immediately before the effective instrument issued or made date, including any statutory before that date which is to come instrument issued or made before into force on or after the effective that date which is to come into date. force on or after the effective date.
2 (2) Except where the context otherwise (2) Except where the context requires, words and expressions otherwise requires, words and used in this Act have the same expressions used in this Act have meaning as in the Constitution. the same meaning as in the Constitution. Section 3: Repeal Repeal of Constitution of Zambia Repeal of Constitution of Zambia Act, of Constitution Act, 1991 and existing Constitution 1991 and existing Constitution of Zambia Act, Cap. 1 Cap. 1 1991 and existing Constitution 3. The Constitution of Zambia 3. The Constitution of Zambia Act, The Conference adopted section 3 of Cap. 1 Act, 1991 and the existing 1991, and the existing Constitution in the the Constitution of Zambia Bill Constitution in the Schedule to that Schedule to that Act are hereby repealed. without amendments. Act are hereby repealed.
Section 4: Commencement of Constitution Commencement of Constitution Commencement of Constitution 4. Subject to this Act, the 4. Subject to this Act, the Constitution The Conference adopted section 4 of Constitution shall come into shall come into operation on the date of the Constitution of Zambia Bill operation on the date of assent of assent of this Act. without amendments. this Act. Section 5: Printing and publication of Printing and publication of Constitution Printing and Constitution publication of 5. The Constitution may be printed Constitution 5. The Constitution may be and published by the Government Printer The Conference adopted section 5 of printed and published by the separately from this Act and the production the Constitution of Zambia Bill Government Printer separately of a copy of the Constitution as printed without amendments. from this Act and the production of shall be prima facie evidence in all courts a copy of the Constitution as and for all purposes in connection with the printed shall be prima facie Constitution. evidence in all courts and for all
3 purposes in connection with the Constitution. Section 6: Existing Laws Existing Laws Existing Laws 6. (1) All existing laws 6. (1) All existing laws shall The Conference: shall continue in force and be continue in force and be construed with (a) adopted sub-section (1) of section construed with such modifications, such modifications, adaptations, 6 of the Constitution of Zambia adaptations, qualifications and qualifications and exceptions as may be Bill without amendments; and exceptions as may be necessary to necessary to bring them into conformity bring them into conformity with the with the Constitution. Constitution. (2) Parliament shall, within such (b) adopted sub-section (2) of section (2) The National Assembly period as it shall determine, make 6 of the Constitution of Zambia shall, within two years of the amendments to any existing law to bring Bill with amendments by: effective date, make amendments to that law into conformity with, or to give any existing law to bring that law effect to, this Act or the Constitution. (i) replacing the term into conformity with, or to give “National Assembly” with effect to, this Act or the the term “Parliament” as Constitution. “Parliament” was the appropriate term in this regard given that the President is also party to law making as he/she assents to Bills enacted by the National Assembly; and
(ii) removing the prescribed time- frame from the provision and replacing it with the words “such period as it
4 shall determine.” This is because the Conference was of the view that two years was too short to amend the large volumes of Laws that needed amendment. Section 7: Executive Executive Executive 7. (1) The President shall 7. (1) The President shall continue The Conference adopted section 7 of continue to serve as President for to serve as President for the unexpired term the Constitution of Zambia Bill the unexpired term of that office as of that office as specified by the existing without amendments. specified by the existing Constitution in accordance with the Constitution in accordance with the Constitution. Constitution. (2) A person holding the post of Vice- (2) A person holding the post of President, Minister or Deputy Minister Vice-President, Minister or Deputy shall continue to hold that position under Minister shall continue to hold that the Constitution until that appointment is position under the Constitution terminated by the President in accordance until that appointment is with the Constitution. terminated by the President in accordance with the Constitution. Section 8: Prerogative of mercy Prerogative of mercy Prerogative of mercy 8. The prerogative of mercy 8. The prerogative of mercy bestowed on The Conference adopted section 8 of bestowed on the President under the President under this Constitution may the Constitution of Zambia Bill this Constitution may be exercised be exercised in respect of any criminal without amendments. in respect of any criminal offence offence committed before the effective date. committed before the effective date.
5 Section 9: Rights, Rights, duties and obligations of Rights, duties and obligations of duties and Government Government obligations of Government 9. Subject to the Constitution, 9. Subject to the Constitution, all rights, The Conference adopted section 9 of all rights, duties and obligations of duties and obligations of the Government the Constitution of Zambia Bill the Government subsisting subsisting immediately before the effective without amendments. immediately before the effective date shall continue as rights, duties and date shall continue as rights, duties obligations of the Government under the and obligations of the Government Constitution. under the Constitution. Section 10: Succession of Institutions, Offices, Succession of Institutions, Offices, Assets Succession of Assets and Liabilities and Liabilities Institutions, Offices, Assets 10. (1) If any provision of the 10. (1) If any provision of the The Conference adopted section 10 of and Liabilities Constitution has altered the name Constitution has altered the name of an the Constitution of Zambia Bill of an office or institution existing office or institution existing immediately without amendments. immediately before the effective before the effective date, the office or date the office or institution as institution as known by the new name shall known by the new name shall be be the legal successor of the first named the legal successor of the first office or institution. named office or institution. (2) All liabilities, property and other assets (2) All liabilities, property and that were incurred or vested in the other assets that were incurred or President, the State, Government or the vested in the President, the State, Republic immediately before the effective Government or the Republic date shall continue to be so incurred or immediately before the effective vested after the effective date. date shall continue to be so incurred or vested after the effective (3) Any property that was liable to escheat date. or to be forfeited to the State, Government or the Republic immediately before the
6 (3) Any property that was liable to effective date shall be liable to escheat or to escheat or to be forfeited to the be so forfeited after the effective date. State, Government or the Republic immediately before the effective date shall be liable to escheat or to be so forfeited after the effective date. Section 11: Existing Offices Existing Offices Existing Offices 11. (1) A person who is holding or 11. (1) A person who is holding or acting in The Conference adopted section 11 of acting in an office established by an office established by the existing the Constitution of Zambia Bill the existing Constitution Constitution immediately before the without amendments. immediately before the effective effective date shall continue to hold or act date shall continue to hold or act in in that office as if appointed to that office that office as if appointed to that under the Constitution and shall be office under the Constitution and considered as having taken any necessary shall be considered as having taken oath required to be taken under the any necessary oath required to be Constitution, unless the President requires taken under the Constitution, that person to take any oath specified by unless the President requires that the Constitution or any other law. person to take any oath specified by the Constitution or any other law. (2) A public officer shall continue to hold or act in that office as if appointed to that (2) A public officer shall continue to position under the Constitution and shall hold or act in that office as if be considered as having taken any appointed to that position under necessary oath required to be taken under the Constitution and shall be the Constitution, unless the President considered as having taken any requires any public officer to take any oath necessary oath required to be taken specified by the Constitution or any other under the Constitution, unless the law. President requires any public (3) This section shall not –
7 officer to take any oath specified by (a) affect the powers conferred on any the Constitution or any other law. person or authority under the Constitution (3) This section shall not – to abolish offices or remove persons from (a) affect the powers conferred on those offices; or any person or authority under the Constitution to abolish offices or (b) apply to any person who, under the remove persons from those offices; existing law or existing Constitution would have been required to vacate an office at the (b) apply to any person who, under expiry of any period or on the attainment of the existing law or existing any age. Constitution would have been required to vacate an office at the (4) The process of appointing any persons expiry of any period or on the to fill vacancies arising after the effective attainment of any age. date shall begin on the effective date and in accordance with the Constitution. (4) The process of appointing any persons to fill vacancies arising after the effective date shall begin on the effective date and in accordance with the Constitution. Section 12: Pensions, Gratuities and Other Pensions, Gratuities and Other Benefits Pensions, Benefits Gratuities and 12. The law applicable to pensions, Other Benefits 12. The law applicable to pensions, gratuities or emoluments in respect of The Conference adopted section 12 of gratuities or emoluments in respect public officers shall be the law that was in the Constitution of Zambia Bill of public officers shall be the law force at the date on which those benefits without amendments. that was in force at the date on were granted or any law in force at a later which those benefits were granted date that is not less favourable. or any law in force at a later date that is not less favourable.
8 Section 13: Legislature Legislature Legislature 13. (1) The National Assembly 13. (1) The National Assembly existing The Conference: existing immediately before the immediately before the effective date shall (a) adopted sub-sections (1), (2), effective date shall continue as the continue as the National Assembly for the (3), (4), (6) and (7) of Section 13 National Assembly for the purposes purposes of the Constitution and the of the Constitution of Zambia of the Constitution and the members of the National Assembly shall Bill without amendments; and members of the National Assembly continue as members until the expiry of shall continue as members until the their term of office as specified by the (b) amended sub-section (5) of expiry of their term of office as existing Constitution. section 13, by deleting the time- specified by the existing frame and inserting the words Constitution. “such period as it shall (2) The persons holding the offices of determine.” The amendment Speaker and Deputy Speaker of the is to allow the National (2) The person holding the National Assembly immediately before the Assembly to determine the offices of Speaker and Deputy effective date shall continue as Speaker and period in which to revise its Speaker of the National Assembly Deputy Speaker until another Speaker and Standing Orders. immediately before the effective Deputy Speaker are elected under the date shall continue as Speaker and Constitution and shall be considered as Deputy Speaker until another having taken any oath specified by the Speaker and Deputy Speaker are Constitution. elected under the Constitution and shall be considered as having taken (3) The functions and powers vested in any oath specified by the Parliament by the existing Constitution Constitution. shall be exercised after the effective date by that Parliament for the unexpired term of (3) The functions and powers that Parliament in accordance with the vested in Parliament by the existing Constitution. Constitution shall be exercised after the effective date by that Parliament (4) The rules and orders of the National for the unexpired term of that Assembly existing on the effective date
9 Parliament in accordance with the shall be the rules and orders of the National Constitution. Assembly after the effective date but shall be construed with such modifications, (4) The rules and orders of the adaptations, qualifications and exceptions National Assembly existing on the as are necessary to bring them into effective date shall be the rules and conformity with the Constitution. orders of the National Assembly after the effective date but shall be construed with such modifications, (5) The National Assembly shall, within adaptations, qualifications and such period as it shall determine, revise exceptions as are necessary to bring the Standing Orders of the National them into conformity with the Assembly in accordance with the Constitution. Constitution.
(6) All moneys granted, voted or (5) The National Assembly shall, appropriated by the Parliament existing within six months of the effective immediately before the effective date, for date, revise the Standing Orders of the current financial year, shall be deemed the National Assembly in to have been granted, voted or accordance with the Constitution. appropriated in accordance with the Constitution. (6) All moneys granted, voted or appropriated by the Parliament existing immediately before the (7) The boundaries of a constituency effective date, for the current existing immediately before the effective financial year, shall be deemed to date shall be the boundaries of the have been granted, voted or constituency until the next delimitation is appropriated in accordance with done in accordance with the Constitution. the Constitution.
10 (7) The boundaries of a constituency existing immediately before the effective date shall be the boundaries of the constituency until the next delimitation is done in accordance with the Constitution.
Section 14: By- By-Elections By-Elections Elections 14. A by-election held after the 14. A by-election held after the effective The Conference adopted section 14 of effective date shall be held in date shall be held in accordance with the the Constitution of Zambia Bill accordance with the Constitution. Constitution. without amendments. Section 15: Judiciary Judiciary Judiciary 15. (1) Subject to this section, a 15. (1) Subject to this section, a Judge or The Conference: Judge or judicial officer who held judicial officer who held office immediately (a) adopted sub-sections (1) and (2) office immediately before the before the effective date shall continue to of section 15 of the Constitution effective date shall continue to hold hold office as if appointed to that office of Zambia Bill without office as if appointed to that office under the Constitution but may opt to amendments; and under the Constitution but may opt retire in accordance with subsection (2), to retire in accordance with within twelve months of the effective date. subsection (2), within twelve months of the effective date. (2) A Judge who has attained the age of sixty-five years immediately before or on the effective date may retire and shall be
(2) A Judge who has attained the entitled on retirement to the benefits that
age of sixty-five years immediately person would have been entitled to at the
before or on the effective date may date of retirement as specified in the
retire and shall be entitled on existing Constitution.
retirement to the benefits that
person would have been entitled to
11 at the date of retirement as specified in the existing Constitution. (b) deleted sub-sections (3) and (4) of section 15 of the Constitution of (3) The process of appointing the Zambia Bill because: Judges of the Supreme and Constitutional Court and Court of (i) there are other provisions in Appeal shall commence and be the Draft Constitution which finalised within twelve months of adequately addressed the the effective date. appointment of Judges; (ii) the Court of Appeal was (4) Parliament shall, within twelve being established for the first months of the effective date, enact time, therefore, expecting all legislation to provide for the the Judges to be appointed procedures, rules and within 12 months was administration of the Supreme and unrealistic; and Constitutional Court and Court of (ii) the responsibility of Appeal. formulating the rules and procedures of courts lay with the Chief Justice and not Parliament as clause (4) seemed to imply.
Section 16: Judicial and Tribunal Proceedings Judicial and Tribunal Proceedings and Judicial and and Pending Matters Pending Matters Tribunal Proceedings and 16. (1) Unless otherwise provided 16. (1) Unless otherwise provided under the The Conference adopted section 16 of Pending Matters under the Constitution, all Constitution, all proceedings pending the Constitution of Zambia Bill proceedings pending before any before any court or tribunal shall continue without amendments. court or tribunal shall continue to to be heard and determined by the same be heard and determined by the court or tribunal or may be transferred to a
12 same court or tribunal or may be corresponding court or tribunal established transferred to a corresponding under the Constitution. court or tribunal established under the Constitution. (2) Unless otherwise provided under the Constitution, any matter or proceeding (2) Unless otherwise provided that, immediately before the effective date, under the Constitution, any matter is pending before an existing commission, or proceeding that, immediately office or authority shall continue before the before the effective date, is pending same commission, office or authority or before an existing commission, corresponding commission, office or office or authority shall continue authority established under the before the same commission, office Constitution. or authority or corresponding commission, office or authority established under the Constitution. Section 17: Local Government Local Government Local Government 17. (1) All local authorities shall 17. (1) All local authorities shall continue to The Conference: continue to exist after the effective exist after the effective date until the date until the implementation of the implementation of the new structure under (a) adopted sub-sections (1), (3) new structure under the the Constitution and as provided by an Act and (4) of section 17 of the Constitution and as provided by an of Parliament. Constitution of Zambia Bill Act of Parliament. without amendments; and (2) Parliament shall enact legislation for (2) Parliament shall enact legislation the local government system as provided (b) amended clause (2) of section for the local government system as by the Constitution. 17 by deleting the time-frame provided by the Constitution which was not realistic within two years of the effective (3) All councillors of district councils shall considering the large number date. continue as councillors after the effective of pieces of legislation to be date until general elections are held in enacted. (3) All councillors of district accordance with the Constitution.
13 councils shall continue as councillors after the effective date (4) The boundaries of a province, district or until general elections are held in ward existing immediately before the accordance with the Constitution. effective date shall be the boundaries of that province, district or ward until the next (4) The boundaries of a province, delimitation is done in accordance with the district or ward existing Constitution. immediately before the effective date shall be the boundaries of that province, district or ward until the next delimitation is done in accordance with the Constitution. Section 18: Political Parties Political Parties Political Parties 18. (1) A political party in existence 18. (1) A political party in existence The Conference: immediately before the effective immediately before the effective date shall, (a) adopted sub-sections (1) and date shall, within twelve months of within twelve months of the effective date, (2) of section 18 of the the effective date, comply with the comply with the Constitution and any Constitution of Zambia Bill Constitution and any legislation legislation enacted by Parliament in without amendments. The enacted by Parliament in accordance with the Part VIII of the Conference agreed that the 12 accordance with the Part VIII of the Constitution. months time-frame prescribed Constitution. in the provision would be (2) If on the expiry of the period of twelve sufficient for the political (2) If on the expiry of the period of months, a political party has not complied parties to comply with any twelve months, a political party has with the Constitution and any legislation legislation enacted by not complied with the Constitution enacted under subsection (1), the political Parliament; and
and any legislation enacted under party shall forthwith cease to exist as a
subsection (1), the political party political party.
shall forthwith cease to exist as a
political party.
(3) Parliament shall within six (b) deleted sub-section (3) of
14 months of the effective date enact section 18 of the Constitution legislation for the regulation and of Zambia Bill because it was supervision of political parties. unrealistic to give Parliament six months within which to enact Legislation to regulate and supervise political parties.
Section 19: Commissions Commissions Commissions 19. (1) Within twelve months of the 19. The Commissions existing The Conference: effective date the following immediately before the effective date (a) observed that section 19 was commissions and committees shall shall continue to exist as if established supposed to provide for be established or re-established- under the Constitution. transitional provisions and, (a) the Civil Service Commission; therefore, could not provide (b) the Teaching Service for Commissions that were not Commission; yet in existence as the (c) the Judicial Service Mung‟omba Draft Commission; Constitution provision was (d) The Police and Prisons Service trying to do. Therefore, a new Commission; provision was adopted which (e) the Anti-Corruption provided for the Commissions Commission that existed to continue (f) the Anti-Drug Commission; existing under the new (g) the Parliamentary Service Constitution as opposed to the Commission; provision in the Mung‟omba (h) the Human Rights Draft Constitution which Commission; provided for the establishment (i) the Gender Equality and re- establishment of Commission; Commissions; and (j) the Electoral Commission of of Zambia; (b) deleted the reference to the (k) the National Fiscal and time-frame as it was irrelevant.
15 Emoluments Commission; (l) the State Audit Commission; (m) the Police and Public Complaints Commission; (n) the Lands Commission; (o) the Judicial Complaints Commission;
Section 20: Currency Currency Currency 20. Nothing in the Constitution 20. Nothing in the Constitution affects the The Conference adopted Section 20 of affects the validity of notes and validity of notes and coins issued the Constitution of Zambia Bill coins issued immediately before the immediately before the effective date. without amendments. effective date. Section 21: Budget Budget The Conference deleted section 21 of 21. Parliament shall within twelve the Constitution of Zambia Bill months of the effective date enact a because the enactment of a Budget Act Budget Act. was provided for in Article 310 of the Mung‟omba Draft Constitution which the Conference had earlier adopted and re-numbered as Article 270. THE CONSTITUTION OF THE REPUBLIC OF ZAMBIA PREAMBLE WE, THE PEOPLE OF ZAMBIA IN WE, THE PEOPLE OF ZAMBIA, BY OUR The Conference: EXERCISE OF OUR REPRESENTATIVES ASSEMBLED IN (a) adopted the first paragraph CONSTITUENT POWER; OUR PARLIAMENT; of the Preamble of the
Mung‟omba Draft Constitution with
16 amendments by replacing the words “in exercise of
our constituent power” with the words “by our
representatives,
assembled in our Parliament” to acknowledge the role
Parliament would play in
enacting the Draft Constitution as the
representative body of all
people. The Conference
noted that the Mung‟omba
Draft Constitution
provision was based on the
assumption that the
Constituent Assembly
would adopt the
Constitution, which
assumption was no longer
valid following Parliament„s enactment of the NCC Act.
ACKNOWLEDGE the supremacy ACKNOWLEDGE the supremacy of God (b) adopted the second and of God Almighty; Almighty; third paragraphs of the Preamble of the DECLARE the Republic a Christian DECLARE the Republic a Christian nation, Mung‟omba Draft nation, while upholding the right of while upholding the right of every person Constitution without every person to enjoy that person‟s to enjoy that person‟s freedom of amendments. This is
17 freedom of conscience or religion; conscience or religion; because the Conference agreed that Christianity should continue to be the
foundation of the country
as Christian values were important in providing a strong foundation for the country.
(c) considered and adopted a New Paragraph HONOUR and respect freedom fighters new provision to who fought for our independence and acknowledge the emancipation from colonialism, thereby important role the freedom
enabling us to exercise our right to self- fighters played in the
determination; liberation struggle of the
country.
UPHOLD the human rights and UPHOLD the human rights and (d) amended the fourth
fundamental freedoms of every fundamental freedoms of every person and paragraph of the Preamble person and recognise the equal recognise the equal worth of different of the Mung‟omba Draft worth of different communities and communities in our Nation; Constitution by deleting faiths in our Nation; the words “and faiths” because the matter of faiths
was adequately provided
for in the third paragraph
which stated that
“DECLARE the Republic
of Zambia a Christian
Nation while upholding
the right of every person to
18 enjoy that person‟s freedom of conscience or religion.”
(e) adopted the fifth paragraph COMMITTED to upholding the COMMITTED to upholding the values of of the Preamble of the values of democracy, transparency, democracy, transparency, accountability Mung‟omba Draft accountability and good and good governance and resolved to Constitution without governance and resolved to exercise exercise our inherent and inviolable right as amendments. our inherent and inviolable right as a people to decide, appoint and proclaim a people to decide, appoint and the means and methods to govern proclaim the means and method to ourselves; govern ourselves;
(f) adopted a new paragraph. New Paragraph FURTHER COMMITTED to promoting The provision was provided
African unity and solidarity, world peace to reaffirm Zambia‟s stance
and international co-operation and on the relations with the
understanding and the strengthening of international community.
mutual respect and friendship among
peoples and States;
DETERMINED to ensure that all powers of DETERMINED to ensure that all (g) adopted the sixth, seventh the State are exercised for the sustainable powers of the State are exercised for and eighth paragraphs of the development and in our common interest the sustainable development and in Preamble of the Mung‟omba as the people of Zambia; our common interest as the people Draft Constitution without
of Zambia; amendments.
19 RECOGNISE the multi-ethnic and RECOGNISE the multi-ethnic and multi- (h) amended the ninth multi-cultural character of our cultural character of our Nation; paragraph of the Preamble of Nation; the Mung‟omba Draft Constitution by deleting the CONFIRM the equal worth of CONFIRM the equal worth of women and words “multi-ethnic, multi- women and men and their right to men and their right to freely participate, cultural, multi- racial, multi- freely participate, determine and determine and build a sustainable political, religious” because the build a sustainable political, economic and social order; concepts had already been economic and social order; provided for in the seventh paragraph of the RESOLVE that Zambia shall RESOLVE that Zambia shall remain a free, Mung‟omba Draft remain a free, unitary, indivisible, unitary, indivisible and multi-party Constitution which the multi-ethnic, multi-cultural, multi- democratic sovereign State; Conference had earlier racial, multi-religious and multi- adopted. party and democratic sovereign
State;
AND DIRECT that all organs and AND DIRECT that all organs and (i) adopted the tenth paragraph institutions of the State abide by institutions of the State abide by and of the Preamble of the respect our sovereign will: and respect our sovereign will; Mung‟omba Draft Constitution without amendments.
DO HEREBY SOLEMNLY ADOPT DO HEREBY ENACT AND GIVE TO (j) adopted the eleventh AND GIVE TO OURSELVES OURSELVES THIS CONSTITUTION. paragraph of the Preamble of THIS CONSTITUTION: the Mung‟omba Draft Constitution with an amendment by replacing the words “SOLEMNLY ADOPT” with the word
20 “ENACT” to reflect the fact that the draft Constitution would be enacted by Parliament rather than “adopted” by the Constituent Assembly as envisaged by the Mung‟omba Draft Constitution.
PART I SUPREMACY AND DEFENCE OF CONSTITUTION
Article 1: Supremacy of Constitution Supremacy of Constitution Supremacy of Constitution 1. (1) This Constitution is the 1. (1) This Constitution is the supreme law The Conference: supreme law of Zambia and any of Zambia and any other law that is (a) adopted clauses (1) and (2) of other law that is inconsistent with inconsistent with any of its provisions is Article 1 of the Mung‟omba any of its provisions is void to the void to the extent of the inconsistency. Draft Constitution without extent of the inconsistency. amendments; (2) An act or omission that contravenes any (2) An act or omission that provision of this Constitution is illegal. contravenes any provision of this Constitution is illegal.
(3) A person or a group of persons (3) A person or a group of persons may (b) amended clauses (3) and (4) of may bring an action in the bring an action in the High Court for a Article 1 of the Mung‟omba Constitutional Court for a declaration that a law is inconsistent with Draft Constitution by declaration that a law is or is in contravention of a provision of this replacing the word
21 inconsistent with or is in Constitution. “Constitutional” with the contravention of a provision of this word “High.” The Constitution. (4) The High Court may, for the purposes amendment was as a result of clause (1), make any declaration that it of the Conference having (4) The Constitutional Court may, considers appropriate and issue any order adopted clause (3) of Article for the purposes of clause (1), make for the implementation of the declaration. 194 of the Draft Constitution any declaration that it considers which entitled a person or a appropriate and issue any order for group of persons who the implementation of the alleged that a law was declaration. inconsistence with a provision of the Constitution, to petition the High Court; and
(5) Any person who fails to obey or (c) deleted: carry out an order issued under (i) clause (5) because it clause (4) commits an offence referred to offences and against this Constitution. penalties which were
provided for in the Penal
Code and other subsidiary
legislation and that it was not the duty of the (6) Any person convicted by a Constitution to create court of an offence under clause (5) offences; and shall, in addition to any penalty imposed under an Act of (ii) clause (6) as a consequence Parliament, not be eligible for of the deletion of clause (5). election or appointment to a public office for ten years beginning with the date that person was convicted.
22 Article 2: Defence of Constitution Defence of Constitution Defence of Constitution 2. (1) Every person has the right 2. (1) Every person has the right and duty The Conference: and duty- to defend and protect this Constitution. (a) adopted clause (1) with amendments by merging the (a) to defend this Constitution; opening sentence with (b) to resist or prevent any paragraph (a) and including person or group of person‟s from the words “and protect” to overthrowing, suspending, (2) A person who suffers punishment or guarantee both defence and abrogating or unlawfully loss arising from the defence of this protection of the Constitution. amending or reviewing this Constitution as provided for under clause Constitution; and (1) is entitled to compensation, from the to do all in that persons power to Government, which shall be determined by (b) deleted paragraph (b) of clause secure the continuous operation of the Constitutional Court. (1) to avoid long-windedness this Constitution. that could lead to misinterpretation which could be used by certain forces to destabilise the nation;
(2) A punishment imposed on a (c) deleted clause (2) as it citizen for any action in defence of suggested the questioning of
this Constitution is void from the the legality of judgments
date of its imposition. passed by the courts to punish
some citizens who committed proven heinous offences;
(d) adopted clause (3) with (3) A person who suffers a amendments by including the punishment or loss arising from the words “as provided for under defence of this Constitution is sub-clause (1)”to make the
23 entitled to compensation, from the provision clearer; and Government, which shall be determined by the Constitutional Court.
(4) An act of any person to establish (d) deleted clause (4) because it any form of government, otherwise provided for an offence which than as provided in this would adequately be provided Constitution, is treason. for by or under subordinate legislation. Article 3: Continuous force and effect of Continuous force and effect of Continuous force Constitution Constitution and effect of Constitution 3. Where the operation of this 3. Where the operation of this Constitution The Conference adopted Article 3 of Constitution is at any time is at any time interrupted by force or other the Mung‟omba Draft Constitution interrupted by force or other unlawful act its provisions shall, despite the without amendments. unlawful act its provisions shall, interruption, continue to have force and despite the interruption, continue to effect. have force and effect. PART II THE REPUBLIC OF ZAMBIA AND ITS SOVEREIGNTY Article 4 : Republican Status of Zambia Republican Status of Zambia Republican 4. (1) Zambia is a sovereign 4. (1) Zambia is a sovereign Republic the The Conference: Status of Zambia Republic the territorial boundaries territorial boundaries of which are (a) adopted clauses (1), (2) and (3) of which are described and described and delineated in the map set out of Article 4 of the Mung‟omba delineated in the map set out in the in the Schedule. Draft Constitution without First Schedule. amendments; (2) The Republic of Zambia is a unitary,
24 (2) The Republic of Zambia is a multi-party, multi-ethnic, and multi- unitary, multi-party, multi-ethnic cultural democratic State. and multi-cultural democratic State. (3) The Republic of Zambia shall not be ceded, in whole or in part, to another (3) The Republic of Zambia country. shall not be ceded, in whole or in part, to another country.
New Paragraph (4) For purposes of clause (3), the (b) adopted a new provision to joining of a union or other form of inter- clarify that even when State organisation by the Republic of Zambia joined regional Zambia shall not be treated as ceding of unions, it should not be the Republic. deemed as ceding the sovereignty of the Republic and was numbered clause (4); and New Paragraph (5) The establishment of a new State within the territory of the Republic of (c) adopted a new provision to Zambia is prohibited. prohibit the establishment of new States within the country and numbered it clause (5). Article 5: Sovereignty of Zambia Sovereignty of Zambia Sovereignty of Zambia 5 (1) The sovereign authority of 5 (1) The sovereign authority of Zambia The Conference: Zambia belongs to the people of belongs to the people of Zambia which (a) adopted clause (1) of Article 5 Zambia which shall be exercised in shall be exercised in accordance with this of the Mung‟omba Draft accordance with this Constitution Constitution and the Laws. Constitution without and the Laws. amendments;
(2) All power resides in the people
25 (2) The people of Zambia who shall exercise it through the (b) amended clause (2) of Article reserve to themselves any power or democratic institutions of the State in 5 of the Mung‟omba Draft authority that is not conferred on accordance with this Constitution. Constitution by replacing it any State organ or State institution with clause 2 of Article 1 of by this Constitution. the current Constitution because without such an
amendment, the provision could allow some people to exercise power that was not
conferred on any State organ and institution. Such a practice had the risk of
promoting anarchy as power could be exercised indiscriminately by some
people.;
(3) The people of Zambia shall (3) The people of Zambia shall be be governed through their will and governed through their will and consent (c) adopted clause (3) of Article 5 consent which shall be expressed or which shall be expressed or exercised with an amendment by exercised through regular, free and through regular, free and fair elections or deleting the word “public” fair public elections or referenda. referenda. in order to provide clarity to
the provision; and
(4) The Government shall (4) The Government shall pursue and (d) adopted clause (4) of Article 5 pursue and ensure the participation ensure the participation of the people in the without amendments. of the people in the governance of governance of the State in accordance with the State in accordance with this this Constitution. Constitution. Article 6: National symbols National symbols National 6. The National symbols of the 6. The National Flag, the National The Conference adopted Article 6 of symbols Republic set out in the Second Anthem, the Coat of Arms, the Public the Mung‟omba Draft Constitution
26 Schedule are - Seal, and the National Motto shall be such with an amendment by replacing it (a) the National Flag; as may be prescribed by or under an Act with Articles 2 and 3 of the current (b) the National Anthem; of Parliament. Constitution because National (c) the Coat of Arms; Symbols were best provided for by or (d) the Public Seal; and under an Act of Parliament as it would (e) the National Motto. be easier to change them if need arose. Article 7: Languages Languages Languages 7. (1) The official language of 7. (1) The official language of Zambia is the The Conference: Zambia is the English language. English language. (a) adopted clause (1) of Article 7 of the Mung‟omba Draft Constitution without amendments; and
(2) Any language, other than the (2) Any language, including sign language, (b) amended clauses (2) and (3) of official language, may be used as a other than the official language, may be Article 7 to include sign medium of instruction in used as a medium of instruction in language as one of the educational institutions or for educational institutions or for legislative, languages which was accepted legislative, administrative or administrative or judicial purposes, as and widely used as a medium judicial purposes, as provided by or provided by or under an Act of Parliament. of communication. under an Act of Parliament. (3) All local languages in Zambia are equal and the State shall respect, promote and (3) All local languages in Zambia protect the diversity of languages of the are equal and the State shall people of Zambia, including sign respect, promote and protect the language. diversity of languages of the people of Zambia.
27 PART III NATIONAL VALUES, PRINCIPLES, OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY Article 8: Application of national values, Application of national values, principles, Application of principles, objectives and directive objectives and directive principles of State national values, principles of State policy policy principles, objectives and 8. (1) The national values, 8. (1) The national values, principles, The Conference: directive principles, objectives and directive objectives and directive principles of State (a) adopted clause 1 of Article 8 of principles of principles of State policy contained policy contained in this Part apply to all the Mung‟omba Draft State policy in this Part apply to all State organs, State organs, State institutions, public Constitution without State institutions, public officers, officers, citizens, political parties and amendments; and citizens, political parties and private bodies whenever any of them – private bodies whenever any of (a) applies or interprets this them – Constitution or any other law; or (a) applies or interprets this Constitution or any other law; or (b) applies, makes or implements policy decisions. (b) (b) applies, makes or implements policy decisions. (2) The President shall, once in every year, report to the National Assembly on the (b) amended clause (2) of Article 8 (2) The President shall, once in progress made in the realisation of the by inserting the word every year, report to the National values, objectives and principles under this “values” because the clause Assembly on the progress made in Part. dealt with, among other the realisation of the objectives and things, values that should principles under this Part. apply to all State organs, institutions, public officers, citizens, political parties and private bodies.
28 New Article : Directive Principles Not to be Justiciable Directive Principles Not to 9. The Directive Principles of State Policy be Justiciable set out in this Part shall not be justiciable The Conference adopted Article 111 of and shall not thereby, by themselves, the current Constitution and despite being referred to as rights in numbered it as Article 9 in order to certain instances, be legally enforceable in clearly state that the said principles, any court, tribunal or administrative values and objectives were not institution or entity. justiciable. The Conference noted that the principles, values and objectives under Part III of the Draft Constitution would be used by the courts to interpret the meaning of other parts of the Constitution when disputes arose. Article 9: Political Values, Principles and Political Values, Principles and Objectives Political Values, Objectives Principles and 10. The following are the political values, Objectives 9. The following are the political principles and objectives of the Nation on The Conference: values, principles and objectives of which all policies and laws shall be based: (a) adopted the opening sentence the Nation on which all policies and and paragraphs (a), (b), (c) and laws shall be based: (a) the State and citizens shall at all (d) of Article 9 the times defend the independence, Mung‟omba Draft (a) the State and citizens shall at sovereignty and territorial integrity of the Constitution without all times defend the independence, Republic; amendments and re-numbered sovereignty and territorial integrity it as Article 10; and of the Republic; (b) the State and citizens shall promote national unity and develop a (b) the State and citizens shall commitment, in accordance with the promote national unity and National Motto, to the spirit of nationhood develop a commitment, in and patriotism; accordance with the National
29 Motto, to the spirit of nationhood (c) the State shall provide a peaceful, and patriotism; secure and stable political environment which is necessary for economic (c) the State shall provide a development; and peaceful, secure and stable political environment which is necessary for (d) all State organs, State institutions and economic development; citizens shall work towards the promotion of peace and stability. (d) all State organs, State institutions and citizens shall work towards the promotion of peace and stability;
(b) agreed to delete paragraphs (e), (e) the State shall be based on (f), (g), (h), (i), (j), (k), (l) and democratic principles which (m) of Article 9 because the empower and encourage the active provisions had been provided participation of all citizens at all for under Article 12. levels in their own governance;
(f) the State shall be guided by the principle of decentralisation of governmental powers, functions and resources to the people at appropriate levels where they can best manage and direct their won affairs;
(g) all political and civic associations aspiring to manage and
30 direct public affairs shall retain their autonomy in pursuit of their declared objectives and conform to principles of democracy, transparency and accountability in their internal organisation and practice;
(h) all State organs State institutions and citizens shall endeavour to build a strong democratic political order and avoid undue influence from other countries and foreign institutions;
(i) the Government shall ensure gender balance and equitable representation of disadvantaged groups, including the youth and persons with disability, when making appointments to any constitutional office and other State institutions;
(j) the Government shall ensure full participation of women, the youth, persons with disability and all other citizens in the political, social, cultural and economic life of the country;
31
(k) the Government shall implement the principle of gender equality and ensure that each gender is not less than thirty percent of the members of elective or appointive bodies; (l) the Government shall recognise the role of civil society in governance and facilitate its role in ensuring the accountability of government; and
(m) the Government shall take all necessary measures to support the distribution of functions, as well as the checks and balances provided for in this Constitution , among various State organs and State institutions, including the provision of adequate resources to ensure their effective functioning at all levels. Article 10: Socio-Economic Values, principles Socio-Economic Values, principles and Socio-Economic and Objectives Objectives Values, principles and 10. The following are the socio- 13. The following are the socio-economic The Conference: Objectives economic values, principles and values, principles and objectives of the (a) adopted the opening objectives of the Nation on which Nation on which all policies and laws shall paragraph and paragraph (a) all policies and laws shall be based: be based:
32 of Article 10 of the Mung‟omba Draft (a) the State and citizens shall (a) the State and citizens shall Constitution without endeavour to build a strong socio- endeavour to build a strong socio-economic amendments and re-numbered economic order and avoid undue order and avoid undue dependence on it as Article 13; and dependence on other countries and other countries and foreign institutions; foreign institutions;
(b) as far as possible, moneys for (b) the State shall promote the economic (b) resolved to delete paragraph the annual budget shall be derived empowerment of citizens, equal (b) of Article 10 of the from the resources of Zambia; opportunities in development and the Mung‟omba Draft effective participation of citizens in the Constitution because a similar economy in order to contribute to provision had been adopted sustainable economic growth; earlier under Part XVII of the Constitution and replaced it
with a new provision that
provides incentives to local investment that would result into creation of more jobs
leading to sustainable
economic growth. The paragraph was re-numbered as paragraph (b) following the deletion of paragraph (b) of the Mung‟omba Draft Constitution;
(c) adopted paragraph (y) of (c) the State shall endeavour to (c) the State shall pursue policies that Article 10 of the Mung‟omba create an economic environment encourage food security; Draft Constitution without
33 which encourages individual amendments and re-numbered initiative and self-reliance among it as paragraph (c); the people and promotes private investment; (d (d) adopted paragraph (w) of (d) the Government shall strive to create Article 10 of the Mung‟omba conditions under which all citizens are Draft Constitution without
able to secure adequate means of amendments and re-numbered livelihood and opportunity to obtain or it as paragraph (d); create employment;
(e) adopted paragraph (x) of (e) the Government shall recognise the Article 10 of the Mung‟omba right of every person to fair labour Draft Constitution without
practices and to safe and healthy working amendments and re-numbered conditions; it as paragraph (e);
(f) adopted paragraph (d) of
Article 10 of the Mung‟omba (d) the Government shall take all (f) the Government shall involve the Draft Constitution with necessary steps to involve the people in the formulation and amendments by deleting the people in the formulation and implementation of development plans words “take all necessary implementation of development and programmes which affect them; steps to” in order to ensure plans and programmes which that Government was obliged affect them; to involve the people in the
formulation and
implementation of development plans and programmes which affect them. The paragraph was
renumbered as paragraph (f);
(e) the Government shall pursue (g) the Government shall pursue policies (g) approved paragraph (e) of
34 policies that stimulate agricultural, and laws that stimulate agricultural, Article 10 of the Mung‟omba industrial, technological and industrial, technological, scientific and Draft Constitution with an scientific development and ensure human resource development and shall amendment by inserting the that legislation is enacted to ensure that legislation is enacted to words “and laws” after the support these policies; support these policies; word “policies” and inserting the words “human resource development” and “shall” as
an additional area and re- numbered as paragraph (g); (f) the State shall protect and promote human rights and (h) deleted paragraph (f) of Article fundamental freedoms and 10 of the Mung‟omba Draft enhance the dignity of individuals Constitution as the protection and communities; of human rights and fundamental freedoms was adequately provided for under the Bill of Rights;
(g) the Government shall ensure (i) adopted paragraph (g) of access of the people to Article 10 of Mung‟omba Draft independent, impartial, competent Constitution with and affordable institutions of amendments by deleting the justice; word “affordable” and placed
the provision in Article 11 of
the Draft constitution.
(j) deleted paragraph (h) of Article (h) the Government shall ensure 10 of the Mung‟omba Draft and endeavour to maintain Constitution as the matters national security and peace; were provided for adequately in Article 14 which dealt with
35 the foreign policy, principles and objectives.
(k) deleted paragraphs (i), (j), (k) (i) the State shall endeavour to and (l) of Article 10 of the fulfil the Bill of Rights to achieve Mung‟omba Draft social justice and economic Constitution as the provisions development; were adequately covered by the provisions in the Bill of (j) the State shall recognize the Rights; significant role that women play in the socio-economic development of society;
(k) the Government shall guarantee and respect institutions which are charged by the State with responsibility for protecting and promoting human rights and freedoms by providing them with adequate resources to function effectively;
(l) the State shall give the highest priority to the enactment of legislation establishing measures that protect and enhance the right of the people to equal opportunities in development;
36 (m) the Government shall make (h) the Government shall make (l) adopted paragraph (m) of reasonable provision for the welfare reasonable provision for the welfare and Article 10 of the Mung‟omba and maintenance of the older maintenance of the older members of Draft Constitution without members of society; society; amendments an re-numbered it paragraph (h);
(n) the State shall recognize the (m) deleted paragraph (n) of right of persons with disability to Article 10 of the Mung‟omba respect and human dignity; Draft Constitution because it was provided for under Article 32 of Part VI of the
Draft Constitution;
(o) the State shall promote (n) deleted paragraph (o) of recreation and sports for the Article 10 of the Mung‟omba citizens; Draft Constitution because it was provided for under
Article 19 of Part III of the
Draft Constitution. (p) the Government shall strive to (i) the Government shall strive to eradicate eradicate poverty and illiteracy; poverty; (o) adopted paragraph (p) of Article 10 of the Mung‟omba Draft Constitution with amendments by deletion of the words “and illiteracy” from the provision because “poverty” and “illiteracy” were different concepts and “illiteracy” was placed under the Bill of Rights in Article 69 providing for education. The
37 paragraph was re-numbered as paragraph (i);
(q) the Government shall promote (p) deleted paragraphs (q), (r) and free and compulsory basic (s) of Article 10 of the education; Mung‟omba Draft Constitution because their (r) the government shall take provisions were provided for appropriate measures to afford under the Bill of Rights; every citizen equal opportunity to attain the highest educational standard possible.
(s) the State shall protect the family as it is the natural and basic unit of society;
(t) the Government shall institute (j) the Government shall institute adequate (q) adopted paragraph (t) of adequate measures for disaster measures for disaster preparedness and Article 10 of the Mung‟omba preparedness and management; management; Draft Constitution without amendments and re-numbered it as paragraph (j);
(u) the Government shall take (r) deleted paragraph (u) of Article necessary measures to bring about 10 of the Mung‟omba Draft balanced development of the Constitution because it was different areas of the Republic provided for in other especially between the rural and provisions under the Directive urban areas; Principles of State Policy and Part XVII-Public Finance and
38 Budget-of the Draft Constitution;
(v) the State shall devise land (k) the Government shall devise land (s) amended paragraph (v) of policies which recognise ultimate policies which recognise ultimate Article 10 of the Mung‟omba ownership of land by the people; ownership of land by the citizens; and Draft Constitution by substituting the words “State” with “Government” and “people” with “citizens.” This is because it was the Government that was responsible for devising land policies and to restrict the ultimate ownership of land to citizens. The paragraph was re-numbered as paragraph (k);
(w) the Government shall strive (t) adopted paragraph (w) of to create conditions under which all Article 10 of the Mung‟omba citizens are able to secure adequate Draft Constitution with means of livelihood and amendments by including the opportunity to obtain employment; words “or create” to ensure that Government strives to create opportunities under which all citizens are able to create employment for themselves and others. The paragraph was re-numbered paragraph (d).
39
(x) the Government shall recognise the right of every person (u) adopted paragraphs (x) and to fair labour practices and to safe (y) of Article 10 of the and healthy working conditions; Mung‟omba Draft (y) the State shall pursue Constitution without policies that encourage food amendments and re-numbered security; them as paragraphs (e) and (c) respectively;
(z) the State shall take measures to (v) deleted paragraph (z) of Article preserve, protect and conserve the 10 because it was provided for (l) the State shall strive to provide clean environment; under Part IX of the Draft and safe water, adequate medical and Constitution; health facilities and shelter for all persons
and take measures to consistently improve
such facilities and amenities.
(aa) the Government shall strive to (w) adopted paragraph (aa) of provide clean and safe water, Article 10 of the Mung‟omba adequate medical and health Draft Constitution with facilities and shelter for all persons amendments by replacing and take measures to consistently the word “Government” improve such facilities and with the word “State” amenities; and because the provision of
services referred to in the
provision was being
provided by State
institutions other than the
40 central Government. The paragraph was re-numbered as paragraph (l); and (bb) the State shall promote sustainable development and the (x) deleted paragraph (bb) of utilisation of national resources of Article 10 of the Mung‟omba Zambia in such a way as to safe- Draft Constitution because it guard – was already provided for in Part XX of the Draft (i) the bio-diversity of the Constitution. country and to meet the developmental and environmental needs of present and future generations; and
(ii) the ecological balance and protect national resources, including land, water, wetlands, minerals, oil, fauna and flora. New Article : Equal access to institutions of justice Equal access to institutions of 11. The Government shall ensure access The Conference adopted a new Article justice of the people to independent, impartial to provide for people‟s access to and competent institutions of justice. independent, impartial and competent institutions of justice and numbered it as Article 11. Article 11: Cultural Values, Principles and Cultural Values, Principles and Objectives Cultural Values, Objectives Principles and 15. The following are the cultural values, Objectives 11. The following are the principles and objectives of the Nation on The Conference: cultural values, principles and which all policies shall be based:
41 objectives of the Nation on which all policies shall be based:
(a) the State shall recognise the (a) the State shall recognise the diversity (a) adopted the opening diversity of the people and promote of the people and promote the different paragraph and paragraph (a) the different cultures of the country cultures of the country consistent with this of Article 11 of the consistent with this Constitution Constitution and, in particular, with the Bill Mung‟omba Draft and, in particular, with the Bill of of Rights; Constitution without Rights; amendments. The Article was re-numbered as Article 15;
(b) the Government shall take (b) the State and citizens shall (b) deleted paragraph (b) of measures that are practically preserve, protect and promote the Article 11 of the Mung‟omba possible to promote the use, conservation of ancient, cultural Draft Constitution because it development and preservation of and natural heritage, relics and was provided for under Article local languages and promote the other objects of aesthetic, historical, pre- 7 of the Draft Constitution and development of sign language and historical, archaeological or in its place introduced a Braille; scientific interest; provision aimed at preserving
Zambia‟s cultural and natural heritage which was in the last part of paragraph (c) of Article 11 of the Mung‟omba Draft Constitution;
(c) the State and citizens shall (c) the State and citizens shall preserve, (c) amended paragraph (c) of endeavour to preserve, protect and protect and promote a culture of Article 11 by deleting the generally promote the culture of maintenance and preservation of public aspects of preservation of maintenance and preservation of property; Zambia‟s heritage which was public property and Zambia‟s provided for under the new heritage; paragraph (b) it earlier
adopted. The words
42 “endeavour to” were also deleted;
(d) the State shall devise policies (d) the State shall devise policies that (a) adopted paragraph (d) with that promote Zambian art and promote Zambian arts, individual amendments by: music; and creativity and innovation in the development of (i) replacing the words “art art and the cultural industry ; and music” with the word “arts” to include all literal arts which encompassed poetry, written arts and performing arts such as
singing, dancing and so
on. Therefore, the word
“arts” was more
appropriate;
(ii) including the term
“cultural industries”
which is a new concept and includes industries that support cultural activities; and
(iii) including wording which makes reference to the promotion of individual creativity and innovation in the development of arts and culture.
43 (e) adopted paragraph (e) of (e) the citizens shall promote a (e) the citizens shall promote a culture of Article 11 without culture of cooperation, cooperation, understanding, appreciation, amendments; and understanding, appreciation, tolerance and respect for each other‟s tolerance and respect for each customs, traditions and beliefs; and other‟s customs, traditions and beliefs. (f) considered and adopted a new New Paragraph (f) traditional leaders shall preserve, paragraph and numbered it (f). protect and promote customs, traditions The new provision was and cultural practices that encourage the adopted to acknowledge the values of community solidarity and role that the traditional leaders protect and respect the dignity, welfare play in the preservation, and interests of the family. protection and promotion of customs, traditions and cultural practices, encourage the values of community solidarity and protect the welfare and interests of the family. Article 12: Foreign Policy, Principles and Foreign Policy, Principles and Objectives Foreign Policy, Objectives Principles and 14. The State shall pursue a foreign Objectives 12. The State shall pursue a policy based on the following principles The Conference: foreign policy based on the and objectives: following principles and objectives: (b) adopted opening paragraph (a) the promotion of national interest; and paragraphs (a), (b), (c), (a) the promotion of national (b) respect for international law and (d), (e) and (f) of Article 12 of interest; treaty obligations; the Mung‟omba Draft (b) respect for international law (c) the promotion of regional Constitution without and treaty obligations; integration and African unity; amendments;
44 (c) the promotion of regional (d) the settlement of international integration and African unity; disputes by peaceful means; (d) the settlement of (e) the promotion of a just world international disputes by peaceful economic order; means; (f) opposition to all forms of (e) the promotion of a just domination, discrimination, racism and world economic order; and other forms of oppression and exploitation; and (f) opposition to all forms of domination, racism and other forms of oppression and exploitation.
(g) the avoidance by State organs, (c) inserted a new paragraph and New Paragraph State institutions and citizens of undue numbered it as paragraph (g) influence from other countries and foreign to discourage the undue institutions. influences on the values of Zambians by other countries and foreign institutions; and
(d) re-numbered the Article as Article 14. Article 13: Principles and objectives of Principles and objectives of accountability Principles and accountability and transparency and transparency objectives of accountability 13. The State shall be governed 12. The State shall be governed The Conference: and transparency democratically based on the democratically, based on the following (a) adopted the opening sentence following principles and objectives: principles and objectives: and paragraph (a) of Article 13 without amendments and (a) the State shall ensure open (a) the State shall ensure open and re-numbered the Article as and transparent government and transparent government and accountability Article 12; and accountability of public officers, of public officers, State organs and State
45 State organs and State institutions; institutions;
(b) all State(b) organs, State (b) the State shall be guided by the (b) deleted paragraph (b) because institutions and public officers are principle of decentralisation of its provision was provided for accountable to the people; and governmental powers, functions and in paragraph (a) of Article 12 resources to the people at appropriate which had been adopted levels; earlier. In its place paragraph (f) of Article 9 of the Mung‟omba Draft Constitution was adopted with amendments by deleting the words “where they can best
manage and direct their own
affairs” The new paragraph
(b) was adopted to provide for
decentralisation;
(c) the State shall put in place effective (c) amended paragraph (c) of (c) the Government shall put in measures to expose and eradicate place effective measures to expose Article 13 by substituting the corruption both in the public and private and eradicate corruption both in the word “Government” with the sectors; public and private sectors. word “State” to make the fight against corruption more inclusive by providing for other bodies, apart from the Executive;
New Paragraph (d) the State shall promote ethics and (d) adopted a new paragraph in fair play in the conduct of public life; order to provide for an aspiration to promote a society
46 of honest and accountable people and numbered it paragraph (d);
New Paragraph (e) the Government shall endeavour to (e) adopted paragraph (m) of provide adequate resources to State organs Article 9 of the Mung‟omba and State institutions to ensure their Draft Constitution with effective functioning at all levels; amendments by rephrasing it to make it clearer in providing for Government to endeavour to provide adequate resources to state organs and institutions and numbered it paragraph
(e);
New Paragraph (f) the Government shall recognise the (f) adopted paragraph (l) of role of civil society in governance and Article 9 of the Mung‟omba facilitate its role in ensuring the Draft Constitution by accountability of public and private institutions; and rephrasing it to make it clearer in providing for the Government to recognise the role of the civil society in ensuring accountability of both public and private institutions to enhance good governance and act as a safeguard as Government would check civil society and vice versa. The paragraph was numbered as
47 New Paragraph paragraph (f); and (g) the State shall ensure that all (g) adopted paragraph (g) of political parties aspiring to manage and Article 9 of the Mung‟omba direct public affairs, and all religious Draft Constitution with bodies and civic associations aspiring to amendments by rephrasing it participate in public affairs, shall retain to make it clearer in providing their autonomy in pursuit of their for political, religious and civic declared objectives and conform to organisations to conform to principles of democracy, transparency and principles of democracy, accountability in their internal transparency and organisation and practices. accountability if they aspired to manage and direct or participate in public affairs and numbered it paragraph (g). New Article: Christian and Other Religious Values and Christian and Principles Other Religious
Values and Principles 16. The State shall direct the policies The Conference introduced the new and laws towards securing and promoting provision to emphasise the State‟s role Christian values, beliefs, ethics and in promoting Christianity which morals consistent with this Constitution, would define who Zambians were and and shall prohibit any religious practices to support the provision that declared that de-humanise or are injurious to the Zambia as a Christian nation in the physical and mental well-being of a Preamble of the Draft Constitution. It human being. was numbered as Article 16. New Article : Gender Equality Gender Equality 17. The State shall direct the policies and The Conference adopted the new laws towards securing and promoting provision on gender equality to oblige Government to direct policies and
48 gender equality. laws towards securing and promoting gender equality. It was numbered as Article 17. New Article : Equitable Representation of Equitable Disadvantaged Groups Representation of 18. (1) The Government shall ensure full Disadvantaged The Conference adopted a new participation, gender balance and Groups equitable representation of disadvantaged provision and numbered it as Article
groups, including the youths and persons 18 to provide: with disabilities, in elective and
appointive bodies and in the political, (a) in clause (1) for obliging
social, cultural and economic Government to ensure the
development of the country. full, participation, gender balance and equitable
representation of
disadvantaged groups, in
elective and appointive bodies within the political, social, cultural and economic development. It was numbered as Article 18.
(b) in clause (2) of the new (2) All political parties and civic associations shall ensure full provision aimed at participation, gender balance and obliging all political parties equitable representation of disadvantaged and civic associations to groups, the youth and persons with ensure the full disability in their organisations and participation, gender
49 practices. balance and equitable representation in organisations and practices. New Article : Promotion of sport Promotion of sport 19. The Government shall promote The Conference adopted paragraph recreation and sports for the citizens. (o) of Article 10 of the Mung‟omba Draft Constitution to promote recreation and sports and numbered it as Article 19.
PART IV LAWS OF ZAMBIA Article 20: Laws Laws of Zambia Laws of Zambia of Zambia 14. The Laws of Zambia consist of 20. The laws of Zambia consist of - The Conference adopted Article 14 of the Mung‟omba Draft Constitution - (a) this Constitution; without amendments and renumbered (a) this Constitution; the Article as Article 20. (b) laws made by or under the
authority of Parliament; (b) laws made by or under the
authority of Parliament; (c) any orders, rules, regulations and
other statutory instruments made by any (c) any orders, rules, person or authority under a regulations and other statutory power conferred by this Constitution or instruments made by any person or any other law; authority under a
power conferred by this (d) the British laws and statutes which Constitution or any other law; apply or extend to Zambia as prescribed by
50 an Act of Parliament; (d) the British laws and statutes (e) Zambian customary law which is which apply or extend to Zambia as consistent with this Constitution; prescribed by an Act of Parliament; (e) Zambian customary law (f) the common law of England which which is consistent with this is consistent with this Constitution; Constitution; (g) the rules of law generally known as the doctrines of equity; and (f) the common law of England which is consistent with this (h) the law as determined by the Constitution; superior courts.
(h) the rules of law generally known as the doctrines of equity; and
(h) the law as determined by the superior courts. PART V CITIZENSHIP
ARTICLE PROVISIONS OF THE No. MUNG’OMBA DRAFT RESOLUTIONS OF THE CONFERENCE RATIONALE/REMARKS CONSTITUTION Article 15: Existing Citizenship Existing Citizenship Existing Citizenship Existing 15. Every person who was a citizen 21. (1) Every person who was a citizen The Conference observed that Article Citizenship of Zambia immediately before the of Zambia immediately before 15 omitted the granting of citizenship commencement of this the commencement of this to a person whose application for Constitution shall continue to be a Constitution shall continue to be citizenship might have been approved
51 citizen of Zambia and shall retain a citizen of Zambia and shall dependent on the occurrence of a the same citizenship status from retain the same citizenship status culture event and: that date. as from that date. (a) adopted its provision without (2) A person who was entitled to amendments and re-numbered citizenship of Zambia before it as clause (1) of the new the commencement of this Article 21; Constitution subject to the (b) adopted clause (2) of Article 4 performance of any conditions of the current Constitution and following the happening of a numbering it as clause (2) of future event, shall become a Article 15 to provide for the citizen upon the performance of granting of citizenship to a such conditions. person whose application for citizenship might have been approved dependent on the occurrence of a culture event; and (c) re-numbered Article 15 as Article 21.
Article 16: Acquisition of citizenship Acquisition of citizenship Acquisition of citizenship Acquisition of 16. Citizenship may be acquired 22. Citizenship may be acquired by The Conference adopted Article 16 citizenship by birth, descent, registration or birth, descent, registration or without amendments but re-numbered adoption in accordance with this adoption in accordance with this it as Article 22. Part. Part.
52 Article 17: Citizenship by birth Citizenship by birth Citizenship by birth Citizenship by 17. Every person born in Zambia is 23. (1) Every person born in Zambia is a The Conference adopted Article 17 birth a citizen by birth if, at the date of citizen by birth if, at the date of the with amendments: the person‟s birth, at least one person‟s birth, at least one parent of (a) by inserting the words “or parent of that person is a citizen that person is or was a citizen. was” to provide for a child, one of whose parents was or had (2) A child of not more than five been citizen before death: years of age found in Zambia, whose (b) by providing for a child who parents are not known, shall be was not more than five years presumed to be a citizen of Zambia old found in Zambia and of by birth. unknown parents in clause (2); and (c) re-numbering the Article as Article 23. Article 18: Citizenship by descent Citizenship by descent Citizenship by descent Citizenship by 18. Every person born outside 24. Every person born outside The Conference adopted Article 18 descent Zambia is a citizen by descent if, at Zambia is a citizen by descent if, with amendments: the date of that person‟s birth, at at the date of the person's birth, (a) by deleting the words “by least one parent of that person is a at least one parent of that person birth” to make the provision citizen by birth. is or was a citizen. applicable to every child of a citizen born outside Zambia regardless of how the parent(s) acquired citizenship; and (b) by inserting the words “or was” between the words “is” and “a” to provide for a child whose one parent was citizen but died before its birth; and (c) by re-numbering the Article as Article 24. (d)
53 Citizenship by Registration Citizenship by Registration Citizenship by Registration Article 19: 19 (1) Subject to clauses (4) and (5), 25. (1) Subject to clauses (4) and (5), a The Conference adopted Article 19 of Citizenship by a person shall be entitled to apply person may apply to the Citizenship the Draft Constitution with Registration to the Citizenship Board to be Board of Zambia to be registered as amendments by: registered as a citizen if that person a citizen if that person was born in (a) replacing the words was born in Zambia but neither of Zambia but neither of the person's “Citizenship Board” with the whose parents is a citizen. parents is or was a citizen. words “Citizenship Board of Zambia” and inserting the (2) Subject to clause (4), a person (2) Subject to clause (5), a person may words “or was” before the shall be entitled to apply to the apply to the Citizenship Board of words “a citizen” in clause (1) Citizenship Board to be registered Zambia to be registered as a (b) replacing the word “shall” with as a citizen if that person was born citizen, if that person was born in the word “may” in clause (2) to in or outside Zambia and had a or outside Zambia and has a make it optional for a person to grandparent who is or was a grandparent who is or was a apply to be registered as a citizen. citizen. citizen and replaced the words “Citizenship Board” with (3) Subject to clauses (4) and (3) Parliament shall enact “Citizenship Board of Zambia” (5), a person shall be entitled to legislation for the expeditious entry in clause (2); apply to be registered as a citizen if into and residence in Zambia of (c) by replacing the words “not that person has - persons to whom clause (2) applies. less than 12 years” with the words “not less than 15 years” (a) attained the age of (4) Subject to clause (5), a in clause (3) to adjust the twenty-one years; and person may apply to be registered number of years during which as a citizen if that person has - a person should be ordinarily (b) been ordinarily resident resident in Zambia before in the Republic for a (a) attained the age of twenty- submitting application for continuous period of not one years; and registration to make it more less than twelve years stringent for a person to immediately preceding (b) been ordinarily resident in acquire citizenship by the person‟s application the Republic for a continuous registration; for registration. period of not less than fifteen (d) replacing the words “the
54 years immediately preceding the application was successful” (4) A person who applies to person's application for with the words “of approval of be registered as a citizen under this registration. the application” in clause Article and whose application is (4)(b); successful shall - (5) A person who applies to be (e) deleting the words “entitled to (a) in the case of clause (1), registered as a citizen under this be” in clause (5); renounce the citizenship of any Article and whose application is (f) insertng a new clause (3) to other successful shall – provide for the expeditious country on attaining the age of (a) in the case of clause (1), entry into and residence in twenty- one years; or renounce the citizenship of any Zambia of a person born in or (b) in the case of clauses (2) other country on attaining the outside Zambia and has or had and (3), renounce the age of twenty-one years; or a grandparent who is or was a citizenship of any other citizen; country within a period (b) in the case of clauses (2) and (4), (g) re-numbered clauses (3), (4) of not more than three renounce the citizenship of and (5) as clauses (4), (5) and months from the date any other country within a (6) respectively and Article 19 the application was period of not more than three as Article 25; and successful; months from the date of (h) inserted a new Article 26 to and, upon such renunciation, the approval of the application; provide for citizenship by Citizenship Board shall register and, upon such renunciation, the marriage in recognition of the that person as a citizen by Citizenship Board of Zambia shall register importance of marriage in the registration. that person as a citizen by registration. Zambia society.
(5) A child of a diplomat (6) A child of a diplomat accredited accredited to Zambia or a person to Zambia or a person with refugee with refugee status in Zambia shall status in Zambia shall not be not be entitled to be registered as a registered as a citizen. citizen.
55 New Article 26 Citizenship by marriage (1) A woman married to a man who is The Conference adopted a new a citizen, or a man married to a woman provision to provide for citizenship to who is a citizen, may, upon making an non-Zambians married to citizens as it application in the manner prescribed was of the view that marriage was a by an Act of Parliament, be registered very important institution as a citizen of Zambia.
(2) Clause (1) shall apply only if the applicant has been ordinarily resident in the Republic for a continuous period of not less than fifteen years immediately preceding that person’s application.
(3) Clause (1) applies to a person who was married to a person who, but for that person’s death, would have continued to be a citizen of Zambia under clause (1) of Article 21.
(4) Where the marriage of a person is annulled or dissolved after the person has been registered as a citizen of Zambia under clause (1), that person shall, unless the person renounces that citizenship, continue to be a citizen of Zambia.
(5) Where on an application for registration under clause (1), the Citizenship Board of Zambia has reasonable grounds to believe that a
56 marriage has been entered into primarily with a view to obtaining the registration, the Citizenship Board of Zambia shall not effect the registration.
Citizenship by adoption Citizenship by adoption Citizenship by adoption Article 20 20. (1) A child who is not a citizen 27. (1) A child who is not a citizen The Conference adopted Article 20 and who is adopted by – and who is adopted by a citizen shall with amendments by: be a citizen on the date of the adoption (a) deleting the words “by birth or (a) a citizen by birth or but the child shall, on attaining the age descent” from paragraph (a) to descent shall be a citizen of twenty-one years, renounce the remove the discriminatory on the date of the citizenship of any other country failure provision which provided that adoption but that child to which the child shall cease to be a a child adopted by a citizen by shall renounce the citizen. registration could not acquire citizenship of any other citizenship; country on attaining the (2) An Act of Parliament shall provide (b) deleting paragraph (b) of clause age of twenty-one years for further restrictions on the (1) of Article 20 of the Draft failure to which the adoption, by a citizen, of a child Constitution because it was child shall cease to be a who is not a citizen. redundant; and citizen; and (c) re-numbered Article 20 as (b) a citizen by registration, Article 27. shall not acquire citizenship by adoption. (2) An act of Parliament shall provide for further restrictions on the adoption by a citizen of a child who is not a citizen.
57 New Article Renunciation of citizenship other For purposes of this Part, where, The Conference inserted a new 28 than Zambian under the law of a country other than Article 28 to provide for declaration Zambia, a person cannot renounce the in case where a person cannot citizenship of that other country, the renounce the citizenship of a country person shall make such declaration other than Zambia when acquiring concerning that citizenship as may be citizenship. prescribed by or under an Act of Parliament. Dual Citizenship Dual Citizenship Dual Citizenship Article 21 21. (1) a citizen, by birth or descent, 29. (1) A citizen, by birth or descent, The Conference adopted Article 21 shall not lose that citizenship by shall not lose that citizenship by without amendments but re- acquiring the citizenship of another acquiring the citizenship of another numbered as Article 29. country. country.
(2) A citizen, by birth or (2) A citizen, by birth or descent, and descent, and who before the who, before the commencement of this commencement of this Constitution, acquired the citizenship of Constitution, acquired the another country and as a result ceased to citizenship of another country and be a Zambian citizen may apply to the as a result ceased to be a Zambian Citizenship Board of Zambia to regain citizen shall be entitled to apply to that citizenship. the Citizenship Board to regain that citizenship. Article 22 Renunciation and deprivation of Renunciation and deprivation of Renunciation and deprivation of citizenship citizenship citizenship
22. (1) Subject to clause (2), citizen 30. (1) A citizen may renounce Zambian The Conference adopted Article 22 may renounce Zambian citizenship citizenship. with amendments: or shall be deprived of that (2) Subject to clause (3), a person shall (a) by splitting clause (1) into two (2) citizenship only if that person be deprived of that person’s separate clauses and re-
58 acquired citizenship by means of Zambian citizenship only if the numbered clause (2) as clause (3) fraud, false representation or person acquired that citizenship by so that the new clause (1) concealment of any material fact. means of fraud, false representation provides for renunciation of or concealment of any material fact. Zambian citizenship while clause (2) A citizen by registration or (2) provides for deprivation of adoption may (3) A citizen by registration or adoption Zambian citizenship; be deprived of that citizenship if may be deprived of that citizenship (b) renumbered Article 22 as Article that person acquires citizenship of if that person acquires the 30. any other country other than citizenship of any other country by marriage. other than by marriage.
Citizenship Board Citizenship Board Citizenship Board Article 23 23. (1) There shall be established 31. (1) There shall be established the The Conference adopted Article 23 the Citizenship Board of Zambia Citizenship Board of Zambia which with amendments by: which shall implement this Part. shall implement this Part. (a) replacing the term (2) Parliament shall enact “Citizenship Board” with the legislation which provides for the (2) Parliament shall enact legislation to term “Citizenship Board of composition of, appointment of provide for the powers, functions, Zambia” as obtaining members to, tenure of office and composition of, appointment of currently; and procedures to be followed by, the members to, tenure of office and (b) re-numbered Article 23 as Citizenship Board. procedures to be followed by, the Article 31. Citizenship Board of Zambia.
Article 24 Entitlements of citizen Entitlements of citizen Entitlements of citizen 24. A citizen is entitled to - 32. A citizen is entitled to – The Conference adopted Article 24 (a) the rights, privileges and benefits of without amendments and re- (a) the rights, privileges and citizenship, subject to the limitations numbered it as Article 32. benefits of citizenship, set out in this Constitution; and subject to the limitations (b) any document of registration and set out in this Constitution; identification issued by the State to and citizens.
59
(b) to any document of registration and identification issued by the State to citizens.
Article 25 Responsibility of a citizen Responsibility of a citizen Responsibility of a citizen 33. A citizen shall - The Conference adopted Article 25 25. A citizen shall- (a) be patriotic and loyal to Zambia with amendments: and promote its well-being; (a) by incorporating some (a) acquire basic (b) acquire basic understanding of this provisions from Article 113 of understanding of this Constitution and promote its ideals the current Constitution to Constitution and and objectives; include the aspects not promote its ideals and (c) contribute to the well-being of the provided for in the Draft objectives; community where that citizen lives, Constitution; and including the observance of health (b) re-numbering the Article as (b) uphold and defend this controls; Article 33. Constitution and the (d) foster national unity and live in Laws; harmony with others; (e) be entitled to register and vote, if (c) register and vote, if eligible, in all national and local eligible, in all National elections and referenda; and local elections and (f) promote democracy and the rule of referenda; law; (g) provide defence and military (d) be patriotic and loyal to service when called upon; Zambia, promote its (h) carry out with discipline and honesty legal public functions; development and good (i) pay all taxes and duties legally due image and render and owing to the State; national service (j) assist in the enforcement of the law whenever required to at all times;
60 do so; (k) develop one's abilities to the greatest possible extent through (e) develop one‟s abilities acquisition of knowledge, to the greatest possible continuous learning and the extent through development of skills; acquisition of (l) protect and safeguard public knowledge, continuous property from being damaged, learning and the wasted or misused; development skills; (m) protect and conserve the contribute to the environment, utilise natural welfare and resources in a sustainable manner advancement of the and maintain a clean and healthy community where that environment; citizen lives; (n) desist from acts of corruption, anti- social and criminal activities; and (f) contribute to the (o) understand and enhance the welfare and Republic's place in the international advancement of the community. nation by paying all taxes and duties lawfully due and owing to the State;
(g) strive to foster national unity and live in harmony with others;
(h) promote democracy, good governance and the rule of law;
61 (i) protect and safeguard public property from being damaged, wasted or misused;
(j) protect and conserve the environment and utilize natural resources in a sustainable manner and maintain a clean and healthy environment;
(k) co-operate with the law enforcement agencies for the maintenance of law and order and assist in the enforcement of the law at all times;
(l) provide defence and military service when called upon;
(m) desist from acts of corruption, anti-social and criminal activities; and (n) understand and enhance the Republic‟s
62 place in the international community.
New Article Person born on ship, aircraft, etc. 34 (1) For the purpose of this Part, a The Conference: 34 person born aboard a registered ship or (a) adopted clauses (1) and (2) of aircraft, or aboard an unregistered ship or Article 10 of the current Constitution aircraft of the Government of any country, to provide for children born abode a shall be deemed to have been born in the ship or aircraft or a person born after place in which the ship or aircraft was the death of the person‟s parent; and registered or in that country, as the case (b) re-numbered the Article as Article may be. 34 (2) Any reference in this Part to the national status of the parent of a person at the time of the birth of that person shall, in relation to a person born after the death of the person's parent, be construed as a reference to the national status of the parent at the time of the parent's death.
Article Legislation on citizenship Legislation on citizenship Legislation on citizenship 26 26. parliament shall enact 35. Parliament shall enact legislation – The Conference adopted Article 26 legislation – (a) for the acquisition and deprivation with amendments by: (a) Providing for the of citizenship of Zambia; and (a) deleting the words “to enable the powers of the (b) for the expeditious entry into and Board give effect to the Part” in Citizenship Board to residence in Zambia of persons paragraph (a) to make Part V dealing enable the Board give who, before or after the with Citizenship operational even effect to this Part. commencement of this before subordinate legislation was Constitution, have lost their enacted to provide for the powers of (b) for the acquisition and citizenship of Zambia as a result of the Citizenship Board of Zambia;
63 deprivation of the acquisition or possession of the (b) deleting the words “by persons citizenship of Zambia citizenship of another country. who are not eligible to become by persons who are not citizens under this Part” in paragraph eligible to become (b) as retaining words would make citizens under this Part. persons not eligible become eligible to acquire citizenship; and (c) re-numbering the Article as Article 35.
PART VI: BILL OF RIGHTS
ARTICLE PROVISIONS OF THE RESOLUTIONS OF THE RATIONALE/REMARKS NO. MUNG’OMBA DRAFT CONFERENCE CONSTITUTION PART VI: BILL OF RIGHTS PART VI: BILL OF RIGHTS Status, Application and Status, Application and Interpretation Interpretation Article 27: Fundamental rights and freedoms Fundamental Fundamental rights and 36. (1) The Bill of Rights is rights and freedoms fundamental to Zambia's democratic The Conference adopted Article 27 freedoms State and shall be the framework for the of the Mung‟omba Draft 27. (1) The Bill of Rights is adoption of social, political, economic Constitution with amendments by: fundamental and cultural policies. to Zambia‟s democratic State (a) deleting paragraph (b) of and shall be the framework for (2) The purpose of the Bill of Rights Article 3 as it referred to the adoption of social, is to fulfil the national goals, values and “other rights” and it was political, economic and principles by preserving the dignity of not clear what these were individuals and communities, and where they were
64 cultural policies. promoting social justice and realising provided for. The Bill of the potential of all human beings. Rights was supposed to (2) The purpose of the Bill of state the rights and Rights is to freedoms it protected. The provision was likely to fulfill the National goals, result in different values and principles by interpretation of the said preserving the dignity of “other rights” referred to individuals and communities, and be a source of promoting social justice and litigation; realising the potential of all human beings. (b) deleting the words “or contemplated” in paragraph (c) of clause (3). It was observed that sub- paragraphs (i) and (ii) of paragraph (a) of clause (3) of Article 27 provided that “State” cannot grant or take away the rights and freedoms of an individual and yet paragraph (c) of the same clause (3) provided for limitations “contemplated” in the Constitution. Such a provision would lead to ambiguity and was a potential source of litigation
65 as “contemplated limitations” would be subject to different interpretations; (c) re-numbered the paragraphs, as a consequence of the deletion of paragraph (b); and
(d) re-numbered Article 27 as Article 36.
(3) The rights and freedoms set (3) The rights and freedoms set out out in this in this Part are - (a) inherent in each Part – individual and; (a) are inherent in each (i) are not granted by individual and - the State; and (i) are not granted by the (ii) cannot be taken State; and away by the State; (ii) cannot be and taken away by the State; (b) subject only to the (b) do not exclude limitations contained in other rights that this Constitution. are not expressly mentioned in this
66 Part; and (c) are subject only to the limitations contained or contemplated in this Constitution.
Article 28: Duty of State to promote Duty of State to promote rights and The Conference observed that it was Duty of State to rights and freedoms freedoms the primary responsibility of the promote rights 28. (1) It is a fundamental 37. (1) It is a fundamental duty of the State to equip the State organs and and freedoms duty of every State organ and State to respect, protect, promote and institutions to ensure that they met State institution to respect, fulfil the Bill of Rights. the needs of different sectors of the protect, promote and fulfill the society with respect to the Bill of Bill of Rights. Rights. Accordingly, the Conference:
(a) approved clause (1) of the Mung‟omba Draft Constitution with amendments by replacing the words “every State organ and State institution” with the word “State” in order to place the primary duty to respect, protect, promote and fulfil the Bill of Rights on the State; and (b) re-numbered the Article as
67 Article 37.
(2) The State shall allow (2) The State shall allow civil society The Conference approved clause (2) civil society to play its role in to play its role in the promotion and of Article 28 of the Mung‟omba the promotion and protection protection of the Bill of Rights. Draft Constitution without of the Bill of Rights. amendments but provided a definition for “civil society” to be inserted in Article 308 on definitions as: Civil Society means “individuals, movements and associations excluding the government and those serving in the armed and security forces”.
Subject to this Constitution, he (3) Relevant State (3) t The Conference approved clause (3) State shall equip State institutions, including the relevant with amendments by deleting the institutions and State organs, Human Rights Commission, to meet words “Relevant State institutions shall equip themselves to meet the needs of different sectors of the including the Human Rights the needs of different sectors society with respect to the Bill of Rights. Commission, shall equip ” of the society with respect to themselves and replacing them “Subject to this the Bill of Rights. with the words Constitution the State shall equip relevant State organs and State institutions” in order to: (a) place primary responsibility to protect and promote human rights on the State; and
68 (b) provide a condition to the word “shall” which placed obligation on the State to equip relevant organs and institutions in cases where the State might not have the resources to do so.
(4) The President shall, (4) The President shall, when The Conference approved clause (4) when addressing the National addressing the National Assembly each of Article 28 of the Mung‟omba Assembly each year, report on year, report on the measures taken and Draft Constitution without the measures taken and the the achievements of the State in giving amendments. achievements of the State in effect to, and the progress achieved by giving effect to, and the the Nation in the realization of the Bill progress achieved by the of Rights. Nation in the realization of the Bill of Rights. Article 29: Application of Bill of Rights Application of Bill of Rights The Conference adopted Article 29 Application of 29. (1) This Part applies to the 38. (1) This Part applies to the of the Mung‟omba Draft Bill of Rights interpretation and application interpretation and application of the Constitution without amendments of the Laws and binds all State laws and binds all State organs, State and re-numbered it as Article 38. organs, State institutions and institutions and all persons. all persons. (2) A natural or juristic person (2) A natural or juristic enjoys the benefit of any right or person enjoys the benefit of freedom in this Part, to the extent any right or freedom in this possible, given the nature of the right Part, to the extent possible, or freedom and of the person.
69 given the nature of the right or (3) This Part binds a natural or freedom and of the person. juristic person, to the extent possible, (3) This Part binds a natural or given the nature of the right or juristic person, to the extent freedom and the nature of any duty possible, given the nature of imposed by that right or freedom. the right or freedom and the nature of any duty imposed by (4) A person shall exercise a right that right or freedom. or freedom in a manner consistent with this Bill of Rights. (4) A person shall exercise a right or freedom in a (5) When applying this Bill of Rights a manner consistent with this court – Bill of Rights. (a) shall apply and, if necessary, develop the Law to the extent (5) When applying this Bill of where legislation does not give Rights a court – effect to a right or freedom; and (a) shall apply and, if (b) may develop rules of the Law to necessary, develop the interpret a right or freedom in a Law to the extent where manner consistent with the legislation does not give limitations and derogations effect to a right or permitted under this Bill of freedom; and Rights. (b) may develop rules of the Law to interpret a right or freedom in a manner consistent with the limitations and derogations permitted
70 under this Bill of Rights
Article 30: Interpretation of Bill of Interpretation of Bill of Rights Interpretation of Rights 39. (1) When interpreting and The Conference adopted Article 30 Bill of Rights applying a provision of this Bill of of the Mung‟omba Draft 30. (1) When interpreting Rights, a court, tribunal, the Human Constitution without amendments and applying a provision of Rights Commission or any other body and re-numbered it as Article 39. this Bill of Rights, a court, shall promote the values that underlie tribunal, the Human Rights an open and democratic society based Commission or any other body on human dignity, equality and shall promote the values that freedom. underlie an open and
democratic society based on (2) When interpreting any human dignity, equality and legislation and when developing the freedom. law, every court, tribunal, the Human (2) When interpreting any Rights Commission or other body shall legislation and when promote the spirit, purpose and developing the Law, every objectives of the Bill of Rights. court, tribunal, the Human Rights Commission or other body shall promote the spirit, purpose and objectives of the Bill of Rights. Article 31: Right Right to life Right to life to life 31. (1) Every person has, 40. (1) Every person has, subject The Conference observed that subject to clause (2), the right to clause (2) and (3), the right to life, Article 31 of the Mung‟omba Draft to life, which begins at which begins at conception. Constitution omitted important conception. provisions on the loss of life relating to the termination of
71 pregnancy in deserving cases and for the defence of a person from violence and therefore, adopted Article 31 with amendments by:
(a) incorporating clause (2) of Article 12 of the current Constitution of Zambia to provide for termination of pregnancy in deserving cases and numbered it as clause (3) of Article 31. Clause (2) of Article 12 of the
current Constitution of Zambia
provides that:
“A person shall not deprive
an unborn child of life by
termination of pregnancy
except in accordance with the
conditions laid down by an
Act of Parliament for that
purpose.”
(b) incorporating the provision of
paragraph (a) of clause (3) of
Article 12 of the current
Constitution into paragraph (a) of clause (3) of Article 31 of the Mung‟omba Draft
72 Constitution to provide for protection of any person from violence. Paragraph (a) of clause (3) of Article 12 of the current Constitution provides that:
“for the defence of any person from violence or for the defence of property”;
(c) replacing the phrase “subject to clause (2)” with the phrase “subject to clauses (2) and (3)” so that clause (1) also cross- referred to the new clause (3);
and
(d) re-numbered the Article as
Article 40.
(2) A person shall not be (2) A person shall not be deprived of The Conference approved clause (2) deprived of life intentionally, life intentionally, except in the without amendments. except in the execution of a execution of a sentence of a court in sentence of a court in respect of respect of a criminal offence under the a criminal offence under the law in force of which that person has law in force of which that been convicted.
73 person has been convicted.
(3) A person shall not deprive an The Conference: unborn child of life by termination (a) approved the incorporation of pregnancy except in accordance of clause (2) of Article 12 of New clause with the conditions laid down by an the current Constitution of Act of Parliament for that purpose. Zambia to provide for termination of pregnancy in deserving cases; and (b) re-numbered it as clause (3). (3) Without limiting (4) Without limiting any liability for The Conference: any liability for a a contravention of any other law with (a) approved paragraph (a) of contravention of any other law respect to the use of force, a person clause (3) with amendments to with respect to the use of force, shall not be regarded as having been provide for the defence of a a person shall not be regarded deprived of that person's life in person against violence; as having been deprived of contravention of this Article if that (b) approved paragraphs (b), (c) that person‟s life in person dies as a result of the use of and (d) of clause (3) without contravention of this Article if force to such extent as is reasonably amendments; and that person dies as a result of justifiable in the circumstances of the (c) re-numbered clause (3) of the use of force to such extent case - Article 31 as clause (4). as is reasonably justifiable in (a) for the defence of any person the circumstances of the case - from violence or for the defence (a) in the defence of a of a person's property; person‟s property; (b) in order to effect a lawful arrest (b) in order to effect a or to prevent the escape of a lawful arrest or to person lawfully detained; prevent the escape of (c) for the purpose of suppressing a a person lawfully riot, insurrection, mutiny or due
74 detained; to a lawful act of war; or (c) for the purpose of (d) in order to prevent the suppressing a riot, commission by that person of a insurrection, mutiny criminal offence. or due to a lawful act of war; or (d) in order to prevent the commission by that person of a criminal offence.
Human dignity Protection from Inhumane Treatment Article 32: 32. (1) Every person has an 41. (1) Every person has an The Conference: Human dignity inherent dignity and the right inherent dignity and the right to have (a) approved clause (1) of Article to have that dignity respected that dignity respected and protected. 32 of the Mung‟omba Draft and protected. Constitution without amendments; and (b) amended the marginal note to read “Protection from Inhumane Treatment”; and (c) re-numbered the Article as Article 41.
New clause (2) A person shall not be subjected The Conference introduced a new
to torture, or inhuman or degrading clause (2) in order to reinforce clause
punishment or other like treatment. (1). The new clause was derived
75 from Article 15 of the current Constitution which provides that: “15. A person shall not be subjected to torture or to inhuman or degrading punishment or other like treatment”; and, as a consequence, paragraph (e) of Article 51 of the Mung‟omba Draft Constitution was deleted. Paragraph (e) of Article 51 of the Mung‟omba Draft Constitution provides that: “51. Every person has the right to freedom and security of person which includes the right- (e) not to be tortured in any manner, whether physically or psychologically;” (3) Notwithstanding any other The Conference resolved to provide provision in this Constitution, the for limitations, derogations and non- protection from inhuman or degrading derogation in appropriate Articles as
punishment or other like treatment opposed to providing for those
shall not be derogated from. matters in separate Articles. New clause Therefore, a new clause (3) on derogations was adopted in order to make inhuman or degrading punishment a non-derogable right as provided for in Article 77 of the Mung‟omba Draft Constitution.
76
(2) Every person has the The Conference deleted clause (2) of right not to have their Article 32 because it provided for reputation disparaged. matters that were protected in various pieces of subordinate legislation such as those dealing with libel and defamation. Article 33: Equality before law Equality before law The Conference: Equality before 33. (1) Every person is equal 42. (1) Every person is equal before the (a) adopted clause (1) of Article law before the law and has the right law and has the right to equal 33 of the Mung‟omba Draft to equal protection and benefit protection and benefit of the law. Constitution without of the law. amendments and observed that the provision was broad as it did not limit its application by itemising the grounds of possible discrimination; and (b) re-numbered as Article 42.
(2) Equality includes the full (2) Equality includes the full and equal The Conference approved clause and equal enjoyment of all enjoyment of all rights and freedoms. (2) of Article 33 of the Mung‟omba rights and freedoms. Draft Constitution without amendments.
Article 34: Fair administration Fair administration The Conference: Fair 34. (1) Every person has the 43. (1) Every person has the right (a) approved clause (1) of Article administration right to administrative action to administrative action that is 33 of the Mung‟omba Draft that is expeditious, lawful, expeditious, lawful, reasonable and Constitution without
77 reasonable and procedurally procedurally fair. amendments; and fair. (b) re-numbered the Article as Article 43.
(2) (2) Every person whose rights Clause (2) was deleted by the The Conference deleted clause (2) of have been affected by Conference. Article 33 of the Mung‟omba Draft administrative action has the Constitution because it was right to be given written inappropriate to provide in the reasons for the action. Constitution for a right of a person to written reasons for any administrative actions taken against that person in all cases.
(3) Parliament shall enact (2) Administrative bodies and The Conference observed that legislation to - administrative officials shall act fairly clause (3) of Article 34 provided for (a) give effect to clauses and reasonably and comply with the possibility of creating another body (1) and (2); requirements imposed upon such or tribunal when institutions already (b) provide for the bodies and officials by common law existed to deal with matters of review of and any relevant legislation, and administrative impropriety and administrative persons aggrieved by the exercise of therefore: action by a court or, such acts and decisions shall have the where appropriate, right to seek redress before a (a) replaced clause (3) with the an independent and competent Court or Tribunal. provision of Article 18 of impartial tribunal; the Constitution of and Namibia; and ( (c) promote an efficient (b) re-numbered the new clause
78 public as clause (2) as a administration consequence of the earlier decision to delete clause (2) of the Mung‟omba Draft Constitution.
Article 35: Right Right to refuse unlawful to refuse instructions The Conference deleted Article 35 on unlawful Right to refuse unlawful instructions. The Conference: instructions 35. (1) Every person has a (a) deleted clause (1) of article 35 right to refuse to obey any of the Mung‟omba Draft unlawful instruction. Constitution as the provision was ambiguous and it was (2) A person who instigates or difficult to establish what a induces another to carry out lawful instruction was and an unlawful instruction or who would give an who, being able to prevent the interpretation; and carrying out of an unlawful (b) as a consequence of the instruction, fails to do an deletion of clause (1), deleted unlawful instruction, fails to clauses (2) and (3) of Article do so, shall be an accomplice 35. and shall be liable to prosecution and to pay damages prosecution and to pay damages to any injured party.
79
(3) A person shall not be convicted or punished under any law for disobeying an unlawful instruction. Right to Justice Right to Justice Article 36: 36. (1) Every person has 44. (1) Every person has the right The Conference: Right to Justice the right to have any dispute to have any dispute resolved and (a) approved clause (1) of Article resolved and decided timely decided timely and to have a fair 36 of the Mung‟omba Draft and to have a fair public public hearing before a court or, where Constitution without hearing before a court or, appropriate, another independent and amendments; and where appropriate, another impartial tribunal. (b) re-numbered the Article as independent and impartial Article 44. tribunal.
(2) Where a person has any (2) Where a person has any claim or The Conference acknowledged that claim or judgement against the judgement against the State the claim the State was under an obligation to State - may be instituted by proceedings meet the needs of beneficiaries and (a) the claim may be against the State. resolve problems they encountered instituted by when seeking payments. However, proceedings against it was mindful of possible budget the State; and constraints that the State might face. Therefore, clause (2) of Article 36 of (b) the judgment may The Conference deleted paragraph (b). the Mung‟omba Draft Constitution be enforced by was adopted with amendments by execution against deleting paragraph (b) and, the State, a local therefore, joining clause (a) to the authority or other opening paragraph of the clause.
80 public institution after six months of the delivery of the judgement.
(3) The State shall be liable Clauses (3), (4), (5) and (6) deleted by The Conference: the Conference. in tort to the same extent as a (i) deleted clause (3) of private person of full age and Article 36 of the capacity. Mung‟omba Draft (4) The courts shall not Constitution as it order any security for costs on provided for liability of matters of public interest Government which was litigation comprehensively provided for in the State (5) All offences are Proceedings Act; bailable but a court shall have (ii) deleted clause (4) as courts the power to determine did not normally award whether or not bail should be costs in cases of “public granted in any particular case interest litigation” but the either unconditionally or discretion to award costs subject to reasonable in such matters should conditions. continue to reside in the courts; (6) Illegally obtained (iii) deleted clause (5) as the evidence shall not be status quo with regard to
81 admissible in a trial against an all cases being bailable, accused person, unless except those involving excluding that evidence would aggravated robbery, be detrimental to the murder and treason, had administration of justice worked well and should, therefore, continue; and (iv) deleted clause (6) on account of the contradiction in the clause in that it provided for inadmissibility of illegally obtained evidence against a person but at the same time provided for conditions under which such evidence could be admitted.
Article 37: Rights of suspects and Rights of suspects and arrested The Conference: Rights of arrested persons persons (a) adopted paragraph (a) of suspects and 37. Subject to Article 79, a 45. Subject to Article 62, a person Article 37 of the Mung‟omba arrested persons person who is a suspect, who is a suspect, arrested or detained Draft Constitution without arrested or detained for for allegedly committing an offence has amendments; and allegedly committing an the right - (b) re-numbered the Article as offence has the right – (a) to remain silent; Article 45. (a) to remain silent;
82
(b) to be informed in a (b) to be informed in a language The Conference amended
language which that which that person paragraph (b) by inserting the
person understands understands of the - word “not” in sub-paragraph
of the - (i) right to remain silent; and (ii) between the words “of” and
(i) right to remain (ii) consequences of not “remaining.”
silent; and remaining silent; and
(ii) consequences of remaining silent;
New paragraph (c) to be informed as soon as The Conference observed that there reasonably practicable, in a was no provision for deaf persons language that the person and those who were visually understands, of the reasons for impaired to be informed of the the arrest or detention, and in the reasons for arrest or detention in a case of a visually impaired language they understood. person, in Braille, and a deaf Therefore, a new paragraph was person, in sign language; inserted and numbered as paragraph (c).
83
(c) not to be compelled Paragraph (c) was deleted by the The Conference deleted paragraph to make any Conference. (c) as its provisions were well confession or covered in paragraph (b) of the same admission that could Article. be used in evidence against that person and, if a person freely chooses to make a confession, to do so before a court;
(d) to be held separately (d) to be held separately from The Conference: from persons who persons who are serving (a) approved paragraphs (d), are serving a a sentence; (e), and (g) with sentence; (e) to be brought before a amendments but re- (e) to be brought before court - numbered paragraphs (g), as a court - (i) within forty-eight hours paragraph (f) as (i) within forty- after being arrested or consequence of the deletion eight hours after detained; of the original paragraph (f); being arrested or (ii) not later than the end of and detained; the first court day after (b) deleted paragraph (f) of the (ii) not later than the the expiry of the forty- Mung‟omba Draft end of the first eight hours, if the forty- Constitution on account of court day after eight hours expires being redundant as the expiry of the outside ordinary court paragraph (e) (i) of the
84 forty-eight hours, hours or on a day that is Article approved by the if the forty-eight not an ordinary court day; Conference had also hours expires (iii) as speedily as possible, if stipulated that a suspect had outside ordinary that person is arrested or to be brought before a court court hours or on detained far from a after being arrested or a day that is not court; or detained within forty-eight an ordinary court (iv) to be tried within ninety hours. day; days or be released on (iii) as speedily as bail; and possible, if that (f) to be released on bond person is or bail, pending a arrested or charge or trial, on detained far from reasonable conditions, a court; or unless there are (iv) to be tried within compelling reasons to ninety days or be the contrary. released on bail; (f) to be arraigned before a court after being arrested or detained or to be released; and (g) to be released on bond or bail, pending a charge or trial, on reasonable conditions, unless there are compelling reasons to the contrary.
85 Article 38: Rights of persons detained or Rights of persons detained or in The Conference observed that the Rights of in custody custody provisions of Article 38 of the persons 38. (1) A person who is held in 46. (1) A person who is held in custody, Mung‟omba Draft Constitution were detained or in custody, whether sentenced or whether sentenced or not, retains all progressive as they raised the custody not, retains all that person‟s that person‟s rights and freedoms under threshold of human dignity by rights and freedoms under this this Constitution, except to the extent entitling a person in custody to all Constitution, except to the that a right or freedom is incompatible rights and freedom except those extent that a right or freedom with the fact of being in custody. which were incompatible with the is incompatible with the fact of condition of being in custody such being in custody. as right to liberty and freedom of movement. Therefore, clause (1) of Article 38 was adopted without amendments and the Article was re- numbered as Article 46.
(2) A person who is held in (2) Without limiting clause (1), a The Conference amended clause (2) custody has the right - person who is held in custody has the by prefixing it with the words right - “Without limiting clause (1)”.
The Conference observed that although there were certain rights that could only be enjoyed by those in custody, such as a right to parole, clause (2) in its current form which itemised the rights a person in custody could enjoy, was an exhaustive list of rights. To avoid
86 leaving out some rights, clause (2) should be made subject to the generality of clause (1) where all rights were enjoyed.
(a) to be treated in a (a) to be treated in a manner that The Conference approved manner that respects that person‟s inherent human paragraph (a) of clause (2) without respects that dignity and not to be subjected to amendments. person‟s inherent discrimination; human dignity and not to be subjected to discrimination;
(b) if detained under (b) if detained under any law The Conference approved any law relating to relating to the preservation of public paragraph (b) of clause (2) without the preservation of security, to be furnished with the amendments. public security, to reasons for that person‟s detention be furnished with within fourteen days of being taken the reasons for that into custody; person‟s detention within days of being taken into custody;
87
(c) not to be exploited (c) not to be exploited or abused by The Conference approved or abused by the the staff of the prison service or fellow paragraphs (c) of clause (2) without staff of the prison prisoners; amendments. service or fellow prisoners;
(d) to accommodation The Conference deleted paragraph and facilities that (d) as a consequence of its decision satisfy the Paragraph (d) was deleted by the to delete Articles 73 and 74 of the standards of Conference Mung‟omba Draft Constitution decent clothing, which provided for the rights to housing, food, shelter and housing and to food, health and water and sanitation from the Bill of sanitation Rights. The Conference was of the guaranteed in this view that these rights can not be Bill of Rights; guaranteed for the persons detained or in custody when they do not apply to all other citizens.
(e) to reasonable (d) to reasonable health care at The Conference: health care at public expense and to pay for that (a) approved paragraphs (e) public expense and person‟s health care by the person‟s of clause (2) without to pay for their doctor if the person so chooses; amendments; and own health care by (b) re-numbered paragraph their own doctors (e) as paragraph (d). if they so choose;
88
(f) to exercise and to Paragraph (f) was deleted by the The Conference deleted paragraphs work in return for Conference. (f) and (g) on account of the need to reasonable avoid prisons to be turned into remuneration; attractive sources of employment for some persons and that the rights to (g) to communicate Paragraph (g) was deleted by the exercises and to communicate with with their legal Conference. legal practitioners and other persons practitioners, other were adequately provided for under persons whose the Prisons Act. assistance they consider necessary, religious advisers and close family;
(h) to send and receive (e) to communications, visits of The Conference: letters and to visits reasonable frequency and duration (a) approved paragraph (h) with of reasonable to the extent compatible with the amendments by replacing the frequency and preservation of law, order and words “to send and receive duration to the prison discipline; letters and to” with the words extent compatible “to communications,”; and with the (b) re-numbered paragraph (h) preservation of as paragraph (e). law, order and The Conference observed that the prison discipline; usage of the words “to send and receive letters” was restrictive and
89 did not take into account current and future development in information and communication technology such as the internet. The Conference, therefore, recognised the importance of communication and visitations for persons in custody or prison.
(i) to be separated, (f) to be separated, women from The Conference: women from men men and children in conflict with the (a) amended paragraph (i) by and children from law from adults; inserting the words “in adults; conflict with the law” between the words “children” and “from; and (b) re-numbered the paragraph as paragraph (f). The Conference observed that the group of children being referred to in the provision was not clear.
(j) to be informed of (g) to be informed of the rules and The Conference: the rules and decisions that affect that person in a (a) amended paragraph (j) by decisions that language that the person understands, replacing the words “them” affect them; and in the case of a visually impaired with the phrase “that person person, in Braille, and deaf person, in in a language that the sign language; person understands, and in the case of a visually
90 impaired person, in Braille, and a deaf person, in Sign Language.”; and (b) re-numbered the paragraph as paragraph (g).
(k) to fair (h) to fair consideration for parole or The Conference: consideration for remission of sentence and for other (a) approved paragraphs (k) and parole or rehabilitative measures (i) of clause (2) without remission of amendments; and sentence and for other rehabilitative (b)re-numbered them as measures; paragraphs (h) and (i), (i) to compensation for wrongful respectively. detention; and (l) to compensation for wrongful detention; and
(m) to complain to the (j) to complain to the prison The Conference: prison authorities, authorities, visiting Judges and (a) approved paragraph (m) with the Human Rights Magistrates, the Court, the Human amendments by including Commission or Rights Commission or any similar “visiting Judges, Magistrates any similar institution. and the Court” as these were in institution. a position to immediately order
91 that the wrong be redressed; and (b) re-numbered paragraph (m) as paragraph (j). The Conference recognised the need to provide for and strengthen the mechanism for prisoners and detained persons to complain against any violations of their rights.
(3) The State shall ensure Clause (3) was deleted by the The Conference deleted clause (3) of that prisons and the prison Conference Article of Article 38 of the system are maintained and Mung‟omba Draft Constitution and operated within minimum relegated to subsidiary legislation. international standards. Article 39: Fair trial Fair trial Fair trial 39. (1) Every accused person 47. (1) Every accused person has The Conference: has the right to a fair trial which includes (a) approved paragraphs (a), (b), the right to a fair trial which the right - (c), (d) and (e) of clause (1) of includes the right – (a) to be presumed innocent until Article 39 of the Mung‟omba (a) to be presumed the contrary is proved; Draft Constitution without innocent until the (b) to be informed as soon as is amendments; and contrary is proved; reasonably practicable, and in a (b) re-numbered the Article as (b) to be informed as language that the person Article 47. soon as is understands, of the charge with reasonably sufficient detail to answer it; practicable and in (c) to have adequate time and a language that facilities to prepare a defence;
92 person (d) to a public trial before an understands of the independent and impartial charge with court or tribunal; sufficient detail to (e) to have the trial commenced and answer it; concluded and (c) to have adequate judgement given without time and facilities unreasonable delay; to prepare a defence; (d) to a public trial before an independent and impartial court or tribunal; (e) to have the trial commenced and concluded and judgement given without unreasonable delay;
(f) to compensation (q) to compensation for wrongful The Conference re-numbered for wrongful detention or paragraph (f) as paragraph (q) so detention or imprisonment. that it was the last provision of the imprisonment; clause as it was dealing with procedural matters. . (g) to choose, and be (f) to choose, and be represented by, The Conference:
93 represented by, a a legal practitioner and to be (a) approved paragraphs (g), legal practitioner informed of this right promptly; (h), (i), (k) and (l) without and to be informed (g) to have a legal practitioner amendments; and of this right assigned to the accused person by the (b) re-numbered them as promptly; State and at public expense, if paragraphs (f), (g), (h), (i), (h) to have a legal substantial injustice would otherwise and (k), respectively. practitioner result, and to be informed of this right assigned to the promptly; accused person by (h) to remain silent and not to testify the State and at during the proceedings; public expense, if (i) to adduce and challenge substantial evidence; injustice would (j) not to be compelled to give self- otherwise result, incriminating evidence; and to be informed (k) not to be compelled to make any of this right confession or admission that could be promptly; used in evidence against that person; (i) to remain silent and not to testify during the proceedings; (j) to adduce and challenge evidence; (k) not to be compelled to give self-incriminating evidence;
94 (l) not to be compelled to make any confession or admission that could be used in evidence against that person;
(m) to have, without (l) to have, without payment, the The Conference: payment, the assistance of an interpreter if the (a) amended paragraph (m) of assistance of an accused person cannot understand the Clause (1) with interpreter if the language used at the trial, and in the amendments by adding accused person case of a deaf person, a Sign Language the phrase “and in the case cannot understand interpreter; of a deaf person, a Sign the language used Language interpreters” in at the trial; order to cater for persons with disabilities; and (b) re-numbered the paragraph as paragraph (l).
(n) not to be convicted (m) not to be convicted for an act or The Conference: for an act or omission that was not, at the time it was (a) approved paragraph (n) of omission that was committed or omitted, an offence under clause (1) with minor not, at the time it any Laws; amendments by changing was committed or the word “the written” to omitted, an offence “any”; and
95 under the written (b) re-numbered the paragraph Laws; as paragraph (m).
(o) not to be tried for (n) not to be tried for an offence in The Conference: an offence in respect of an act or omission for which (a) approved paragraph (o) of respect of an act or that person has clause (1) with amendments omission for which previously been either acquitted or by incorporating the words that person has convicted, or for any other offence of “or for any other offence of previously been which the person could have been which the person could have either acquitted or convicted at the trial for that offence, been convicted at the trial convicted; except upon the order of a superior for that offence, except upon court in the course of appeal or review the order of a superior court proceedings relating to the conviction in the course of appeal or or acquittal; review proceedings relating to the conviction or acquittal” from clause (5) of Article 18 of the current Constitution; and (b) re-numbered the paragraph as paragraph (n). The Conference observed that the provision was meant to prevent “double jeopardy” in the trial of an accused person and was, therefore, inadequate. The Conference further observed that the provision of clause (5) of Article 18 of the current Constitution was more
96 comprehensive than what was provided for in the Mung‟omba Draft Constitution.
(p) to the benefit of (o) to the benefit of the least severe The Conference: the least severe of of the prescribed punishments if the (a) approved paragraph (p) of the prescribed prescribed punishment for an offence clause (1) without punishments if the has been changed between the time that amendments; and prescribed offence was committed and the time of (b) re-numbered the paragraph punishment for an sentencing; as paragraph (o). offence has been changed between the time that offence was committed and the time of sentencing; and The Conference: (q) of appeal to, or (p) of appeal to, or review by, a higher (a) approved paragraph (q) of review by, a court; and clause (1) without higher court. amendments; and (b) re-numbered it as paragraph (p).
(2) Where this Article (2) Where this Article requires The Conference approved Clause (2) requires information to be information to be given to a person, that with amendments by adding the
97 given to a person, that information shall be given in a language phrase “and in the case of a visually information shall be given in a which that person understands, and in impaired person, in Braille, and a language which that person the case of a visually impaired person, deaf person, in Sign Language” at understands. in Braille, and a deaf person, in sign the end of the provision. language. The Conference observed that the provision was inadequate as it did not provide for persons with disabilities.
(3) An accused person charged (3) An accused person charged with an The Conference approved (3) with an offence is entitled on offence is entitled on request to a copy clauses (3), (4) and (5) without request to a copy of the record of the record of the proceedings of the amendments. of the proceedings of the trial. trial.
(4) An accused person has (4) An accused person has the right the right to a copy of the to a copy of the record of proceedings of record of proceedings of the the trial within fourteen days after they trial within fourteen days after are transcribed in return for a they are transcribed in return reasonable fee if prescribed by law. for a reasonable fee if prescribed by law. (5) A person who is convicted of a criminal offence and whose appeal has (5) A person who is been dismissed by the highest court, to convicted of a criminal offence which that person is entitled to appeal, and whose appeal has been may petition the Supreme Court for a dismissed by the highest court, new trial if new and compelling
98 to which that person is entitled evidence has become available. to appeal, may petition the Supreme Court for a new trial if new and compelling evidence has become available.
(6) The entry of a nolle Clause (6) was deleted by the The Conference deleted clause (6). prosequi is Conference The Conference observed that whilst not an acquittal and shall be the Director of Public Prosecutions valid had the right to enter a nolle prosequi, for twelve months. an accused person did not have the right to a nolle prosequi as the clause seemed to imply.
(7) Where a person in respect The Conference deleted clause (7) as of whom a nolle prosequi has Clause (7) was deleted by the a consequence of the deletion of been entered is not charged on Conference clause (6). the same facts, within twelve months of the entry of the nolle prosequi, that person shall be deemed to have been acquitted.
99 Article 40: Protection from Protection from discrimination on Protection from discrimination grounds of race, etc. discrimination 40. Every person has the right 48. (1) Every person has the right not to The Conference: not to be discriminated be discriminated against, directly or (a) amended Article 40 by against, directly or indirectly, indirectly, on the grounds of race tribe, replacing the phrase “on any on any grounds including sex, pregnancy, origin, colour, age, grounds including,” with the race, sex, pregnancy, health, disability, religion, conscience, belief, phrase “on the grounds of” to marital, ethnic, tribal, social or political opinion, culture, language, provide for specific grounds economic status, origin, birth or health, marital, ethnic, social or on which a person could not be colour, age, disability, religion, economic status. discriminated against; conscience, belief, culture, language or birth. (b) inserted the term “pregnancy” in the provision;
(c) redrafted Article 40 to
incorporate the positive aspects
of clause (4) of Article 21 of the
Constitution of Uganda and
those of clause (4) of Article 23
of the current Constitution of
Zambia in order to:
(i) provide for non- discrimination but specify grounds on which one could NOT be discriminated against;
100 (ii) define what discrimination meant; and (iii) provide for grounds under which discrimination (positive discrimination) was allowed.
(d) substituted the word “opinion” with the word “political
opinion” on the grounds that
the “opinion” that usually leads
to discrimination when held or
expressed is “political
opinion”;
(e) amended the marginal note to
read “Protection from discrimination on grounds of race, etc”; and (f) re-numbered the Article as Article 48.
The Conference observed that: (a) the use of the words “on any grounds” in prohibiting
101 discrimination made the article too open and subject to various interpretations. It could for instance, give opening to petitions such as a right to gay marriages (or right to sex orientations of one‟s choice); and (b) although pregnancy was an important natural process that ensured procreation, it was looked down upon, and in some cases, discrimination
based on pregnancy had
contributed to existing
inequalities and lack of
parity between men and
women at the work place.
For that reason,
discrimination based on pregnancy should also be outlawed by inserting the term “pregnancy” in the provision.
The Conference observed that although pregnancy was an important natural process that
102 ensured procreation, it was looked down upon, and in some cases, discrimination based on pregnancy had contributed to existing inequalities and lack of parity between men and women at the work place. For that reason, discrimination based on pregnancy should also be outlawed by inserting the term “pregnancy” in the provision.
(2) Clause (1) shall not apply to any The Conference introduced a new
law so far as that law makes provision clause to provide for grounds on
– which one could be discriminated
(a) for the appropriation of the against. In this regard, the
general revenues of the Conference approved and
Republic; incorporated clause (4) of article 23 (b) for qualifications for service as of the current Constitution of a public officer or as a member Zambia and re-numbered them of a disciplined force or for the New clause respectively as paragraph (a), (c) (d), service of a district council or (e) and (f) of the new clause (2) of body corporate established Article 40; and inserted a new directly by any law; paragraph (b) in clause (2) to permit (c) with respect to persons who are discrimination for qualification for not citizens of Zambia; service as public officer, member of (d) with respect to adoption, a disciplined force or service of a marriage, divorce,
103 burial, devolution of property district council or body corporate on death or other established by any law. matters of personal law; (e) for the application in the case of members of a particular race or tribe, of customary law with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons; or (f) whereby persons of any such description as is mentioned in clause (3), may be subjected to any disadvantage or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justified in a democratic society.
104
(3) For the purposes of this Article, The Conference approved the “discrimination” means affording incorporation of clause (3) of Article different treatment to different 23 of the current Constitution of persons attributable wholly or mainly Zambia to provide for the definition to their respective descriptions, race, of the term “discrimination”. tribe, sex, origin, political opinion, colour, pregnancy, culture, conscience, age, disability, religion, belief, birth or health, marital, ethnic, tribal, social or economic status whereby persons of one such description are subjected to disadvantages or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description. New clause Article 41: Equality of both gender Equality of both gender Equality of both 41. (1) Women and men 49. (1) Women and men have the The Conference: gender have the right to equal right to equal treatment including the (a) approved clause (1) of Article treatment including the right right to equal opportunities in cultural, 41 of the Mung‟omba Draft to equal opportunities in political, economic and social activities. Constitution without cultural, political, economic amendments; and and social activities. (b) re-numbered the Article as Article 49.
105 (2) Women and men are Clause (2) was deleted by the The Conference deleted clause (2) as entitled to be accorded the Conference it was the same with clause (1) of same dignity and respect of Article 32 of the Mung‟omba Draft the person. Constitution which provided for protection of human dignity which had earlier been adopted by the Conference, re-numbered as Article 41 and renamed as “protection from inhuman treatment.” Clause (1) of Article 41 provided that “Every person has an inherent dignity and the right to have that dignity respected and protected”. (3) Women and men have Clause was adopted and moved to the The Conference: an equal right to inherit, have new clause (2) as paragraph (a). (a) approved clause (3) without access to, own, use, administer amendments and moved it to and control land and other the new clause (2); and property. (b) and re-numbered it as paragraph (a) of that clause.
(2) Women and men have equal The Conference: New Paragraph right- (a) moved clause (3) of Article 41 to (a) to inherit, have access to, own, new clause (2) and re-numbered use, administer and control land it as paragraph (a) of that and other property; clause; (b) to choose residence and (b) approved paragraph (b) of domicile; clause (3) of Article 42 with (c) to choose a family name; amendments by adapting it to (d) acquire, change or retain the
106 nationality of their children; suit equality of gender in and relation to children, moved it to (e) to guardianship and adoption of Article 41 and re-numbered it as children. paragraph (d) of the new clause (2) of Article 41; (c) approved paragraphs (c), and (e) of clause (3) of Article 42 of the Mung‟omba Draft Constitution and re-numbered them as paragraphs (b) and (c) of the new clause (2) of Article 41 (new Article 40) respectively; and (d) approved paragraph (d) of clause (3) of Article 42 of the Mung‟omba Draft Constitution, moved it to Article 41 and re-numbered it as paragraph ( e) of the new clause (2).
107
(4) Women and men shall (3) Women and men have equal The Conference approved clauses (4) have equal rights with respect rights with respect to marriage. and (5) as the new clauses (3) and (4) to marriage. without amendments. (4) Any law, culture, custom or (5) Any law, culture, tradition that undermines the dignity, custom or tradition that welfare, interest or status of women or undermines the dignity, men is prohibited. welfare, interest or status of women or men is prohibited.
(6) The Government shall The Conference: provide reasonable facilities (a) deleted clause (6) as the term and opportunities to enhance Clauses (6) and (7) were deleted by the “reasonable facilities” was the welfare of women and men Conference vague and would create to enable them to realise their problems of interpretation if full potential and it was enshrined in the advancement. Constitution; (b) deleted clause (7) as it was (7) The Government shall catered for in paragraph (f) of take special measures aimed at Article 40 of the Mung‟omba achieving equality between Draft Constitution adopted both gender which measures by the Conference and re- shall not be construed as numbered as Article 48; and discrimination in so far as the (c) deleted clause (8) on the measures are not maintained understanding that once the beyond what is required to new Constitution was
108 achieve equality between both adopted and enacted into gender. law, all the rights declared in the Bill of Rights shall become (8) Parliament shall enact Clause (8) was deleted by the enforceable. Therefore, legislation to give effect to this Conference clause (8) could not stand as it Article. subjected a constitution provision under the Bill of Rights to subordinate legislation to take effect.
Article 42: Further rights for women Further rights 42. (1) The State shall ensure The Conference deleted Article 42 on The Conference resolved to: for women that women are not further Rights for women. (a) delete clause (1) of Article 42 discriminated against as of the Mung‟omba Draft guaranteed in this Constitution because Constitution. discrimination was (2) All laws, customary or prohibited under Article 40 regulatory, that permit or have of the Mung‟omba Draft the effect of discriminating Constitution which had against women are hereby already been adopted and re- declared void. numbered as Article 48. In (3) Without limiting any this regard, the Conference right or freedom guaranteed observed that there was no under this Bill of Rights, need for one gender to be women shall have and be specified since Article 48 was accorded the right – all-encompassing as it (a) to reproductive included both female and health, including male gender in this
109 family planning Constitution; and access to (b) delete clause (2) as it was related provided for in clause (4) of information and Article 49 (Article 41 of the education; Mung‟omba Draft (b) to acquire, Constitution); change or retain (c ) delete paragraphs (a) to (f) of their nationality clause (3), observing that such including the provisions should be provided nationality of for under the Directive their children; Principles of State Policy; (c) to choose residence and (d) delete clause (4) as it was domicile; provided for in subordinate (d) to guardianship legislation of which a Bill to and adoption of prohibit all forms of violence children; against women was pending (e) to choose a presentation to Parliament; family name; and and (f) to non-custodial (e) delete clause (5) as a sentences if consequence of the deletion pregnant or are of clause (1) of the same nursing mothers, Article. except as a measure of last resort for serious offences and for those women
110 who pose a danger to the community. (4) Parliament shall enact legislation to provide for the protection of women against all forms of violence. (5) For the purposes of this Article – “discrimination against women” means a distinction or exclusion made on the basis of sex which has the effect of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of marital status, of human rights and fundamental freedoms in all areas of human endeavour to which persons of another description are not made subject or are accorded privileges or advantages which are not accorded to persons of another description. (b) “violence” includes – (i) physical, sexual and
111 psychological violence that occur in the family; (ii) violence related to female genital mutilation or any traditional or religious practice that is harmful to women; (iii) non-spousal violence or exploitation or physical, sexual or psychological violence that occurs within the general community; (iv) rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere;
112 (v) trafficking in women and forced prostitution; and (vi) economic and social deprivation.
(6) Parliament shall enact legislation to regulate matrimonial causes and court proceedings dealing with sexual offences so as to ensure anonymity and protection of the lives and dignity of the parties but without prejudice to the due process of the law. Article 43: Older members of society The Conference deleted Article 43 on The Conference deleted Article 43 of Older members 43. (1) Older members of older members of society. the Mung‟omba Draft Constitution of society society are entitled to enjoy all because its provisions should be the rights and freedoms set out provided for in subsidiary in this Bill of Rights, including legislation the right to – (a) participate fully in the affairs of society; (b) pursue their
113 personal development and retain their autonomy; (c) freedom from all forms of discrimination, exploitation or abuse; (d) live in dignity and respect; and (e) receive care and assistance from the family and the Government. (2) Parliament shall enact legislation to provide for a sustainable social security system for the older members of society. Article 44: Children (i) Children 44. (1) It is the duty of The Conference deleted clause (1) of parents, wider family, society Article 44 of the Mung‟omba Draft and the State to nurture, Constitution and relegate it protect and educate children subsidiary legislation. The for the benefit of society as a Conference was of the view that whole. most of the issues in the clause were already being addressed by various
114 subsidiary legislation and that it would be difficult to enforce the right.
(2) All children, whether born 50. (1) All children, whether born in or The Conference: in or outside wedlock, are outside wedlock, are equal before the (a) approved clause (2) without equal before the law and have law and have equal rights under this amendments; and equal rights under this Constitution. (b) re-numbered it as clause (1) of Constitution. the new Article 50.
(3) A child‟s best interests are Clause (3) was deleted by the The Conference deleted clause (3) of paramount importance in Conference. and relegate it subsidiary legislation. every matter concerning the child.
(4) A child‟s mother and (2) A child's mother and father, The Conference approved: father, whether married to whether married to each other or not, (a) clause (4) without each other or not, have an have an equal duty to protect and amendments and re- equal duty to protect and provide for the child. numbered it as clause (2); provide for the child. and (3) Every child has a right - (b) clause (5) with amendments (5) Every child has a (a) to a name and a nationality from by deleting paragraphs right - birth and to have the birth registered; (c) and (d). (a) to a name and a (b) to parental care or to appropriate nationality from alternative care where the child is birth and to have separated from its
115 the birth parents; registered; (b) to parental care or to appropriate alternative care where the child is separated from its parents; Paragraph (c) was deleted because (c) to free basic Paragraphs (c) and (d) were deleted by the right to education for all, education; the Conference. including children, was adequately provided for in paragraph (a) of (d) to be protected clause (5) of Article 79 of the from Mung‟omba Draft Constitution discrimination, which has been re-numbered as neglect, abuse and Article 69. harmful cultural rites and practices, Paragraph (d) was deleted because including female its provisions were details which circumcision, should be provided for in the tattooing and early subordinate legislation. marriage before attaining the age of eighteen years;
(e) to be protected (c) to be protected from all forms of The Conference amended paragraph from all forms of exploitation and from performing any (e) by combining its provision with
116 exploitation and work that is likely to be hazardous or aspects of clause (1) of Article 32 of any work that is to interfere with the child’s education, the United Nations Convention of likely to be or to be harmful to the child’s health the Right of a Child (UNCRC) and hazardous or or physical, mental, spiritual, moral or clause (1) of Article 24 of the current adverse to the social development; Constitution of Zambia. child‟s welfare; Provided that an Act of Parliament may provide for the employment of children for a wage under certain conditions.
(f) to adequate nutrition, (d) to adequate nutrition, shelter, The Conference: shelter, basic health care basic health care services and social (a) adopted clause (f) with services, social security services; amendments by deleting and social services; the term “social security”; and (b) re-numbered the paragraph as paragraph (d).
(g) not to be subjected Paragraphs (g), (h), (i), (j), (k) and (l) The Conference: to corporal were deleted by the Conference. (a) deleted paragraph (g) as punishment or any there were already sufficient other form of provisions existing in the
117 violence or cruel Education Act to cater for the and inhumane provision and that since the treatment in Conference had deleted schools and other clause (3) of Article 32 which institutions stated that "a person shall responsible for the not be subjected to corporal care of children; punishment", paragraph (g) of clause (5) should also be (h) to be protected in deleted; times of armed (b) deleted paragraphs (h) and conflict and not to (i), observing that it was not be recruited and necessary to include the used in armed provisions in the conflict; Constitution; (c) deleted paragraph (j) noting (i) not to take part in that since paragraph (c) of hostilities; clause (3) of Article 42 had been deleted it followed that (j) not to be paragraph (j) should be incarcerated on deleted. It was also observed account of that; the mother‟s (i) that the provision was incarceration; difficult to implement since infants were never (k) to a standard of living imprisoned by prison adequate for the authorities; child‟s physical, (ii) that the paragraph was mental, spiritual, difficult to understand as to
118 moral and social whether it meant mothers development; with infants could not be imprisoned; and (l) to development (iii) that the paragraph would and an individual be a burden on the State as development plan, it would entail where appropriate; Government engaging care takers to look after children whose mothers were incarcerated; and (d) deleted paragraphs (k) and (l) on account that the provisions would be difficult to enforce.
(m) to protection from (e) to protection from all forms of The Conference: all forms of sexual sexual exploitation or abuse; (a) adopted paragraph (m) exploitation or without amendments; and abuse; (b) re-numbered the paragraph as paragraph (e).
(n) not to be arrested Paragraph (n) was deleted by the The Conference deleted paragraph or detained, except Conference. (n) upon recalling that when as a measure of considering sub-paragraph (i) of
119 last resort, in paragraph (e) of Article 37, it had which case that agreed to 48 hours as the maximum child has the right time period any person could be to be - detained, which included children. (i) detained only Other aspects of the provision were for the already in the Juveniles Act. shortest appropriate period of time; (ii) kept separate from adults in custody; (iii) accorded legal assistance by the State; (iv) treated in a manner and be kept in conditions that take account of the child‟s gender and age; and (v) tried in a juveniles court;
120 (o) to know of Paragraphs (o), (p) and (q were deleted. The Conference deleted paragraphs decisions affecting (o), (p) and (q). The Conference was the child, to of the view that paragraph (p) was express an opinion included in the Juveniles Act. and have that opinion taken into account, having regard to the age and maturity of the child and the nature of the decision;
(p) to protection of the child‟s identity and not be exposed by the media during criminal proceedings; and (q) generally to survival and development.
(6) Children with special Clauses (6) and (7) were deleted The Conference deleted: needs, especially girls, (a) clause (6), observing that Article orphans, a child whose parent 53 (Article 48 of the Mung‟omba
121 is in prison, children with Draft Constitution) adequately disability, refugee children covered the provisions of clause and homeless children, are (6) and that it should be deleted entitled to the special from the Constitution and be protection of the State and relegated to subordinate society. legislation; and
(7) In this Article “child” (b) clause (7) because it was means a person who is below redundant, the definition of the the age of eighteen years. child having been provided in Article 308 on definitions.
(8) Parliament shall enact (4) Parliament shall enact legislation to The Conference deleted clause (8) legislation to give effect to this provide for: based on its earlier decision that Article. (a) the promotion and protection of Articles of the Constitution the rights of children; declaring a human right should not (b) the regulation of child health be subjected to subordinate care services and child care facilities. legislation before it became enforceable. All rights which were declared in the Bill of Rights should become enforceable on the day the new Constitution comes into force. However, a new clause to provide for Parliament to enact of other subsidiary legislation on the promotion and protection of rights of children and regulate child health care services and child care facilities
122 was inserted.
Article 45: Youth Youth 45. (1) The youth constitute The Conference deleted Article 45 on The Conference deleted Article 45. It an integral part of society and, Youth was observed that the rights taking into account their provided under Article 45 were not unique needs, are entitled to unique to the youths because they enjoy all the rights and were common to all citizens and, freedoms set out in this Bill of therefore, should not be stated Rights, including – separately. It was observed that the (a) access to quality and attempt to split categories of people relevant education who could enjoy certain rights was and training in order creating problems rather than to achieve personal solutions. The members were of the development and view that putting citizens in serve the categories might leave out some community; people from enjoying some rights. (b) participation in governance; (c) access to gainful employment; (d) adequate opportunities in the social, economic and other spheres of national life; (e) freedom of association to
123 further their legitimate interests; (f) protection from any culture, custom or tradition that undermines their dignity or quality of life; and (g) freedom from discrimination, exploitation or abuse. (2) In this Article “youth” means a person who is eighteen years of age but below the age of thirty-five years. (3) Parliament shall enact legislation to give effect to this Article.
Article 46: Protection of young persons Protection of young persons from Protection of Exploitation The Conference: young persons 46. (1) A young person shall (a) deleted paragraphs (a) and not be - 51. (1) A young person shall not (b) and clause (1) of Article 46 (a) employed; be employed and shall in no case be of the Mung‟omba Draft (b) caused or permitted caused or permitted to engage in any Constitution and replaced to engage in an occupation or employment, which them with Article 24 of the occupation or would prejudice the young person’s current Constitution of health or education or interfere with
124 employment which the young person’s physical, mental or Zambia; would prejudice the moral development, except that an Act (b) amended the marginal health or education of Parliament may provide for the note to read “Protection of or interfere with the employment of a young person for a Young Persons from physical, mental or wage under certain conditions. Exploitation”; and moral development (c) re-numbered the Article as of that young (2) All young persons shall be Article 51. person; protected against physical or mental except that an Act of ill-treatment, all forms of neglect, The Conference made the following Parliament may cruelty or exploitation. observations: provide for the employment of a (3) A young person shall not be the (a) that clauses (1) and (2) of Article young person for a subject of traffic in any form. 46 in the Mung‟omba Draft wage under certain Constitution had similar conditions specified provisions with clauses (1) in that Act. and (4) of Article 24 of the . current Constitution with clause (1) split into paragraphs (a) and (b);
(b) that Article 24 of the current Constitution was more comprehensive than Article 46 of the Mung‟omba Draft Constitution; and (c) that clauses (2) and (3) of Article 24 of the current Constitution of Zambia should
125 be inserted into Article 46 of the Mung‟omba Draft Constitution.
(2) In this Article, “young (4) In this Article, "young person" The Conference approved clause (2) person” means means a person under the age of fifteen of Article 46 of the Mung‟omba a person under the age of years. Draft Constitution without fifteen years amendments.
Article 47: Family Family Family 47. (1) The Republic recognizes 52. (1) The State recognises the The Conference: the family as the natural family as the natural and fundamental (a) approved clause (1) with fundamental unit of society unit of society, and as the necessary amendments by replacing and as the necessary basis of basis of the social order. the term “Republic” with the social order. the term “State”; and (b) re-numbered the Article as Article 52.
The Conference observed that the term “Republic” had been used for the first time in Article 47, instead of the term “State”.
(2) The family is entitled to (2) The family is entitled to the The Conference adopted clause (2)
the respect and protection of respect and protection of the State. without amendments.
the State.
126
(3) A person who is (3) A person who is eighteen years The Conference adopted clause (3) eighteen years of age or older of age or older has the right to freely without amendments. has the right to freely choose a choose a spouse of the opposite sex and spouse of the opposite sex and marry. marry.
(4) Clause (3) shall apply to The Conference inserted two new New Clauses statutory and customary law provisions to provide : marriages. (a) that the provision of clause (3)
(5) Marriage between persons of shall apply to both customary
the same sex is prohibited. and statutory marriages and
numbered this provision as
clause (4); and
(b) that same sex marriages are
prohibited and numbered this provision as clause (5).
(4) Parties to a marriage are (6) Parties to a marriage are entitled The Conference: entitled to equal rights in the to equal rights in the marriage, during (a) approved clause (4) without marriage, during the marriage the marriage and at the dissolution of amendments; and and at the dissolution of the the marriage. (b) re-numbered the clause as marriage. clause (6).
(5) Recognising the (7) Recognising the importance of The Conference:
127 importance of children to the children to the future of society, the (a) approved clause (5) with future of society, the maternal maternal and paternal role of women amendments by replacing role of women and the and men and the nurturing role of both the words “the maternal nurturing role of both parents, parents, the Government shall – role of women” with the the Government shall - (a) ensure the right of women to words “the maternal and (a) ensure the right of adequate maternity leave; paternal role of women and women to adequate (b) ensure the availability of men”; and maternity leave; adequate paternal leave; (b) re-numbered it as clause (7). (b) ensure the availability (c) ensure the availability of adequate In doing this, the Conference of adequate paternal maternal and reproductive health care recognised the importance of both leave; and child health care; and maternal and paternal roles of (c) ensure the availability (d) promote the availability of women and men in bringing up of adequate maternal adequate childcare facilities. children.
and reproductive health
care and child health
care; and
(d) promote the availability
of adequate childcare
facilities.
New Clause (8) Parliament shall enact The Conference inserted the new legislation to: clause (8) to empower Parliament to (a) specify what constitutes a enact legislation to specify what family; constituted a “family” and other (b) regulate customary law and related matters. statutory marriages; (c) provide for the rights of parties during and at the dissolution of a marriage; and
128 (d) regulate matrimonial causes and court proceedings dealing with sexual offences so as to ensure anonymity and protection of the lives and dignity of the parties but without prejudice to the due process of the law.
Article 48: Persons with disability Persons with disabilities Persons with 48. (1) Persons with 53. (1) Persons with disabilities The Conference approved clause (1) disability disability are entitled to enjoy are entitled to enjoy all the rights and with amendments as follows: all the rights and freedoms set freedoms set out in this Bill of Rights (i) replaced the words out in this Bill of Rights and on an equal basis with others. “Persons with shall have the right – disability” in the (a) to education and marginal note with facilities that are the words “Persons integrated into society with disabilities” and as a whole to the extent re-numbered the compatible with the Article as Article 53; interests of persons (ii) inserted the phrase with disability; “on an equal basis (b) to effective access to with others” as the
places and public ending of the
transport; provision; and
(c) to use sign language, (iii) deleted the list of
braille or other items provided for in
appropriate means of paragraphs (a) to (g),
communication; on the understanding
that the list may not (d) to be addressed and referred to, in official or be exhaustive and
129 private contexts, in a transfer the relevant manner that is not one to be listed under demeaning, derogatory clause (3), which or discriminatory; became clause (4) due (e) to access materials, to re-numbering, so facilities and devices to that legislation to be enable them overcome enacted by Parliament constraints due to referred to those. disability; (f) to equal treatment, The Conference observed that including the right to clause (1) was inadequate in equal opportunities in comparison with major cultural, political, international human rights
economic and social instruments that Zambia had
activities; and ratified.
(g) to inherit, have access to,
own and control
property.
(2) Any practice, custom or (2) Any law, practice, custom or The Conference approved clause (2) tradition that undermines the tradition that undermines the dignity, with amendments by inserting the dignity, welfare, interest or welfare, interest or status of persons word “law” between the words status of persons with with disabilities is hereby declared “Any” and “practice”. The word disability is prohibited. void. “prohibited” was replaced with the words “hereby declared void”. By doing this, the Conference observed the need to strengthen legal provisions prohibiting
130 discrimination against persons with disabilities. (3) The State shall recognise, The Conference introduced a new protect and promote the rights, clause (3) to provide for the State to dignity, welfare and interests of recognise, protect and promote the New clause persons with disabilities. rights of the disabled.
(3) Parliament shall enact (4) Parliament shall enact The Conference deleted clause (3) legislation to give affect to this legislation to provide for: for the reason that Articles in the Article. (a) the promotion and protection of Bill of Rights should become the rights of persons with disabilities; enforceable when the new (b) effective access by persons with Constitution comes into force. In its disabilities to the physical place, the Conference empowered environment, facilities and services Parliament to enact subsidiary open or provided to the public; legislation to provide for specific (c) the education and health needs needs of persons with disabilities of persons with disabilities including and inserted a new clause which early identification and intervention; accordingly listed those needs in its (d) the use of Sign Language, paragraphs (a) to (f) based on the Braille or other appropriate means of provisions of the United Nations communication; Convention on Rights of Persons (e) access to assistive devices and with Disabilities. technologies, support services and facilities to enable persons with disabilities live independently and participate fully in all aspects of life; and (f) the establishment of a social security scheme for persons who are
131 totally impaired.
Article 49: Special measures for persons Special with disabilities The Conference deleted Article 49 on The Conference deleted Article 49 of measures for 49.(1) The State shall - special measures for person with the Mung‟omba Draft Constitution persons with (a) promote measures disabilities. as a consequence of the decision disabilities to educate taken when considering Article 48. communities and In considering Article 48, the the society on the Conference had resolved to delete causes of disability from the Constitution and relegate and the need to paragraphs (a) to (c) of clause (1) of respect the dignity Article 49, which are now in clause and rights of all (4) of new Article 52. Therefore, persons; Article 49 had became redundant, (b) promote and ensure hence its deletion. the use of sign language, braille or any other appropriate means of communication for the disabled; and (c) not tax any device used by persons with disability.
(2) Parliament shall enact legislation to provide for the promotion of the rights of
132 persons with disability and in particular establish a social security scheme for persons who are totally impaired. Article 50: Language and culture Clause (1) was deleted Language and 50. (1) Every person has the The Conference deleted clause (1) on culture right to use the language and the account that the provision was to participate in the cultural confusing as it did not define the life of that person‟s choice. circumstances under which it would apply.
Language and culture (2) A person who 70. (1) A person who belongs to a The Conference approved the belongs to a cultural or cultural or linguistic community shall clause (2) as new clause (1) without linguistic community shall not not be denied the right, with other amendments. be denied the right, with other members of that community - members of that community – (a) to enjoy that person's culture The Conference re-arranged the (a) to enjoy that and use that person's position of this Article by re- person‟s culture and language; or numbering it as Article 70. use that person‟s (b) to form, join and maintain language; or cultural and (b) to form, join and linguistic associations. maintain cultural and linguistic associations.
(3) A person shall not be (2) A person shall not be compelled - The Conference:
133 compelled - (a) to perform, observe, (a) approved clause (3) without (a) to perform, observe, participate in or be amendments; and participate in or be subjected to any cultural (b) re-numbered the clause as subjected to any practice or rite; or clause (2) of the new Article 70. cultural practice or (b) to form, join, contribute, rite; or maintain or pay allegiance (b) to form, join, to any cultural, traditional contribute, maintain or linguistic association, or pay allegiance to organisation, institution or any cultural, entity. traditional or linguistic association
Article 51: Freedom and Security of Protection of Right to Personal Liberty Freedom and persons Security of 54. A person shall not be deprived persons of that person’s personal liberty except The Conference: 51. Every person has the as may be authorised by law in any of (a) deleted Article 51; right to freedom and security the following cases: (b) inserted clause (1) of Article of the person which includes 13 of the current Constitution; the right – (a) in execution of a sentence or order (c) re-numbered the Article as (a) not to be deprived of of a court, whether established for Article 54; and freedom arbitrarily or Zambia or some other country, in (d) Amended the marginal note without just cause; respect of a criminal offence of to read “Protection of Rights (b) not to be the subject of which that person has been to Personal Liberty”. human trafficking; convicted; (c) not to be detained (b) in execution of an order of a court The Conference observed the without trial, except of record punishing that person for following: contempt of that court or of a court
134 during a state of war, inferior to it; (a) that the Conference had public emergency or (c) in execution of an order of a court earlier resolved to move state of threatened made to secure the fulfilment of paragraphs (e) and (f) to public emergency; any obligation imposed on that Article 32 of the Mung‟omba (d) to be free from all person by law; Draft Constitution which had forms of violence; (d) for the purpose of bringing been re-numbered as Article (e) not to be tortured in that person before a court in 41 and, therefore, delete any manner, whether execution of an order of a court; them from Article 51; and physically or (e) upon reasonable suspicion of (b) that Article 51 was psychologically; and that person having committed, inadequate in that it did not (f) not to be subjected to or being about to commit, a provide for instances when a corporal punishment criminal offence under the law person‟s liberty could be or to be treated or in force in Zambia; taken away for that person‟s (f) under an order of a court or with punished in a cruel, good, therefore, clause (1) of the consent of that person’s inhuman or degrading Article 13 of the current parent or guardian, for that manner. Constitution was adopted. person’s education or welfare
during any period ending not later than the date when that person attains the age of eighteen years; (g) for the purpose of preventing the spread of an infectious or contagious disease; (h) in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol or a vagrant, for the purpose of that person’s
135 care or treatment or the protection of the community; (i) for the purpose of preventing the unlawful entry of that person into Zambia, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person while that person is being conveyed through Zambia in the course of that person’s extradition or removal as a convicted prisoner from one country to another; or (j) to such extent as may be necessary in the execution of a lawful order requiring that person to remain within a specified area within Zambia or prohibiting that person from being within such area, or to such extent as may be reasonably justifiable for the taking of proceedings against that person relating to the making of any such order, or to such extent as may be reasonably justifiable for restraining that person during any visit that the person is
136 permitted to make to any part of Zambia in which, in consequence of any such order, that person’s presence would otherwise be unlawful.
Article 52: Slavery, servitude and forced Protection from slavery, servitude and Slavery, labour forced labour servitude and 52. (1) A person shall not 55. (1) A person shall not be held The Conference: forced labour be held in slavery or servitude. in slavery or servitude. (a) approved Clause (1) of Article 52 without amendments; amended the marginal note of this Article to read “Protection from slavery, servitude and forced labour”; and (b) re-numbered the Article as Article 55.
The Conference, while accepting the provisions of Article 52 on “forced
labour”, observed that there were no
exceptions provided and yet there
were instances when a person may
be required to provide labour
without being paid.
In particular, the Conference recognised the vital role that
137 community projects played in social development. In such projects, members of the community were required to provide free labour and therefore, adopted the clause.
(2) Notwithstanding any other The Conference inserted a new New clause provision in this Constitution, the clause (2) which arose from its protection from slavery or servitude decision to provide for limitations, shall not be derogated from. derogations and non-derogations in appropriate Articles instead of providing for them separately. (2) A person shall not be (3) A person shall not be required to The Conference approved clause (2) required to perform forced perform forced labour. without amendments and re- labour. numbered it as clause (3).
(3) Parliament shall enact (4) For purposes of this Article, The Conference deleted clause (3) of legislation specifying what “forced labour” does not include- Article 52 of the Mung‟omba Draft constitutes “forced labour”. (a) any labour required in Constitution and replaced it with consequence of a sentence or clause (3) of Article 14 of the current order of a court; Constitution to provide for the (b) labour required of any person necessary exceptions to “forced while that person is lawfully labour”. detained that, though not required in consequence of a sentence or order of a court, is reasonably necessary in the
138 interest of hygiene or for the maintenance of the place at which the person is detained; (c) any labour required of a member of a disciplined force in pursuance of that person’s duties as such or, in the case of a person who objects, on religious grounds, to service as a member of a naval, military or air force, any labour that that person is required by law to perform in place of such service; (d) any labour required during any period when the Republic is at war, under a state of public emergency, a threatened state of public emergency, a national disaster or in the event of any other emergency or calamity that threatens the life and well-being of the community, to the extent that the requiring of such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period, or as a result of the emergency or calamity; or (e) any labour required as part of
139 reasonable and normal communal or other civic obligations.
Article 53: Privacy Protection of privacy of person, home Privacy and other property The Conference: 53. All persons have the right 56. All persons have the right to (a) approved paragraphs (a) and to privacy, privacy, which includes the right not to (b) of clause (1) without which includes the right not to have - amendments; have - (a) their person, home or property (b) amended the marginal note (a) their person, home or searched; of this Article to read property searched; (b) their possessions seized; “Protection of privacy of (b) their possessions person, home and other seized; property”; and (c) re-numbered the Article as Article 56.
(c) information relating (c) information relating to their The Conference approved to their family, health family, health status or private paragraph (c) of clause (1) with
status or private affairs required or revealed; or amendments by deleting the word
affairs unnecessarily “unnecessarily” in order to ensure
required or revealed; protection of the privacy of a family
or and personal information.
140
(d) the privacy of their (d) the privacy of their The Conference approved communications communications infringed. paragraph (d) without amendments. infringed.
New clause (2) Nothing contained in or done The Conference incorporated the under the authority of any law shall be provision of clause (2) of Article 17 held to be inconsistent with or in of the current Constitution as the contravention of this Article to the new clause (2) of Article 53 which extent that it is shown that the law in was re-numbered as Article 56 to question makes provision- provide for limitations and that the (a) that is reasonably required in limitations should apply to the the interest of defence, public whole of the new Article 56. safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources, or in order to secure the development or utilisation of any property for a purpose beneficial to the community; (b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; (c) that authorises an officer or
141 agent of the Government, a district council or a body corporate established by law for a public purpose to enter on the premises of any person in order to inspect those premises or anything thereon for the purpose of any tax or rate due, or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government, district council or body corporate, as the case may be; or (d) that authorises, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or entry upon any premises by such order.
Article 54: Freedom of worship and Protection of freedom of conscience Freedom of conscience worship and 57. (1) A person shall not, except with conscience 54. (1) Every person has that person’s own consent, be The Conference: the right to freedom of hindered in the enjoyment of that (a) combined clauses (1) and (2) conscience, religion, thought, person’s freedom of conscience.
142 belief and opinion. of Article 54 by adopting (2) For the purposes of this Article, clause (1) of Article 19 of “freedom of conscience” includes the current Constitution. (2) Every person has a right, freedom of thought and religion, Article 19(1) of the current either individually or in freedom to change the person’s Constitution provides for community with others, in religion or belief, and freedom, either freedom of conscience and public or in private, to alone or in community with others, also provides for one to manifest any religion or belief and both in public and in private, to change their religion or through worship, observance, manifest and propagate the person’s belief without any practice or teaching. religion or belief in worship, teaching, hindrance. Such a practice and observance. provision would protect those whose religions did not allow their followers the freedom to change religion to an extent that they would execute or kill those that attempted to do so; (b) amended the side note of the Article to read “Protection of freedom of conscience”; and (c) re-numbered the Article as Article 57.
The Conference observed that there were no limitations to the provision. It was the view of the Conference
143 that there should be appropriate limitations to the freedom of worship and conscience to protect the greater public interest.
(3) Every religious (3) Except with the person’s own The Conference replaced clause (3) community shall be entitled at consent, or, if the person is a minor, with two new clauses, one of which its own expense to establish, the consent of that person’s guardian, was based on clause (2) of Article 19 maintain and manage a person attending any place of of the current Constitution. This educational institutions, education shall not be required to decision arose out of the need to be facilities and programmes for, receive religious instruction or to take cautious in encouraging and to provide religious part in or attend any religious organisations to put up schools instruction to, members of that ceremony or observance if that which would cater specifically for community. instruction, ceremony or observance members of their faith. It was, relates to a religion other than the therefore, decided to provide for a person’s own. person to give consent to attending (4) A religious community or such education. denomination shall not be prevented from providing religious instruction
for persons of that community or
denomination in the course of any
education provided by that community
or denomination or from establishing
and maintaining instructions to
provide social services for such persons.
144 (4) Religious observance Clause (4) was deleted by the The Conference deleted clause (4). It and instruction may be Conference. was felt that extending religious conducted at State or State- instruction to a State facility would aided institutions so long as - raise a number of contradictions. In (a) the facilities of that this regard, clause (4) was deleted institution are by the Conference on account that it made available or was not clear especially with regard the observance and to “making available” which could instruction are have a double meaning. conducted on an equitable basis, having regard to the beliefs of the population served by that institution; and (b) attendance at the observance or instruction is free and voluntary.
(5) A person shall not be Clause (5) was deleted by the The Conference deleted clause (5) as deprived of access to any Conference. a consequence of adopting clause (2) institution, employment of Article 19 of the current facility or the enjoyment of any Constitution. right or freedom because of that individual‟s religious
145 beliefs.
(6) A person shall not be (5) A person shall not be compelled The Conference: compelled – to take any oath which is contrary to (a) replaced paragraphs (a) (a) to take an oath that that person’s religion or belief or to and (b) of clause (6) of is contrary to that take any oath in a manner which is Article 54 with clause (4) individual‟s religion contrary to that person’s religion or of Article 19 of the or belief or that belief. current Constitution; and involves expressing a belief that the (b) deleted paragraph (c), (d) individual does not and (e) of clause (6) of hold; Article 54. Paragraph (c) (b) to take an oath in a of clause (6) of Article 54 manner that is was already provided for contrary to that in Article 19 (2) which individual‟s religion was imported into clause or belief; (3) of Article 54. (c) to receive instruction in a religion that is not that individual‟s religion or to attend a ceremony or observance of that religion; (d) by a public body to disclose that individual‟s
146 religious conviction or belief; or (e) to do any other act that is contrary to that individual‟s religion or belief.
(6) Nothing contained in or done The Conference introduced and New clause under the authority of any law shall be approved a new clause to provide held to be inconsistent with or in for the limitations as contained in contravention of this Article to the paragraph (b) of clause (5) of Article extent that it is shown that the law in 19 of the current Constitution. question makes provision which is reasonably required- (a) in the interests of defence, public safety, public order, public morality or public health; or (b) for the purposes of protecting the rights and freedoms of other persons, including the right to observe and practice any religion without the interference of members of any other religion; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a
147 democratic society. Article 55: Freedom of expression Freedom of expression Freedom of expression 55. (1) Every person has the 58. (1) Every person has the right The Conference approved right to freedom of expression to freedom of expression which paragraphs (a) and (b) without which includes - includes - amendments and re-numbered the (a) freedom to hold an (a) freedom to hold an opinion; Article as Article 58. opinion;
(b) freedom to receive (b) freedom to receive or impart or impart information or ideas; information or ideas;
Paragraphs (c) and (d) were deleted. (c) freedom of artistic The Conference deleted paragraphs creativity; and (c) and (d) because the provisions (d) academic freedom, could be a source of undesirable including freedom content such as pornography in the of scientific name of creativity and research that research. was not legally and morally or ethically acceptable, respectively.
(2) Clause (1) does not (2) Clause (1) does not extend to - The Conference approved clause (2) extend to - (a) propaganda for war; without amendments. (a) propaganda for (b) incitement to violence; or war; (c) advocacy of hatred that - (b) incitement to (i) vilifies and disparages
148 violence; or others or incites harm; or (c) advocacy of hatred (ii) is based on any prohibited that - ground of discrimination (i) vilifies and specified in this disparages others Constitution. or incites harm; or (ii) is based on any prohibited ground of discrimination specified in this Constitution.
(3) Nothing contained in or done The Conference inserted the New clause under the authority of any law shall be provision of paragraph (b) of clause held to be inconsistent with or in (3) of Article 20 of the current contravention of this Article to the Constitution of Zambia to provide extent that it is shown that the law in for limitations to Article 55 and question makes provision that is numbered it as clause (3). reasonably required for the purpose of - (a) the interests of defence, public safety, public order, public morality or public health; (b) protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal
149 proceedings; (c) preventing the disclosure of information received in confidence; (d) maintaining the authority and independence of the courts; (e) regulating educational institutions in the interests of persons receiving instruction therein; or (f) the registration of, or regulating the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television;
and except so far as that provision or, the thing done under the authority thereof, as the case may be, is shown not to be reasonably justifiable in a democratic society.
Article 56: Access to information The Conference deleted clauses (1) Access to 56. (1) Every citizen has and (2) from the Constitution for information the right of access to - Clauses (1) and (2) were deleted by the the following reasons:
150 Conference. (a) with regard to paragraph (a) of (a) information held clause (1): by the State; and (i) that the provision (b) any information would be that is held by unmanageable and another person would be a recipe for which is required anarchy; for the exercise or (ii) that it was not protection of any desirable for everyone right or freedom. to probe into every information held by the State as some of it (2) The President shall was “classified, and within six months of the that even developed submission of a report of any nations did not avail commission of inquiry, all classified appointed by the President in information to the the exercise of the President‟s public executive functions, publish the (iii) that allowing the report. provision would compel the DPP to disclose reasons for entering the nolle prosequi, which was undesirable and not supported by law.
(b) On paragraph (b) of clause
151 (1):
(i) that the provision would allow for interference into other people‟s private lives; and (ii) that since information had a price, it would be tempting for those who held custody of such information to sell State secrets for financial gains. (c) On clause (2) because there were various reasons why commissions of inquiry were set up and there were different commissions set up including those dealing with security matters. Therefore, prescribing time frame in the Constitution was inappropriate.
152
Access to information
(3) Every person has the 59. (1) Every person has the right to The Conference: right to demand the correction demand the correction or deletion of (a) approved clauses (3) and (4) or deletion of untrue or untrue or misleading information without amendments and re- misleading information affecting that person. numbered them as clauses (1) affecting that person. and (2), respectively; and (2) The State has the obligation to (b) re-numbered the Article as (4) The State has the publicise any important information Article 59. obligation to publicise any affecting the welfare of the Nation. important information affecting the welfare of the Nation.
(5) Parliament shall enact (3) Parliament shall enact legislation The Conference approved clause (5) legislation to provide for to provide for access to information. with amendment by deleting the access to public information. word “public” from the provision. The Conference found the use of the term “public information” misleading as there was no such thing as “public information” but “information held by a State organ or State institution”.
Article 57: Freedom of media Freedom of media
153 Freedom of The Conference: media 57. (1) There shall be freedom 60. (1) There shall be freedom of (a) approved clause (1) without of the press and other media. the press and other media. amendments; and (b) re-numbered the Article as Article 60.
(2) (2) Subject to this Clause (2) was deleted by the The Conference deleted clause (2) as Constitution, a law shall not Conference. it was seen to be conflicting with make any provision that clause (1) which the Conference had derogates from freedom or earlier approved. independence of the press and
other media.
New New Clause (2) A journalist shall not be The Conference inserted a new
compelled to disclose a source of clause imported from Article 58 on information, except as may be disclosure of sources by journalists determined by a court. which was viewed as being the
bedrock of journalism and was important for the dissemination of information to the public. The Conference noted that misdeeds by both public and private authorities, the powerful and the criminally inclined would go unreported, therefore, the need to protect “whistle blowers” was intended to
154 serve the greater public interest. New (3) Nothing contained in or done The Conference inserted anew under the authority of any law shall be Clause based on clause (3) of Article New Clause held to be inconsistent with or in 20 of the current Constitution and contravention of this Article to the amended it accordingly to refer to extent that it is shown that the law in the media so as to place limitations question makes provision that is on Article 60. reasonably required for the purpose of -
(a) in the interests of defence, public safety, public order, public morality or public health; or (b) protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings; (c) preventing the disclosure of information received in confidence; (d) maintaining the authority and independence of the courts; (e) regulating educational institutions in the interests of persons receiving instruction therein; or (f) the registration of, or regulating
155 the technical administration or the technical operation of, newspapers and other publications, telephony, telegraphy, posts, wireless broadcasting or television; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society.
(3) (3) Broadcasting and other(4) Broadcasting and other electronic The Conference approved clauses (3) electronic media are subject media are subject only to fair licensing and (4) without amendments. only to fair licensing procedures that are – procedures that are – (a) administered by a body that (a) administered by a is independent of control by body that is the Government, political independent of interests or commercial control by the interests; and Government, (b) designed to ensure - political interests or (i) the reasonable allocation commercial of broadcast frequencies; interests; and and (b) designed to ensure - (ii) adherence to codes of (i) the reasonable good practice. allocation of
156 broadcast (5) The registration or licensing of frequencies; and any media shall not unreasonably be (ii) adherence to codes withheld, withdrawn or refused. of good practice.
(4) The registration or licensing of any media shall not unreasonably be withheld, withdrawn or refused.
(5) A person, State organ or Clause (5) was deleted by the The Conference deleted clause (5) State institution shall not - Conference. for the following reasons: (a) require prior (i) the clause would open the licensing for any door to undesirable content form of such as pornography and publication, homosexuality and would broadcast or also promote immorality dissemination of because there would be no information, restriction on what ideas comment or could be disseminated; opinion; (b) impose censorship (ii) since the Conference had on any form of adopted clause (3) subject publication, only to fair licensing, the broadcast or provisions in clause (5) was dissemination of contradictory to what had information, been provided; and comment or
157 opinion; (iii) since the key tenets of press (c) otherwise interfere freedom including limitations with the freedom had been provided for, clause of expression of (5) would amount to over any writer, editor, legislation as it contained too publisher or much detail. broadcaster; or (d) harass or penalise a person for any opinion or view or the content of any publication, broadcast or dissemination.
(6) Parliament shall enact (6) Parliament shall enact The Conference approved clause (6) legislation that regulates legislation to – with amendments by providing for freedom to broadcast in order (a) establish an independent Parliament to enact legislation to ensure fair election authority to regulate providing for an independent campaigning. broadcasting in the broadcasting authority, appropriate public interest; limitations and specifying the role (b) ensure fairness and of Government in securing and diversity of views protecting public interest in broadly representing broadcasting by adapting Article 192 Zambian society; and of the Constitution of South Africa. (c) to specify the role of the Government in securing and protecting the public
158 interest in broadcasting.
Article 58: Freedom not to disclose source Freedom not to The Conference deleted Article 58 on The Conference: disclose source 58. (1) A journalist shall not be Freedom not to disclose source (a) deleted clause (1) of compelled to disclose a source Article 58 of the of information, except as may Mung‟omba Draft be determined by a court. Constitution upon recalling that it had (2) An agent of the media is earlier on made a free, at all times, to uphold the decision to transfer the principle, provisions and clause to clause (2) of new objectives of this Constitution Article 60 (Article 57 of and the responsibility and the Mung‟omba Draft accountability of the Constitution); and Government to the people of Zambia. (b) deleted clause (2) after observing that the provision was misplaced as the Government was neither accountable to the media directly nor accountable to the people through the media but was accountable to the people either directly or through their elected representatives.
159
Article 59: Independence of public media The Conference deleted Article 59 on Independence of Independence of public media. The Conference deleted Article 59 of public media 59. (1) All public media shall the Mung‟omba Draft Constitution - as it was observed that the responsibility to be independent and fair should not be on the public (a) be independent media alone as the provision and impartial; suggests. The private media as well and needed to practice those tenets. At the same time, it could be difficult to compel the private media to be (b) afford fair impartial and independent because opportunities they had to tow the line of the and facilities to shareholders. In addition, the all persons for Conference observed that both the presentation public and private media should of divergent promote development of education views and in the nation by devoting/allocating dissenting time. opinions.
(2) Parliament shall enact legislation to - (a) Promote the independence and impartiality of the
160 public media; and
(b) provide for reasonable allocation of air time and space by the public media to political parties, either generally or during election campaigns, on the recommendation of the Electoral Commission.
Article 60: Freedom of Association Protection of freedom of Freedom of 60. (1) Every person has the assembly and association Association right to freedom of association. The Conference deleted clauses (1) 61. (1) A person shall not, except with of Article 60 of the Mung‟omba the person’s own consent, be hindered Draft Constitution. As a (2) Freedom of association in the enjoyment of that person’s consequence of this decision, clauses shall apply to the formation, freedom of assembly and association, (2) and (3) of Article 60 were also operation and continued that is to say, the person’s right to deleted. In their place, the existence of any association. assemble freely and associate with Conference approved to insert other persons and in particular to form clause (1) of Article 21 of the current or belong to any political party, trade Constitution followed by a (3) A person shall not be union or other association for the
161 compelled to Join an protection of that person’s interests. derogations clause based on the association provisions of clause (2) of Article 21 of any kind. (2) Nothing contained in or done of the current Constitution which under the authority of any law shall be provided for limitations to the held to be inconsistent with, or in freedom of association. The contravention of, this Article to the derogation clause within Article 60 extent that it is shown that the law in was deemed necessary to prevent question makes provision: formation of undesirable associations, such as those (a) that is reasonably required in promoting gay rights. the interests of defence, public safety, public order, public The Conference also amended the morality or public health; side note of this Article to read (b) that is reasonably required for “Protection of freedom of assembly the purpose of protecting the and association” and re-numbered rights or freedoms of other it as Article 61. persons; (c) that imposes restrictions upon public officers; or (d) for the registration of political parties or trade unions in a register established by or under a law and for imposing reasonable conditions relating to the procedure for entry on such a register including conditions as to the minimum number of persons necessary to constitute a trade union
162 qualified for registration; and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society. Article 61: Assembly, demonstration, The Conference deleted Article 61 of Assembly, picketing, lock out and The Conference deleted Article 61 on the Mung‟omba Draft Constitution demonstration, petition Assembly, demonstration, picketing, after observing that it had become picketing, lock lock out and petition redundant as a consequence of the out and petition 61. Every person has the right, resolution of the Conference to peacefully and unarmed, to delete the clauses of the Mung‟omba assemble, demonstrate, picket Draft Constitution in Article 60 (new or lock out and present Article 61) and replaced them with petitions to public authorities. Article 21 of the current Constitution which also deals with the right of assembly. Article 62: Right to participate in politics The Conference deleted Article 62 on Right to Right to participate in politics The Conference deleted Article 62 of participate in 62. (1) Subject to this the Mung‟omba Draft Constitution politics Constitution, every citizen has as a consequence of the earlier a right to make political decision to import clause (1) of choices which includes the Article 21 of the current Constitution right – into Article 60 (new Article 61). The (a) to form or new clause (1) of Article 60, participate in therefore, provided for the right to forming a political make political choices. In addition, party;
163 (b) to participate in the it was observed that the provisions activities of, or in the Article 62 were lifted from the recruit members for, Constitution of South Africa and a political party; and that these provisions were not (c) to campaign for a suitable for the Zambian situation. political party or cause. Clauses (2) of Article 62 were also deleted as a consequence of the deletion of clause (1) of Article 62 (2) Subject to this while clauses (3) and (4) were Constitution, every deleted because their provisions had citizen has the right to be already been taken care of by the elected - provisions in Articles 101(1) and (2) (a) to any elective and 111 (1) which were earlier public body or office adopted and re-numbered as established by or Articles 85 and 95 respectively. under this Constitution; and (b) to an office of a political party of which the citizen is a member. (3) Every citizen aged eighteen years and above has the right to be registered as a voter and to vote by secret ballot in elections or referenda, as provided by or under this
164 Constitution.
(4) The State shall put in place measures to ensure that eligible citizens exercise their right to register as voters and to vote. Article 63: Freedom of movement and Protection of freedom of movement Freedom of residence movement and 62. (1) Subject to the other provisions residence 63. (1) Every person has the of this Article and except in accordance The Conference: right to freedom of movement. with any written law, a citizen shall (a) deleted Article 63 of the (2) Every person has the not be deprived of the citizen’s Mung‟omba Draft right to leave the Republic. freedom of movement. Constitution; (3) (3) Every citizen has the (b) replaced it with Article 22 of right to enter into, remain and (2) For the purposes of this Article, the current Constitution with reside anywhere in the “freedom of movement” means- amendments by splitting Republic. (a) the right to move freely clause (1) into two new (4) Every citizen has a right throughout Zambia; clauses numbered as clauses to a passport. (b) the right to reside in any part of (1) and (2) to make the Zambia; and provision more clearer and (c) the right to leave Zambia and to (5) Parliament shall enact re-numbered clauses (2) and return to Zambia. legislation for the imposition (3) as clauses (3) and (4) (3) Any restrictions on a person's of restrictions on the entry, respectively; freedom of movement that relates to movement or residence of (c) amended the marginal note to his lawful detention shall not be held persons who are not citizens. read “Protection of freedom to be inconsistent with or in contravention of this Article. and movement”; and
165 (4) Nothing contained in or done (d) re-numbered the Article as under the authority of any law shall be Article 62. held to be inconsistent with, or in contravention of, this Article to the extent that it is shown that the law in question makes provision- (a) for the imposition of restrictions that are reasonably required in the interests of defence, public safety, public order, public morality or public health or the imposition of restrictions on the acquisition or use by any person of land or other property in Zambia, and except so far as that provision or, the thing done under the authority thereof as the case may be, is shown not to be reasonably justifiable in a democratic society; (b) for the imposition of restrictions on the freedom of movement of any person who is not a citizen of Zambia; (c) for the imposition of restrictions upon the movement or residence within Zambia of public officers; or (d) for the removal of a person from
166 Zambia to be tried outside Zambia for a criminal offence or to undergo imprisonment in some other country in execution of the sentence of a court in respect of a criminal offence under the law in force in Zambia of which he has been convicted.
Article 64 Refugees and Refugees and asylum The Conference deleted Article 64 on asylum Refugees and asylum 64. (1) An individual who has The Conference deleted Article 64, sought asylum or refuge in after observing that matters dealing Zambia has a right not to be with refugees were subject to returned to the country of frequent changes and therefore, origin if that person has a should best be dealt with in well-founded fear of - subsidiary legislation. (a) persecution in the country of origin; or (b) other treatment in that country that would justify that person being regarded as a refugee. (2) Parliament shall enact legislation governing persons who seek refuge or asylum in Zambia.
167
Article 65: Land and other property Protection from Deprivation of The Conference adopted clauses (1), Land and other Property (2) and (3) of Article 65 of the property 65. (1) Every person has a right Mung‟omba Draft Constitution with to access, acquire and own 63. (1) Subject to this Constitution, amendments to separate the land and other property either every citizen has a right to access, provisions for land from that of individually or in association acquire or own land either property. Accordingly, the new with others. individually or in association with clause (1) provided for the right to other citizens. access, acquire and own land while (2) The State shall not (2) Subject to this Constitution, a the new clause (2) provided for the deprive a person of property person has a right to access, acquire right to access, acquire and own of any description or of any and own other property, either other property. The two clauses interest in or right over individually or in association with were prefixed with the phrase property, except under an Act others. “subject to this Constitution” in
of Parliament. recognition of the fact that there (3) Except as provided in this Article, were other provisions in the property of any description shall not Constitution dealing with property be compulsorily taken possession of, including ownership of property by and interest in or right over property foreigners. of any description shall not be
compulsorily acquired, unless by or under the authority of an Act of In addition, the Conference made Parliament which provides for provisions to prohibit compulsory payment of adequate compensation for acquisition of property except under the property or interest or right to be an Act of Parliament, to provide for taken possession of or acquired. circumstances under which property could be compulsorily acquired, and to provide for the determination of compensation in default of
168 agreement.
The new provisions were derived from clause (1) of Article 16 of the current Constitution and the Article was re-numbered as Article 63.
(4) Subject to this Clauses (4), (5) and (6) were deleted. The Conference deleted clauses Constitution, prompt payment (4), (5) and (6) of Article 65 and of full and fair compensation replaced a derogation clause and a shall be made prior to provision for an Act of Parliament acquiring, assuming to provide for compensation. occupation or possession of any property, as provided under an Act of Parliament.
(5) Every owner of - (a) a leasehold interest in
169 land has the right to be issued a certificate of title setting out that interest and, at the expiry of the lease, to a renewal of the lease; and (b) any other right or interest in land has the right to register that right or interest.
(6) The rights recognised and protected under this Article do not apply to any property that has been unlawfully acquired. New clauses (4) Nothing contained in or done The Conference inserted a under the authority of any law shall be derogation clause (4) and a held to be inconsistent with or in provision for an Act of Parliament contravention of clause (3) to the to provide for compensation in extent that it is shown that such law clause (5). provides for the taking possession or acquisition of any property or interest therein or right thereover- (a) in satisfaction of any tax, rate or due;
170 (b) by way of penalty for breach of any law, whether under civil process or after conviction of an offence; (c) in execution of judgments or orders of courts; (d) upon the attempted removal of the property in question out of or into Zambia in contravention of any law; (e) as an incident of contract including a lease, tenancy, mortgage, charge, pledge or bill of sale or of a title deed to land;
(f) for the purpose of its administration, care or custody on behalf of, and for the benefit of, the person entitled to the beneficial interest therein;
(g) by way of the vesting of enemy property or for the purpose of the administration of such property; (h) for the purpose of- (i) the administration of the property of a deceased person, a person of
171 unsound mind or a person who has not attained the age of eighteen years, for the benefit of the persons entitled to the beneficial interest therein; (ii) the administration of the property of a person adjudged bankrupt or a body corporate in liquidation, for the benefit of the creditors of such bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; (iii) the administration of the property of a person who has entered into a deed of arrangement for the benefit of that person’s creditors; or (iv) vesting any property subject to a trust in persons appointed as trustees under the
172 instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust; (i) in consequence of any law relating to the limitation of actions; (j) in terms of any law relating to abandoned, unoccupied unutilised or undeveloped land, as defined in such law; (k) in terms of any law relating to absent or non-resident owners, as defined in such law, of any property; (l) in terms of any law relating to trusts or settlements;
(m) by reason of a dangerous state or prejudicial to the health or safety of human beings, animals or plants; (n) as a condition in connection with the granting of permission for the utilisation of that or other property in any particular manner; (o) for the purpose of, or in
173 connection with, the prospecting for, or exploitation of, minerals belonging to the Republic on terms which provide for the respective interests of the persons affected;
(p) in pursuance of a provision for the marketing of property of that description in the common interests of the various persons otherwise entitled to dispose of that property; (q) by way of the taking of a sample for the purposes of any law; (r) by way of the acquisition of the shares, or a class of shares, in a body corporate on terms agreed to by the holders of not less than nine-tenths in value of those shares or that class of shares; (s) where the property consists of an animal, upon its being found trespassing or straying; (t) for so long as may be necessary for the purpose of any examination, investigation, trial
174 or inquiry or, in the case of land, the carrying out thereon- (i) of work for the purpose of the conservation of natural resources of any description; or (ii) of agricultural development or improvement which the owner or occupier of the land has been required, and has without reasonable and lawful excuse refused or failed, to carry out; (u) where the property consists of any licence or permit;
(v) where the property consists of wild animals existing in their natural habitat or the carcasses of wild animals; (w) where the property, is held by a body corporate established by law for public purposes and in which no moneys have been invested other than moneys provided by Parliament;
175 (x) where the property is any mineral, mineral oil or natural gases or any rights accruing by virtue of any title or licence for the purpose of searching for or mining any mineral, mineral oil or natural gases- (i) upon failure to comply with any provision of such law relating to the title or licence or to the exercise of the rights accruing or to the development or exploitation of any mineral, mineral oil or natural gases; or (ii) terms of any law vesting any such property or rights in the President;
(y) for the purpose of the administration or disposition of such property or interest or right by the President in implementation of a comprehensive land policy or a policy designed to ensure that the statute law, the Common
176 Law and the doctrines of equity relating to or affecting the interest in or rights over land, or any other interests or rights enjoyed by Chiefs and persons claiming through or under them, shall apply with substantial uniformity throughout Zambia; (z) in terms of any law providing for the conversion of titles to land from freehold to leasehold and the imposition of any restriction on subdivision, assignment or sub-letting;
(aa) in terms of any law relating to- (i) the forfeiture or confiscation of the property of a person who has left Zambia for the purpose or apparent purpose, of defeating the ends of justice; or (ii) the imposition of a fine on, and the forfeiture or confiscation of the property of, a person who admits a contravention of
177 any law relating to the imposition or collection of any duty or tax or to the prohibition or control of dealing or transactions in gold, currencies or securities. (5) An Act of Parliament such as referred to in clause (3) shall provide that in default of agreement, the amount of compensation shall be determined by a court of competent jurisdiction. Article 66: Consumer rights Consumer rights The Conference deleted Article 66 on 66. (1) Consumers have the consumer rights. The Conference deleted Article 66 of right to - the Mung‟omba Draft Constitution. (a) goods and services The Conference was of the view that of appropriate consumer rights were best dealt quality, quantity with in subsidiary legislation. In this and use; regard, it was noted that Parliament (b) information had the power to enact legislation necessary for them and that a law was in the process of to gain full benefit being formulated and would be from the goods submitted at the next sitting of and services; Parliament on the protection of (c) protection of their consumer rights. health, safety and economic interests;
178 and (d) adequate compensation for defects that cause them loss or injury.
(2) This Article applies to goods and services offered by any person, State organ or State institution, whether in return for consideration, taxes or other form of revenue or free of any charge.
(3) Parliament shall enact legislation to provide for consumer protection and for fair, honest and decent advertising.
Economic and Social Rights Economic and Social Rights Article 67: Progressive realisation of Progressive realisation of The Conference: Progressive economic and social rights economic, ssocial and Cultural (a) amended the term “economic and realisation of 67. (1) Parliament shall enact rights social rights” to read "economic, economic legislation which provides 64. (1) Parliament shall social and cultural rights” in and social measures which are reasonable in enact legislation which provides accordance with international
179 rights order to achieve the progressive measures which are reasonable human rights instruments; realization of the economic and in order to achieve the social rights under this Bill of progressive realization of the (b) amended the marginal note and Rights. economic, social and cultural clause (1) by replacing the term rights under this Bill of Rights. “economic and social rights” with the term "economic, social and cultural rights”; (c) re-numbered the Article as Article 64; and (d) resolved to refer clause (1) of Article 67 of the Mung‟omba Draft Constitution, as amended, to a referendum after failing to reach consensus and after a vote on the clause failed to garner the required two-thirds majority.
(2) The Government shall take (2) The Government shall The Conference approved paragraphs (a) measures, including – take measures, including - and (b) of clause (2) and paragraph (a) and (a) affirmative action (a) affirmative action (b) of clause (3) without amendments. programmes designed programmes designed to to benefit benefit disadvantaged disadvantaged persons or groups; persons or groups; (b) legislation – (b) legislation – (i) that promotes (i) that promotes equity, equity, equality equality and freedom and freedom from discrimination and
180 from discrimination establishes or and establishes or provides for provides for standards relating standards relating to to the achievement the achievement of of those measures; those measures; (ii) that ensures that (ii) that ensures that State State and State organs and State institutions fulfill institutions fulfill the the obligations of obligations of the the State under State under this Bill of this Bill of Rights; Rights; and and
(iii) that ensures that (iii) that ensures that persons fulfil their persons fulfill their obligations under obligations under this this Bill of Rights. Bill of Rights.
(3) Where a claim is made, (3) Where a claim is made, by the State, that the State does by the not have the resources to State, that the State does not have implement a particular right or the resources to implement a freedom - particular right or freedom – (a) it is the responsibility of (a) it is the responsibility of the State to show that the the State to show that the resources are not resources are not available; and available; and (b) a court, tribunal or the (b) a court, tribunal or the Human Rights Human Rights Commission shall Commission shall not
181 not interfere with a decision by a interfere with a decision State organ or State institution by a State organ or State concerning the allocation of institution concerning the available resources solely on the allocation of available basis that the court, tribunal or resources solely on the Human Rights Commission basis that the court, would have reached a different tribunal or Human conclusion. Rights Commission would have reached a different conclusion. Article 68: Freedom to choose trade, Freedom to occupation and profession The Conference deleted Article The Conference deleted Article 68 because choose trade, 68. Every person has the right to 68 on Freedom to choose trade, it was no adding any value to the occupation choose a trade, occupation or occupation and profession. Constitution and its provisions were and profession already catered for in subsidiary profession legislation providing for employment, industrial and labour relations.
Article 69: Labour relations and pension Right to Pension, Gratuity and Labour Retrenchment Benefits relations and 69. (1) A person has the right to 65. (1) Every worker has The Conference, in considering Article 69 pension employment and to just and fair the right to a pension, gratuity of the Mung‟omba Draft Constitution, labour practices. or retrenchment benefits. decided to separate the provisions on (2) Any benefit to which a industrial and labour relations from those person is entitled under this on pensions and gratuity. Therefore: Article shall not be withheld or (a) clause (3) and paragraph (b), (c) and altered to that person’s (d) of clause (7) of Article 69 were disadvantage, except to an adopted and re-numbered as
182 upward adjustment to the extent paragraphs (d), (a), (b) and (c), provided by law. respectively, of Article 65 to provide (2) A worker has the right to - (3) Pension, gratuity and for the “Right to Pension, Gratuity and (a) fair remuneration and retrenchment benefits in respect Retrenchment Benefits” ; equal pay for equal of service is exempt from tax. work; (4) Parliament shall enact (b) clauses (1) and (2) of Article 69 of the (b) work under legislation to regulate pensions Mung‟omba Draft Constitution were satisfactory, safe and and pension schemes and in adopted with amendments and re- healthy conditions; particular to make provision for numbered as Article 66 to provide for (c) equal opportunity for - “Labour Relations” by: promotion; (a) all workers to (i) replacing, in clause (1), the word (d) rest, leisure and subscribe to “employment” with the word reasonable limitation pension schemes; “work” because a person was (b) equitable of working hours; not entitled to a job as such but representation of (e) periodic holidays with to an environment in which the both employees pay and remuneration person could find a job; and and employers on for public holidays; any supervisory or (f) form, join or (ii) by deleting clause (2) because it policy board participate in the contained details that should be established for a activities and pension scheme; provided for in subsidiary programmes of a (c) the prudent legislation and replacing it with trade union, including investment of a new provision empowering the right to strike; pension funds; and Parliament to enact legislation (g) withdraw labour in (d) the prompt to provide for a worker‟s rights; accordance with the payment of law; and pension or (c) paragraph (a) of clause (7) of Article (h) a reasonable pension retrenchment 69 of the Mung‟omba Draft or gratuity Constitution was deleted as its
183 commensurate with benefits to a provision was adequately provided that worker‟s status, worker who retires for by the new clause (1) of Article salary and length of or is retrenched or, 70 of the Mung‟omba Draft service. where a worker Constitution which has been re- who retires or is numbered as Article 67; retrenched is not
paid promptly, the (d) clauses (4), (5) and (6) of Article 69 of retention on the the Mung‟omba Draft Constitution pay roll of that were deleted because they were
worker, until details that should be provided for (3) Where pension or retrenchment payment of the in subsidiary legislation; and benefit is not paid promptly the pension or retiree‟s or retrenchee‟s name retrenchment (e) introduced and adopted clauses (1), (2) shall be retained on the payroll benefits. and (3) in new Article 65 to provide until the pension or benefit is for a right to pension, gratuity and paid retrenchment benefits and 4) Every employer has the protecting and exempting them right to - from tax. (a) form and join an
employers‟
organisation;
(b) participate in the The Conference adopted a new activities and Article 66 to provide for labour relations. programmes of an Labour Relations employers‟ organisation; and 66. (1) A person has the (c) lock out. right to work and to just and (5) Every trade union and fair labour practices. every employers‟ organisation has (2) Parliament shall
184 the right to - enact legislation to (a) determine its own provide for a worker’s administration, rights. programmes and activities; (b) organise; and (c) form and join a federation. (6) A trade union, an employer‟s organisation and an employer have the right to engage in collective bargaining. (7) Parliament shall enact legislation to regulate pensions and pension schemes and in particular to make provision for - (a) persons over sixty-five years of age to receive welfare support; (b) all workers to subscribe to pension schemes; (c ) equitable representation of both employees and employers on any supervisory or policy board established for a pension scheme; and (d) the prudent investment of pension funds.
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Article 70: Social security Social Protection Social security 70. Every person has the right to 67. (1) Every person has the right The Conference: social security, including, where to access social protection, (a) approved clause (1) with appropriate, social welfare for that including, if the person is amendments by inserting the person and dependants of that unable to support themselves word “access” between the words person. and their dependants, social “to” and “social” and restricting assistance for that person and accessibility only to the vulnerable dependants of that person. by replacing the phrase “where appropriate” with the phrase “if the person is unable to support themselves and their dependants”.
(b) amended the marginal note to read
“Social Protection” as it was wide
in scope in that it included both
social security and social welfare ;
and
(c) re-numbered the Article as Article
67.
The Conference observed that every person should have the right to access social security rather than the right to social security and that such social security
186 should be provided only to those who were vulnerable.
(2) Parliament shall enact The Conference inserted a new clause (2) legislation to regulate the by moving paragraph (a) of clause (7) of provision of social protection. Article 69 of the Mung‟omba Draft Constitution to provide for Parliament to enact legislation to regulate social protection.
New clause
Article 71: Health Health The Conference: Health (a) approved clause (1) with 71. (1) Every person has the right 68. (1) Every person has amendments by inserting the word to health which includes the right the right to health which “access” between the words “to” to health care services and includes the right to access and “health”; and reproductive health care. health care services and (b) re-numbered the Article as reproductive health care. Article 68.
The Conference observed that the right to health should not be understood to mean the right to “be healthy” but that the State had a responsibility to ensure the availability of facilities so that persons falling ill could regain good health by
187 accessing health facilities.
(2) A person shall not be (2) A person shall not be The Conference approved clause (2) refused emergency medical refused emergency medical without amendments. treatment. treatment.
Article 72: Education Education Education The Conference approved clause (1) of 72. (1) Every person has the 69. (1) Every person has the right Article 72 of the Mung‟omba Draft right to education. to education. Constitution without amendments and re- numbered the Article as Article 69.
(2) The State shall - (2) The State shall - The Conference: (a) ensure the right of (a) ensure the right of (a) approved paragraph (a) of every child to free and every child to free clause (2) without amendments; compulsory basic and compulsory basic (b) inserted a new paragraph (b) of education; and education; clause (2) to provide for the right (b) make secondary, post- (b) ensure the right of of an adult to free adult basic secondary, technical an adult to free adult basic education; and and vocational education; and (c) approved paragraph (b) of education (c) make secondary, post- clause (2) with amendments by progressively secondary, adult education, including “adult education” and available and technical and vocational re-numbered it as paragraph (c) accessible. education progressively of clause (2). available and accessible.
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(3) Every person has the right (3) Every person has the right The Conference approved clause (3) to establish and maintain, at that to establish and maintain, at that without amendments. person‟s own expense, person‟s own expense, independent educational independent educational institutions that meet standards institutions that meet standards provided by or under an Act of provided by or under an Act of Parliament. Parliament.
Article 73: Shelter and housing Shelter and The Conference deleted Article housing 73. (1) Every person has the 73 on Shelter and housing The Conference deleted clauses (1) and (2) right to have access to adequate that the right to housing was not shelter and housing. sustainable and that it would be difficult to ascertain what would be termed as “adequate shelter and housing”. Accordingly, Article 73 was deleted by the Conference. (2) Parliament shall not enact any legislation that permits or authorises arbitrary eviction.
Article 74: Food, water and sanitation Food, water and 74. (1) Every person has the right The Conference deleted Article The Conference deleted Article 74 based on sanitation to be free from hunger and to have 74 on Food, water and sanitation the following arguments: access to food in adequate
189 quantities, of adequate quality and (i) it would be difficult to define what cultural acceptability. would be “adequate food” and suggested that the provision should be moved to the Directive Principles (2) (2) Every person has the right to of State Policy; and water in adequate quantities and (ii) it will not be possible to measure of satisfactory quality reasonable sanitation.
(3) (3) Every person has the right to Accordingly, Article 74 was deleted by the a reasonable standard of Conference. sanitation. Article 75: Environment The Conference deleted Article Environment 75 on Environment. 75. Every person has the right The Conference observed that a similar to - provision had been included under the (a) an environment that is Directive Principles of State Policy and, safe for life and therefore, rendering Article 75 redundant. health; (b) free access to information about the environment; (c) the protection of the environment for present and future generations; and (d) compensation for damage arising from the violation of the
190 rights recognised under this Article.
Article 76: Limitations on rights and Derogation from fundamental Limitations Freedoms rights during war, etc. on rights and freedoms 76. (1) A right or freedom 71. Nothing contained in or The Conference approved the new Article set out in this done under the authority of any 71 in place of Articles 76, 77 and 78 Bill of Rights – law shall be held to be following its earlier decision to provide for (a) is limited by any inconsistent with or in derogations in individual Articles. limitation or contravention of Articles 48, 51, qualification expressly 54, 56, 56 ,57, 58, 61, 62 or 63 to The Conference expressed concern over the set out in the the extent that it is shown that provisions of Articles 76 of the Mung‟omba provision containing the law in question authorises Draft Constitution as its provisions were that right or freedom; the taking, during any period too technical, convoluted, long winded and and when the Republic is at war or had too many references and observed that (b) may be otherwise when a declaration under such a formulation of provisions defeated Article 123 is in force, of limited only by a law the concept of a people‟s Constitution that measures for the purpose of of general application should be understood by ordinary people dealing with any situation which is subject to who had no legal training. In that regard, it existing or arising during that clauses (2), (3) and (4). was noted that the Articles needed to be period, and nothing done by couched in simple language as was the case any person under the authority in the Constitution of South Africa. of any such law shall be held to be in contravention of any of the said provisions if it is Therefore, the Conference resolved to shown that the measures taken redraft the specific rights in the Bill of were, having due regard to the Rights with their attendant limitations and circumstances prevailing at the derogations within the Articles. The
191 time, reasonably required for consequence of this decision was that, after the purpose of dealing with the inserting the necessary limitations situation in question. appropriately in specific Articles, the remaining provisions of Articles 76, 77 and 78 were collapsed in one Article, based on Article 25 of the current Constitution. The new Article provided for certain rights which could be derogated from during war, state of emergency and threatened state of emergency.
Accordingly, the marginal note of the new Article was amended to read “Derogation from fundamental rights during war, etc” and the Article re-numbered as Article 71.
(2) A law that has the effect of limiting a right or freedom is inconsistent with this Constitution unless - (a) that enactment specifically expresses the intention to limit that specific right or freedom; and (b) the limitation satisfies the requirements of
192 clause (3).
(3) A limitation made under clause (1) (b) or (2) shall be invalid if it negates the core or the essential content of the right or freedom and is not reasonable and justifiable in an open and democratic society - (a) based on human dignity, equality and freedom; (b) taking into account all relevant factors including - (i) the nature of the right; (ii) the importance of the purpose of the limitation; (iii) the value and extent of the limitation; (iv) the relation between the limitation and its purpose; and (v) whether there are less restrictive means to achieve the purpose.
193
(4) A limitation made under clause (1) (b) or (2) shall be valid only to the extent that the limitation - (a) is reasonably required in the interest of defence and security, public safety, public order, public morality, public health, town and country planning, taxation, the development, management and utilization of natural and mineral resources; (b) relates to the acquisition of property to secure the development, management or utilization of the property for a purpose beneficial to the community or the public; (c) forms or is an incident of a contract, including a lease, trust, settlement, deed, letter of
194 administration, tenancy, mortgage, charge, pledge, bill of sale or title deed to land or other instruments provided under law; (d) relates to property which consists of a licence or permit; (e) is required to enforce a judgement or an order of a court or tribunal; or (f) imposes restrictions on defence and security officers and other public officers.
(5) The State or any person claiming that a particular limitation is permitted under this Article shall prove to a court, tribunal, the Human Rights Commission or any other appropriate body that the requirements of this Article have been satisfied. Article 77: Non-derogable rights and Non- freedoms
195 derogable rights and 77. Notwithstanding any other freedoms provision in this Constitution, the following rights and freedoms shall not be derogated from : (a) freedom from torture, cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c ) the right to a fair hearing; and (d) the right to an order of habeas corpus. Article 78: Derogation of rights and Derogation freedoms during emergency or of rights and National disaster freedoms during 78. (1) A provision emergency or contained in, or an act or a thing National done under, an Act of Parliament disaster shall not be inconsistent with or in contravention of this Part if – (a) the law in question authorizes the taking, when a declaration of war, state of public emergency or
196 threatened state of public emergency or a National disaster is in force, of measures for dealing with such situations; and (b) the measures taken are reasonably justifiable for dealing with the war, state of public emergency, threatened state of public emergency or National disaster. (2) Legislation enacted under clause (1) may provide for the detention of persons when it is necessary for purposes of dealing with the war or other state of public emergency.
Article 79: Restriction and detention during Restriction and detention The Conference: Restriction emergency during emergency (a) approved clause (1) of Article 79 of and the Mung‟omba Draft detention 79. (1) Where a person‟s freedom 72. (1) Where a person's Constitution with amendments during of movement is restricted or that freedom of movement is by providing for the information emergency person is detained, during a war, restricted or that person is in Braille, if the person was state of public emergency or detained, during a war, state of visually impaired; and
197 threatened state of public public emergency or threatened (b) re-numbered the Article emergency, the following shall state of public emergency, the as Article 72. apply: following shall apply:
(a) that person shall, as soon (a) that person shall, as soon as is reasonably as is reasonably practicable and in any practicable, and in any case not more than case not more than fourteen days after the fourteen days after the commencement of the commencement of the detention or restriction, detention or restriction, be be furnished with a furnished with a statement in writing in a statement, in writing, in a language which that language which that person understands person understands specifying in detail the specifying in detail the grounds of the restriction grounds of the restriction or detention; or detention: Provided that if the person is visually
198 impaired, the statement shall be in Braille.
New paragraph (b) the spouse or next of kin The Conference inserted a new paragraph of, or other person (b) to provide for the next of kin or any named by, the person person named by the detained person to be restricted or detained, informed of the restriction or detention and shall be informed of the allowed access to the detained or restricted restriction or detention person within forty-eight hours of and allowed access to the detention or restriction. person within forty-eight hours after the commencement of the restriction or detention;
(b) not more than fourteen days (c) not more than fourteen The Conference: after the commencement of the days after the restriction or detention, a commencement of the (a) amended paragraph (b) by replacing notification shall be published in restriction or detention, a the words “stating the restriction or the Gazette stating the restriction or notification shall be detention“ with the words “and in detention and giving particulars of published in the Gazette a daily newspaper of general the place of the restriction or and in a daily newspaper circulation in Zambia, stating that detention and the provision of the of general circulation in the person has been restricted or law under which the restriction or Zambia, stating that the detained” in order to provide for detention is authorised person has been publishing of the notification in a restricted or detained and daily newspaper other than the giving particulars of the Gazette; place of the restriction or (b) re-numbered the paragraph
199 detention and the as paragraph (c). provision of the law under which the restriction or detention is authorised; (c) if that person so requests, Clause (c) was deleted by the The Conference deleted clause (c) as clause at any time during the Conference (1) of the new Article 73 was considered to period of the restriction be more advantageous to the detainee in or detention or not later that it provided for mandatory review of than twenty-one days the detention at the instance of the High after the commencement Court. of the restriction or detention and at intervals of not more than thirty days, the case shall be reviewed by the Constitutional Court;
(d) that person shall be (d) that person shall be afforded The Conference amended: afforded reasonable reasonable facilities and (a) paragraph (d) by adding the words facilities to consult a legal opportunity to consult a “and opportunity” after the word practitioner of that legal practitioner of that “facilities”; and person‟s own choice who person's own choice who (b) paragraphs (d) and (e) by replacing shall be permitted to shall be permitted to make “Constitutional Court” with “High make representations to representations to the Court.” the authority by which authority by which the the restriction or restriction or detention was detention was ordered or ordered or to the High
200 to the Constitutional Court; and Court; and (e) at the hearing of the case, (e) at the hearing of the case, by the High Court, that by the Constitutional person shall be permitted Court, that person shall to appear in person or by be permitted to appear in a legal practitioner of that person or by a legal person's own choice and practitioner of that may, in addition to any person‟s own choice and grounds challenging that may, in addition to any person's detention or grounds challenging that restriction, challenge the person‟s detention or validity or genuineness of restriction, challenge the the declaration of the state validity or genuineness of of public emergency or the declaration of the threatened state of public state of public emergency emergency and the or threatened state of measures taken during public emergency and the that period. measures taken during that period.
(2) (2) On a review by the Clause (2) was transferred to the The Conference transferred clause (2) of Constitutional Court under this new Article 73. Article 79 of the Mung‟omba Draft Article, the Court shall advise the Constitution to clause (2) of the new Article authority, by which the detention 73 providing for the review by the High
201 or restriction of the person was Court. ordered, on the necessity or expediency of continuing the restriction or detention and that authority shall act in accordance with that advice.
(3) The President may, at any (2) The President may, at any The Conference: time, refer to the Constitutional time, refer to the (a) adopted clause (3) without Court the case of a person who Constitutional Court the case amendments; and has been or is being restricted or of a person who has been or (b) re-numbered clause (3) as clause (2). detained under a restriction or is being restricted or detained detention order under any law. under a restriction or detention order under any law.
(4) Clause (1) (d) or (e) shall (3) Clause (1) (d) shall not be The Conference: not be construed as construed as entitling a person to (a) approved clause (4) with entitling a person to legal legal representation at public amendments by adding the words representation at public expense, except that a person “except that a person may be expense. may be granted legal aid if granted legal aid if substantial substantial injustice would injustice would otherwise result” at otherwise result. the end of the clause to provide for legal aid only in deserving cases where injustice might result; and (b) re-numbered clause (4) as
202 (3). Article 73: Review by High Court Review by Clause (1) of the new Article 73 73. (1) The High Court The Conference introduced and adopted a High Court inserted by the Conference shall review the case of a person news clause (1) to compel the High Court to who is restricted or detained review the case of a detained or restricted and to whom Article 72 applies, person within fourteen (14) days from the not later than fourteen days commencement of the detention or after the commencement of the restriction. restriction or detention, and after that, at intervals of not more than thirty days.
Clause (2) of the new Article 73 (2) On a review by the High The Conference, when deliberating on inserted by the Conference Court, the Court may order the Article 79 of the Mung‟omba Draft authority by which the Constitution observed that there was need detention or restriction of the to separately provide for specific person was ordered- functions/responsibilities of the High (a) on the necessity or Court in matters related to a detained or expediency of continuing restricted person. In so doing, clause (2) of the restriction or Article 79 was moved to the new Article 73 detention; with amendments. (b) to release the detained or restricted person; or (c) to take such other action as the Court may consider necessary; and the authority shall act in accordance with that order.
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Enforcement of Bill of Rights Enforcement of Bill of Rights
Article 80: Enforcement of Bill of Rights Enforcement of Bill of Rights Enforcement 80. (1) Where a person 74. (1) Where a person The Conference: of Bill of alleges that any provision of this alleges that any provision of this (a) amended clause (1) of Article 80 Rights Bill of Rights has been, is being or Bill of Rights has been, is being by substituting the words is likely to be contravened in or is likely to be contravened in “Constitutional Court” with relation to that person, without relation to that person, without the words “High Court”; and prejudice to any other action with prejudice to any other action (b) re-numbered the Article as respect to the same matter which with respect to the same matter Article 74. is lawfully available, that person which is lawfully available, that may apply for redress to the person may apply for redress to The Conference reiterated that it had Constitutional Court. the High Court. earlier approved that matters concerning violation of the Bill of Rights were for original jurisdiction in the High Court and that the Constitutional Court would have appellate jurisdiction in the following:-
(a) in all matters of interpretation of this Constitution; (b) to determine whether an Act of Parliament or statutory instrument contravenes this Constitution; and (c) to determine a question of
204 violation of any provision of the Bill of Rights.
(2) Any person or organisation (2) Any person or The Conference approved clause (2) with may bring an action against the organisation with a sufficient amendments by inserting the phrase “with violation of another person‟s or a interest may bring an action a sufficient interest” between the words group‟s human rights and against the violation of another “organisation” and “may” and specifying a freedoms. person's or a group's human person who should have such an interest in rights and freedoms: the proviso to clause (2). This was done in Provided that the order to restrict the locus standi for suing person or on behalf others whose rights have been organisation that violated to persons and organisations with may bring an a sufficient interest in the matter. action under this clause is- (a) a person acting on behalf of another person who cannot bring an action in their own name; (b) a person acting as a member of,
205 or in the interest of, a group or class of persons; and (c) any association in the interest of its members.
(3) Parliament shall enact The Conference deleted clause (3) on legislation for the enforcement of account that the Bill of Right should have the Bill of Rights. its own enforcement mechanism and that all rights declared in the Bill of Rights should become enforceable on the day the new Constitution comes into effect.
Article 81: Establishment and composition Establishment of Human Rights Establishment of Human Rights Commission Commission and its and Independence composition of
Human 81. (1) There is hereby established 243. (1) There is hereby The Conference: Rights a Human Rights Commission established a Human Rights Commission (a) deleted Articles 81 to 87 of the which shall have offices in all of Commission. Mung‟omba Draft Constitution the provinces and progressively in (2) The Human Rights and replaced them with Articles the districts. Commission shall be 125 and 126 of the current autonomous.
206 (3) Parliament shall enact Constitution; (2) The Commission shall legislation to provide for the consist of the following members: functions, composition, (b) moved the new provisions on the (a) a person qualified to appointment, tenure of office, Human Rights Commission from be appointed a procedures, operations, the Bill of Rights to Part XIV of the Judge of the High administration, finances and Constitution providing for Court, nominated by financial management of the Commissions; and the Judicial Service Human Rights Commission Commission, as the established under this Article. (c) re-numbered the Article as Article chairperson; 243. (b) a person qualified to be appointed a This decision arose from the observation of Judge of the High the Conference that: Court, nominated by the Judicial Service (a) Articles 81 to 87 contained Commission, as the unnecessary provisions most of vice-chairperson; which were already contained in the and current Human Rights Commission Act; (c) three persons, who have (b) the numbers of Commissioners and qualifications and proven functions of the Human Rights experience in human rights issues, Commission should be provided for nominated by human rights civil in subsidiary legislation because the society organisations Bill of Rights could not be easily changed as any amendments thereto (3) A member of the required the holding of the national Commission shall be appointed by referendum; and the President, subject to ratification (c) the procedural and administrative
207 by the National Assembly. issues such as of establishing Article 82: Functions of Human Rights Commissions should not be Functions of Commission entrenched in the Bill of Rights as Human there might be changes needed to be Rights 82. (1) The functions of the effected without holding a Commission Human Rights Commission shall referendum. be to - (a) investigate, at its own initiative or on a complaint made by a person or group of persons, an allegation of a violation of any human right or freedom;
(b) investigate complaints in State institutions relating to allegations of abuse of human rights or freedoms;
(c) establish a continuing programme of research, education, information, dissemination and
208 rehabilitation of victims of human rights abuses in order to enhance awareness and the protection of human rights and freedoms;
(d) recommend to the National Assembly measures to promote human rights and freedoms, including the provision of compensation to victims of violations of human rights and their families;
(e) promote civic education and public awareness of the Bill of Rights;
209
(f) monitor the Government‟s compliance with international treaties and conventions on human rights and freedoms;
(g) formulate and implement programmes intended to inculcate, in the citizen, an awareness of civic responsibilities and an appreciation of the rights, freedoms and obligations under this Constitution
(h) visit prisons and places of restriction or detention or related facilities in order to assess and inspect conditions of the inmates and make recommendations to appropriate authorities;
(i) investigate complaints
210 against practices and actions, by persons, private enterprises and any other institution on alleged violations of the Bill of Rights;
(j) take appropriate action to call for remedying, correction and reversal of instances of breach of the Bill of Rights;
(k) prosecute cases of human rights violations, subject to the approval of the Director of Public Prosecutions; and
(l) report regularly to the National Assembly on the performance of its functions.
211
(2) Clause (1) shall not prevent any person, on behalf of any other person unable to act, from bringing an action to the Constitutional Court in a case of a violation of the Bill of Rights.
(3) The Commission shall not investigate a matter - (a) which is pending before a court or quasi-judicial tribunal; (b) that involves the relations or dealings between the Government and any foreign government or an international organisation; or (c) that relates to the exercise of the prerogative of mercy. Article 83: Independence of human Rights Independence Commission of human 83. In the performance of its Rights functions, the Human Rights Commission Commission shall be subject only
212 to this Constitution and the Laws and shall not be subject to the direction or control of any person or authority. Article 84: Tenure of office of members of Tenure of Human Rights Commission office of members of 84. (1) A member of the Human Human Rights Commission shall Rights hold office on full-time basis for a Commission term of four years and shall be eligible for re-appointment for only one further term. (2) A member of the Commission may in writing resign from office and may be removed from office on the same grounds and procedure as applies to a Judge of a superior court. (3) A member of the Commission shall not hold any other office of profit or emolument while serving as a member of the Commission. Article 85: Funds of Human Rights Funds of Commission Human Rights 85. (1) The funds of the Human Commission Rights
213 Commission shall include – (a) moneys appropriated by Parliament for the purposes of the Commission; and (b) any other moneys received by the Commission for the performance of its functions. (2) The Commission shall be a self-accounting institution and shall deal directly with the Ministry responsible for finance on matters relating to its finances. (2) The Commission shall, in any financial year, be adequately funded in order to enable it to effectively carry out its mandate.
Article 86: Expenses of the Human rights Expenses of Commission the Human rights 86. The expenses of the Human Commission Rights Commission, including emoluments payable to or in respect of persons serving with
214 the Commission, shall be a charge on the Consolidated Fund. Article 87: Legislation on powers of Human Legislation Rights Commission on powers of Human 87. Parliament may enact Rights legislation to give Commission effect to this Part, including the power of the Human Rights Commission to - (a) issue subpoenas requiring the attendance of a person before the Commission; (b) require the production of documents or records relevant to an investigation by the Commission; (c) cause a person contemptuous of the Commission to be prosecuted before a court; (d) question a person in respect of a subject matter under investigation by the Commission; (e) require a person to
215 disclose any information, within that person‟s knowledge, relevant to an investigation by the Commission; (f) make regulations providing for the manner and procedure for bringing complaints before it and for the investigation of complaints; and (g) appoint the employees of the Commission and determine their terms and conditions of service.
Article 88: Establishment of Gender Equality Establishment of Gender Equality Establishment Commission Commission of Gender Equality 88. (1) There is hereby 244. (1) There is hereby The Conference: Commission established the established the Gender Equality (a) amended clause (1) by specifying the
Gender Equality Commission. Commission which shall core functions of the Gender Equality promote respect for gender Commission as promoting respect for (2) Parliament shall enact equality and the protection, gender equality; legislation to provide for the development and attainment of (b) approved clause (2) without functions, composition, gender equality. amendments; appointment, tenure of office, (c) transferred the Article from the Bill of procedures, operations, (2) Parliament shall enact
216 administration, finances and legislation to provide for the Rights to Part XIV of the Constitution financial management of the functions, composition, providing for Commissions; and Gender Equality Commission appointment, tenure of office, (d) re-numbered the Article as Article 244. established under this Article. procedures, operations, administration, finances and The Conference appreciated the financial management of the establishment of a new Commission Gender Equality Commission dealing with gender equality and cited established under this Article. South Africa where establishment of a similar institution has led to improved gender balancing in decision making positions. However, the Conference expressed concern with location of the article establishing it in the Bill of Rights. The Conference observed that as an evolving commission, the Gender Equality Commission may need further structural developments to take into account operational and other needs. Therefore, there might be frequent amendments to instruments establishing it.
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PART VII – CODE OF ETHICS AND CONDUCT OF PUBLIC OFFICERS
ARTICLE PROVISIONS OF MUNG’OMBA RESOLUTIONS OF THE RATIONALE/REMARKS NO. DRAFT CONSTITUTION CONFERENCE
Article 89: Conflict of interest Conflict of Interests Conflict of 75. A public officer shall not act in a The Conference adopted interest 89. A public officer shall not act in a manner or be in a position where the Article 89 as provided in the manner or be in a position where the personal interest of the officer conflicts Mung‟omba Draft personal interest of that officer or is likely to conflict with the Constitution and renumbered conflicts or is likely to conflict with performance of the functions of office. it as Article 75. It observed the performance of the functions of that the Article was non- office. contentious.
Article 90 : Declaration of assets Declaration of assets and liabilities The Conference adopted Declaration of 90. (1) An Act of Parliament shall 76. (1) An Act of Parliament shall Article 90 with amendments assets specify the categories of public specify the categories of public officers and renumbered it as Article officers who shall make declarations who shall make declarations of their 76. The Conference define the of their assets and liabilities, the form assets and liabilities, the form and terms “Public Officer,” and and manner of making the manner of making the declaration and “Public Office” declaration and to whom the to whom the declaration shall be declaration shall be submitted to. submitted. The words “whether owned (2) A public officer specified in an (2) A public officer specified in an Act or owed directly or indirectly” Act of Parliament shall, in accordance of Parliament shall, in accordance with were dropped in clause (2) with that Act, make a written that Act, make a written declaration of because the term “indirect” declaration of the assets or liabilities the assets or liabilities of that public found potential for abuse.
218 of that public officer, whether owned officer. or owed directly or indirectly- (a) within three months after the (a) within three months after commencement of this the commencement of this Constitution or upon taking Constitution or before office; taking office; (b) annually; and (b) annually; and (c) at the end of the term of office. (c) at the end of the term of (3) A public officer who fails to make office. and submit a declaration as required by (3) A public officer who fails to clauses (1) and (2) or knowingly makes make and submit a declaration as a false declaration commits an offence required by clauses (1) and (2) or and shall be liable to a penalty imposed knowingly makes a false declaration by an Act of Parliament. commits an offence and shall be liable to any penalty imposed by an Act of Parliament. (4) A declaration made and submitted under clauses (1) and (2) shall, on demand, be produced in evidence before - (a) a court or tribunal; (b) the Anti-Corruption Commission; or
(c) any other investigative body established by or under an Act of Parliament.
219 Article 91: Spouse of public officer The Conference deleted Article 91 on The Conference decided Spouse of public 91. A spouse of a public officer shall Spouse of public officer to delete Article 91 of the CRC officer declare that spouse‟s assets and because the provision was liabilities, as provided under an Act tantamount to unfair of Parliament. treatment as spouses in some cases acquired and owned property in their own right. Article 92: Appointment to public body The Conference deleted Article 92 on The Conference deleted Appointment to 92. Parliament shall enact Appointment to public body Article 92 because there were public body legislation prohibiting - no compelling reasons to (a) a member of the governing include the provision in the body of a statutory body or Constitution. company in which the Government has a controlling interest from holding any other office in the service of that body or company, except for the Governor of the Central Bank and the Commissioner of Lands; and (b) a member of the National Assembly from being appointed to or hold office in a statutory body or company in which the Government has a controlling interest.
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Article 93: Codes Codes of ethics for professions and Codes of ethics for professions and The Conference decided that of ethics for other vocations other vocations Article 93 was not suitable for professions and inclusion in the Constitution other vocations 93. Parliament shall enact 77. Parliament shall enact legislation to and renumbered it as Article legislation providing for the provide for the compiling and 77. It observed that the compiling and publication of a code publication of a code of conduct and provisions in the Article of conduct and ethics for any ethics for any profession or vocation were details and resolved that profession or vocation that involves that involves the provision of services to Parliament should provide for the provision of services to the public. the public codes of ethics in subsidiary legislation
PART VIII – REPRESENTATION OF THE PEOPLE ELECTORAL SYSTEMS AND PRINCIPLES Article No. MUNG’OMBA DRAFT RESOLUTIONS OF THE RATIONALE/REMARKS CONSTITUTION CONFERENCE Article 94: Basis of Electoral System Basis of Electoral System The Conference retained the Basis of Electoral provisions in the Mung‟omba System 94. (1) The electoral system is based 78. (1) The electoral system is based Draft Constitution without on the right of all citizens, who are on the right of all citizens, who are amendments and renumbered it eligible under this Constitution and eligible under this Constitution and as Article 78. The Conference any other law, to vote in any direct any other law, to vote in any direct observed that Zambia had made election or stand for any office in a election or stand for any office in a minimal progress in creating an direct election, as provided under this direct election, as provided under enabling environment to attain Constitution. this Constitution. gender equality. Some members (2) Subject to this Constitution, voting (2) Subject to this Constitution,
221 in any direct election shall be by voting in any direct election shall be observed that women faced universal adult suffrage and secret by universal adult suffrage and many obstacles in their ballot. secret ballot. participation in politics and (3) The electoral system and process (3) The electoral system and process proposed that the threshold be shall be such as will ensure a free and shall ensure a free and fair election. raised from 30% to 50% in line fair election. with the Southern African (4) The electoral system shall ensure (4) The electoral system shall ensure Development Community that- that- (SADC) requirement on gender. (a) the representation of each gender (a) the representation of each The Conference observed that is not less than thirty per cent of the gender is not less than thirty the Article was neutral as it total number of seats in the National per cent of the total number allowed either gender to exceed
Assembly, district council or other of seats in the National the 30% bench mark. public elective body; and Assembly, district council or
(b) there shall be equitable other public elective body; The Conference agreed to representation of persons with and provide for a mechanism for free disabilities and the youth at all levels. (b) there shall be equitable and fair elections and a formula
for achieving 30% women representation of persons representation. with disabilities and the youth at all levels of governance.
(5) An Act of Parliament shall provide (5) Parliament shall enact legislation a formular for achieving the purposes – under clause (4). (a) to ensure the conduct of free and fair elections; and (b) to provide a formular for
222 achieving the purpose under clause (4).
Article 95: Election systems for Presidential, Election systems for Presidential, The Conference failed to reach Election systems National Assembly and Local National Assembly and Local consensus on the provision of for Presidential, Government Elections Government Elections Mung‟omba Draft Constitution. National After protracted debate which Assembly and 95. (1) Elections to the office of 79. (1) Elections to the office of led to a vote to decide on Local President shall be conducted on the President shall be conducted on the whether to adopt “majoritarian Government basis of a majoritarian system where basis of a majoritarian system (50% + 1 vote) system” or Elections the winning candidate must receive where the winning candidate must “simple majority”, there was an not less than fifty per cent plus one receive not less than fifty per cent “impasse” as no side obtained vote of the valid votes cast and in plus one vote of the valid votes cast the mandatory two thirds accordance with Article 125. and in accordance with Article 125. majority. The Conference (2) Elections to the National Assembly (2) Elections to the National referred the matter to be decided and a district council shall be Assembly and a district council shall by a referendum.
conducted under a mixed member be conducted under a mixed
representation system and as member representation system and The Conference retained the
provided under Articles 159 and 235 as provided under Articles 159 and provision of the Mung‟omba
(b) and (c), respectively. 235 (b) and (c), respectively. Draft Constitution on clauses (2),
(3) Subject to clause (4), Parliament (3) Subject to clause (4), Parliament (3) and (4).
may enact legislation prescribing a may enact legislation prescribing a
different electoral system for election different electoral system for the The Article referred to the of members of the National Assembly election of members of the National referendum was renumbered as or a district council. Assembly or a district council.
223 (4) Any Bill providing for a different (4) Any Bill providing for a different Article 79. electoral system, for purposes of electoral system for purposes of clause (3), shall not be passed by the clause (3), shall not be passed by the National Assembly unless the Bill is National Assembly unless the Bill is supported on second and third supported on second and third reading by the votes of not less than reading by the votes of not less than two-thirds of all the members of the two-thirds of all the members of the Assembly. Assembly. Article 96: Losing candidates not eligible for Losing candidates not eligible for The Conference adopted the Losing candidates certain appointments certain appointments Article with amendments and not renumbered it as Article 80. eligible for 96. (1) Any person who was a 80. Any person who was a certain candidate for election as President, candidate for election as President, The Conference approved the appointments member of the National Assembly or member of the National Assembly provision in clause (1) because district council and who lost the direct or district council and who lost the they felt that it was wrong for election is not eligible for direct election is not eligible for candidates who had failed to appointment as Vice-President, nomination as a member of the secure popular mandate in Minister, Provincial Minister or National Assembly or appointment elections to be nominated or Deputy Minister during the term of as Vice-President, Minister, appointed to other elective that National Assembly. Provincial Minister or Deputy positions. The Conference Minister during the term of that included the nomination as National Assembly. member of the National (2) Parliament may enact legislation to Assembly on the list. provide for other offices to which a Clause (2) was deleted. person who has lost a direct election The Conference deleted clause is not eligible for appointment. (2) because members considered it punitive for a losing candidate already subjected to the
224 provision in Article 96 (1) to be denied appointment to other positions.
Article 97: Independent Candidates Independent Candidates The Conference adopted the Independent 97. Subject to the qualifications and provision of the Mung‟omba Candidates disqualifications specified for election 81. Subject to the qualifications and Draft Constitution without as a member of the National disqualifications specified for amendments and renumbered it Assembly or a district council, a election as a member of the National as Article 81. person shall be eligible to stand as an Assembly or a district council, a independent candidate for election as person shall be eligible to stand as a member of the National Assembly an independent candidate for for a constituency-based seat or election as a member of the National councillor for a ward-based seat. Assembly for a constituency-based seat or councillor for a ward-based seat. Article 98: Unopposed Candidates Unopposed Candidates The Conference adopted Article Unopposed 98 of the Mung‟omba Draft Candidates 98. (1) If in any direct election only 82. (1) If in any direct election only Constitution without one candidate is nominated by the one candidate is nominated by the amendments and renumbered it date and time set by the Electoral date and time set by the Electoral as Article 82. Commission for receiving Commission for receiving nominations that candidate shall be nominations, that candidate shall be declared duly elected. declared duly elected. (2) Nothing in clause (1) shall prevent (2) Nothing in clause (1) shall an aggrieved person from challenging prevent an aggrieved person from the nomination and declaration made challenging the nomination and under clause (1). declaration made under clause (1).
225
Article 99: Election date for General Elections Election date for General Elections The Conference adopted the Election date for provisions of the Mung‟omba General Elections 99. (1) Subject to clause (2) and the Draft Constitutions without other provisions of this Constitution, 83. (1) Subject to clause (2) and other amendments and renumbered it a general election shall be held every provisions of this Constitution, a as Article 83. This was after five years on the last Wednesday of general election shall be held every consultations and consensus on September after the last general five years on the last Wednesday of presentation of the budget, in election. September after the last general view of the change in the budget election. cycle. (2) The Electoral Commission may (2) The Electoral Commission may vary the dates for a general election vary the dates for a general election by not more than fourteen days, of the by not more than fourteen days, of day specified by clause (1), when the day specified by clause (1), when prevailing circumstances justify a prevailing circumstances justify a variation of the date. variation of the date. (3) The day on which a general (3) The day on which a general election is held shall be a public election is held shall be a public holiday. holiday. Article 100: By-Elections By-Elections The Conference adopted the By-Elections Article as provided in the 100. (1) Where a vacancy occurs in a 84. (1) Where a vacancy occurs in a Mung‟omba Draft Constitution constituency-based seat or ward- constituency-based seat or ward- without amendments and based seat a by-election shall be held based seat a by-election shall be held renumbered it as Article 84. within ninety days of the occurrence within ninety days of the occurrence The Conference was of the view of that vacancy. of that vacancy. that the time in which by- (2) A by-election shall not be held (2) A by-election shall not be held elections were expected to take within the hundred and eighty days within the hundred and eighty days
226 period that precedes a general period that precedes a general place, when there was a vacancy election. election. in a constituency-based or ward- 100. (3) The Electoral Commission 84. (3) The Electoral Commission based seat, was adequate to shall prescribe the date and time shall prescribe the date and time allow the ECZ to prepare for when a by-election shall be held. when a by-election shall be held. elections. Article 101: Franchise Franchise The Conference adopted the Franchise Article as provided in the 101. (1) A citizen shall be registered as 85. (1) A citizen shall be registered Mung‟omba Draft Constitution a voter for direct elections or as a voter for direct elections or and renumbered it as Article 85. referenda if at the date of the referenda if at the date of the application for registration as a voter application for registration as a that citizen has attained the age of voter that citizen has attained the eighteen years and qualifies for age of eighteen years and qualifies registration as a voter as prescribed for registration as a voter as by an Act of Parliament. prescribed by an Act of Parliament. (2) A citizen who is registered as a (2) A citizen who is registered as a voter in accordance with clause (1) voter in accordance with clause (1) shall, unless disqualified from voting shall, unless disqualified from under an Act of Parliament, be voting under an Act of Parliament, entitled to vote in any direct election be entitled to vote in any direct in accordance with an Act of election in accordance with an Act Parliament of Parliament Article 102: Electoral Process Electoral Process The Conference adopted the Electoral Process 102. Parliament shall enact legislation Article with amendments and regulating every direct election and 86. Parliament shall enact legislation renumbered it as Article 86. providing for- regulating every direct election. (a) the continuous registration of The Conference decided that voters; paragraphs (a) to (j) were
227 (b) a voting procedure that is administrative and that they be simple; relegated to subsidiary (c) transparent ballot boxes that legislation but adopted the first are serially marked; part of Article 102. (d) ballot papers written in Braille for the use of blind persons who can read braille; (e) votes to be counted, tabulated and the results announced promptly at polling stations; (f) the accurate collation and prompt announcement of election results; (g) special arrangements for Members of the Defence Forces, the Police Service, the Prisons Service, election officials and other special sectors of society to vote; (h) facilities to enable citizens Living abroad to vote; (i) appropriate structures and mechanisms to eliminate all forms of electoral malpractices including the safe keeping of all election material; and (j) any matter dealing with the
228 electoral process so as to ensure free and fair elections. Article 103: 103. (1) There is hereby established Establishment and composition of The Conference adopted the Establishment the Electoral Commission of Zambia Electoral Commission of Zambia Article with amendments and and composition which shall have offices in all renumbered it as Article 87. of Electoral provinces. 87. (1) There is hereby established Commission of the Electoral Commission of It was argued that the conception Zambia Zambia. of “independent and autonomous” Electoral Commission of Zambia (ECZ) would market the institution better to the international community. However, most members argued that the inclusion of the word
“independent” did not add
value.
The Conference was also of the view that the reference of the ECZ having offices in all provinces be deleted as it was a detail which would be adequately dealt with by subordinate legislation.
The Conference proposal underscored the having of two
229 persons qualified as judges of a superior court would adequately interpret issues relating to elections.
(2) The Electoral Commission shall (2) The Electoral Commission shall consist of the following members consist of the following members who shall serve on a fulltime basis: who shall serve on a full-time basis: (a) a Chairperson and Vice- (a) a Chairperson and Vice Chairperson who shall Chairperson who shall be be persons qualified to persons qualified to be be appointed as Judges appointed as Judges of a of a superior court; and superior court; and (b) five other members. (b) five other members.
Article 104: Selection of members of Electoral Selection of members of Electoral The Conference adopted Article Selection of Commission Commission 104 of the Mung‟omba Draft members of Constitution with amendments Electoral 104. (1) The President shall constitute 88. (1) The President shall constitute and renumbered it as Article 88. Commission an ad hoc selection committee, as an ad hoc selection committee as provided under clause (2), for provided under clause (2), for In clause (2)(e) the name purposes of recruiting and selecting purposes of recruiting and selecting Ombudsman was substituted persons for appointment as members persons for appointment as with the name “Investigator- of the Electoral Commission members of the Electoral General” in line with the term Commission.
230 (2) The selection committee, (2) The selection committee, used in Zambia. constituted under clause (1), shall constituted under clause (1), shall The Conference relegated clause consist of the following members who consist of the following members (3) which is purely procedural to shall be appointed by the President, who shall be appointed by the subsidiary legislation. subject to ratification by the National President, subject to ratification by Assembly: the National Assembly: In view of the relegation of the (a) one member of the Supreme (a) one member of the Supreme recruitment process in clause (3) Court and Constitutional Court, Court and Constitutional to subsidiary legislation, the nominated by the Chief Justice; Court, nominated by the Conference deleted clause (4). (b) a member of the Civil Service Chief Justice; Commission, nominated by the (b) a member of the Public Chairperson of the Commission; Service Commission, (c) a member of the Judicial Service nominated by the
Commission, nominated by the Chairperson of the Chairperson of the Commission; Commission; (d) a representative from the Church (c) a member of the Judicial bodies; and Service Commission, (e) the Ombudsman. nominated by the Chairperson of the Commission; (d) a representative from the Church bodies; and (e) the Investigator-General. (3) The selection committee, (3) Parliament shall enact legislation constituted under clause (1), shall- prescribing the rules and procedures (a) advertise the names of all short for advertising the names of short listed candidates for public listed candidates and selecting scrutiny; and members for appointment to the
231 (b) forward the names of the short Electoral Commission. listed candidates for appointment by the President. (4) Parliament shall enact legislation prescribing the rules and procedures for advertising the names of short listed candidates and selecting members for appointment to the Electoral Commission. Article 105: Appointment of members of Appointment of members of The Conference adopted the Appointment of Electoral Commission Electoral Commission Article as provided in the members of 105. The President shall appoint 89. The President shall appoint a Mung‟omba Draft Constitution Electoral members of the Electoral Commission Chairperson and vice Chairperson without amendments and Commission from the names submitted by the and members of the Electoral renumbered it as Article 89. selection committee under Article 104, Commission from the names subject to ratification by the National submitted by the selection Assembly. committee under clause (2) of Article 88, subject to ratification by the National Assembly. Article 106: Tenure of Office Article 90- Tenure of Office of The Conference adopted the Tenure of Office Members of Electoral Commission Article as provided in the (New Title) Mung‟omba Draft Constitution 106. (1) A member of the Electoral 90. (1) A member of the Electoral without amendments and Commission shall hold office for a Commission shall hold office for a renumbered it as Article 90. term of five years and shall be eligible term of five years and shall be for re-appointment for only one eligible for re-appointment for only further term. one further term. (2) A member of the Electoral (2) A member of the Electoral
232 Commission may be removed from Commission may be removed from office on the same grounds and same office on the same grounds and procedure as applies to a Judge of a same procedure as applies to a superior court. Judge of a superior court. Article 107: Independence and functions of Article 91 - Independence and The Conference adopted the Independence Electoral Commission functions of Electoral Commission Article with amendments and and functions of renumbered it as Article 91. Electoral 107. (1) The Electoral Commission 91. (1) The Electoral Commission Commission shall be autonomous and impartial shall be autonomous and impartial It approved clause (1) in the and shall not in the performance of its and shall not in the performance of Mung‟omba Draft Constitution functions be subject to the direction or its functions be subject to the without amendments. control of any person or authority direction or control of any person or Regarding clause (2), the authority. Conference adopted it but (2) The Electoral Commission shall be 91. (2) The Electoral Commission decided that paragraphs (e), (f) responsible for: shall be responsible for: and (k) be deleted because – (a) the registration of voters; (a) the registration of voters; (a) on paragraph (e) the (b) the delimitation of (b) the delimitation of Electoral Commission
constituencies and wards for constituencies and wards for would have conflict of
National Assembly and local National Assembly and local interest in supervision of
government elections; government elections; political parties;
(c) the efficient conduct and (c) the efficient conduct and (b) on paragraph (f), should be
supervision of elections and supervision of elections and the function of a body that
referenda; referenda; would regulate and
(d) the review of electoral laws (d) the review of electoral laws and supervise political parties; and the making of the making of and recommendations for their recommendations for their (c) on paragraph (k) delimitation amendment; amendment; of boundaries was (e) the registration and supervision (e) the settlement of minor electoral adequately dealt with by
233 of political parties; disputes; Article 109 of the (f) the promotion of co-operational (f) dealing with any malpractices Mung‟omba Draft harmony between and among before or during an election; Constitution. political parties; (g) the promotion of voter (g) the settlement of minor education and a culture of disputes; democracy; (h) dealing with any malpractices (h ) facilitating of the observance, before or during an election; monitoring and evaluation of (i) the promotion of voter education elections and referenda; and and a culture of democracy; (i) any other function provided by (j) facilitating of the observance, or under an Act of Parliament. monitoring and evaluation of elections and referenda;
(k) the recommendation, to the
President, of administrative
boundaries, including the
fixing, reviewing and variation
of boundaries of provinces,
districts and wards; and
(l) any other function provided by or under an Act of Parliament. (3) The Electoral Commission shall (3) The Electoral Commission shall The Conference adopted clause determine all electoral disputes and determine electoral disputes and (3) in the Mung‟omba Draft issues of malpractices occurring issues of malpractices occurring Constitution but removed the before or during an election within before or during an election within word “all” in reference to twenty-four hours of receiving a twenty-four hours of receiving a electoral disputes to give latitude complaint. complaint. to the Electoral Commission to decide which matters it should
234 entertain. (4) The Electoral Commission shall (4) The Electoral Commission shall The Conference adopted clause have powers to- have powers to: (4) in the Mung‟omba Draft (a) prohibit a person or political party (a) correct errors made by electoral Constitution but deleted (a), (b) from doing any act proscribed by officers in an election; and (d) because those provisions or under an Act of Parliament; (b) determine that the votes cast at would be relegated to subsidiary (b) exclude a person or agent of any a polling station did not tally legislation. person, candidate or political in whole or in part; Paragraph (c) was recast to party from entering a polling (c) provide for the filing of a provide that the Electoral station; Complaint or objection; Commission should be allowed (c) reduce or increase the number of (d) submit a report on an election to correct errors after a recount. votes cast in favour of a to a court or tribunal candidate after a recount; handling any electoral (d) disqualify the candidature of any petition; or person; (e) cancel an election or election (e) determine that the votes cast at a result and call a fresh polling station did not tally in election where the electoral whole or in part; malpractice is of a nature that (f) provide for the filing of a would affect the final electoral complaint or objection; results; (g) submit a report on an election to such other powers provided a court or tribunal handling any by or under an Act of electoral petition; or Parliament. (h) cancel an election or election result and call a fresh election where the electoral malpractice is of a nature that would affect the final electoral results.
235 (5) A decision of the Electoral (5) A decision of the Electoral The Conference adopted clause Commission on any matter, referred Commission on any matter, referred (5) in the Mung‟omba Draft to in clause (4), shall be final only for to in clause (4), shall be final only for Constitution without purposes of proceeding with an purposes of proceeding with an amendments. election and is subject to judicial election and is subject to judicial review where appropriate. review where appropriate.
(6) Any complaint connected with a (6) Any complaint connected with The Conference adopted clause direct election raised after the election a direct election raised after the (6) in the Mung‟omba Draft shall be dealt with under an election election shall be dealt with under an Constitution without petition as provided by and under election petition as provided by and amendments. this Constitution. under this Constitution. Article 108: Funds of Electoral Commission Funds of Electoral Commission The Conference adopted Funds of provisions in Article 108 and Electoral 108. (1) The funds of the Electoral 92. (1) The funds of the Electoral renumbered it as Article 92 with Commission Commission shall include- Commission shall include- the only amendment being (a) moneys appropriated by (a) moneys appropriated by substituting the term Parliament for the purposes of Parliament for the purposes “Consolidated Fund” with the Commission; and of the Commission; and “National Treasury Account.” (b) any other moneys received by (b) any other moneys received by The Conference however, the Commission for the the Commission for the observed that adequate funding performance of its functions. performance of its functions. was a cornerstone of ECZ‟s independence. (2) The Electoral Commission shall be (2) The Electoral Commission shall a self-accounting institution and shall be a self-accounting institution and deal directly with the Ministry shall deal directly with the Ministry
responsible for finance on matters responsible for finance on matters
relating to its finances. relating to its finances.
236 (3) The Electoral Commission shall be (3) The Electoral Commission shall adequately funded, in any financial be adequately funded, in any year, in order for it to effectively carry financial year, in order for it to out its mandate. effectively carry out its mandate. (4) The expenses of the Electoral (4) The expenses of the Electoral Commission, including the Commission, including the emoluments payable to or in respect emoluments payable to or in respect of persons serving with the of persons serving with the Commission, shall be a charge on the Commission, shall be a charge on Consolidated Fund. the National Treasury Account. Article 109: Delimitation of Constituencies or Delimitation of Constituencies or The Conference adopted Article Delimitation of Wards Wards 109 as provided in the Constituencies or Mung‟omba Draft Constitution Wards 109. (1) The Electoral Commission 93. (1) The Electoral Commission without amendments and shall determine the names and shall determine the names and renumbered it as Article 93. boundaries of the constituencies and boundaries of the constituencies and wards for National Assembly and wards for National Assembly and The Conference considered the local government elections. local government elections. provisions of Article 109 as non- (2) In determining the boundaries and (2) In determining the boundaries controversial and members were the naming of constituencies or and the naming of constituencies or able to achieve consensus easily. wards, the Electoral Commission wards, the Electoral Commission shall- shall- (a) ensure that Zambia is divided (a) ensure that Zambia is divided into constituencies or wards so into constituencies or wards so that the number of that the number of
constituencies or wards are constituencies or wards are
equal to the number of seats of equal to the number of seats of
members elected under the members elected under the
237 first-past-the post segment of first-past-the-post segment of the mixed member the mixed member representation system; representation system; (b) seek to achieve an approximate (b) seek to achieve an approximate equality of constituency or equality of the constituency or ward population, subject to the ward population, subject to the need to ensure adequate need to ensure adequate representation for urban and representation for urban and sparsely populated areas; and sparsely populated areas; and (c) ensure that the number of (c) ensure that the number of inhabitants in each inhabitants in each constituency constituency or ward is as or ward is as nearly equal to the nearly equal to the population population quota as is
quota as is reasonably reasonably practicable.
practicable.
(3) The Electoral Commission shall, at (3) The Electoral Commission shall, intervals of not more than ten years, at intervals of not more than ten review and, where necessary, alter the years, review and, where necessary, names and boundaries of alter the names and boundaries of constituencies or wards. constituencies or wards. (4) The names and details of the (4) The names and details of the boundaries of constituencies or boundaries of constituencies or wards, determined under clause (1), wards, determined under clause (1) shall be published in the Gazette and shall be published in the Gazette and shall come into effect on the next shall come into effect on the next dissolution of Parliament or district dissolution of Parliament or district councils. councils.
238 (5) Any person may apply to the (5) Any person may apply to the Constitutional Court for review of a Constitutional Court for the review decision of the Electoral Commission of a decision of the Electoral made under this Article. Commission made under this Article. Article 110: Matters to be taken into account Matters to be taken into Account The Conference adopted the Matters to be when delimitating constituencies when delimitating constituencies Article with amendments and taken into and wards and wards renumbered it as Article 94 by account when 110. In determining the boundaries of providing that in clause (e), the delimitating constituencies and wards the Electoral 94. In determining the boundaries of number of constituencies should constituencies Commission shall take into account constituencies and wards, the be at least twenty (20) in each and wards the history, diversity and Electoral Commission shall take into administrative province to cohesiveness of the constituency or account the history, diversity and ensure equitable representation ward having regard to- cohesiveness of the constituency or of all the people of Zambia. (a) population density, population ward having regard to- trends and projections; (a) population density, population (b) geographical features and trends and projections; urban centres; (b) geographical features and (c) community interest, historical, urban centres; economic and cultural ties; (c) community interest, historical, (d) means of communication; and economic and cultural ties; (e) the need to ensure that (d) means of communication; and constituencies or wards are (e) the need to ensure that wholly within districts. constituencies or wards are wholly within districts. Provided that the constituencies shall be so delimited that there shall be at least twenty constituencies
239 in each administrative province. Article 111: Legislation on Elections Legislation on Elections The Conference adopted Article Legislation on 111 in the Mung‟omba Draft Elections 111. (1) Parliament shall enact 95. (1) Parliament shall enact Constitution without legislation for the conduct of direct legislation for the conduct of direct amendments and renumbered it and general elections and referenda general elections and referenda as Article 95. including the- including the- The Conference observed that (a) nomination of candidates; (a) nomination of candidates; the principles for the conduct of (b) registration of citizens as (b) registration of citizens as direct elections set out in the voters; voters; clause should be maintained in (c) manner of voting at elections (c) manner of voting at elections the Constitution to oblige and referenda; and referenda; Parliament when enacting (d) efficient supervision of (d) efficient supervision of legislation to include the elections and referenda; elections principles mentioned in the (e) election campaigns; and and referenda; Article (f) voter and civic education. (e) election campaigns; and (f) voter and civic education.
(2) Legislation enacted under clause (2) Legislation enacted under clause (1) shall provide for the- (1) shall provide for the- (a) appointment of electoral (a) appointment of electoral officers; officers; (b) functions of electoral officers; (b) functions of electoral and officers; (c) terms and conditions of and employment of electoral (c) terms and conditions of officers. employment of electoral
240 officers.
Article 112: Political Parties Political Parties The Conference adopted the Political Parties 112. (1)A political party shall- Article with minor amendments (a) have a national character; 96. (1) A political party shall- and renumbered it as Article 96. (b) have a democratically elected (a) have a national character; governing body; (b) have a democratically elected In clause 1(e) the Conference (c) promote and uphold national governing body; decided to include the “youth” unity; (c) promote and uphold national in the Article to encourage them (d) abide by the democratic unity; to participate in the political principles of good governance (d) abide by the democratic process. and promote and practice principles of good governance democracy through and promote and practice regular, fair and free elections democracy through within the party; regular, fair and free elections (e) respect the right of others to within the party; participate in the political (e) respect the right of others to process, including women and participate in the political persons with disabilities; process, including women, (f) promote and respect human youth and persons with rights and gender equality and disabilities; equity; (f) promote and respect human (g) promote the objectives and rights and gender equality and principles of this Constitution equity; and the rule of law; and (g) promote the objectives and (h) subscribe to and observe any principles of this Constitution code of conduct for political and the rule of law; and parties prescribed by or under an (h) subscribe to and observe any
241 Act of Parliament. code of conduct for political parties prescribed by or under an Act of Parliament.
(2) A political party shall not- (2) A political party shall not- The Conference adopted clause (a) be founded on a religious, (a) be founded on a religious, (2) in the Mung‟omba Draft linguistic, racial, ethnic, linguistic, racial, ethnic, Constitution without gender or provincial basis or gender or provincial basis or amendments. The Conference seek to engage in propaganda seek to engage in propaganda agreed with the provisions set based on any of those based on any of those matters; out in clause (2) to guide the matters; (b) engage in or encourage character of political parties in (b) engage in or encourage violence or intimidation of its Zambia. violence or intimidation of its members, supporters, members, supporters, opponents or any other opponents or any other person; person; (c) establish or maintain a (c) establish or maintain a paramilitary force, militia or paramilitary force, militia or similar organization; or similar organization; or (d) engage in bribery or other (d) engage in bribery or other forms of corrupt forms of corrupt practices. practices.
NEW ARTICLE Article 97 - Political Parties’ The Conference introduced a 97 Commission new Article and numbered it as Article 97. 97. (1) There is hereby established The Conference decided that the the Political Parties’ Commission Political Parties‟ Commission be which shall consist of five part- created for the purpose of time members who shall be
242 appointed by the President subject regulating political parties to the ratification by the National because: Assembly. (a) the Registrar of Societies 113 (1) The Electoral Commission (2) The Political Parties’ did not have the capacity shall be responsible for the Commission shall be responsible as it had too many other registration, deregistration and for- organisations to regulate; regulation of political parties (a) the registration and regulation and of political parties; (b) the ECZ would not (b) monitoring the general adequately perform the conduct of political parties; function because there (c) the promotion of co- would be conflict of operational harmony interest, hence the need for between and among political an entirely new body. parties; (d) the arbitration of disputes between members of a political party, and between and among political parties; and (e) any other function provided by or under an Act of Parliament. (3) Parliament shall enact legislation to provide for the functions, composition, tenure of office, procedures, operations, administration, finances and financial management of the Political Parties’ Commission.
243 Article 113: (1) The Electoral Commission shall be Article 98 - Regulation of The Conference adopted the Regulation of responsible for the registration, political parties provision of the Mung‟omba political parties deregistration and regulation of Clause (1) was deleted. Draft Constitution with political parties amendments by substituting the name of “Electoral Commission (2) A person or group of persons 98. (1) A person or group of of Zambia” with “Political shall not operate as a political party persons shall not operate as a Parties Commission” and unless that party conforms to the political party unless that party renumbered the Article as 98. principles laid down in this conforms to the principles laid Clause (1) of Article 113 was Constitution and is registered by the down in this Constitution and is deleted. Electoral Commission in accordance registered by the Political Parties’ with an Act of Parliament. Commission in accordance with an Act of Parliament. Having decided under Article 97 (3) Any person or group of persons 98. (2) Any person or group of for the establishment of a who desires to form a political party persons who desires to form a Political Parties Commission, the shall furnish the Electoral political party shall satisfy the Conference resolved not to Commission with a copy of its Political Parties’ Commission that – involve the Registrar of Societies constitution and the names and (a) the party shall, within a nor the Electoral Commission of addresses of its officers and satisfy the period of twelve months Zambia in the regulation of Commission that – from the date of its Political Parties. (a) the party will, upon registration registration, have party or soon thereafter, have structures in at least two- branches in at least one half of thirds of the number of the number of provinces of provinces of Zambia; and Zambia; and (b) the party name, objectives or (b) the party name, emblem, colour, motto has no ethnic, motto or any other symbol has provincial or other sectional no ethnic, provincial or other connotations or gives the
244 sectional connotations or gives appearance that its activities the appearance that its activities are confined only to a part of are confined only to a part of Zambia. Zambia. (4) A political party is entitled to (3) A political party is entitled to present its programmes to the public present its programmes to the and the State shall ensure equal access public and the State shall ensure to the public media. equal access to the public media.
(5) A political party and every (4) A political party and every candidate for election to the office of candidate for election to the office of President, the National Assembly or President, the National Assembly or any district council has the right to any district council has the right to conduct their campaign freely and in conduct their campaign freely and accordance with the law. in accordance with the law. (6) Political parties may form a (5) Political parties may form a coalition. coalition. (7) A political party shall, as may be (6) A political party shall, as may provided by an Act of Parliament, be provided by an Act of submit to the Electoral Commission, Parliament, submit to the Political evidence of its revenues and other Parties‟ Commission, evidence of its assets and their source. revenues and other assets and their source. (8) A political party shall be entitled (7) A political party shall be to financial support from the State entitled to financial support from through the Political Parties‟ Fund the State through the Political established under this Part. Parties‟ Fund established under this Part.
245 (8) The Political Parties’ Commission shall prescribe the maximum amount of money that may be spent by, or on behalf of, a candidate in respect of any direct or general election. (9) Parliament shall enact legislation (9) Parliament shall enact legislation for the regulation and registration of for the regulation and registration of political parties. political parties.
Article 114: Political Parties’ Fund Political Parties’ Fund The Conference adopted the Political Parties’ provisions in Article 114 of the Fund 114. (1) There is hereby established a 99. (1) There is hereby established a Mung‟omba Draft Constitution Political Parties‟ Fund Political Parties‟ Fund. with amendments and (2) The Fund shall be administered by (2) The Fund shall be administered renumbered it Article 99 by the Electoral Commission. by the Political Parties’ substituting “Electoral Commission. Commission of Zambia” with “Political Parties” Commission in (3) The sources of the Fund shall be– (3) The sources of the Fund shall clause (2).” Reference to (a) moneys appropriated be- Emoluments Commission in annually by Parliament, as (a) moneys appropriated annually clause 3(a) was dropped. determined by the by Parliament; and Emoluments Commission; (b) contributions and donations and made to the Fund from any (b) contributions and donations other source. made to the Fund from any other source. (4) The moneys in the Fund, not (4) The moneys in the Fund, not immediately required for payment to immediately required for payment
246 political parties, shall be invested in to political parties, may be invested such manner as may be approved by in such manner as shall be approved the Ministry responsible for finance. by the Minister responsible for finance.
Article 115: Purpose of Fund Purpose of Fund The Conference adopted the Purpose of Fund 115. (1) The purpose of the Political Article with minor amendments Parties‟ Fund shall be to provide 100. (1) The purpose of the Political and renumbered it as Article 100. financial support to registered Parties‟ Fund shall be to provide political parties with seats in the financial support to registered The Conference adopted clause National Assembly. political parties with seats in the (1) in the Mung‟omba Draft National Assembly. Constitution without amendments. (2) Notwithstanding Article 120, (2) Notwithstanding Article 106, The Conference adopted clause moneys allocated to a political party moneys allocated to a political (2) as provided in the from the Fund shall be used – party from the Fund shall be used – Mung‟omba Draft Constitution (a) to assist political parties (a) to assist political parties with an amendment in (d) by
disseminate their policies; disseminate their policies; substituting the name “Electoral
(b) for conducting civic and voter (b) for conducting civic and Commission of Zambia” with
education; voter education; “Political Parties” Commission”.
(c) subject to clause (3), generally (c) subject to clause (3), generally
for the administrative for the administrative
expenses of the party which expenses of the party which
expenditure shall not exceed expenditure shall not exceed ten per cent of the money ten per cent of the money allocated; and allocated; and (d) for any other legitimate (d) for any other legitimate purpose approved by the purpose approved by the
247 Electoral Commission. Political Parties’ Commission.
(3) Moneys allocated to a political (3) Moneys allocated to a political party shall not be used for- party shall not be used for- (a) paying, directly or indirectly, (a) paying, directly or remuneration, emoluments, indirectly, remuneration, fees, rewards or any other emoluments, fees, rewards benefit to a member, officer or or any other benefit to a supporter of the party; or member, officer or supporter (b) any other purpose of the party; or incompatible with the (b) any other purpose promotion of a multi-party incompatible with the democracy. promotion of a multi-party democracy.
(4) Parliament shall enact legislation (4) Parliament shall enact legislation to provide for the formula to give to provide for the formula to give effect to this Article. effect to this Article. Article 116: Other sources of funds and Other sources of funds and The Conference adopted the Other sources of maximum donations maximum donations Article without amendments and funds and 116. (1) A political party may receive renumbered it as Article 101. maximum subscriptions, donations and 101. (1) A political party may receive donations contributions from the members and subscriptions, donations and The Conference appreciated the supporters of the party. contributions from the members and need to put restrictions on the supporters of the party. amount of donations made to (2) An Act of Parliament shall specify (2) An Act of Parliament shall political parties in order to – specify- prevent persons that had made
248 (a) the sources from which (a) the sources from which large donations from controlling political parties shall not political parties shall not the party. It was further argued receive subscriptions, receive subscriptions, that restricting the amount donations or contributions; donations or contributions; donated could help to even the and and playing field between parties. (b) the maximum donation that (b) the maximum donation that an individual, institution or an individual, institution or body can make to a political body can make to a political party. party. Article 117: Audit of accounts Audit of accounts The Conference adopted the Audit of 117. (1) A political party shall keep 102. (1) A political party shall keep provision in the Mung‟omba accounts proper books and records of account. proper books and records of Draft Constitution with some account. amendments and renumbered it (2) Within three months after the end (2) Within three months after the as Article 102. of the Government‟s financial year a end of the Government‟s financial Clause (4) (b) was amended by political party, that is funded under year, a political party that is funded substituting the name “Electoral this Part, shall submit its books and under this Part, shall submit its Commission of Zambia” with records of account to the Auditor books and records of account to the “Political Parties Commission.” General for audit. Auditor General for audit.
(3) The Auditor-General shall, within (3) The Auditor-General shall,
three months of submission of the within three months of the
accounts under clause (2), audit the submission of the accounts under
accounts and submit the report on the clause (2), audit the accounts and
audit to the National Assembly and to submit the report on the audit to the
the political party concerned. National Assembly and to the
political party concerned. (4) Within one month after receipt of (4) Within one month after receipt of
249 the audited accounts and the Auditor- the audited accounts and the General‟s report, a political party shall Auditor-General‟s report, a political – party shall – (a) publish the accounts and the (a) publish the accounts and the report in the Gazette and in at report in the Gazette and in least one newspaper at least one newspaper circulating nationally; and circulating nationally; and (b) submit the accounts and (b) submit the accounts and report to the Electoral report to the Political Commission. Parties’ Commission.
Article 118: Party Supervision The Conference deleted this Party Supervision provision in view of the fact that 118. (1) The Electoral Commission Clause (1) was deleted. the Political Parties Commission shall supervise the general conduct of was already created and political parties assigned the function of regulating and supervising the conduct of political parties. (2) A political party shall, within Article 103 - Annual Report The Conference adopted the seven months after the end of the (New Marginal Note) new provision and re-titled it as Government‟s financial year, submit “Annual Report “ and numbered to the Electoral Commission an 103. (1) A political party shall, it as Article 103. annual report of its activities, as within seven months after the end of
provided by an Act of Parliament. the Government‟s financial year, submit to the Political Parties’ Commission an annual report of its activities, as provided by an Act of Parliament.
250 (3) The annual report of a political (2) The annual report of a political party may be inspected by any party may be inspected by any person, during normal office hours, at person, during normal office hours, any branch of the party and at the at any branch of the party and at the offices of the Electoral Commission. offices of the Political Parties’ Commission. (4) The Electoral Commission shall prescribe the maximum amount of Clause (4) was deleted money that may be spent by or on behalf of, a candidate in respect of any direct or general election. Article 119: Party Discipline Party Discipline The Conference adopted the Party Discipline 119. (1) A political party shall ensure Article as provided in the internal party discipline is enforced in 104. (1) A political party shall ensure Mung‟omba Draft Constitution accordance with the rules of natural that internal party discipline is without amendments and justice and democratic principles. enforced in accordance with the renumbered it as Article 104. rules of natural justice and democratic principles. The Conference concerned with (2) A political party shall not take (2) A political party shall not take the provisions of Article 119 to disciplinary action against a member disciplinary action against a provide guidelines as to the of the party for anything done or said member of the party for anything conduct of political parties. by that member in the National done or said by that member in the Assembly or district council. National Assembly or district council. Article 120: Prohibition on use of public Prohibition on use of public The Conference adopted the Prohibition on resources to promote party resources to promote party Article as provided in the use of public interests Interests Mung‟omba Draft Constitution resources to
251 promote party 120. (1) Except as provided for under 105. (1) Except as provided for without amendments and interests this Constitution, a person shall not under this Constitution, a person renumbered it as Article 105. use public resources to promote the shall not use any public resources or interests of a political party. institution to promote the interests of a political party. (2) Parliament shall enact legislation (2) Parliament shall enact legislation to give effect to clause (1). to give effect to clause (1). Article 121: Prohibition on use of public Prohibition on use of public The Conference adopted the Prohibition on resources during election period resources during election period article in the Mung‟omba Draft use of public 121. (1) Subject to clause (2), a person Constitution with amendments resources during shall not use or permit any person to 106. (1) Subject to clause (2), a and renumbered it as Article 106. election period use any public resources, during an person shall not use or permit any Clause (1) was amended by election period, for any purpose person to use any public resource or adding the word “institution” relating to the elections. institution during an election since a public institution could period, for any purpose relating to also be abused. the elections. (2) Notwithstanding clause (1), the (2) Notwithstanding clause (1), the The Conference adopted clause President and the Vice-President shall President and the Vice-President (2) of the Mung‟omba Draft be entitled to use any public resource, shall be entitled to use any public Constitution without during an election period, for their resource during an election period, amendments. security, transportation and for their security, transportation and sustenance. sustenance. (3) In this Article “election period” The Conference moved the means the period which begins on the Clause (3) was deleted. definition in clause (3) to the day nominations are filed and ends on Article dealing with the general the day of the announcement of definitions. election results.
252 (4) Parliament shall enact legislation (3) Parliament shall enact legislation The Conference adopted clause to give effect to this Article. to give effect to this Article (4) in the Mung‟omba Draft Constitution without amendments. PART IX EXECUTIVE
ARTICLE PROVISIONS OF MUNG’OMBA RESOLUTIONS OF THE RATIONALE/REMARKS NO. DRAFT CONSTITUTION CONFERENCE Article 122: - Office of President Office of President The Conference adopted the Office of 122. (1) There shall be a President of 107. (1) There shall be a Article as provided in the President the Republic of Zambia who shall be President of the Republic of Zambia Mung‟omba Draft Constitution the Head of State and Government who shall be the Head of State and without amendments and and the Commander-in-Chief of the Government and the Commander- renumbered it as Article 107. Defence Forces. in-Chief of the Defence Force. In supporting the Article some (2) The executive power of (2) The executive power of members argued that Zambia the Republic vests in the President the Republic vests in the President has always had Executive and, subject to this Constitution, shall and, subject to this Constitution, President whose power was be exercised directly by the President shall be exercised directly by the drawn from the Constitution. or through officers subordinate to the President or through officers Others argued that the country President. subordinate to the President. had enjoyed peace under the current hybrid system. Some further argued that the President had to have more power so as to inspire confidence and a sense of security.
253 Article 123: Qualifications of Qualifications of Presidential Qualifications of Presidential The Conference adopted the Presidential candidate candidate Article with amendments and candidate renumbered it as Article 108 123. (1) A person shall be “108. (1) A person shall be qualified to be a candidate for election qualified to be a candidate for The Conference observed that as President if that person- election as President if that person - the Constitution should be (a) is a citizen by birth or descent; inclusive and non- (b) does not have dual (a) is a citizen by birth or discriminatory. It was noted that citizenship; descent; omission of the word “descent” (c) has been ordinarily resident in (b) does not have dual in clause (1) would disqualify Zambia for a continuous citizenship; children born of parents who period of ten years (c) has been ordinarily were genuinely serving the immediately preceding the resident in Zambia for a country outside Zambia such as election; continuous period of ten diplomats. (d) is not less than thirty-five years immediately years of age; preceding the election; On education qualifications, the (e) has obtained, as a minimum (d) is not less than thirty-five Conference resolved that the years of age; academic qualification, a minimum qualification of (e) has obtained, as a grade twelve certificate or its “Grade 12 Certificate or its minimum academic equivalent. equivalent” for presidency be qualification, a first degree deleted in paragraph (e) of (f) is conversant with the official or its equivalent from a clause (1) and replaced by the language; and recognised university or term “first degree”. It was noted (g) declares that person‟s assets institution. that tertiary education had and liabilities as provided by (f) is conversant with the become a necessity as complex this Constitution and by or official language; and issues needed comprehensive under an Act of Parliament. (g) declares that person‟s evaluation, synthesis and critical assets and liabilities as
254 (2) A person shall be disqualified provided by this thinking to resolve them. from being elected as President if that Constitution and by or person – under an Act of (a) holds or is acting in any office Parliament. that is specified by an Act of (2) A person shall be Parliament the functions of disqualified from being elected as which involve or are President if that person – connected with the conduct of (a) holds or is acting in any elections; office (b) is of unsound mind; that is specified by an Act (c) is an un-discharged bankrupt of Parliament the or insolvent; functions of which involve (d) is serving a sentence of or are connected with the imprisonment or is under a conduct of elections; sentence of death; (b) is of unsound mind; (e) has, at any time in the (c) is an un-discharged immediate preceding five bankrupt or insolvent; years, served a term of (d) is serving a sentence of imprisonment for the imprisonment or is under commission of an offence the a sentence of death; sentence for which was a (e) has, at any time in the period of at least three years; immediate preceding five (f) has been removed from public years, served a term of The term “Defence Forces” was office on grounds of gross imprisonment for the changed to “Defence Force” to misconduct; or commission of an offence conform to the provisions in (g) has been found guilty of the sentence for which was Article 296 on the Defence Force. corruption by any court or a period of at least three tribunal. years;
255 (3) A person holding or acting in (f) has been removed from any of the following posts or office of public office on grounds of appointment shall not qualify for gross misconduct; or election as a President: (g) has been found guilty of (a) the Defence Forces and corruption by any court or national security agencies; tribunal. (b) the public service; (3) A person holding or acting in (c) a commission; any of the following posts or office (d) a statutory body or company of appointment shall not qualify for in which the Government has election as a President: a controlling interest ; or (a) the Defence Force and any other post or office national security agencies; specified by or under an Act (b) the public service; of Parliament. (c) a commission; (4) A person shall not be (d) a statutory body or eligible to be elected as President company in which the unless that person - Government has a (a) has paid the election fee controlling interest ; or any specified by or under an Act other post or office of Parliament on or before specified by or under an the date fixed for the Act of Parliament. delivery of nomination (4) A person shall not be eligible papers; and to be elected as President unless that (b) has been nominated and person - supported by not less than one (a) has paid the election fee thousand registered voters. specified by or under an Act of Parliament on or before the date fixed for
256 the delivery of nomination papers; and (b) has been nominated and supported by not less than one thousand registered voters.”
Article 124: Nomination for election as President Nomination for election as The Conference adopted the Nomination for President Article as provided in the election as 124. (1) A presidential candidate Mung‟omba Draft Constitution President shall deliver nomination papers to the 109. (1) A presidential without amendments and Returning Officer in the manner, on candidate shall deliver nomination renumbered it as Article 109. the day, at the time and place, as may papers to the Returning Officer in be prescribed by the Electoral the manner, on the day, at the time Commission. and place, as may be prescribed by (2) A presidential the Electoral Commission. candidate‟s (2) A presidential candidate‟s nomination papers, delivered under nomination papers, delivered clause under clause (1), shall be supported (1), shall be supported by an affidavit by an affidavit certifying that the certifying that the candidate is candidate is qualified for election qualified for as President. election as President. (3) The information contained (3) The information in a presidential candidate‟s contained in a presidential candidate‟s nomination papers shall be nomination papers shall be published published in the Gazette and in at in the Gazette and in at least one least one electronic media that is electronic media and print media that broadcast, and one print media
257 are circulated nationally. that is circulated, nationally.
Article 125: Election of President Election of President The Article was renumbered 110. Election of On 50% plus one (provided President 125. (1) The President shall be “110. (1) The President shall be under Article 95), members who elected directly in accordance with elected directly in accordance with were in support argued that both this Article, Article 95 and as may be this Article, Article 79 and as may the Mvunga and Mwanakatwe provided by or under an Act of be provided by or under an Act of Constitution Review Parliament. Parliament. Commission recommended for (2) The Returning Officer (2) The Returning Officer 50% plus one absolute majority shall declare the presidential shall declare the presidential provision. candidate who receives not less than candidate who receives not less than fifty percent plus one of the valid fifty percent plus one of the valid They argued that this electoral votes cast as President-elect. votes cast as President-elect. system would help reunite the (3) If at the initial ballot a (3) If at the initial ballot nation which had drifted into presidential candidate does not a presidential candidate does not regionalism and tribalism. They receive fifty per cent plus one vote of receive fifty per cent plus one vote added that 50% plus one would of the valid votes cast - the valid votes cast - compel political parties to have (a) a second ballot shall be (a) a second ballot shall be held, their presence in all the held, within thirty days, within thirty days, where the provinces. where the only candidates only candidates shall be shall be those who those who obtained - Members who were opposed to obtained - (i) the highest and second 50% plus one argued that, among (i) the highest and highest number of other reasons that, Zambia‟s second highest valid votes cast in the number of valid votes democracy was not yet mature initial ballot; or cast in the initial enough to manage 50% plus one (ii) an equal number of ballot; or vote electoral system, given the
258 valid votes cast having (ii) an equal number of absence of the spirit of give and been the highest of the valid votes cast take amongst politicians. valid votes cast in the having been the initial ballot; and highest of the valid The Conference conducted a vote (b) the candidate who obtains votes cast in the over the provision. The fifty per cent plus one vote initial ballot; and Conference failed to reach of the valid votes cast in the (b) the candidate who consensus after the vote and second ballot shall be obtains fifty per cent therefore, referred the provision declared President-elect. plus one vote of the valid to a referendum for a decision. (4) If at the second ballot votes cast in the second there is a tie between or among the ballot shall be declared presidential candidates, the Speaker President-elect. shall summon the National Assembly (4) If at the second ballot there is a tie between or among the to elect, by secret ballot, the President presidential candidates, the from the candidates and the candidate Speaker shall summon the who obtains the highest number of the National Assembly to elect, by valid votes cast by the members of the secret ballot, the President from Assembly shall be declared President- the candidates and the candidate elect. who obtains the highest number of (5) If there is a tie between or the valid votes cast by the members among the presidential candidates in of the Assembly shall be declared the voting in the National Assembly President-elect. the Speaker shall cast a vote. (5) If there is a tie between or (6) A petition to challenge a among the presidential candidates presidential election may only be in the voting in the National instituted after the election of the Assembly the Speaker shall cast a President-elect. vote. (7) The Chairperson of the (6) A petition to challenge a
259 Electoral Commission shall be the presidential election may only be Returning Officer in a presidential instituted after the election of the election. President-elect. (7) The Chairperson of the Electoral Commission shall be the Returning Officer in a presidential election.”
Article 126: Swearing in and Handing over Swearing in and Handing over The Conference adopted the Swearing in and Article with amendments and Handing over 126. (1) The President-elect shall be 111. (1) The President-elect renumbered it as Article 111. sworn in by the Chief Justice and shall shall be sworn in by the Chief assume office ninety days after the Justice and shall assume office It was decided that the winning declaration of the presidential election immediately but not later than candidate would be sworn-in results. twenty-four hours from the time of within 24 (twenty-four) hours of (2) The incumbent President shall declaration of the presidential the announcement of the election from the date the presidential election election results. results as provided for under results are declared - (2) The incumbent President Article 34 (9), (10) and (22) of the (a) perform any of the executive shall immediately hand over the current Constitution with a functions, except the power office of President to the President- modification of Article 34 (10) to to - elect and shall complete the provide for a period of 21 days procedural and administrative (i) make an appointment; or instead of 14 days. handing over process within (ii) dissolve the National twenty-one days from the date the Assembly; Clauses (3) and (4) of Article 126 President-elect is sworn in. (b) prepare handing over notes were deleted because the (3) The incumbent President which shall include a Conference rejected clause (2) of shall not, within the period statement on the state of the referred to in clause (2), perform Article 144 which provided for Nation for the President- any functions of the office of presidential-running-mate. elect; and
260 (c) complete the procedural and President under this Constitution administrative handing over or any other law. process within sixty days. (3) If the President-elect dies or is for any other reason unable to be sworn in and assume the office of President, under this Article, the Vice-President-elect shall become the President-elect and clauses (1) and (2) shall apply. (4) The President, who assumed office as a result of clause (3), shall appoint a Vice-President subject to the approval of the National Assembly signified by a vote of not less than two-thirds of all the members of the Assembly.
Article 127 Election petition Election petition The Conference adopted the Election petition Article with amendments and 127. (1) Any person may file an “112. (1) An election petition to renumbered it as Article 112. election petition before the challenge the election of a Constitutional Court, which shall be President on any question as to Members expressed concern that presided over by the Chief Justice, to whether - the words “any person” in the challenge the election of the President- (a) that person has been preamble could imply that even elect on any question as to whether – validly elected as persons who did not have a (a) that person has been President; or direct interest in the matter had validly elected as (b) any provision of this the right to challenge the Constitution or any other
261 President; or law relating to President -elect in Court. (b) any provision of this presidential elections has Constitution or any other been complied with; The Conference amended clause law relating to presidential may be filed before the (1) to only allow petitioners who elections has been Constitutional Court by one or had “locus standi” complied with. more of the following persons: (2) A petition under this Article (i) a person who lawfully The Conference also observed shall be filed within seven days after voted or had a right to that a Supreme Court judgement the date of the declaration of the vote at the election to had ruled that when a presidential election results. which the election Presidential election had been (3) Where any person files an petition relates; nullified, the President would election petition under clause (1) and (ii) a person claiming to remain in office until the next the incumbent President is the have had a right to be President was appointed and the nominated as a President-elect, the Speaker shall appointees that the President had candidate for election discharge the executive functions and made would continue. as President at the if the Speaker is, for any reason, not election to which the able to discharge the executive election petition functions the First Deputy Speaker relates; or shall discharge those functions. (iii) a candidate for (4) The Constitutional Court election as President shall, within ninety days of the filing at the of an election petition, determine the election to which the petition. election petition (5) A decision of the relates. Constitutional Court to nullify or not (2) A petition under this to nullify the election of the President- Article shall be filed within seven elect shall be final. days after the date of the declaration (6) Where the election of the of the presidential election results.
262 President-elect is nullified by the (3) The Constitutional Constitutional Court - Court shall - (a) the Speaker shall (a) when sitting to perform the executive determine a petition functions; or under this Article be (b) if the Speaker is for any presided over by the reason unable to Chief Justice; and discharge the executive (b) within ninety days of functions, the First the filing of an Deputy Speaker shall election petition, perform those functions; determine the and petition. (c) a presidential election (4) A decision of the shall be held within Constitutional Court to nullify or ninety days from the not to nullify the election of the date of the nullification. President shall be final. (5) Where the election of the President is nullified by the Constitutional Court - (a) the Vice-President shall perform the executive functions; or (b) if the Vice-President is for any reason unable to discharge the executive functions, such member of the
263 Cabinet as the Cabinet shall elect shall perform the executive functions; and (c) a presidential election shall be held within ninety days from the date of the nullification.”
Article 128: Tenure of office of President Tenure of office of President The Conference adopted the Tenure of office article with amendments and of President 128. (1) Subject to clauses (2) and “113. (1) Subject to clauses (2) renumbered it as Article 113. (4), a President shall hold office for and (4), a President shall hold office five years and shall not hold any other for five years and shall not hold Some members of the Conference office of profit or emolument. any other office of profit or noted that the President was a (2) Notwithstanding emolument. member of the National anything in this Constitution or any (2) Notwithstanding Assembly and as such should other law, a person who has twice anything in this Constitution or any address his or her letter of been elected as President shall not be other law, a person who has twice resignation to the Speaker of eligible for election as President for a been elected as President shall not National Assembly. However, third or any other subsequent term. be eligible for election as President others argued that the President (3) The President may, at for a third or any other subsequent was sworn-in by the Chief Justice any time in writing, signed term. who was also the Returning personally, addressed to the Speaker (3) The President may, at Officer for Presidential elections of the National Assembly, resign from any time in writing, signed and, therefore, the letter of office. personally, addressed to the Chief resignation should be addressed (4) Subject to this Justice, resign from office. to the Chief Justice instead of the
264 Constitution, the President shall (4) Subject to this Speaker. continue in office until the President- Constitution, the President shall The Conference resolved that the elect assumes office. continue in office until the person President could at any time elected at the next election to the resign by writing to the Chief office of President assumes office, Justice. unless - (a) the President resigns; or It also resolved that a person who (b) the President ceases to had twice been elected as hold office by virtue of President shall not be eligible for Article 113, 115 or 116.” election as President for any other subsequent terms. Article 129: Removal of President on grounds of Removal of President on grounds The Conference adopted the Removal of incapacity of incapacity Article with amendments and President on 129. (1) The members of the renumbered it as Article 114. grounds of Cabinet may resolve, by a vote “114. (1) Not less than one- incapacity supported by two-thirds of the third of all the members of the Some members argued that the members, that the physical or mental National Assembly may, by notice procedure should not start with capacity of the President to perform in writing to the Speaker, petition Parliament but rather with a the executive functions ought to be the Speaker that the physical or recommendation from a medical investigated. mental capacity of the President to board, arguing that Parliament (2) Where a resolution is perform executive functions ought should not sit before receiving passed under clause (1) the Secretary to be investigated. professional advice on the to the Cabinet shall send a copy of the (2) The notice under infirmity or otherwise of the resolution to the Chief Justice. clause (1) shall specify the President. (3) The Chief Justice shall, particulars of the allegation. (3) The Speaker shall, on receipt of a copy of the resolution Other members debated that after receipt of the notice submitted submitted under clause (1), appoint a shortening the procedures would under clause (1), if the National medical board which shall inquire be the best as it was contained in Assembly -
265 into the matter specified under clause (a) is sitting, cause a the current constitution and (1). motion for the would dignify the President‟s (4) A medical board shall investigation of the exit from office. consist of not less than three persons President's incapacity selected from among persons who are to perform the The Conference resolved to registered as medical practitioners executive functions to revise Clauses (1), (2), (3), (4), (5), under the Laws. be considered by the (6), (7), (8) and (9) of the (5) The President shall, National Assembly Mung‟omba recommendations. within seven days of a summons from within seven days of the medical board appointed under the notice; or The Conference also resolved clause (3), submit to examination by (b) is adjourned or that the new President should the board and failure to do so prorogued, summon appoint a Vice-President without constitutes a ground for removal from the National reference to the National Assembly to meet office. Assembly. If there were less than within fourteen days (6) A medical board, twelve months remaining before of the summons, and appointed under clause (3), shall the end of the Presidential term cause a motion for the examine the President and report to then there would be no investigation of the the Chief Justice, within fourteen days presidential elections. Clause President's incapacity of the appointment of the medical (10) was therefore deleted. to perform the board, as to whether or not the executive functions to Clause (11) was approved with President is capable of discharging the be considered amendments. executive functions. immediately. (7) Where the medical (4) The National board reports that the President is Assembly shall debate the motion capable of performing the executive under clause (3), and if the motion functions, the Chief Justice shall is supported by a vote of not less inform the National Assembly and the than two-thirds of all the members President shall accordingly continue of the National Assembly, taken by
266 to perform the executive functions. secret ballot, the motion shall be (8) Where the medical passed. board reports that the President is not (5) Where a motion is capable of performing the executive passed under clause (4), the functions, the Chief Justice shall Speaker of the National Assembly forward a copy of the medical report shall, within seven days of the to the Speaker for the approval of the resolution, send a copy of the National Assembly. resolution to the Chief Justice. (9) The National Assembly (6) The Chief Justice shall by a simple majority vote of the shall, within fourteen days of members of the National Assembly receipt of a copy of the resolution taken by secret ballot resolve that the submitted under clause (5), in President should cease to hold office. consultation with the relevant professional body regulating (10) Where the President medical practitioners, appoint a ceases to hold office by virtue of medical board which shall consist clause (9) the Vice-President shall of not less than three persons who assume the office of President for the are medical practitioners, registered un-expired term of that office. with the relevant professional (11) Where the Vice- body, to inquire into the matter President assumes the office of specified under clause (1). President under clause (10), the (7) The medical board, President shall appoint a Vice- appointed under clause (6), shall, President, subject to the approval of within fourteen days of its the National Assembly signified by a appointment, examine the vote of not less than two-thirds of all President and report to the Chief the members of the Assembly. Justice, as to whether or not the President is capable of discharging the executive functions.
267 (8) The Chief Justice shall submit the report referred to under clause (7) to the National Assembly within seven days of receiving the report. (9) Where the medical board appointed under clause (6) reports to the National Assembly that- (a) the alleged physical or mental incapacity of the President to perform the executive functions has not been substantiated, the National Assembly shall resolve that- (i) the President is capable of performing executive functions; and (ii) further proceedings shall not be taken under this Article in respect of that
268 allegation; or (b) the alleged physical or mental incapacity of the President to perform the executive functions has been substantiated, the National Assembly shall, on a motion supported by the votes of not less than two-thirds of all the members of the National Assembly, by secret ballot, resolve that the President should cease to hold office. (10) Where a notice is submitted to the Speaker under this Article, the President shall not dissolve Parliament. (11) Where the National Assembly resolves that the question of the physical or mental capacity of the President to discharge the functions of the office should be investigated, the President shall, until another
269 person assumes the office of President or the medical board appointed under clause (6) reports that the President is not incapable of discharging the functions of the office, whichever is the earlier, cease to perform the functions of the office and those functions shall be performed by- (a) the Vice-President; or
(b) in the absence of the Vice-President or if the Vice-President is unable, by reason of physical or mental infirmity, to discharge the functions of the office, by such member of the Cabinet as the Cabinet shall elect:
Provided that any person performing the functions of the office of President under this clause shall not dissolve the National Assembly or, except on the advice of the Cabinet, revoke any appointment made by the
270 President.”
Article 130: Impeachment of President for Article 115: Impeachment of The Conference replaced Article Impeachment of violation of Constitution or gross President 130 of the Mung‟omba Draft President for misconduct Constitution with Article 37 (1 – violation of “115. (1) If notice in writing is 6) of the current Constitution and Constitution or 130. (1) A notice in writing to given to the Speaker of the renumbered it as Article 115. gross misconduct the Speaker, signed by not less than National Assembly signed by not one-third of all the members of the less than one-third of all the The Conference was of the view National Assembly, may allege that members of the National Assembly that some provisions under the the President has committed a of a motion alleging that the Mung‟omba Draft Review violation of this Constitution or gross President has committed any Constitution were not clear. For misconduct. violation of the Constitution or any instance: (2) An act or omission gross misconduct and specifying (a) on clause 2 (a): at what which constitutes gross misconduct the particulars of the allegations point would Parliament and proposing that a tribunal be includes - decide that the conduct established under this Article to (a) conduct which brings the of the President had investigate those allegations, the office of President into brought the office of Speaker shall – hatred, ridicule or President “into hatred, (a) if Parliament is then contempt; ridicule and contempt”?; sitting or has been (b) an act or omission that (b) the term “moral blame” summoned to meet within involves dishonesty or five days, cause the in 2 (b) was vague; moral blame; motion to be considered (c) listing what was considered (c) an act or omission which by the National Assembly misconduct might cause is prejudicial or inimical within seven days of the confusion; to the economy or notice; (d) not clear as to how a security of Zambia; (b) if Parliament is not then conflict would be dealt (d) flagrant failure to sitting and with between paragraph perform an executive
271 function; notwithstanding that it (g) on failure to obey an (e) gross negligence; may be prorogued, order of the (f) gross mismanagement summon the National Constitutional Court and of the public resources Assembly to meet within clause (3). resulting in a substantial twenty-one days of the loss to the Republic; or notice and cause the (g) failure to obey an order motion to be considered at of the Constitutional that meeting. Court. (3) A notice under clause (1) (2) Where a motion under shall specify the particulars of the this Article is proposed for allegations and propose that a tribunal consideration by the National be established to investigate the Assembly, the National assembly shall debate the motion and if the allegations. motion is supported by the votes of not less than two thirds of all the members of the National
Assembly, the motion shall be
passed. (3) If the motion is declared to be passed under clause (2) – (a) the Chief Justice shall appoint a tribunal which shall consist of a Chairman and not less than two other members selected by the Chief Justice from among persons who
272 hold or have held high judicial office; (b) the tribunal shall investigate the matter and shall report to the National Assembly whether it finds the particulars of the allegations specified in the motion to have been substantiated; and (c) the President shall have the right to appear and be represented before the tribunal during its investigation of the allegations against him. (4) If the tribunal reports to the National Assembly that the tribunal finds that the particulars of any allegation against the President specified in the motion have not been substantiated further proceedings shall not be taken under this Article in respect of that allegation.
273 (5) If the tribunal reports to the National Assembly that the tribunal finds that the particulars of any allegation specified in a motion have been substantiated, the National Assembly may, on a motion supported by the votes of not less than three quarters of all members of the National Assembly, resolve that the President has been guilty of such violation of the Constitution or, as the case may be, such gross misconduct as is incompatible with his continuance in office as President and, if the National Assembly so resolves, the President shall cease to hold office on the third day following the passage of the resolution. (6) No proceedings shall be taken or continue under this Article at any time when Parliament is dissolved.”
Article 131: Procedure for impeachment The Conference deleted Article Procedure for 131 because its provisions were impeachment 131. (1) The Speaker shall, after The Conference deleted Article 131 infused into the new Article 115 receipt of the notice submitted under on procedure for impeachment. approved by the Conference.
274 Article 130, if the National Assembly – (a) is sitting, cause a motion for the impeachment of the President to be considered by the Assembly within seven days of the notice; or (b) is adjourned or prorogued, summon the Assembly to meet within five days of the summons and cause a motion to impeach the President to be considered forthwith. (2) The National Assembly shall debate a motion under clause (1) and if the motion is supported, by a secret ballot of not less than two- thirds of all the members of the National Assembly, the motion is passed. (3) Where a motion is passed under clause (2) the Chief Justice shall appoint a tribunal - (a) consisting of a chairperson and not less than two other members selected by the Chief Justice from among persons who hold or have
275 held office as Judges of a superior court; and (b) to investigate the matter and report to the National Assembly whether it finds the particulars of the allegations specified in the motion to have been substantiated. (4) The President shall have the right to appear and be represented before the tribunal during the investigation of the allegations. (5) Where the tribunal, appointed under clause (3), reports to the National Assembly that an allegation against the President specified in the motion has - (a) not been substantiated, the National Assembly shall resolve that - (i) the President was not guilty of the allegations; and (ii) further proceedings shall not be taken under this Article in respect of that
276 allegation; or (b) been substantiated, the National Assembly shall, on a motion supported by the votes of not less than two- thirds of all the members of the Assembly, by a secret vote, resolve that - (i) the President has been guilty of the allegation; and (ii) the conduct of the President is incompatible with the continuance in office of the President. (6) On the passing of the resolution under clause (5) (b) the President shall cease to hold office on the third day following the passing of the resolution. Article 132: Vacancy in office of President Vacancy in office of President The Conference adopted the Vacancy in office 132. (1) Subject to this Article with amendments and of President Constitution, where the office of “116. (1) If the office of President renumbered it as Article 116. President becomes vacant for any becomes vacant by reason of the reason - death, or the resignation from The Conference decided that in (a) the Vice-President shall office, of the President, or by view of the fact that if there was assume the office of reason of the President ceasing to less than twelve months hold office by virtue of Article 112,
277 President for the unexpired 114 or 115 - remaining before the end of term; or (a) an election to the term, no Presidential by-elections (b) if the Vice-President is office of President should be held, and the Vice- unable for any reason or shall be held in President would assume office of cause to assume the office of accordance with President for the remainder of President, the Speaker or in Article 110 within the term. the absence of the Speaker, ninety days from the Clauses (2) and (4) were the First Deputy Speaker date of the office amended and Clause (3) was shall perform the executive becoming vacant; and accordingly deleted. functions and a presidential (b) the Vice-President or, election shall be held within in the absence of the ninety days from the date of Vice-President or if the vacancy. the Vice-President is unable, by reason of (2) A person performing the physical or mental executive functions under clause (1) infirmity, to discharge (b) shall not dissolve the National the functions of the Assembly and shall not, except on the office, a member of advice of Cabinet, revoke an the Cabinet elected by appointment that had been made by the Cabinet, shall the President. perform the functions (3) The President and the of the office of Vice-President shall not at any one President until a time both be out of the country. person elected as (4) Where the Vice- President in President assumes office under clause accordance with (1) (a), the President shall appoint a Article 110 assumes Vice-President, subject to the approval office: of the National Assembly signified by Provided that if a vacancy in the
278 a vote of not less than two-thirds of all office of President occurs at a time the members of the Assembly. when less than twelve months are remaining before the expiry of the term of office of the President, the Vice-President shall assume the office of President for the unexpired term and no election to the office of President shall be held. (2) If the Vice-President is unable, for any reason or cause, to assume the office of President under the proviso to clause (1), such member of Cabinet, as Cabinet shall elect, shall perform the executive functions and a presidential election shall be held within ninety days from the date of the vacancy. (3) The Vice-President or, the member of the Cabinet as the case may be, performing the functions of the office of President under this Article shall not dissolve the National Assembly or, except on the advice of the Cabinet, revoke any appointment made by the President. (4) Where a person
279 assumes office as President under the proviso to clause (1), the President shall appoint another person as Vice-President.” Article 133: Performance of executive functions Performance of executive functions The Conference adopted the Performance of during absence or illness of during absence or illness of Article with amendments and executive President President renumbered it as Article 117. functions during absence or illness 133. (1) If the President leaves Zambia “117. (1) If the President leaves The Conference resolved that in of President or is ill, the President shall, by Zambia or is ill, the President shall, the absence or incapacitation of direction in writing, authorize the by direction in writing, authorize the the President, the Vice- Vice-President to perform the Vice-President to perform the President would still take over executive functions, as specified by executive functions, as specified by the instruments of authority and the President, until that authority is the President, until that authority is that by convention, whenever, revoked. revoked. travelling outside Zambia he or (2) Where the Vice- (2) If the President is she was required to assign the President is incapable of performing incapable by reason of physical or instruments of power the executive functions, as provided mental infirmity of discharging the irrespective of the duration of under clause (1), the President shall executive functions, and the the period of absence. appoint, subject to the ratification of infirmity is of such a nature that the National Assembly, a member of the President is unable to authorise the Cabinet to perform the functions another person under this Article to of the Vice-President until such a time perform those functions - as the Vice-President is able to (a) the Vice President; or perform those functions. (b) if the Vice President is absent from Zambia or is for any reason unable to discharge the executive
280 functions, such member of the Cabinet as Cabinet shall elect shall perform the executive functions: Provided that any person performing the executive functions under this clause shall not dissolve Parliament or, except on the advice of the Cabinet, revoke any appointment made by the President. (3) Any person performing the functions of the office of President by virtue of clause (2) shall cease to perform those functions if he is notified by the Speaker that the President is about to resume those functions or if another person is elected as, and assumes the office of, President. (4) For the purpose of clause (2), a certificate of the Chief Justice that - (a) the President is incapable by reason of physical or mental infirmity of
281 discharging the functions of his office and that the infirmity is of such a nature that the President is unable to authorise another person under this Article to perform those functions; or (b) the Vice-President is by reason of physical or mental infirmity unable to discharge the functions of his office; (c) shall be of no effect until such certificate is ratified by the National Assembly:
Provided that any such certificate as is referred to in paragraph (a) shall cease to have effect if the Speaker notifies any person under clause (3) that the President is about to resume the functions of the office of the President or if another person is elected as, and assumes the office of, President.”
282
Article 134: Oath of President Oath of President The Conference adopted the Oath of President Article with amendments and 134. A person who assumes the 118. A person assuming the office renumbered it as Article 118. office of President shall, before that of President shall, before entering person performs any executive the office, take and subscribe to The Conference decided that the function, take the Presidential Oath, as such oaths as may be prescribed by Oath should be in an Act of set out in the Third Schedule. or under an Act of Parliament. Parliament which would be easy to amend. Article 134 was,
therefore, substituted with Article 40 of the current Constitution and renumbered as 118. Article 135: Emoluments of President Emoluments of President The Conference adopted Article Emoluments of 135 with amendments and President 135. (1) The emoluments of the 119. (1) The President shall renumbered it as Article 119. President shall be emoluments as receive such emoluments as may be Paragraph (c) of clause (5) was recommended by the Emoluments prescribed by or under an Act of deleted because: Commission and specified in an Act Parliament. (a) it would provide for double of Parliament. (2) The emoluments of the punishment; (2) The emoluments of the President shall be a charge on the (b) it would be inappropriate to President shall be a charge on the National Treasury Account and take away accrued Consolidated Fund and shall not be shall not be altered to the benefits; altered to the disadvantage of the disadvantage of the President (c) the objective of punishment President during the term of office. during the term of office. was to enable the guilty to (3) Subject to Article 136, a (3) Subject to clause (5), a reform and not to person who has held the office of person who has held the office of aggravate the situation. President shall be paid, at the end of President shall receive such emoluments as may be prescribed
283 each term of office, such emoluments by or under an Act of Parliament. Clause (7) was deleted because it recommended by the Emoluments (4) The emoluments of a addressed the same issues Commission, and specified by an Act person who has held the office of covered in Article 135 (6). of Parliament. President shall be a charge on the (4) The emoluments of a National Treasury Account and person who has held the office of shall not be altered to the President shall be a charge on the disadvantage of that person. Consolidated Fund and shall not be (5) A person who has held altered to the disadvantage of that the office of President shall be person. entitled to receive the emoluments (5) In addition to the provided for under clause (3) if that emoluments specified in clause (3), a person - person who has held the office of (a) has completed a term of President shall be paid a living office as President; or allowance, recommended by the (b) does not participate in Emoluments Commission and active politics as specified in an Act of Parliament, if prescribed by an Act of that person - Parliament. (a) has completed a term (6) A person referred to of office as President; in clause (5) shall, for purposes of (b) does not participate in clause (5) (a), be deemed to have active party political completed a term of office if that activities as prescribed person serves for such period as by an Act of may be prescribed by an Act of Parliament, and any payment for Parliament; or the period served which is less than (c) has not been convicted the prescribed period, shall be of a criminal offence as made on a pro rata basis. a result of the National
284 Assembly removing that person‟s immunity under Article 136. (6) Subject to clause (7), a person referred to under clause (5) shall, for purposes of clause (5) (a), be deemed to have completed a term of office if that person served for at least three years as President. (7) If a President is removed from office under Article 131 that person shall not be entitled - to the living allowance specified under clause (5); and to the portion of any gratuity or other benefits remaining to be accrued to that person for the unexpired term of office.
Article 136: Protection of President from legal Protection of President from legal The Conference adopted Article Protection of proceedings proceedings 136 with amendments and President from renumbered it as Article 120. legal proceedings 136. (1) Civil proceedings shall 120. (1) Civil proceedings shall not be instituted or continued against not be instituted or continued The Conference resolved that a the President or a person performing against a person holding the office former President shall enjoy the executive functions in respect of of President or performing the immunity from civil and anything done or omitted to be done functions of that office in respect of criminal proceedings for acts in the performance of an executive which relief is claimed against that committed or omissions made function. person in respect of anything done in their private capacity but this
285 (2) The President or a or omitted to be done in that immunity may be removed by person performing the executive person‟s private capacity. the National Assembly on a functions shall, subject to clauses (3) (2) A person holding the resolution supported by at least and (6), be immune from criminal office of President or performing two-thirds of all Members of proceedings in respect of the the functions of that office shall not Parliament. The Conference, performance of those executive be charged with any criminal however, recognised that the functions. offence or be amenable to the sitting President would have (3) Where there is prima criminal jurisdiction of any court in privileged information on the facie evidence that a person who held respect of any act done or omitted matter and as such he or she the office of President committed any to be done during that person’s was best suited to submit criminal offence when performing the tenure of office or, as the case may evidence to the National executive functions, the President be, during that person’s Assembly in his defence. shall submit a report of such evidence performance of the functions of to the National Assembly. that office. (4) Where the National (3) Subject to the other provisions of this Article, a person Assembly receives a report under who has held, but no longer holds, clause (3), the Assembly shall the office of President shall not be constitute an ad hoc select committee charged with a criminal offence or to look into the matter and determine be amenable to the criminal whether or not the immunity of the jurisdiction of any court, in respect person who held the office of of any act done or omitted to be President should be removed and done by that person in that recommend its decision to the person’s personal capacity while National Assembly. the person held office of President, (5) The person who held the unless the National Assembly has, office of President shall have the right by resolution under clause (9), to appear and be represented before determined that such proceedings the ad hoc select committee would not be contrary to the
286 constituted under clause (4). interests of the State. (6) The National Assembly (4) A notice in writing to may, on the recommendation of the the Speaker, signed by not less select committee constituted under than one-third of all the members clause (4), remove the immunity from of the National Assembly, may legal proceedings granted under this allege that a person who held the Article, from any person who has held office of President committed a office as President by a resolution criminal offence in that person’s supported by a vote of not less than personal capacity during that two-thirds of all the members of the person’s tenure of office. Assembly. (5) A notice under clause (4) shall specify the particulars of the allegations. (6) The Speaker shall,
after receipt of the notice submitted
under clause (4), within seven days of the notice - (a) cause a copy of the notice to be served on the person who held the office of President; and (b) if the National Assembly is sitting, submit such notice to the National Assembly: Provided that if at the time the notice under clause (4) is received
287 by the Speaker, the National Assembly is adjourned or prorogued, the Speaker shall submit the notice to the National Assembly within seven days after the National Assembly is convened. (7) Where the National Assembly receives a notice under clause (6) (b), the National Assembly shall constitute an ad hoc select committee to look into the matter and determine whether or not the immunity of the person who held the office of President should be removed and recommend its decision to the National Assembly. (8) The person who held the office of President shall have the right to appear and be represented before the ad hoc select committee constituted under clause (7). (9) The National Assembly may, on the recommendation of the select committee constituted under clause (7), remove the immunity from
288 legal proceedings granted under this Article, from any person who has held office as President by a resolution supported by a vote of not less than two-thirds of all the members of the National Assembly. (10) Where the immunity from legal proceedings is removed from a person who held the office of President under clause (9), a court shall try the person only on the criminal charges for which the immunity is removed by the National Assembly. (11) For the avoidance of doubt, where a Court acquits a person who held the office of President of the criminal charges for which the immunity from legal proceedings was removed by the National Assembly, the immunity of that person shall, without further proceedings, immediately be restored. (12) Where provision is made by law limiting the time within which proceedings of any description may be brought against
289 any person, the term of any person in the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any proceedings referred to in clause (1) and (3) may be brought against the person. Article 137: Functions of President Functions of President The Conference adopted Article Functions of 137. (1) The President shall 137 with amendments and President perform with dignity and integrity the 121. (1) The President shall renumbered it as Article 121. acts that are necessary or expedient perform with dignity and integrity for, or reasonably incidental to, the the acts that are necessary or The Conference observed that performance of the executive expedient for, or reasonably Article 137 was not adequate. It functions of the State, subject to the incidental to, the performance of was decided that those aspects overriding terms and spirit of this the executive functions of the State, from Article 44 of the current Constitution and the Laws which the subject to the overriding terms and Constitution not covered in President is obliged to protect, spirit of this Constitution and the Article 137 be included through administer and execute. laws which the President is obliged harmonisation. Paragraph (a) (2) Without limiting clause to protect, administer and execute. was, therefore, included under (1), the President may preside over the (2) Without prejudice to Article 121 (2) of the National the generality of clause (1),the meetings of the Cabinet and may, Constitution Conference Draft President may preside over subject to this Constitution - Constitution. meetings of the Cabinet and shall (a) accredit and appoint have the power, subject to this Ambassadors, High Constitution to- Commissioners, (a) dissolve the National plenipotentiaries, diplomatic Assembly as provided representatives and consuls; in Article 185; (b) receive and recognise foreign
290 ambassadors and heads of (b) accredit and appoint international organisations; Ambassadors, High (c) pardon or reprieve offenders, Commissioners, unconditionally or subject to plenipotentiaries, any condition; diplomatic (d) negotiate international representatives and agreements and treaties and, consuls; subject to the National (c) receive and recognise Assembly approving the final foreign ambassadors draft of the agreements or and heads of treaties, ratify or accede to international such international agreements organisations; and treaties; (d) pardon or reprieve offenders, (e) establish and dissolve unconditionally or Government ministries and subject to any departments, subject to the condition; approval of the National (e) negotiate Assembly; international (f) confer honours on citizens, agreements and residents and friends of treaties and, subject to Zambia, after consultation the National with relevant interested Assembly approving persons and institutions; the final draft of the (g) initiate Bills for submission to, agreements or and consideration by, the treaties, ratify or National Assembly; and accede to such (h) perform any other function international specified by this Constitution agreements and
291 or by or under any other law. treaties; (f) establish and dissolve Government ministries and departments, subject to the approval of the National Assembly; (g) confer honours on citizens, residents and friends of Zambia, after consultation with relevant interested persons and institutions; (h) initiate Bills for submission to, and consideration by, the National Assembly; and (i) perform any other function specified by this Constitution or by or under any other law.” Article 138: Declaration of war Declaration of war The Conference adopted Article 138 Declaration of 138. (1) The President may, in with amendments and renumbered it war consultation with Cabinet and subject 122. (1) The President may, in as Article 122. to the prior approval of the National consultation with Cabinet, at any Assembly, signified by a resolution time, by Proclamation published in Most of the members did not
292 supported by not less than two-thirds the Gazette, declare war. accept the provision requiring of all the members of the Assembly, (2) A declaration made the President to consult Cabinet declare war between Zambia and any under clause (1) shall continue in and getting prior approval of the other country. force until the cessation of National Assembly to declare (2) A declaration made hostilities. war. It was argued that while under clause (1) shall be by (3) An Act of Parliament that could have been relevant to proclamation in the Gazette and shall shall provide for the conditions wars of the past or guerrilla continue in force until the cessation of and circumstances under which a warfare, it was not true of hostilities. declaration may be made under modern warfare which needed clause (1). (3) An Act of Parliament swift action. The Conference observed that intelligence shall provide for the circumstances under which a declaration may be information could leak to enemies and the country made under clause (1). attacked while consultations
(4) Where it is impracticable were still going on. to seek the approval of the National Assembly before making the declaration under clause (1), the President may declare war without the prior approval of the National Assembly but the President shall seek ratification of the Assembly as soon as is reasonably practicable after the declaration. Article 139: Declaration of state of public Declaration of state of public The Conference replaced Article Declaration of emergency emergency 139 of the Mung‟omba Draft state of public Constitution with Article 30 of emergency 139. (1) When there is a state of 123. (1) The President may, in the current Constitution and war, an invasion, general insurrection, consultation with Cabinet, at any renumbered it as Article 123.
293 disorder and other similar public time, by Proclamation published in The Conference contrasted emergency, the President may, in the Gazette declare that a State of Article 139 with Article 30 of the consultation with Cabinet, declare a public emergency exists. current Constitution and found state of public emergency. (2) A declaration made that, the latter was more (2) A declaration made under clause (1) of this Article shall comprehensive, hence the under clause (1) shall - cease to have effect on the decision to adopt Articl3e 30. expiration of a period of seven days (a) be by proclamation in the commencing with the day on which Gazette; the declaration is made unless, (b) continue in force until the before the expiration of such cessation of hostilities or period, it has been approved by a other public emergency; resolution of the National and Assembly supported by a majority of all the members thereof not (c) cease to have effect after counting the Speaker. such cessation and the President or the National (3) In reckoning any period of Assembly shall declare seven days for the purposes of the end of the state of clause (2) account shall not be public emergency. taken of any time during which (3) An Act of Parliament Parliament is dissolved. shall provide for the circumstances (4) A declaration made under which a declaration may be under clause (1) may, at any time made or continued under clause (1). before it has been approved by a resolution of the National (4) Any emergency laws or Assembly, be revoked by the powers in force during a state of President by Proclamation public emergency shall cease to have published in the Gazette. effect after the cessation of hostilities (5) Subject to clause (6) a
294 or other public emergency. resolution of the National (5) The President may take Assembly under clause (2) will such measures as are necessary to continue in force until the respond to a state of public emergency expiration of a period of three and shall, as soon as is reasonably months commencing with the date practicable after the declaration, seek of its being approved or until the ratification of the National revoked at such earlier date of its Assembly for the measures that have being so approved or until such been undertaken. earlier date as may be specified in (6) Any legislation that the resolution: concerns a state of public emergency Provided that the National or any legislation enacted or any Assembly may, by majority of all action taken in consequence of a the members thereof, not counting the Speaker extend the approval of declaration of a state of public the declaration for periods of not emergency shall not permit or more than three months at a time. authorize indemnifying the State or any person in respect of an unlawful (6) The National Assembly act. may, by resolution, at any time revoke a resolution made by it under this Article. (7) Whenever an election to the office of President results in a change of the holder of that office, any declaration made under this Article and in force immediately before the day on which the President assumes office shall cease to have effect on the
295 expiration of seven days commencing with that day.
(8) The expiration or revocation of any declaration or resolution made under this Article shall not affect the validity or anything previously done in reliance on such declaration.
Article 140: Declaration of threatened state of Declaration of threatened state of The Conference adopted Article Declaration of public emergency public emergency 140 with amendments and threatened state 140. (1) When there is a state of 124. (1) The President may, at renumbered it as Article 124. of public war, an invasion, general insurrection, any time by Proclamation emergency disorder and other similar public published in the Gazette, declare It observed that there were emergency, the President may, in that a situation exists which, if acceptable provisions in both the consultation with Cabinet, declare a allowed to continue, may lead to a Draft Constitution and current state of public emergency. state of public emergency. Constitution. (2) A declaration made (2) A declaration made The Conference decided that the under clause (1) shall - under clause (1) of this Article shall provisions under Article 140 of cease to have effect on the the Mung‟omba Draft (a) be by expiration of a period of seven days proclamation in the Constitution and Article 31 of the commencing with the day on which current Constitution be Gazette; the declaration is made unless, harmonised. The Conference before the expiration of such (b) continue in force adopted the harmonized article. until the cessation of period, it has been approved by a hostilities or other public resolution of the National emergency; and Assembly supported by a majority of all the members thereof, not (c) cease to have
296 effect after such cessation counting the Speaker. and the President or the (3) In reckoning any National Assembly shall period of seven days for the declare the end of the purposes of clause (2), account shall state of public not be taken of any time during emergency. which Parliament is dissolved. (4) A declaration made (3) An Act of Parliament under clause (1) may, at any time shall provide for the circumstances before it has been approved by a under which a declaration may be resolution of the National made or continued under clause (1). Assembly, be revoked by the (4) Any emergency laws or President by Proclamation powers in force during a state of published in the Gazette. public emergency shall cease to have (5) Subject to clause (6) a effect after the cessation of hostilities resolution of the National or other public emergency. Assembly under clause (2) shall (5) The President may take continue in force until the such measures as are necessary to expiration of a period of three respond to a state of public emergency months commencing with the date and shall, as soon as is reasonably of its being approved or, until revoked on an earlier date of its practicable after the declaration, seek being so approved or until such the ratification of the National earlier date as may be specified in Assembly for the measures that have the resolution. been undertaken. (6) The National Assembly (6) Any legislation that may by resolution, at any time concerns a state of public emergency revoke a resolution made by it or any legislation enacted or any under this Article. action taken in consequence of a (7) Whenever an election to declaration of a state of public
297 emergency shall not permit or the office of President results in a authorize indemnifying the State or change of the holder of that office, any person in respect of an unlawful any declaration made under this act. Article and in force immediately before the day on which the President assumes office, shall cease to have effect on the expiration of seven days commencing with that day. (8) The expiration or revocation of any declaration or resolution made under this Article shall not affect the validity of anything previously done in reliance on such declaration. (9) Any legislation that concerns a threatened state of public emergency or any legislation enacted or any action taken in consequence of a declaration of a threatened state of public emergency shall not permit or authorise indemnifying the state or any person in respect of an unlawful act.
Article 141: Declaration of National Disasters Declaration of National Disasters The Conference adopted Article Declaration of 141. (1) The President may, in 141 in the Mung‟omba Draft National consultation with Cabinet, declare 125. (1) The President may, in Constitution with a amendment Disasters that a National disaster exists, which consultation with Cabinet, declare in clause (4) and renumbered it
298 includes a natural or man-made that a National disaster exists, which as Article 125. disaster. includes a natural or man-made (2) The President may take disaster. The Conference decided that the such measures as are necessary to (2) The President may Act of Parliament was to define respond to a National disaster. take such measures as are necessary conditions for declaration of (3) A declaration made to respond to a National disaster. National disasters. under this Article shall be by (3) A declaration made proclamation published in the Gazette. under this Article shall be by (4) Parliament shall enact proclamation published in the legislation to give effect to this Article. Gazette. (4) An Act of Parliament shall provide for the conditions and circumstances under which a declaration may be made under clause (1).
Article 142: Validity of emergency Validity of emergency The Conference adopted Article Validity of 142. The Constitutional Court shall 126. The Constitutional Court 142 in the Mung‟omba Draft emergency have jurisdiction to decide on the shall have jurisdiction to decide on Constitution without validity of a declaration of a state of the validity of a declaration of a state amendment and renumbered it public emergency or threatened state of public emergency or threatened as Article 126. of public emergency, including the state of public emergency, including determination of whether any the determination of whether any In addressing the role of the measures taken as a result of the measures taken as a result of the Constitutional Court in relation declaration are reasonable. declaration are reasonable. to the powers of the President, the Conference observed that the Constitutional Court would make a determination after the declaration of public emergency.
299
Article 143: Ratifications of appointments by Ratifications of appointments by The Conference adopted Article Ratifications of National Assembly National Assembly 143 of the Mung’omba Draft appointments by Constitution with amendments National 143. (1) Where any appointment to be 127. (1) Where any and renumbered it as Article 127. Assembly made by the President is expressed by appointment to be made by the this Constitution to be subject to President is expressed by this The Conference expressed the ratification by the National Assembly, Constitution to be subject to view that sub-paragraphs (i) and the National Assembly shall not ratification by the National (ii) of paragraph (b) of clause (3) unreasonably refuse or delay the Assembly, the National Assembly of Article 143 of the Draft ratification. shall not unreasonably refuse or Constitution was in adequate as (2) Where the ratification is delay the ratification. it did not provide for a time- refused, the President shall appoint (2) Where the ratification frame and direction on how the another person to that office and shall is refused, the President shall issues relating to ratification of submit the appointment for appoint another person to that office appointees would be handled. ratification by the National Assembly. and shall submit the appointment The Conference further observed (3) Where the National for ratification by the National that it was inappropriate for the Assembly refuses to ratify the second Assembly. President to continue submitting appointment, the President shall (3) Where the National names of candidates for invite the National Assembly to Assembly refuses to ratify the ratification as provided in approve another appointment for the second appointment, the President paragraph (ii) of paragraph (b). third time but if the Assembly does shall invite the National Assembly not ratify the third appointment, the to ratify another appointment for The Conference, therefore, appointment - the third time, but the third resolved to augment Article 143 (a) shall take effect from the appointment shall take effect through harmonisation with date of the submission of irrespective of whether the clauses (4), (5) and (7) of Article the name to the Assembly, National Assembly refuses the 44 of the current Constitution. if the office to which the ratification, or delays it for a period of more than fourteen days.
300 appointment relates is under this Part; or (4) Subject to the other (b) shall not take effect if the provisions of this Constitution and office to which the any other law, any person appointment relates is not appointed by the President under under this Part and the this Constitution or that other law President shall - may be removed by the President. (i) appoint another (5) Nothing in this Article person to that office shall prevent Parliament from and submit the conferring functions on persons or appointment for authorities other than the ratification; and President. (ii) continue to submit an appointment for ratification until the National Assembly ratifies the appointment.
Article 144: Vice- Vice-President, election to office and Vice-President, election to office The Conference adopted Article President, swearing in and swearing in 144 of the MDC with election to office amendments and renumbered it and swearing in 144. (1) There shall be an office of 128. (1) There shall be an office as Article 128. Vice-President of the Republic. of Vice-President of the Republic. (2) The Vice-President shall (2) In the absence of the The Conference had to decide on be elected as a running mate to a Vice-President or if the Vice- three positions that had emerged presidential candidate. President is unable to perform the through the debate, namely, the functions of office for any reason,
301 (3) The qualifications and the President shall appoint, a position held by members who disqualifications which apply for member of the Cabinet to perform advocated the adoption of the election to the office of President shall the functions of the Vice-President clause as contained in the apply to the person who is a running until such a time as the Vice- Mung‟omba Draft Constitution mate to the presidential candidate. President is able to perform those and those for the deletion of the (4) An election to the office functions. clause. of Vice-President shall be conducted (3) The emoluments of at the same time as that of an election the Vice-President shall be The other position was to adopt to the office of President so that a vote prescribed by or under an Act of clause (2) subject to a proviso to cast for a presidential candidate is a Parliament. the effect that the presidential vote cast for the vice-presidential (4) The emoluments of candidate and the Presidential candidate and if the presidential the Vice-President shall be a charge running-mate would not be of candidate is elected the vice- on the National Treasury Account. the same gender. presidential candidate is also elected.
(5) A person elected as The Conference resolved that the
Vice-President under this Article shall Vice-President shall be be sworn into office by the Chief appointed by the President from
Justice and shall assume office on the amongst members of the same day that the President assumes National Assembly. office. Consequently, clauses (2), (3), (4), (6) Where a vacancy occurs (5) and (6) were irrelevant and in the office of Vice-President through deleted. death, resignation or removal from office due to incapacity or gross Clauses (8) and (9) were adopted misconduct, the President shall with minor amendments. appoint a person to be Vice-President and the National Assembly shall, by a resolution supported by the votes of
302 not less than two-thirds of all the members of the Assembly, ratify the appointment of the Vice-President who shall serve for the unexpired term of office. (7) In the absence of the Vice-President or if the Vice-President is unable to perform the functions of office for any reason, the President shall appoint, subject to the ratification of the National Assembly, a member of the Cabinet to perform the functions of the Vice-President until such a time as the Vice-President is able to perform those functions. (8) The emoluments of the Vice-President shall be as recommended by the Emoluments Commission and prescribed in an Act of Parliament. (9) The emoluments of the Vice-President shall be a charge on the Consolidated Fund.
Article 145: Functions of Vice-President Functions of Vice-President The Conference adopted Article Functions of 145 without amendment and Vice-President 145. In addition to the functions of 129. In addition to the functions of renumbered it as Article 129.
303 the Vice-President, specified in this the Vice-President, specified in this Constitution or under any other law, Constitution or under any other law, the Vice-President shall - the Vice-President shall - (a) perform the functions (a) perform the functions that are assigned to the that are assigned to the Vice-President by the Vice-President by the President; President; (b) act as President when (b) act as President when the President is unable the President is unable to carry out the to carry out the executive functions as executive functions as provided under this provided under this Constitution; and Constitution; and (c) be the leader of (c) be the leader of Government business in Government business the National Assembly. in the National Assembly.
Article 146: Removal from office of Vice- Removal from office of Vice- The Conference deleted Article Removal from President President 146 as the Article was linked to office of Vice- the issue of running-mate which President 146. Articles 129, 130 and 131 shall Article 146 was Deleted was overtaken by events. apply to the removal from office of the Vice-President. Article 147: Ministers Ministers The Conference adopted the Ministers Article with amendments and 147. (1) The President shall appoint 130. (1) The President shall renumbered it as Article 130. not more than twenty-one persons as appoint not more than twenty-one
304 Ministers or such number of Ministers persons as Ministers, or such It resolved that Ministers as the National Assembly may number of Ministers as the National should be appointed from approve, who are qualified to be Assembly may approve, from amongst members of elected as members of the National amongst members of the National Parliament. Consequently, Assembly but are not members of the Assembly. clause (1) was amended and Assembly. (2) A Minister shall be clause (4) was deleted. (2) A Minister shall be responsible, responsible, under the direction of under the direction of the President, the President, for the business of the for the business of the Government, Government, including the including the administration of a administration of a Ministry and Ministry and other State institutions other State institutions as assigned as assigned by the President. by the President. (3) The emoluments of a Minister (3) The emoluments of a shall be as recommended by the Minister shall be prescribed by or Emoluments Commission and under an Act of Parliament and specified in an Act of Parliament and shall be a charge on the National shall be a charge on the Consolidated Treasury Account. Fund. (4) A Minister shall only attend the sittings of the National Assembly where it is necessary for the performance of a particular function specified under this Constitution or any other law or when required to do so by the Speaker and the Minister shall, while in attendance in the Assembly, take part in the proceedings of the Assembly but shall
305 have no vote.
Article 148: Provincial Ministers Provincial Ministers The Conference adopted Article Provincial 148. (1) The President shall 131. (1) The President shall 148 with amendments and Ministers appoint a Provincial Minister for each appoint a Provincial Minister for renumbered it as Article 131 province from persons who are each province from persons who The Conference decided that qualified to be elected as members of are members of the National Article 148 (2) be amended in the National Assembly but are not Assembly. line with the decision made members of the Assembly. (2) A Provincial Minister under Article 147 of the (2) The emoluments of a Provincial shall be responsible, under the Mung‟omba Draft Constitution Minister shall be as recommended by direction of the President, for the to appoint Ministers from within the Emoluments Commission and business of the Government, Members of the National specified in an Act of Parliament and including the administration of a Assembly. shall be a charge on the Consolidated province and other State Fund. institutions, as assigned by the . President.
(3) The emoluments of a Provincial Minister shall be prescribed by or under an Act of Parliament and shall be a charge on the National Treasury Account.
Article 149: Deputy Deputy Ministers Deputy Ministers For the reason stated under Ministers Article 148 of the Mung‟omba 149. (1) Subject to this 132. (1) Subject to this Draft Constitution on Provincial Constitution, the President shall Constitution, the President shall Minister, Article 149 was appoint not more than twenty-one appoint not more than twenty-one accordingly adopted with Deputy Ministers or such number of Deputy Ministers or such number of amendments and renumbered as
306 Deputy Ministers as the National Deputy Ministers, as the National Article 132. Assembly may approve. Assembly may approve, from (2) Article 147 (1), (2), (3) and (4) amongst members of the National shall apply to Deputy Ministers. Assembly. (3) A Deputy Minister shall (2) A Deputy Minister perform any function assigned to the shall perform any function assigned Deputy Minister by the President or to the Deputy Minister by the the Minister. President or the Minister. (3) The emoluments of a Deputy Minister shall be prescribed by or under an Act of Parliament and shall be a charge on the National Treasury Account.
Article 150: Cabinet Cabinet The Conference adopted Article Cabinet 150. There shall be a Cabinet 150 of the Mung‟omba Draft consisting of the - 133. There shall be a Cabinet Constitution MDC without (a) President and the Vice- consisting of the - amendments and renumbered it President; (a) President and the Vice- as Article 133. (b) Ministers; and President; (c) Provincial Ministers. (b) Ministers; and In adopting Article 150, the (c) Provincial Ministers. Conference observed that inclusion of Provincial Ministers as members of Cabinet would enrich Cabinet with information on what was obtaining in the provinces. That would benefit the Ministers of line Ministries and the President. Since
307 Provincial Ministers had the opportunity of interracting with various heads of different departments, they would be able to make accurate reports on their activities.
Article 151: Functions of Cabinet Functions of Cabinet The Conference adopted Article Functions of 151 with minor amendments and Cabinet 151. (1) The President shall 134. (1) The President shall renumbered it as Article 134. preside at the meetings of Cabinet and preside at the meetings of Cabinet in the absence of the President the and in the absence of the President The Conference observed that Vice-President shall preside. the Vice-President shall preside. currently, Deputy Ministers did (2) The Cabinet may perform its (2) The Cabinet may perform its not deputise for Ministers. It functions although there is a vacancy functions notwithstanding a was however, explained that in in its membership. vacancy in its membership. the absence of a Minister, (3) The Cabinet shall formulate (3) The Cabinet shall formulate another Minister was appointed Government policy and shall be Government policy and shall be as acting Minister because responsible for advising the President responsible for advising the Deputy Ministers were not with respect to the policy of the President with respect to the policy members of Cabinet and, Government and any other matter. of the Government and any other therefore, would not supervise matter. line ministries. The Conference also resolved that upon dissolution of Parliament, Cabinet Ministers should remain in office until they handed over to the next office bearers in order to ensure continuity.
308 There were minor amendments in the wording in Clause (2)
Article 135: Accountability (New The Conference introduced a Article) new Article and numbered it as Article 135. Article 135: The Cabinet and Deputy Ministers shall be The Conference noted that the accountable collectively to the Article was non-contentious and National Assembly. was necessary in order to ensure adherence by Ministers to collective responsibility which was cardinal for smooth performance of executive functions. Article 152: Oaths Oaths of office Oaths of Office The Conference adopted Article of office 152. A Minister, Provincial 136. A Minister, Provincial 152 with amendment and Minister and Deputy Minister Minister and Deputy Minister shall renumbered it as Article 136. shall not carry out the duties of not carry out the duties of office office unless that person takes the unless that person takes the Oath of The Conference observed that Oath of Minister, Provincial Minister, Provincial Minister or the Article was straight forward. Minister or Deputy Minister and Deputy Minister and the Oath of However, in considering the oath the Oath of Secrecy, as set out in Secrecy, as prescribed in an Act of under the third schedule of the the Third Schedule. Parliament. Draft Constitution, it was observed that while Provincial Minister was included in the title, it was left out in the text.
309 The Conference, decided that the term “Provincial Minister” be included in the text of the Oath. Article 153: Code Code of conduct Code of conduct The Conference adopted Article of conduct 153.A Minister, Provincial Minister 137. A Minister, Provincial and 153 with minor amendment in and Deputy Minister shall act in Deputy Minister shall act in the wording and renumbered it accordance with a code of conduct accordance with a code of conduct as Article 137. prescribed by this Constitution or any prescribed by or under an Act of other law. Parliament.
Article 154: Secretary to Cabinet Secretary to Cabinet The Conference adopted Article Secretary to 154 with amendments and Cabinet 154. (1) There shall be a Secretary to 138. (1) There shall be a renumbered it as Article 138. the Cabinet whose office is a public Secretary to the Cabinet whose office The Conference resolved that office and who shall, subject to is a public office and who shall, instead of specifying the “Civil ratification by the National Assembly, subject to ratification by the Service Commission,” in clause be appointed by the President in National Assembly, be appointed by (1) it should be recast to refer to consultation with the Civil Service the President in consultation with “relevant state institutions”. It Commission. the relevant State institutions was also agreed that ratification (2) The Secretary to the Cabinet (2) The Secretary to the by the National Assembly should shall - Cabinet shall - come after consultation. (a) be chief advisor to the (a) be chief advisor to President on public the President on The Conference further observed service management; public service that the position of Secretary to (b) be the head of the public management; the Cabinet was a professional service and responsible (b) be the head of the position that demanded to the President for public service and appropriate qualifications and securing the general responsible to the experience, especially that the
310 efficiency of the public President for Secretary to the Cabinet was the service; securing the general head of the public service whose (c) have charge of the efficiency of the role included being chief advisor Cabinet Office; public service; to the President on public service (d) be responsible, in (c) have charge of the matters. The Conference resolved accordance with the Cabinet Office; that a minimum age limit of instructions of the (d) be responsible, in thirty-five (35) years be adopted. President, for arranging accordance with the On clause (5) the Conference the business for, and instructions of the removed the word ”only”. keeping the minutes of, President, for the Cabinet and arranging the conveying decisions business for, and made by Cabinet to the keeping the minutes appropriate authorities; of the Cabinet and and conveying decisions (e) perform any other made by Cabinet to function prescribed by or the appropriate under an Act of authorities; and Parliament or as directed (e) perform any other by the President. function prescribed (3) The Secretary to the Cabinet by or under an Act shall not be less than forty-five years of Parliament or as of age. directed by the (4) The term of office of the President. Secretary to the Cabinet shall be three (3) The Secretary to the years, subject to renewal for further Cabinet shall not be less than thirty- terms, on such terms and conditions five years of age. as may be specified by or under an (4) The term of office of the
311 Act of Parliament. Secretary to the Cabinet shall be five (5) The Secretary to the Cabinet years, subject to renewal for further shall be removed from office by the terms, on such terms and conditions President only for misconduct or as may be specified by or under an inability to perform the functions of Act of Parliament. office or for infirmity of mind or body. (5) The Secretary to the Cabinet shall be removed from office by the President for misconduct or inability to perform the functions of office or for infirmity of mind or body.
Article 155: Prerogative of Mercy Prerogative of Mercy The Conference adopted Article Prerogative of 155 of the Mung‟omba Draft Mercy The President may - 139. The President may - Constitution with amendments (a) grant a pardon to a (a) grant any person and renumbered it as Article 139. person convicted of an convicted of any offence, with or without offence pardon, either The Conference was of the view conditions; free or subject to that the omission of the words (b) grant to a person a lawful conditions; “lawful conditions” in Article respite, indefinitely or (b) grant to a person a 155 (a) in the Draft Constitution for a specified period, of respite, indefinitely or weakened the provision. The the execution of a for a specified period, Conference agreed that Article punishment imposed on of the execution of a 155 (a) be replaced with Article that person for an punishment imposed 59 (a) in the current Constitution. offence; on that person for an (c) substitute a less severe offence; form of punishment for (c) substitute a less severe form of punishment for
312 a punishment imposed a punishment imposed on a person for an on a person for an offence committed by offence committed by that person; that person; (d) remit the whole or part (d) remit the whole or part of a punishment of a punishment imposed on a person for imposed on a person an offence committed by for an offence that person; and committed by that (e) remit the whole or part person; and of a penalty, forfeiture or (e) remit the whole or part confiscation imposed on of a penalty, forfeiture a person for an offence or confiscation imposed committed by that on a person for an person. offence committed by that person.
Article 156: Advisory Committee Advisory Committee The Conference adopted Article Advisory 156. (1) There shall be an 156 without amendment and Committee Advisory Committee on the 140. (1) There shall be an renumbered it as Article 140. prerogative of mercy which shall Advisory Committee on the consist of persons appointed by the prerogative of mercy which shall The Conference concurred with President. consist of persons appointed by the the CRC on maintaining the (2) The Advisory President. Advisory Committee on the Committee shall give advice to the (2) The Advisory prerogative of mercy. President on persons convicted of an Committee shall give advice to the offence by any court or court-martial, President on persons convicted of an for purposes of Article 155. offence by any court or court-
313 (3) A member of the martial, for purposes of Article 154. advisory committee shall hold office (3) A member of the at the pleasure of the President. advisory committee shall hold office (4) The President may at the pleasure of the President. preside at any meeting of the (4) The President may Advisory Committee. preside at any meeting of the Advisory Committee. (5) The Advisory Committee may (5) The Advisory determine its own procedure for Committee may determine its own meetings. procedure for meetings. PART X LEGISLATURE ARTICLE PROVISIONS OF MUNG’OMBA RESOLUTIONS OF THE RATIONALE/REMARKS NO. DRAFT CONSTITUTION CONFERENCE Article 157: Establishment of Parliament Establishment of Parliament The Conference adopted Article Establishment of 157 (1) There is hereby 157 with amendments and Parliament established a Parliament of Zambia 141. There is hereby established a renumbered it as Article 141. which shall consist of the National Parliament of Zambia which shall Assembly and the President. consist of the National Assembly The Conference decided to retain (2) The National Assembly may, and the President. the unicameral Legislature by a resolution supported by the votes consisting of the National of two-thirds of all the members of the Assembly and the President. Assembly, refer to a referendum a question on the need to establish a The Conference rejected the House of Representatives as a possibility of establishing a component of Parliament. House of Representatives as a (3) If a referendum approves the second chamber of Parliament as establishment of a House of recommended by the
314 Representatives, Parliament shall Mung‟omba Draft Constitution enact legislation to provide for the noting that Zambia had done establishment, composition, functions very well under the unicameral and procedures of the House. legislature and that an upper (4) The expenses of the House of chamber would only duplicate Representatives established under the lower house and would be clause (3), including the emoluments too costly. payable to, or in respect of, members of the House, shall be a charge on the Clauses (2), (3) and (4) of Article Consolidated Fund. 157 were therefore deleted.
Article 158: Legislative power and other Legislative power of Parliament The Conference adopted Article Legislative functions of National Assembly and other functions of National 158 of the Mung‟omba Draft power and other Assembly Constitution with amendments functions of 158. (1) The legislative power of 142. (1) The legislative power and renumbered it as Article 142. National the Republic is vested in Parliament. of the Republic is vested in The Conference supported the Assembly (2) The National Assembly Parliament. core functions of Parliament shall be responsible for – (2) The National contained in Article 158 but (a) enacting legislation, as Assembly shall be responsible for - wished to extend the oversight of provided under this (a) enacting legislation, as Parliament to: Constitution; provided under this (a) financial oversight of (b) deliberating and Constitution; all public expenditure resolving issues of including defence and concern to the people; (b) deliberating and resolving security expenditure, (c) considering and passing issues of concern to the (b) approving of the amendments to this people; establishment and Constitution, subject to (c) considering and passing dissolution of
315 this Constitution; amendments to this Government (d) approving the sharing of Constitution, Ministries, in addition revenue between the subject to this Constitution; to all the traditional National government (d) approving the sharing of areas of oversight. and the local revenue between the On the issue of Parliament government and Central government approving increasing or appropriating funds for and the local decreasing the number of expenditure by the government and Ministers and Deputy Ministers, departments of the appropriating funds for the Conference failed to reach Government, other State expenditure by the consensus and referred the organs, State institutions departments of the decision to a referendum. and other bodies; Government, other (e) ensuring equity in the State organs, State The Conference approved an distribution of national institutions and other additional clause to fortify clause resources and bodies; (2) (i) which was referred to a opportunities among all (e) ensuring equity in the referendum and observed that parts and communities distribution of national paragraph (j) was already in of Zambia; resources and existence. (f) scrutinising public opportunities among all expenditure, including parts and communities The Conference observed that defence, constitutional, of Zambia; impeachment of a President was special expenditure and (f) scrutinising public a cardinal function of the public debt; expenditure, including National Assembly because a (g) scrutinizing and defence and security, President was human and may overseeing actions of the constitutional and make mistakes. Providing for executive organ of the special expenditure “Any other functions” could State; and public debt; encompass those functions that (h) ratifying any (g) scrutinizing and had not been enumerated. overseeing actions of
316 appointment as required the executive organ of by this Constitution or the State; by or under an Act of (h) ratifying any Parliament; appointment as (i) approving an increase or required by this decrease in the number Constitution or by or of Ministers and Deputy under an Act of Ministers as provided Parliament; under this Constitution (i) approving an increase on the request of the or decrease in the President; number of Ministers (j) approving international and Deputy Ministers treaties and as provided under this international agreements Constitution on the before these are ratified request of the President; or acceded to and where (j) approving the necessary incorporating establishment or these international dissolution of instruments into government ministries national laws; as provided under this (k) approving the Constitution; emoluments of the (k) approving international President and other treaties and officers specified under international this Constitution; agreements before these (l) summoning and are ratified or acceded dissolving the National to and where necessary Assembly; incorporating these international
317 (m) impeaching the instruments into President as provided national laws; for in this Constitution; (l) approving the (n) approving or ratifying emoluments of the declarations of war, state President and other of public emergency or officers specified under threatened state of this Constitution; public emergency and (m) summoning and measures undertaken dissolving the National during these periods; Assembly; and (n) impeaching the (o) any other function President as provided prescribed by this for in this Constitution; Constitution or by or (o) approving or ratifying under an Act of as the case may be, state Parliament. of public emergency or (3) A person or body, other than threatened state of Parliament, shall not have power to public emergency and enact legislation, except under the measures undertaken authority conferred by this during these periods; Constitution or by or under an Act of (p) any other function Parliament. prescribed by this Constitution or by or under an Act of Parliament.
(3) A person or body, other than Parliament, shall not have power to
318 enact legislation, except under the authority conferred by this Constitution or by or under an Act of Parliament. Article 159: Composition of National Assembly Composition of National Assembly The Conference adopted the Composition of provision in the MDC with National 159 (1) The National Assembly 143. (1) The National Assembly amendments and renumbered as Assembly shall consist of – shall consist of - Article 143. (a) two hundred members (a) two hundred and forty directly elected on the members directly In considering Article 159; basis of a simple elected on the basis of (a) the Conference opted for a majority under the first- a simple majority Mixed-Member Parliament to past-the-post segment of under the first-past- make the National Assembly the mixed member the-post segment of more inclusive by targeting the representation system the mixed member PR seats at women and persons provided for by this representation system with disabilities; and Constitution and as may provided for by this (b) the Conference approved that be provided by or under Constitution and as the Speaker be an additional an Act of Parliament; may be provided by or member of the National (b) forty per cent of the total under an Act of Assembly; and number of constituency- Parliament; (c) approved the deletion of based seats on the basis (b) thirty seats on the paragraph (d) of the Mung‟omba of the proportional basis of the Draft Constitution. representation segment proportional of the mixed member representation representation system segment of the mixed from a list of candidates member submitted to the representation system from a list of
319 Electoral Commission by candidates submitted each political party to the Electoral contesting the elections, Commission by each as provided by this political party Constitution and by or contesting the under an Act of elections, as provided Parliament; by this Constitution (c ) the Speaker; and by or under an Act (d) the First Deputy of Parliament; Speaker; and (c) not more than ten (e) the Vice- members nominated President. by the President (2) Clause (1) (a) and (b) shall be under Article 147; and subject to Article 95 (3). (d) the Speaker. (2) Clause (1) (a) and (b) shall be subject to Clause (3) of Article 80.
Article 160: Qualifications and disqualifications Qualifications and The Conference adopted the Qualifications of members of National Assembly disqualifications of member of provisions in the Mung‟omba and National Assembly Draft Constitution with disqualifications 160. (1) Unless disqualified 144 (1) Unless disqualified under amendments and renumbered it of members of under clauses (2) and (3), a person clauses (2) and (3), a person shall be as Article 144. National shall be eligible to be elected as a eligible to be elected as a member of In debating the Article, the Assembly member of the National Assembly if the National Assembly if that person Conference; that person – - (a) approved qualifications (a) is a citizen; (a) is a citizen of Zambia; for election of Member (b) is not less than twenty- (b) is not less than twenty- of Parliament and stated that one years; one years; members of Parliament be (c) is registered as a voter; (c) is registered as a voter; sufficiently educated and
320 (d) has obtained, as a has obtained, as a knowledgeable to perform minimum academic minimum academic their Parliamentary qualification, a grade qualification, a grade functions; and twelve certificate of twelve school certificate education or its of education or its (b) approved the deletion of equivalent; equivalent; and paragraph (e) as it was an (e) has been ordinarily (d) declares that person's unnecessary restriction, and resident in the assets and was discriminatory and constituency or district liabilities as provided would lead to lowering the for at least three years; under this quality of candidates and Constitution and by or aspiring in Parliamentary (f) declares that person‟s under an ele ctions especially in rural assets and liabilities as Act of Parliament. areas. There were many provided under this examples of Members of Constitution and by or (2) A person shall be Parliament who were not under an Act of disqualified from being elected as a ordinarily resident in their Parliament. member of the National Assembly if Constituencies but who (2) A person shall be that person - represented their disqualified from being elected as a (a) holds, or is validly Constituencies better than member of the National Assembly if nominated as a these who are physically that person – candidate in an election resident there. (a) holds, or is validly for, the office of nominated as a President; The Conference also observed candidate in an election that it was important to provide for, the office of (b) holds or is acting in any for declaration of assets and President; office that is liabilities to avoid negative (b) holds or is acting in any specified by an Act of propaganda against Members of office that is specified by Parliament the Parliament who genuinely acquired wealth.
321 an Act of Parliament the functions of which functions of which involve or are involve or are connected connected with the with the conduct of conduct of elections; elections; (c) is of unsound (c) is of unsound mind; mind; (d) is an un (d) is an un discharged discharged bankrupt or bankrupt or insolvent; insolvent; (e) is serving a sentence of (e) is serving a imprisonment or is sentence of under a sentence of imprisonment or death; is under a (f) has, at any time in the sentence of death; immediate preceding (f) has, at any time in five years, served a the immediate term of imprisonment preceding five for the commission of years, served a an offence the sentence term of for which was a period imprisonment for of at least three years; the commission of (g) has been removed from an offence the public office on sentence for grounds of gross which was a misconduct; or period of at least (h) has been found guilty of three years; corruption by any court
322 (g) has been removed from or tribunal. public office on grounds (3) Subject to clause (4), a of gross misconduct; or person holding or acting in any of (h) has been found guilty of the following posts or offices shall corruption by any court not qualify for election as a member or tribunal. of the National Assembly: (3) A person holding or (a) the Defence acting in any of the following posts or Force and office of appointment shall not qualify national security for election as a member of the agencies; National Assembly: (a) the Defence (b) the public service; Forces and (c) a commission; National security (d) a statutory body agencies; or company in (b) the public service; which the (c) a commission; Government has (d) a statutory body a controlling or company in interest ; or which the (e) any other post Government has or office a controlling specified by or interest ; or under an Act of Parliament. (e) any other post or (4) A public officer shall office specified by qualify for election as a member of or under an Act the National Assembly- of Parliament. (a) in the case of an officer who has
323 (4) In this Article, a served for at reference to a sentence of least twenty imprisonment shall not include a years, if the sentence of imprisonment the officer retires execution of which is suspended or a from the post or sentence of imprisonment in default office in less of payment of a fine. than twelve (5) A person shall not be months before disqualified under clause (2) (g) and the date of the (h) unless all possibility of appeal or election; or review of the sentence or decision has (b) in the case of an been exhausted. officer who has served for less than twenty years, if the officer resigns from the post or office not less than twelve months before the date of the election. (5) A Chief shall not be qualified for election as a member of the National Assembly. (6) In this Article, a reference to a sentence of imprisonment shall not include a sentence of imprisonment the
324 execution of which is suspended or a sentence of imprisonment in default of payment of a fine.
Article 161: Nomination for election to National Nomination for election to The Conference adopted the Nomination for Assembly National Assembly Article of the Mung‟omba Draft election to 161. (1) Nominations for election Constitution without National to the National Assembly shall be 145. (1) Nominations for amendments and renumbered it Assembly delivered to a returning officer on a election to the National Assembly as Article 145. day, at a time and place specified by shall be delivered to a returning The matters under Article 161 of the Electoral Commission under an officer on a day, at a time and place the Mung‟omba Draft Act of Parliament. specified by the Electoral Constitution were considered to (2) A nomination for Commission under an Act of be procedural. election to the National Assembly Parliament. shall not be valid unless – (2) A nomination for (a) the candidate has paid election to the National Assembly the election fee specified shall not be valid unless - by or under an Act of (a) the candidate has paid Parliament; and the election fee (b) in the case of a candidate specified by or under for a constituency - an Act of Parliament; based seat the and nomination is supported (b) in the case of a by not less than nine candidate for a persons registered as constituency-based voters in the seat, the constituency in which nomination is the candidate is standing supported by not
325 for election. less than nine persons registered voters in the constituency in which the candidate is standing for election.
New Article Nominated members The Conference decided to 146. (1) The President may, at introduce and adopt a new any time after a general election to Article and numbered the Article the National Assembly and before 146 to provide for the the National Assembly is next nomination of Members of dissolved, appoint not more than Parliament by the President. ten persons as nominated members of the National Assembly to enhance the representation in the National Assembly as regards special interests or skills. (2) Subject to this Article, a person may be appointed as a nominated member if the person is qualified under clause (1) of Article 146 and is not disqualified under clauses (2) and (3) of that Article, for election as an elected member. (3) The President shall not appoint a person as a nominated member if the person was a candidate for election in the last preceding general election or in
326 any subsequent by-election. Article 162: Tenure of office and vacation of Tenure of office and vacation of The Conference adopted the Tenure of office office of member of National office of member of National Article in the Mung‟omba Draft and vacation of Assembly Assembly Constitution with amendments office of member 162 (1) Every member of the and renumbered it Article 147. of National National Assembly, except the 147. (1) Every member of the The Conference: Assembly Speaker and the First Deputy Speaker, National Assembly, except the (a) amended paragraph (f) to shall vacate the seat in the National Speaker, shall vacate the seat in the provide for the sponsoring party Assembly upon a dissolution of National Assembly upon dissolution by inserting the words “which Parliament. of Parliament. sponsored the member” after (2) The office of member of (2) The office of member of the Political Party; and the National Assembly becomes National Assembly becomes vacant (b) amended clauses (3), and vacant if – if - (8)(b). (a) the member ceases to be (a) the member a citizen; ceases to be a The Conference could not reach (b) the member resigns in citizen of consensus on Article 162 (8)(a) writing addressed to the Zambia; regarding a Member of the Speaker; (b) the member National Assembly holding a (c) the member becomes resigns in constituency based seat whose disqualified for election writing party is dissolved. under Article 160 (3); addressed to (d) the result of an election the Speaker; The Conference referred the for that member is (c) the member matter to a referendum to decide nullified by the becomes whether such a member should Parliamentary Election disqualified for be an independent member or Tribunal constituted election should lose the seat. under Article 165; under Article (e) the member acts 145 (3);
327 contrary to a code of (d) the result of an conduct provided by election for that this Constitution or by member is or under an Act of nullified by the Parliament; High Court (f) the member resigns under Article from the political party 152; for which the member (e) the member acts stood as a candidate for contrary to a election to the National code of conduct Assembly or resigns provided by from a coalition of this parties to which that Constitution or member belongs; by or under an (g) having been elected to Act of the National Assembly Parliament; as an independent (f) the member candidate, the member resigns from the joins a political party; political party (h) the member is recalled which in accordance with sponsored the Article 189; and member for (i) the member dies. election to the (3) A constituency-based National member of the National Assembly Assembly; who causes a vacancy in the Assembly (g) having been due to the reasons specified under elected to the clause (2) (b), (c ), (e), (f), (g) and (h) National
328 shall not be eligible to contest any Assembly as an direct election for the duration of the independent term of that Parliament. candidate, the (4) Where a member of the member joins a National Assembly who holds a political party; proportional representation seat or causes a vacancy, in the National Assembly, due to death or (h) the member dies. resignation, that vacancy shall be (3) A constituency-based filled by the next candidate on the member of the National Assembly political party‟s list as provided by an who causes a vacancy in the Act of Parliament. Assembly due to the reasons (5) Where a member of the specified under clause (2) (b), (c ), National Assembly, who occupies a (e), (f) and (g) shall not be eligible, proportional representation seat, is for the duration of the term of that expelled from the political party that Parliament- has been allocated that seat, the seat (a) to contest election or shall be filled by the next candidate on the political party‟s list as provided by (b) for nomination, by the an Act of Parliament. President, as a (6) Where a member of the member of the National Assembly, who occupies a National Assembly. constituency-based seat, is expelled by the political party which sponsored (4) Where a member of that member for election, the member the National Assembly who holds a shall not lose the seat unless the proportional representation seat expulsion is confirmed by a court. causes a vacancy, in the National (7) Where a court confirms Assembly, due to death or
329 the expulsion of a member who resignation, that vacancy shall be occupies a constituency-based seat, a filled by the next candidate on the by-election shall be held to fill the political party's list as provided by vacancy. an Act of Parliament. (8) If a political party is (5) Where a member of dissolved – the National Assembly, who (a) a member holding a occupies a proportional constituency-based seat representation seat, is expelled from shall retain the seat as an the political party that has been independent member; allocated that seat, the seat shall be and filled by the next candidate on the (b) a member holding a political party's list as provided by proportional an Act of Parliament. representation-seat shall (6) Where a member of cease to be a member the National Assembly, who and the party shall lose occupies a constituency-based seat, the seat which seat shall is expelled by the political party be re-allocated to which sponsored that member for another political party election, the member shall not lose based on the next the seat unless the expulsion is highest national confirmed by a court. aggregate vote obtained (7) Where a court confirms by that party in relation the expulsion of a member who to the other parties who occupies a constituency-based seat, a contested the election. by-election shall be held to fill the (9) The creation or vacancy. dissolution of a coalition of parties of (8) If a political party is which a member‟s political party dissolved -
330 forms part of, or a merger of two or (a) a member more parties does not amount to a holding a member resigning from the party for constituency- the purposes of clause (2)(f). based seat shall retain the seat as an independent member; and (b) a member holding a proportional representation- seat shall cease to be a member and the party shall lose the seat which seat shall be re-allocated to another political party as provided by or under an ct of Parliament. (9) The creation or dissolution of a coalition of parties of which a member's political party forms part of, does not amount to a member resigning from the party for
331 the purposes of paragraph (f) of clause (2). New Article Removal of Nominated Member The Conference introduced and adopted a new Article and 148. The President may, at any numbered it Article 148 to time, terminate the appointment of provide for the removal of a any nominated member appointed nominated Member of under Article 147 and appoint Parliament and to avoid creating another person in that member’s a lacuna regarding the tenure of stead. office of a nominated member. Article 163: Vacancies and by-elections for Vacancies and by-elections for The Conference adopted Article Vacancies and National Assembly National 163 of the Mung‟omba Draft by-elections for 163. (1) Where a vacancy occurs Assembly Constitution without National in the office of a member of the 149. (1) Where a vacancy amendments and renumbered it Assembly National Assembly, as specified under occurs in the office of a member of as Article 149. Article 162 (2) and (3), the Speaker the National Assembly, as specified shall, within seven days of the under clauses (2) and (3) of Article The Conference was of the view occurrence of the vacancy, inform, in 148, the Speaker shall, within seven that Article 163 provided for a writing, the Electoral Commission of days of the occurrence of the matter of procedure. the vacancy. vacancy, inform, in writing, the (2) Where a vacancy occurs Electoral Commission of the for a constituency-based seat as vacancy. specified under Article 162 and subject to Article 100 (3), a by-election shall be held within ninety days of the (2) Where a vacancy occurs for a occurrence of the vacancy. constituency-based seat as specified under Article 148 and subject to Clause (2) of Article 85, a by-election
332 shall be held within ninety days of the occurrence of the vacancy. Article 164: Emoluments of Members Emoluments of Members The Conference adopted the Emoluments of Article in the Mung‟omba Draft Members 164. (1) A member of the 150. (1) A member of the Constitution with minor National Assembly shall be paid National Assembly shall be paid amendments and renumbered it emoluments and provided with emoluments and provided with as Article 150 as follows: facilities as recommended by the facilities as determined by the Emoluments Commission and Parliamentary Service Commission The Conference substituted the specified in or by an Act of and specified by or under an Act of name “Emoluments Parliament. Parliament. Commission” with the term (2) The emoluments paid to, and (2) The emoluments paid “Parliamentary Service the funds provided for facilities for, a to, and the funds provided for Commission” proposed under member of the National Assembly facilities for, a member of the Article 192 of Mung‟omba Draft shall be a charge on the Consolidated National Assembly, shall be a charge Constitution. Fund. on the National Treasury Account. The Conference also replaced the name “Consolidated Fund” with “National Treasury Account”. Article 165: Parliamentary Election Tribunal Determination of Questions as to The Conference decided to adopt Parliamentary 165. (1) A person may file an Membership of National Assembly Article 72 of the current Election Tribunal election petition to challenge the 151. (1) The High Court shall Constitution with amendments election of a candidate as a member of have power to hear and determine renumbered it as Article 151 and the National Assembly. any question whether – re-titled it as “Determination of (2) The Chief Justice shall, Questions as to Membership of for purposes of hearing and (a) any person has been validly National Assembly” as it was determining any question whether - elected or nominated as member of more relevant. (a) any person was validly the National Assembly or the seat of any member has become vacant;
333 elected as a member of and The Conference rejected the the National Assembly; (b) any person has been validly establishment of the ad hoc or elected as Speaker or Deputy Parliamentary Election Tribunal (b) the seat of any member Speaker of the National Assembly as it was bound to lengthen the has become vacant; or, having been so elected, has process of determining constitute an vacated the office of Speaker or membership of National ad hoc Parliamentary Deputy Speaker. Assembly. Election Tribunal. Aggrieved persons could not (3) A Parliamentary (2) An appeal from the legitimately be prevented from Election Tribunal shall consist of - determination of the High Court appealing to the High Court. (a) a Judge of the High under this Article shall lie to the Court as Chairperson; Supreme Court: The Conference decided that the and Provided that an appeal shall High Court should continue to lie to the Supreme Court from any (b) four other persons who determine election petitions. determination of the High Court on have held the office of, any question of law including the or are qualified to be interpretation of this Constitution. appointed as, Judges of
the High Court. (3) The High Court shall, within (4) A Parliamentary ninety days of the lodging of an Election Tribunal shall, within ninety election petition, hear and days of the lodging of an election determine the petition. petition, hear and determine the petition. (5) A decision of the Parliamentary Election Tribunal shall be final and the Tribunal shall stand dissolved on the determination of the election petition.
334 (6) The expenses of a Parliamentary Election Tribunal shall be a charge on the Consolidated Fund.
Article 166: Speaker and Deputy Speakers of Speaker and Deputy Speakers of The Conference adopted Article Speaker and National Assembly National Assembly 166 of the Mung‟omba Draft Deputy Speakers 152. (1) There shall be a Constitution with amendments of National 166. (1) There shall be a Speaker Speaker of the National Assembly and renumbered it article 152. Assembly of the National Assembly who shall who shall be elected by the members be elected by the members of the of the National Assembly. The amendment was meant; National Assembly. (2) A person is qualified (a) to provide for the (2) A person is qualified to to be a candidate for election as Speaker and the be a candidate for election as Speaker Speaker of the National Assembly if Deputy Speaker to of the National Assembly if that that person - have the necessary person - (a) is a citizen of Zambia by qualifications and to (a) is a citizen by birth or birth or descent; have some descent; (b) does not have dual Parliamentary (b) does not have dual citizenship; experience. citizenship; (b) insert the word “all” in (c) has been ordinarily (c) has been ordinarily resident clause 8(c). resident in Zambia for a in Zambia for a continuous period of ten continuous period (c) to replace the term years immediately of five years immediately “Consolidated Fund” preceding the election; preceding the election; with the term (d) is not less than forty-five “National Treasury years of age; (d) is not less than forty-five Account.” as a (e) has obtained, as a years of age; consequential minimum academic (e) has obtained, as a minimum amendment in Clause
335 qualification, a grade qualification, a bachelor’s (9). twelve certificate or its degree or its equivalent from (d) to provide for the equivalent; a recognised university or academic qualification (f) declares that person‟s institution; of a degree which the assets and liabilities as Conference decided provided by this (f) declares that person's was needed for the Constitution and by or assets and office of Speaker. under an Act of (g) liabilities as provided (e) to provide for the two Parliament; and by this Constitution Deputy Speakers to be (g) is not a member of the and by or under an elected from amongst National Assembly. Act of Parliament; and members of the (h) is not a member of the National Assembly. (3) There shall be two Assembly. Deputy Speakers of the National (3) A person does not Assembly - qualify for election as Speaker of (a) one of whom shall be the National Assembly if that elected by the members person- of the Assembly, from (a) holds, or is validly among persons who are nominated as a qualified to be elected as candidate in an election members of the for, the office of Assembly but are not President; members of the (b) holds or is acting in any Assembly, as First office that is specified by an Act of Parliament the Deputy Speaker; functions of which (b) one of whom shall be involve or are connected elected by the members with the conduct of of the National elections;
336 Assembly, from among (c) is of unsound mind; their number, as Second (d) is an un discharged Deputy Speaker; and bankrupt or insolvent; (c) both of whom are not (e) is serving a sentence of members of the same imprisonment or is political party and of the under a sentence of same gender. death; (4) The members of the (f) has, at any time in the National Assembly shall elect a immediate person to the office of Speaker and preceding five years, First and Second Deputy Speakers - served a term of (a) when the Assembly first imprisonment for the sits after any dissolution commission of an offence the sentence for of Parliament; and which was a period of at (b) if any of those offices least three years; become vacant, (g) has been removed from otherwise than by public office on grounds reason of the dissolution of gross misconduct; or of Parliament, at the first (h) has been found guilty of sitting of the Assembly corruption by any court after the office becomes or tribunal. vacant. (4) There shall be two (5) The office of Speaker Deputy Speakers of the National and First Deputy Speaker shall Assembly, both of whom shall be become vacant – elected by the members of the (a) when a new National National Assembly from among Assembly first sits after their number, as First and Second a general election; Deputy Speaker, respectively.
337 (b) if the office holder (5) The two Deputy becomes disqualified Speakers of the National under Article 160 (2); Assembly. (c) if the National Assembly (a) shall be persons of resolves, by a resolution opposite gender; supported by the votes and of not less than two- thirds of its members, to (b) shall not, where the remove the Speaker or Deputy Speakers First Deputy Speaker on are elected from any of the following among the political grounds: parties or coalition (i) violation of this of political parties represented in the Constitution; National Assembly, (ii) incapacity to both belong to the discharge the same political party duties of the or coalition of office of Speaker political parties. or First Deputy
Speaker due to (6) Subject to clause (7),
infirmity of the members of the National body or mind; or Assembly shall elect a person to the ; (iii) misconduct office of Speaker and First and
(d) if the office holder dies; Second Deputy Speakers - or (a) when the Assembly first (e) if the office holder sits after any resigns from office in a dissolution of letter addressed to the Parliament; and
338 President. (6) The Speaker and the (b) if any of those offices First and Second Deputy Speakers become vacant, shall be elected by a secret vote. otherwise than by (7) The Speaker and the reason of the First Deputy Speaker shall retire at the dissolution of age of seventy-five years. Parliament, at the first (8) When the offices of sitting of the Assembly Speaker and Deputy Speakers become after the office vacant, business shall not be becomes vacant. transacted in the National Assembly, other than an election to the offices of (7) A person elected as Speaker and Deputy Speakers. Speaker and first and second (9) The Speaker and the Deputy Speakers shall be Deputy Speakers shall be entitled to conversant with the practices and emoluments recommended by the Procedures of Parliament. Emoluments Commission and (8) The office of Speaker shall specified in an Act of Parliament. become vacant – (10) The emoluments of the Speaker and Deputy Speakers shall be (a) when a new National a charge on the Consolidated Fund. Assembly first sits after a general election; (b) if the office holder becomes disqualified under Clause (3); (c) if the National Assembly resolves, by a resolution supported by the votes of not less than two
339 thirds of all its members, to remove the Speaker on any of the following grounds:
(i) violation of this Constitution; (ii) incapacity to discharge the duties of the office of Speaker or First Deputy Speaker due to infirmity of body or mind; or (iii) misconduct; (d) if the office holder dies; (e) if the office holder resigns from office in a letter addressed to the President; or (f) if the office holder retires from office. (9) The office of the First Deputy Speaker and the Second Deputy Speaker shall become vacant-
340 (a) if the office holder becomes disqualified under paragraphs (c) to (h) of clause (2) of Article 145 ; (b) if the office holder ceases to be a member of the National assembly; (c) if the office holder assumes the office of President or becomes the Vice-President, a Minister, a Deputy Minister or holds or acts in any office prescribed in that behalf by or under an Act of Parliament; (d) if the National
341 Assembly resolves that the office holder should be removed from office; (e) if the office hold dies; or (f) if the office holder resigns from office in a letter addressed to the President. (10) The Speaker and the First and Second Deputy Speakers shall be elected by a secret vote. (11) When the offices of Speaker and Deputy Speakers become vacant, business shall not be transacted in the National Assembly, other than an election to the offices of Speaker and Deputy Speakers. (12) The Speaker and the Deputy Speakers shall be entitled to emoluments recommended by the Parliamentary Service Commission
342 and specified in an Act of Parliament. (13) The emoluments of the Speaker and Deputy Speakers shall be a charge on the National Treasury Account. (14) In this Article, a reference to a sentence of imprisonment does not include a sentence of imprisonment the execution of which is suspended or a sentence in default of payment of a fine. Article 167: Presiding in National Assembly Presiding in National Assembly The Conference adopted Article Presiding in 167 of the Mung‟omba Draft National 167. There shall preside at any sitting 153 There shall preside at any Constitution without Assembly of the National Assembly – sitting of the National Assembly - amendment and renumbered it (a) the Speaker; (a) the Speaker; Article 153. (b) in the absence of the (b) in the absence of the Speaker, the First Speaker, the First Deputy The Conference decided that the Deputy Speaker; Speaker; provisions under Article 167 (c) in the absence of the (c) in the absence of the First were a matter of procedure. First Deputy Speaker, Deputy Speaker, the the Second Deputy Second Deputy Speaker; Speaker; or or (d) in the absence of the (d) in the absence of the Speaker and both Speaker and both Deputy Deputy Speakers any Speakers any other other member of the member of the National
343 National Assembly as Assembly as the Assembly the Assembly may elect may elect for that sitting. for that sitting. Article 168: Leader of Opposition Leader of Opposition The Conference adopted Article Leader of 168. (1) The opposition political 154. (1) Subject to clause (2), 168 in the Mung‟omba Draft Opposition party with the largest number of seats the opposition political party with Constitution with in the National Assembly or a the largest number of seats in the Amendments and renumbered it coalition of opposition political parties National Assembly or a coalition of Article 154. in the Assembly shall elect, from opposition political parties in the amongst the members of the Assembly shall elect, from amongst The Conference introduced a Assembly, the leader of the the members of the Assembly, the new clause (2) to provide that opposition, except that where an leader of the opposition, except that where the largest opposition or opposition political party has formed where an opposition political party coalition of parties hold less than a coalition with the party in has formed a coalition with the one-third (⅓) of the number of Government a member of the party in Government a member of seats, then no Member of National Assembly of that political the National Assembly of that Parliament from the opposition party shall not be eligible for election political party shall not be eligible would qualify to be elected as the leader of the opposition. for election as the leader of the Leader of Opposition. (2) The Standing Orders of opposition. the National Assembly shall provide (2) Clause (1) does not apply for the effective participation in the where the opposition political Assembly of the leader of the party or coalition of opposition opposition. political parties in the National Assembly holds less than one-third of the total number of seats in the National Assembly. (3) The Standing Orders of the National Assembly shall provide for the effective
344 participation in the Assembly of the leader of the opposition. Deputy Speaker; or Article 169: Clerk Clerk of National Assembly Clerk of National Assembly The Conference adopted Article of National 169 in the Mung‟omba Draft Assembly 169. (1) There shall be a Clerk 155 (1) There shall be a Clerk Constitution with amendments of the National Assembly who shall of the National Assembly who shall and renumbered it Article 155. be appointed by the Parliamentary be appointed by the Parliamentary Service Commission, subject to Service Commission, subject to The Conference was of the view ratification by the National Assembly. ratification by the National that the nature of the office of the (2) A person shall not be Assembly. Clerk of National Assembly was appointed Clerk of the National (2) A person shall not be different from that of a Judge. Assembly unless that person is at least appointed Clerk of the National forty-five years of age and has the Assembly unless that person has the The Conference therefore, agreed academic qualifications, experience academic qualifications, experience that the procedure for removal of and skills specified by an Act of and skills specified by an Act of the Clerk be different and be Parliament. Parliament. provided in subordinate (3) Subject to clause (4), the (3) Subject to clause (4), legislation. Clerk of the National Assembly shall the Clerk of the National Assembly retire on attaining the age of sixty-five shall retire on attaining the age of The Conference accordingly years. sixty-five years. amended Clause (4). (4) The National Assembly (4) The National may, by a resolution supported by the Assembly may, by a resolution votes of not less than two-thirds of all supported by the votes of not less the members of the Assembly, remove than two-thirds of all the members the Clerk of the National Assembly on of the Assembly, remove the Clerk the same grounds that apply to the of the National Assembly in removal of a Judge of a superior court. accordance with the procedures
345 laid down in an Act of Parliament.
Article 170: Exercise of legislative power Exercise of legislative power The Conference adopted Article Exercise of 170. (1) Parliament shall enact 156 (1) Parliament shall enact 170 with amendments and legislative power legislation through Bills passed by the legislation through Bills passed by renumbered it Article 156. National Assembly and assented to by the National Assembly and assented the President. to by the President. Under Clause (3) the Conference (2) Any member of the (2) Any member of the decided that the cost of enacting National Assembly or a member of National Assembly or a member of a Government Bill or a Private the Cabinet may introduce Bills in the the Cabinet may introduce Bills in Member‟s Bill would be borne by National Assembly. the National Assembly. the Government. (3) The expenses of drafting (3) The expenses of and introducing a Bill under clause (2) enacting Government Bill or Private This was intended to enhance the shall be a charge on the Consolidated Member‟s Bill shall be a charge on power of the legislature. Fund and a member of the National the National Treasury Account and Assembly shall not be required to pay a member of the National Assembly for any expenses attaching to the shall not be required to pay for any drafting of the Bill and introduction expenses attaching to the and passage of the Bill in the National Introduction and passage of the Bill Assembly. in the National Assembly. (4) A Bill that would confer (4) A Bill that would a pecuniary benefit on members of the confer a pecuniary benefit on National Assembly, the President, members of the National Assembly, Vice-President, a Minister, Provincial the President, Vice-President, a Minister or Deputy Minister shall not Minister, Provincial Minister or be introduced in the National Deputy Minister shall not be Assembly unless it has been introduced in the National recommended by the Emoluments Assembly unless it has been
346 Commission. recommended by the Parliamentary (5) A Bill introduced in the National Service Commission. Assembly shall be - (5) For the purposes of this (a) accompanied by an Article, unless the context explanatory memorandum, signed by otherwise requires- the proposer or the Attorney-General, “Government Bill” means a bill if the Bill has been initiated by the introduced to the National Government, outlining – Assembly by a Government (i) the objectives of the Minister and which affects the proposed legislation; public as a whole; and “Private Member’s Bill” means a (ii) any Bill of Rights limitation, bill introduced to the National derogation or any other Assembly by a member who is constitutional implication; not a government minister and which affects the public as a (iii) any relevant provisions of whole. Part III that have been taken
into account;
(iv) any public consultation
undertaken during the preparation of the Bill; (b) any further public consultation that is recommended before the Bill is enacted; and (c) any other matter relevant to the Bill; and (d) published in the Gazette at least fourteen days before the date of its introduction in the Assembly,
347 unless due to the urgency of the matter, the Speaker otherwise determines. (6) After a Bill is read the first time in the National Assembly it shall be referred to a standing committee of the Assembly which shall examine the Bill in detail and make inquiries in relation to it as the committee considers expedient or necessary. (7) A Bill that has been deliberated upon by a standing committee shall be reported to the National Assembly which shall debate the Bill and procedurally pass the Bill, with or without amendments, or reject the Bill. (8) A Bill that has been referred to a standing committee under clause (5) shall not be held at that committee for more than sixty days. Article 171: Retrospective Legislation Retrospective Legislation The Conference adopted Article Retrospective Parliament may make laws with Article 157 Parliament may make 171 with amendments and Legislation retrospective effect but does not have laws with retrospective effect for the renumbered it Article 157. This the power to enact any law which purpose of conferring a benefit or was in order to make it more operates retrospectively to impose any advantage but does not have the explicit that any retrospective
348 limitations on, or to adversely affect power to enact any law which legislation could only be enacted the personal rights and freedoms of, operates retrospectively to impose to confer a benefit or advantage. any person or to impose a burden, any limitations on, or to adversely liability or an obligation on any affect the personal rights and person. freedoms of, any person or to impose a burden, liability or an obligation on any person. Article 172: Money Bills Money Bills The Conference adopted Article Money Bills 172. (1) A Money Bill shall only 158. (1) A Money Bill shall only be 172 in the Mung‟omba Draft be introduced by a Minister. introduced by a Minister. Constitution with minor (2) In this Part “Money Bill” (2) In this Part "Money amendments and renumbered it includes a Bill that provides for – Bill" includes a Bill that provides for Article 158. The amendment was (a) the imposition, repeal, - meant to substitute the term remission, alteration or (a) the imposition, “Consolidated Fund” with regulation of taxes; repeal, “National Treasury Account” in (b) the imposition of remission, clause (2)(b). charges on the alteration or Consolidated Fund or regulation of any other public fund or taxes; the variation or repeal of (b) the imposition of any of those charges; charges on the (c) the appropriation, National receipt, custody, Treasury investment, issue or Account or any audit of accounts of other public fund public moneys; or the variation (d) the grant of moneys to or repeal of any any person or authority of those charges;
349 or the variation or (c) the appropriation, revocation of the grant receipt custody, of public moneys; investment, issue (e) the raising or or audit of guaranteeing of any loan accounts of or the repayment of it; or public moneys; (f) subordinate matters (d) the grant of incidental to any of the moneys to any matters specified under person or this clause. authority or the variation or revocation of the grant of public moneys; (e) the raising or guaranteeing of loan or the repayment of any it; or
(f) subordinate matters incidental to any of the matters specified under this clause.
350 Article 173: Presidential assent and referral Presidential assent and referral The Conference adopted Article Presidential 173 in the Mung‟omba Draft assent and 173. (1) Where a Bill is presented 159. (1) Where a Bill is presented to Constitution with amendments referral to the President for assent the the President for assent the and renumbered it Article 159. President shall, within twenty-one President shall, within twenty-one The amendments were as days after receipt of the Bill – days after receipt of the Bill - follows: (a) assent to the Bill; or (a) assent to the (a) to compel the President to (b) refer the Bill back to the Bill; or give assent within 14 days Speaker for re- (b) refer the Bill under clause (4)(b) failure consideration by the back to the to which the Bill would be National Assembly, Speaker for taken to have been indicating any reconsideration assented to; and reservation that the by the National (b) the principle of compelling President has concerning Assembly, the President to assent was the Bill. indicating any agreed by the Conference (2) If the President refers reservation that as preferable to either the Bill back for re-consideration by the President “killing the Bill” or “killing the National Assembly, the Assembly has concerning the National Assembly and may – the Bill. the President” by (a) amend the Bill in (2) If the President refers dissolution of Parliament. the light of the the Bill back for reconsideration by President‟s the National Assembly, the (c) introduction of a new clause reservations; or Assembly may pass the Bill a (8) to provide for a (b) pass the Bill a second time, with or without declaration of a bill as second time, amendment, by a vote supported unconstitutional by a without by at least two-thirds of all of the Constitutional Court. The amendment, by a members of the National amendment in clause (8) vote supported Assembly. was intended to make the (3) If the National
351 by at least two- Assembly passes the Bill, with provisions more complete. thirds of all of the amendments, in the light of the members of the President's reservation, the Speaker National shall submit the Bill to the President Assembly. for assent. (3) If the National Assembly (4) If the National amends the Bill, in the light of the Assembly, after considering the President‟s reservation, the Speaker President's reservation, passes the shall submit the Bill to the President Bill a second time by a vote for assent. supported by two-thirds of all of the (4) If the National members of the National Assembly, Assembly, after considering the without amending the Bill - President‟s reservation, passes the Bill (a) the Speaker shall a second time by a vote supported by within seven days re- two-thirds of all of the members of the submit it to the National Assembly, without President; and amending the Bill – (b) the President shall (a) the Speaker shall within fourteen days within seven days assent to the Bill; re-submit it to the unless the President's President; and reservation is on a question (b) the President of the constitutionality of the Bill, shall within seven in which case the President shall days assent to the refer the Bill to the Bill; Constitutional Court whose unless the decision on the matter shall be President‟s final. (5) If the National
352 reservation is on Assembly fails to pass the Bill for a a question of the second time as required under clause (2), the Bill shall not again be constitutionality presented to the National Assembly of the Bill, in in that session of the National Assembly. which case the (6) If the President refuses President shall or fails to assent to a Bill, within the periods prescribed in clauses (1) and refer the Bill to (4), without further action being the taken in accordance with those Constitutional clauses, the Bill shall be taken to have been assented to upon the Court whose expiration of those periods. decision on the (7) Subject to Article 161, where thirty or more members of matter shall be the National Assembly or any final. person, with leave of the (5) If the National Assembly Constitutional Court, challenges a fails to pass the Bill for a second time Bill on a question of the as required under (2) (b) the Bill shall constitutionality of the Bill, the not again be presented for assent. President shall not assent to the Bill (6) If the President refuses until the Constitutional Court has or fails to assent to a Bill, within the determined the matter. periods prescribed in clauses (1) and (8) If the Constitutional (4), without further action being taken Court determines that a bill is in accordance with those clauses, the constitutional, the President shall Bill shall be taken to have been assent to the bill within seven days of the decision of the Court.
353 assented to upon the expiration of those periods. (7) Subject to Article 174, where thirty or more members of the National Assembly or any person, with leave of the Constitutional Court, challenges a Bill on a question of the constitutionality of the Bill, the President shall not assent to the Bill until the Constitutional Court has determined the matter.
Article 174: Challenge of Bill and reference to Challenge of Bill and reference to The Conference adopted Article Challenge of Bill Constitutional Court Constitutional Court 174 with an amendment and and reference to 174. (1) Thirty or more 160. (1) Thirty or more renumbered it Article 160. Constitutional members of the National Assembly or members of the National Assembly Court any person, with leave of the or any person, with leave of the The Conference decided that Constitutional Court, may challenge a Constitutional Court, may challenge challenging the Bill in the Bill for its constitutionality within a Bill for its constitutionality within Constitutional Court did not three days after the final reading of three days after the final reading of amount to judicial involvement the Bill in the Assembly. the Bill in the Assembly. in the legislative process. (2) Where the (2) Where the Constitutional Court considers that a Constitutional Court considers that challenge of a Bill under this Article is a challenge of a Bill under this frivolous or vexatious, the Court shall Article is frivolous or vexatious, the not decide further on the question as Court shall not decide further on the to whether the Bill would be or is question as to whether the Bill inconsistent with this Constitution would be or is inconsistent with this
354 and shall dismiss the action. Constitution and shall dismiss the action.
(3) Where the Constitutional Court determines that (3) Where the Constitutional Under clause (3) the Conference any provision of a Bill would be or is Court determines that any provision provided for the Constitutional inconsistent with any provision of this of a Bill would be or is inconsistent Court to actually declare a Constitution the Court shall so inform with any provision of this provision unconstitutional. the Speaker and the President. Constitution the Court shall declare (4) Nothing in clauses (1), the provision unconstitutional and (2) and (3) shall apply to a Money bill inform the Speaker and the or a Bill containing only proposals for President. amending this Constitution or the Constitution of Zambia Act. (4) Nothing in clauses (1), (5) The Standing Orders of (2) and (3) shall apply to a Money the National Assembly shall provide bill or a Bill containing only for the procedure to be followed by proposals for amending this members who intend to challenge a Constitution or the Constitution of Bill. Zambia Act. (5) The Standing Orders of the National Assembly shall provide for the procedure to be followed by members who intend to challenge a Bill. Article 175: Coming into force of laws Coming into force of laws The Conference adopted the Coming into 175. A Bill passed by the National 161 A Bill passed by the National Article without amendments
355 force of laws Assembly and assented to by the Assembly and assented to by the and renumbered it Article 161 President – President - (a) shall be published (a) shall be in the Gazette published in the within seven days Gazette within of the assent; and seven days of (b) shall come into the assent; and force on the (b) shall come into fourteenth day force on the after its fourteenth day publication in the after its Gazette unless the publication in Act otherwise the Gazette provides. unless the Act otherwise provides.
Article 176: Acts of Parliament and enactment Acts of Parliament and enactment The Conference adopted Article Acts of Parliament clause clause 176 without amendments and and enactment 176. All laws enacted by Parliament 162 All laws enacted by renumbered it Article 162. clause shall be styled “Acts” and the words Parliament shall be styled "Acts" and of enactment shall be “Enacted by the the words of enactment shall be Parliament of Zambia.” "Enacted by the Parliament of Zambia." Article 177 -Right Right to petition and make Right to petition and make The Conference adopted Article to petition and comments comments 177 with amendments and make comments 177. (1) Every person has a right 163. (1) Every citizen of Zambia renumbered it Article 163. to petition Parliament to enact, amend has a right to petition Parliament to
356 or repeal any legislation. enact, amend or repeal any The Conference replaced words legislation. “every person” with the words (2) Every citizen may “every citizen” to reserve the make any comment on the right to petition to citizens. deliberations, statements and (2) Every citizen may make any decisions of the National comment on the deliberations, Assembly. statements and decisions of the National Assembly.
Article 178: Quorum Quorum The Conference adopted Article Quorum 178. The quorum for a meeting of the 164. The quorum for a meeting of 178 without amendments and National Assembly shall be one-third the National Assembly shall be one- renumbered it Article 164. of all the members of the Assembly. third of all the members of the Assembly. Article 179: Voting in National Assembly Voting in National Assembly The Conference adopted Article Voting in 179. (1) Except as otherwise provided 165. (1) Except as otherwise 179 with amendments and National in this Constitution, any question provided in this Constitution, any renumbered it Article 165. Assembly proposed for decision in the National question proposed for decision in Under Clause (2) the Conference Assembly shall be determined by a the National Assembly shall be decided that the Speaker be majority of the members present and determined by a majority of the allowed a casting vote in the case voting. members present and voting. of a tie on a question proposed (2) Except as provided (2) Except as provided for decision in the National under Article 125 (5), on a question under Article 111 (5), on a question Assembly. proposed for decision in the National proposed for decision in the Assembly – National Assembly the Speaker (a) the Speaker shall shall have no vote in the first have no vote; and instance, but in the case of a tie, the Speaker shall have the casting vote.
357 (b) in the case of a
tie the question
shall be lost. Article 180: Procedure and committees of Procedure and committees of The Conference adopted Article Procedure and National Assembly National Assembly 180 with amendments and committees of renumbered it Article 166. National Assembly 180. (1) The National Assembly 166. (1) The National may – Assembly may - The Conference deleted clauses (a) regulate its own (a) regulate its own (2) and (3) which were matters of procedure and shall procedure and shall detailed procedure unsuitable for make Standing Orders make Standing Orders a Constitution. The Conference for the orderly conduct for the orderly conduct then provided for the enactment of its proceedings; and of its proceedings; and of subsidiary legislation to (b) establish standing (b) establish standing provide for the functioning of committees and any committees and any standing committees. other committee in the other committee in the manner and for the manner and for the general or special general or special purposes that it purposes that it considers necessary and considers necessary shall regulate the and shall regulate the procedure of any procedure of any committee established committee established under this Article. under this Article. (2) The standing (2) The proceedings of the committees of the National Assembly National Assembly shall not be
358 shall be established at the first sitting invalid because of - of the National Assembly after a (a) a vacancy in its general election and after the election membership; or of the Speaker and the Deputy Speakers. (b) the presence or (3) In electing members of a participation of committee the National Assembly any person not shall ensure that there is equitable entitled to be representation of the political parties present at, or to or groups that are represented in the participate in, National Assembly as well as of the the proceedings members not belonging to any of the National political party or group. Assembly. (4) The proceedings of the (3) Parliament shall enact National Assembly shall not be legislation providing for the invalid because of – functions of a standing committee. (a) a vacancy in its membership; or (b) the presence or participation of any person not entitled to be present at, or to participate in, the proceedings of the National Assembly. (5) Parliament shall enact legislation providing for the functions of a standing committee which shall
359 include the following: (a) investigate or inquire into the administration of Government ministries and departments; (b) examine and make recommendations on Bills that are referred to the committee; (c) initiate any Bill within its area of competence; (d) assess and evaluate estimates of revenue and expenditure, including the management of revenue and expenditure, by the Government and other bodies who directly or
360 indirectly receive services or resources from the Government; (e) carry out research and studies in its area of competence; and
report to the National
Assembly on its
functions and
activities.
Article 181: Power to call evidence Power to call evidence The Conference adopted Article Power to call 181. (1) In the performance of its 167. In the performance of its 181 of the provisions of the evidence functions – functions, the National Assembly Mung‟omba Draft Constitution (a) the National Assembly or any of its committees may call with amendments and or any of its committees any Minister, any person holding a renumbered it as Article 167. The may call any Minister, public office or any private amendments were as follows: any person holding a individual to submit memoranda or (a) approved clause (1) (a), and public office or any appear before it to give evidence. deleted clauses (1) (b) and private individual to (1) (c) because they were submit memoranda or catered for by the appear before it to give National Assembly,
361 evidence; Powers and Privileges (b) a committee of the Act; and National Assembly may co-opt any member of (b) deleted clauses (2) and (3) the National Assembly because they were or engage qualified procedural matters more persons to assist it in the suitable for subordinate performance of its legislation. functions; and (c) the National Assembly or any of its committees has the powers of – (i) enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise; (ii) compelling the production of documents; and (iii) issuing a commission or request to examine witnesses abroad.
362 (2) A person summoned to attend to give evidence or produce a document before the National Assembly or any of its committees is entitled, in respect of that evidence or the production of the document, to the same privileges and protections as those that a person would be entitled to before a court. (3) An answer by any person to a question put by the National Assembly or any of its committees is not admissible in evidence against that person in any civil or criminal proceedings in any court, except for perjury under criminal law.
Article 182: Public access and participation Public access and participation The Conference adopted Article Public access and 182. (1) The National Assembly 168. (1) The National 182 without amendments and participation shall – Assembly shall - renumbered as Article 168. (a) facilitate public (a) facilitate public involvement in the involvement in the The Conference acknowledged legislative process; and legislative process; the importance of public process (b) conduct its business in and to Parliament. an open manner and (b) conduct its business hold its sittings and in an open manner The Conference accepted the those of its committees and hold its sittings vesting of power in the Speaker
363 in public. and those of its to determine the exceptional (2) The National Assembly committees in circumstances when the public or any of its committees shall not public. or/and media can be excluded exclude the public or any public or (2) The National from attending the proceedings private media from any of its sittings Assembly or any of its committees of Parliament or its Committees. unless, in exceptional circumstances, shall not exclude the public or any the Speaker determines that there are public or private media from any of justifiable reasons for doing so. its sittings unless, in exceptional circumstances, the Speaker determines that there are justifiable reasons for doing so. Article 183: Powers, privileges and immunities Power, privileges and immunities The Conference adopted Article Powers, 183. (1) There shall be freedom 183 without amendment and privileges and of speech and debate in the National 169. (1) There shall be freedom renumbered it as Article 169. immunities Assembly and that freedom shall not of speech and debate in the National be impeached or questioned in any Assembly and that freedom shall not The Conference concurred with court or tribunal. be impeached or questioned in any the provisions, guaranteeing and (2) The National Assembly court or tribunal. protecting freedom of speech in shall, for the purpose of the orderly (2) The National the National Assembly. and effective discharge of the business Assembly shall, for the purpose of of the National Assembly, have the the orderly and effective discharge powers, privileges and immunities of the business of the National specified by an Act of Parliament. Assembly, have the powers, privileges and immunities specified by an Act of Parliament. Article 184: Sittings of National Assembly Sittings of National Assembly The Conference Sittings of 184. (1) After members of the 170. (1) After members of the adopted Article 184 in the National National Assembly are elected in a National Assembly are elected in a Mung‟omba Draft Constitution
364 Assembly general election the Speaker shall, by general election, the President shall, with amendments and notice in the Gazette, appoint a date, by notice in the Gazette, appoint a renumbered it Article 170. not more than thirty days after the date, not more than thirty days after The amendment in clause (3) general election, for the first sitting of the general election, for the first was meant to prevent the the Assembly. sitting of the Assembly. President or Speaker from (2) There shall be a session (2) There shall be a session refusing to summon the National of Parliament at least once every year of Parliament at least once every Assembly for prolonged periods. so that a period of twelve months year so that a period of twelve shall not intervene between the last months shall not intervene between sitting of the National Assembly in the last sitting of the National one session and the commencement of Assembly in one session and the the next session. commencement of the next session. (3) The sittings of the (3) There shall be at least National Assembly in any session of three sittings of the National Parliament after the commencement Assembly in any session of of that session shall be held at such Parliament after the commencement times and on such days as the Speaker of that session which shall be held at shall appoint. such times and on such days as the (4) The President may in Speaker shall appoint. writing request the Speaker to (4) The President may in summon a special meeting of the writing request the Speaker to National Assembly to consider summon a special meeting of the extraordinary or urgent business and National Assembly to consider when so requested the Speaker shall extraordinary or urgent business summon the National Assembly and when so requested the Speaker within fourteen days. shall summon the National (5) Notwithstanding this Assembly within fourteen days. Article, two–thirds of the members of (5) Notwithstanding this
365 the National Assembly may request a Article, two-thirds of all the meeting and on receipt of that request members of the National Assembly the Speaker shall summon the may request a meeting and on National Assembly within seven days. receipt of that request the Speaker (6) Where the Speaker fails shall summon the National to summon the National Assembly Assembly within seven days. when requested to do so under this Article, two-thirds of the members of the Assembly may sit to consider the motion to summon the National Assembly and shall for that purpose elect one member from amongst their number to preside over the proceedings and that member shall have all the powers of the Speaker for purposes of that motion. (7) A motion to summon the National Assembly, under clause (6), shall be passed by a vote supported by two-thirds of the members present and voting. Article 185: Life and prorogation of Parliament Life and prorogation of Parliament The Conference adopted Article Life and 185. (1) The life of Parliament 185 in the Mung‟omba Draft prorogation of shall be five years from the date of the 171. (1) The life of Parliament Constitution with amendments Parliament declaration of the results of a general shall be five years from the date of and renumbered as Article 171. election and Parliament shall stand the declaration of the results of a The amendments were as prorogued ninety days before the general election and Parliament follows: holding of the next general election. shall stand dissolved.
366 (2) At any time when the (2) The President may, in (a) that in a war situation, Republic is at war the National consultation with the Speaker, Parliament could extend Assembly may, by resolution prorogue Parliament by its sittings by 12 months supported by a simple majority vote proclamation. by simple majority instead of the members of the Assembly, (3) Parliament shall stand of ⅔; and extend the term of Parliament for not dissolved ninety days before the (b) the Conference introduced more than twelve months at a time. holding of the next general new clauses to provide for (3) The President shall election. the circumstances and dissolve Parliament – (4) At any time when the procedure to be followed (a) if the situation is such Republic is at war the National if the President wishes to that the Executive Assembly may, by resolution dissolve Parliament cannot effectively supported by a simple majority vote because the Executive can govern the Republic of the members present and voting not govern effectively with the current extend the term of Parliament for with the current National National Assembly; and not more than twelve months at a Assembly. (b) the Constitutional time. Court determines that (5) Subject to clauses (6) the situation specified and (7), the President may dissolve under paragraph (a) Parliament where the President has exists. reasonable grounds to believe that (4) If Parliament is the Executive cannot effectively govern the Republic with the dissolved by virtue of clause (3), current National Assembly. presidential and National Assembly (6) Where the elections shall be held within ninety President intends to dissolve days of the dissolution. Parliament pursuant to clause (5), (5) After a dissolution of the President shall so inform the Parliament and before the holding of public and shall refer the matter to general elections the President may, the Constitutional Court for
367 due to a state of war or state of public determination that the situation emergency or threatened state of exists. public emergency, recall the National (7) The Constitutional Assembly that was dissolved to meet. Court shall determine a matter (6) The Speaker may, in referred to it under clause (6) consultation with the President, within seven days of the receipt of prorogue Parliament by proclamation. the matter. (8) The Constitutional Court shall, where it determines that the situation in clause (6) exists, so inform the President and the President shall dissolve Parliament. (9) If Parliament is dissolved by virtue of clause (8), Presidential and Parliamentary elections shall be held within ninety days of the dissolution. (10) Notwithstanding a dissolution of Parliament, the President, may, due to a state of war or state of public emergency or threatened state of public emergency, recall the Parliament that has been dissolved to meet and that Parliament shall be deemed to be the Parliament for the time being.
368 Article 186: President may address National President may address National The Conference adopted Article President may Assembly Assembly 186 without amendment and address National 186. (1) The President may at 172. (1) The President may at renumbered it Article 172. Assembly any time attend and address the any time attend and address the National Assembly. National Assembly. The Article was considered to be (2) The President may send (2) The President may non-controversial. messages to the National Assembly send messages to the National and the message shall be read at the Assembly and the message shall be first convenient sitting of the National read at the first convenient sitting of Assembly, after it is received, by the the National Assembly, after it is Vice-President or by a Minister received, by the Vice-President or by designated by the President. a Minister designated by the President. Article 187: Statutory instruments Statutory instruments The Conference adopted Article Statutory 187. (1) Nothing in Article 158 or 173. (1) Nothing in Article 143 187 in the Mung‟omba Draft instruments 170 shall prevent Parliament from or 157 shall prevent Parliament from Constitution without conferring on any person or authority conferring on any person or amendments and renumbered it power to make statutory instruments. authority power to make statutory Article 173. (2) Every statutory instruments. instrument shall be published in the (2) Every statutory Gazette not later than twenty-eight instrument shall be published in the days after it is made or, in the case of Gazette not later than twenty-eight a statutory instrument which will not days after it is made or, in the case have the force of law unless it is of a statutory instrument which will approved by some person or authority not have the force of law unless it is other than the person or authority by approved by some person or which it was made, not later than authority other than the person or twenty-eight days after it is so authority by which it was made, not
369 approved and if it is not so published later than twenty-eight days after it it is void from the date on which it is so approved and if it is not so was made. published it is void from the date on (3) Thirty or more members which it was made. of the National Assembly or any (3) Thirty or more person, with the leave of the members of the National Assembly Constitutional Court, may challenge a or any person, with the leave of the statutory instrument for its Constitutional Court, may challenge constitutionality within fourteen days a statutory instrument for its of the publication of the instrument in constitutionality within fourteen the Gazette. days of the publication of the (4) Where the instrument in the Gazette. Constitutional Court considers that a (4) Where the challenge of a statutory instrument Constitutional Court considers that under this Article is frivolous or a challenge of a statutory instrument vexatious, the Court shall not decide under this Article is frivolous or further on the question as to whether vexatious, the Court shall not decide the statutory instrument would be or further on the question as to is inconsistent with this Constitution whether the statutory instrument and shall dismiss the action. would be or is inconsistent with this (5) Where the Constitution and shall dismiss the Constitutional Court determines that action. any provision of a statutory (5) Where the instrument would be or is inconsistent Constitutional Court determines with any provision of this that any provision of a statutory Constitution that statutory instrument instrument would be or is shall be void from the date on which it inconsistent with any provision of was made. this Constitution that provision shall
370 (6) The Standing Orders of be void to the extent of the the National Assembly shall provide inconsistency, from the date on for the procedure to be followed by which it was made. members who intend to challenge a (6) The Standing Orders statutory instrument. of the National Assembly shall provide for the procedure to be followed by members who intend to challenge a statutory instrument.
Article 188: Censure of Minister Censure of Minister The Conference deleted Article Censure of 188. (1) The National Assembly 188, considering censure to mean Minister may censure a Minister by resolution Article 188 on Censure of Minister to reprimand or to rebuke. The supported by two-thirds of the votes was deleted. Conference observed that of all the members of the National Cabinet worked by collective Assembly in accordance with this responsibility and as such an act Article. done by a Minister was on behalf (2) Any proceedings for the of the government. The censure of a Minister shall be by a Conference decided that the petition to the President, through the Article was dangerous and Speaker, which has been signed by would be prone to abuse by not less than one-third of all the opponents, who might use the members of the National Assembly provision as a tool to isolate giving notice that the members are individual Ministers. dissatisfied with the conduct or performance of the Minister and The Conference was of the intend to move a motion for a opinion that a provision to resolution to censure the Minister and censure a Minister would not be setting out the particulars of the suitable for the Zambian
371 grounds in support of the motion. environment and decided to (3) The President shall, on delete the Article from the receipt of the petition under clause (2), Constitution. cause a copy of the petition to be given to the Minister in question. (4) The motion for the resolution to censure a Minister shall not be debated until after the expiry of thirty days from the date the petition was sent to the President. (5) A Minister who is the subject of a petition shall be entitled to be heard in the Ministers‟ defence during the debate of a motion under this Article. (6) If a vote of censure is passed, in accordance with clause (1), against a Minister, the President shall, unless the Minister resigns, take appropriate action in the matter.
Article 189: Recall of member of National Recall of member of National The Conference deleted the Recall of member Assembly Assembly Article because the Conference of National 189. (1) A member of the rejected the principle of recalling Assembly National Assembly who holds a Article 189 on Recall of member of a Member of Parliament. constituency-based seat may be National Assembly was deleted. recalled by the electorate in that The Conference observed that
372 constituency as follows: Article 189 was a recipe for chaos (a) a recall shall only be and confusion especially in initiated where the Zambia where the expectations member of the National of the people go beyond the job Assembly has description of a Member of persistently neglected to Parliament. perform the member‟s responsibilities in the The Conference was of the view constituency as required that Article 189 would make it of the member by law; difficult for Members of (b) a recall shall be initiated Parliament to operate effectively by petition signed by at as many would be fighting least fifty per cent of the against recall petitions. registered voters in the constituency; and (c) the petition shall be presented to the Chairperson of the Electoral Commission who shall constitute a tribunal to inquire into the matter and report back within thirty days with its recommendation. (2) A member of the National Assembly who is the subject of an inquiry under clause (1), shall
373 have the right to be heard, be present and have representation before the tribunal constituted under clause (1). (3) The Chairperson of the Electoral Commission shall, within fourteen days of the receipt of the recommendation, submitted under clause (1), act in accordance with the recommendations of the tribunal. (4) An Act of Parliament shall provide for - (a) the functions and duties of a member of the National Assembly in relation to the constituency the member represents; (b) grounds on which a member of the National Assembly may be recalled; and (c ) the composition, powers, sittings and procedures of a tribunal constituted under this Article. Article 190: Oaths to be taken by Speaker, Oaths to be taken by Speaker, The Conference adopted Article Oaths to be taken Deputy Speakers Deputy Speakers and members 190 with minor amendments and by Speaker, 190. (1) The Speaker and the 174. (1) The Speaker and the renumbered it Article 174. The
374 Deputy Speakers Deputy Speakers, before carrying out Deputy Speakers, before carrying Conference approved the oaths and members the duties of office, shall take the Oath out the duties of office, shall take the to be taken by the Speaker and of Speaker or Deputy Speaker, as set Oath of Speaker or Deputy Speaker, Deputy Speakers but decided out in the Third Schedule. as prescribed by or under an Act of that the oaths be taken before the (2) A member of the Parliament. President and not the Chief National Assembly, before taking the (2) A member of the Justice. The Conference also member‟s seat in the Assembly, shall National Assembly, before taking approved the oath to be taken by take the Oath of a member of the the member's seat in the Assembly, a Member of the National National Assembly, as set out in the shall take the Oath of a member of Assembly. Third Schedule. the National Assembly, as prescribed by or under an Act of The Conference however, Parliament. decided that the Oaths be provided for in an Act of Parliament and not in a schedule to the Constitution. Article 191: Officers of National Assembly Officers of National Assembly The Conference adopted Article Officers of 191. (1) There shall be appointed 175. (1) There shall be 191 in the Mung‟omba Draft National officers in the department of the Clerk appointed officers in the department Constitution without Assembly of the National Assembly, as may be of the Clerk of the National amendments and renumbered it provided by an Act of Parliament. Assembly, as may be provided by an Article 175. (2) The office of Clerk and offices Act of Parliament. of members of staff are offices in the (2) The office of Clerk and Parliamentary Service. offices of members of staff are offices in the Parliamentary Service. Article 192: Parliamentary Service Commission Parliamentary Service Commission The Conference adopted Article Parliamentary 192. (1) There is hereby 176. (1) There is hereby 192 of the MDC with Service established a Parliamentary Service established a Parliamentary Service amendments and renumbered it Commission Commission which shall consist of the Commission which shall consist of Article 176.
375 following part-time members: the following part-time members: (a) the Speaker, as (a) the Speaker, as Chairperson; The Conference approved the Chairperson; (b) the Minister responsible for establishment of the (b) five members appointed finance; Parliamentary Service by the National (c) five members appointed by Commission and defined its Assembly from amongst the National Assembly from composition and mandate. The its members of whom – amongst its members as Conference proposed that the (i) three shall be follows: Parliament Service Commission nominated by (i) two persons of would include the minister the opposite gender responsible for finance; would political party nominated by the provide for gender balance; forming the political party or provide for two members to be Government; parties forming the appointed from outside National and Government; and Assembly; and provide for (ii) two other (ii) two persons of opposite conditions of service of the persons of gender and who Speaker, Deputy Speaker, opposite gender are not members of the members of Parliament and staff. who shall be same Political party nominated by nominated by the other political parties in the the other National Assembly political which do not form the parties in the Government; and National (iii) an independent Assembly which member of the
do not form the National Assembly Government; nominated by other and independent members; (c) two members of the and
376 opposite gender (d) two members of opposite appointed by the gender appointed by the National Assembly Speaker, subject to from among persons ratification by the National who are not members of Assembly, from among the National Assembly persons who are not but are experienced in members of the National public affairs, to serve Assembly but are for a period of five experienced in public affairs; years to serve for a (2) A member of the period of five years. Parliamentary Service Commission shall vacate office if that member is - (2) A member of the (a) a member of the Parliamentary Service Commission National Assembly- shall vacate office if that member is - (i) upon the (a) a member of the dissolution of National Parliament; or Assembly- (ii) on that person ceasing (i) upon the to be a dissolution of member of the Parliament; or Assembly; or (ii) on that person (b) a member appointed ceasing to be a member of the under clause (1) (c), on Assembly; or the revocation of that (b) a member appointed under clause (1) (c), on person‟s appointment by the revocation of that person's appointment
377 the National Assembly. by the Speaker. (3) The Parliamentary
Service Commission shall have the (3) The Parliamentary Service following functions: Commission shall have the following (a) the appointment of the Clerk of functions: the National Assembly, in (a) the appointment of the accordance with this Clerk of the National Constitution; Assembly, in accordance (b) providing necessary services and with this Constitution; facilities to ensure efficient and (b) providing necessary effective functioning of the services and facilities to National Assembly; ensure efficient and (c) constituting offices in the effective functioning of Parliamentary Service and the National Assembly; appointing office holders; (c) constituting offices in
the Parliamentary (d) undertaking, on its own or Service and appointing jointly with other relevant office holders; organisations, programmes to (d) preparing, jointly with promote the ideals of the Government, the parliamentary democracy; and annual estimates of (e) carrying out other expenditure for the functions - Parliamentary Service (i) necessary for the well- and for the National being of the Speaker, Assembly; Members of
(e) exercising budgetary Parliament, officers control over the and the staff of the Parliamentary Service National Assembly; or
378 and the National (ii) provided by or under Assembly; an Act of Parliament. (f) undertaking, on its own (4) The office of Clerk or jointly with other shall be the secretariat for the relevant organisations, Parliamentary Service Commission. programmes to promote (5) The Parliamentary the ideals of Service Commission shall, with the parliamentary prior approval of the National democracy; and Assembly, make regulations, by (g) carrying out other statutory instrument, providing for functions – the terms and conditions of service (i) necessary for of the Speaker, Deputy Speakers, the well- Members of Parliament, officers being of the and staff in the Parliamentary staff of the Service and generally for the National effective and efficient administration Assembly; or of the Parliamentary Service. (ii) provided by or under an Act of Parliament. (4) The office of Clerk shall be the secretariat for the Parliamentary Service Commission. (5) The Parliamentary Service Commission shall, with the prior approval of the National Assembly, make regulations, by
379 statutory instrument, providing for the terms and conditions of service of the officers and other employees in the Parliamentary Service and generally for the effective and efficient administration of the Parliamentary Service. (6) The Parliamentary Service Commission shall be a self- accounting institution which shall deal directly with the Ministry responsible for finance on matters relating to its finances. (7) The Parliamentary Service Commission shall be adequately funded to enable it to effectively carry out its mandate. (8) The expenses of the Parliamentary Service and the Parliamentary Service Commission shall be a charge on the Consolidated Fund. Financial independence of The Conference introduced and New Article National Assembly adopted a new Article and 177. (1) The numbered it 177 which is similar Parliamentary Service to Article 196 of the Mung‟omba Commission shall annually Draft Constitution providing for prepare and submit its budget financial independence of the estimates to the Minister
380 responsible for finance who, Judiciary. The amendment was taking into consideration meant to provide for financial equitable sharing of national autonomy of the Legislature and resources, shall determine the to ensure its independence from budget for the National the Executive. Assembly.
(2) The Parliamentary Service Commission shall be adequately funded in any financial year to enable it to effectively carry out its mandate. (3) The Parliamentary Service Commission shall exercise budgetary control over the Parliamentary Service and the National Assembly. (4) The Parliamentary Service Commission shall be a self- accounting institution and shall deal directly with the Ministry responsible for finance in matters relating to its finances. (5) The expenses of the Parliamentary Service Commission, including emoluments payable to or in respect of the Speaker, Deputy Speakers, Members of the
381 National Assembly, officers and staff of the National Assembly, shall be a charge on the National Treasury Account.
PART XI – JUDICIARY
ARTICLE NO. PROVISIONS OF THE RESOLUTIONS OF THE RATIONALE/REMARKS MUNG’OMBA DRAFT CONFERENCE CONSTITUTION
Article 193: Establishment of Courts of Judiciary Establishment of Courts of Establishment of 193. (1) There is hereby Judiciary The Conference adopted Article Courts of established - 178. (1) There is hereby 193 with amendments by Judiciary (a) the superior courts of established- establishing the Industrial the Judiciary (a) the superior courts of Relations Court as one of the comprising - the superior courts and re- (i) the Supreme and Judiciary comprising - numbered it as Article 178. Constitutional court; (i) the Supreme and (ii) the Court of Appeal Constitutional Court; The Conference: (iii) the High Court; (ii) the Court of Appeal; (a) observed that the (b) the subordinate courts; (iii) the High Court; and Constitutional Court was (c) the local courts; and (iv) the Industrial desirable, among other (d) any other court Relations Court; things, to handle election established (b) the subordinate courts; petitions expeditiously. by an Act of Parliament. (c) the local courts; and (2) The superior courts and (d) any other court (b) approved the
382 subordinate courts shall be courts of established by an Act establishment of the Court record. of Parliament. of Appeal because it (3) Except as otherwise provided (2) The superior courts and would bring finality to in this Constitution or as may be subordinate courts shall be courts of appeals by de-congesting ordered by a court, in the interest of record. the Supreme Court. public morality, public security, (3) Except as otherwise Further, the appeals public order or the protection of provided in this Constitution or as procedure provided children or other vulnerable persons, may be ordered by a court, in the checks on the Judiciary proceedings, including the delivery of interest of public morality, public thereby reducing the a decision by a court, shall be in security, public order or the opportunity of the levels public. protection of children or other of compromise. vulnerable persons, proceedings, including the delivery of a decision (c) favoured the by a court, shall be in public. establishment of Industrial Relations Court (IRC) as an independent court from the High Court because it was more accessible as it did not have rules and procedures that necessitated legal representation and that the cost of proceedings were lower. It was observed that the Court was already established in terms of infrastructure and staffing.
383
Article: 194: Vesting of judicial powers Vesting of judicial powers Vesting of judicial powers 194. (1) The judicial power of 179. (1) The judicial power of The Conference adopted Article Zambia shall vest in the courts and Zambia shall vest in the courts and 194 of Mung‟omba Draft shall be exercised by the courts in shall be exercised by the courts in Constitution with amendments accordance with this Constitution and accordance with this Constitution and re-numbered it as Article the laws. and the law. 179. (2) The Judiciary shall have (2) The Judiciary shall have jurisdiction, subject to this jurisdiction, subject to this The Conference decided to delete Constitution, in – Constitution, in – clause (3) of Article 194 of (a) civil and criminal matters; (a) civil and criminal matters; Mung‟omba Draft Constitution (b) matters relating to, and in (b) matters relating to, and in because the courts were already respect of, this respect of, this Constitution; applying the principles stated Constitution; and and therein. (c) any other matter (c) any other matter specified by specified by or under an or under an Act of Parliament. Act of Parliament. (3) A court may, in exercise of its (3) In exercising its jurisdiction judicial power, in any matter within the court shall be guided by the its jurisdiction, issue orders to following principles: ensure the enforcement of a (a) justice shall be done to all, judgement or other decision of the irrespective of social status; court. (b) justice shall not be delayed; (c) adequate and prompt
384 compensation shall be awarded to victims of wrong ; and (d) reconciliation, mediation or arbitration between parties, where appropriate, shall be promoted. (4) In exercise of the judicial power, a court may, in any matter within its jurisdiction, issue orders to ensure the enforcement of a judgement or other decision of the court.
Article 195: Independence of Judiciary Independence of Judiciary Independence of Judiciary 195. (1) The Judiciary, in exercise 180. (1) The Judiciary is The Conference adopted Article of its judicial and administrative autonomous and shall be 195 of the Mung‟omba Draft functions and management of its administered in accordance with Constitution with amendments financial affairs, shall be subject only the provisions of an Act of and re-numbered it as Article to this Constitution and the Laws Parliament. 180. and shall not be subject to the control (2) A member of the Executive, or direction of any person or Legislature, a State institution or any The Conference: authority. other person shall not interfere with (a) approved the Article and (2) A member of the Executive, the judges or judicial officers in the agreed that the Legislature, State institution or any exercise of their judicial powers. independence and autonomy other person shall not interfere with (3) A person exercising judicial of the Judiciary should be the Judges or judicial officers in the power shall not be liable for any act expressly provided for as or omission done or omitted to be
385 exercise of their judicial powers. done in the exercise of any judicial reflected in clause (1) of (3) The Executive, Legislature and power. Article 180; and all State institutions shall accord to the (4) The office of a judge of any of Judiciary the assistance required by the superior courts shall not be (b) deleted clause (3) of Article the Judiciary to protect the abolished while there is a 195 because members were independence, dignity and substantive holder of the office. of the view that a effectiveness of the Judiciary. constitutional provision (4) A person exercising judicial should provide a principle power shall not be liable for any act or and not a request for omission done or omitted to be done assistance. in the exercise of any judicial power. (5) The office of a judge of any of the superior courts shall not be abolished while there is a substantive holder of the office. New Article Code of conduct
181. The judges and judicial The Conference introduced a officers of the courts referred to in new provision from Article 91 of clause (1) of article 193 shall be the current Constitution and re- independent, impartial and subject numbered it as Article 181. only to this Constitution and the law and shall conduct themselves The Article was included because in accordance with a code of the Conference noted that the conduct promulgated by conduct of some judges and Parliament. judicial officers had attracted increasing public criticism which necessitated the need for a code
386 of conduct to regulate their behaviour.
Article 196: Financial Independence of Finances of Judiciary Financial Judiciary 182. (1) The Judiciary shall annually The Conference adopted Article Independence prepare and submit its 196 of the Mung‟omba Draft of Judiciary 196. (1) The Judiciary shall annually budget estimates to the Constitution with amendments prepare and submit its budget Minister responsible for and re-numbered it as Article estimates to the Minister responsible finance who, taking into 182. for finance who, taking into consideration the equitable consideration the equitable sharing of sharing of national resources, The Conference: national resources, shall determine the shall determine the budget (a) deleted clause (2) of Article budget for the Judiciary. for the Judiciary. 196 of the Mung‟omba (2) The Judiciary shall be Draft Constitution because adequately funded in any financial (2) The Judiciary shall be a self- the word ”adequate” was year to enable it to effectively carry accounting institution and shall deal vague as it was difficult to out its mandate. directly with the Ministry determine whether the (3) The Judiciary shall be a self- responsible for finance in matters Judiciary was adequately accounting institution and shall deal relating to its finances. funded or not; and directly with the Ministry responsible for finance in matters relating to its (3) The expenses of the Judiciary, (b) decided to substitute the finances. including emoluments payable to or marginal note “Financial (4) The expenses of the Judiciary, in respect of a judge or judicial independence of the including emoluments payable to or officer, shall be a charge on the judiciary” with “Finances of in respect of a judge or judicial officer, National Treasury Account.” Judiciary.” shall be a charge on the Consolidated Fund.
387 Article 197: Supreme and Constitutional Court Supreme and Constitutional Court Supreme and Constitutional 197. The Supreme and 183. The Supreme and The Conference adopted Article Court Constitutional court shall consist of - Constitutional court shall consist of- 197 of the Mung‟omba Draft (a) the Chief Justice; (a) the Chief Justice Constitution with amendments (b) the Deputy Chief Justice; (b) the Deputy Chief Justice; and re-numbered it as Article and and 183. (c) not more than nine Judges, (c) nine judges of the at least three of whom are Supreme and The Conference: persons with – Constitutional Court or (a) approved the provision but (i) a law degree; such greater number of decided that paragraph (c) (ii) specialist trainingor judges as shall be relating to the number of Experience in determined by or judges and qualifications constitutional and under an Act of should be relegated to an Act human rights law; Parliament”. of Parliament as those and matters were administrative; (iii) not less than ten and years experience in the field of (b) amended paragraph (c) by constitutional law. stipulating the minimum number of judges in order to eliminate chances of manipulation by the Executive.
Article 198: Composition for Sittings of Composition for Sittings of Composition for Supreme Court Supreme Court The Conference adopted Article Sittings of 198. (1) The Supreme and 184. The Supreme and 198 of the Mung‟omba Draft
388 Supreme Court Constitutional Court, when sitting as Constitutional Court, when sitting Constitution with amendments a Supreme Court and determining a as a Supreme Court and and re-numbered it as Article matter, other than an interlocutory determining a matter, other than an 184. matter, shall be duly constituted by an interlocutory matter, shall be duly uneven number of not less than three constituted by an uneven number of The Conference approved Article judges of the Supreme and not less than three judges of the 198 subject to the deletion of Constitutional Court. Supreme and Constitutional Court. clause (2) because it contradicted (2) The Supreme Court shall not the common law principle that a be bound by its previous decisions if it last court of instance should be considers it necessary in the interest of bound by its previous decisions justice and the development of the unless it had justifiable reasons law. not to do so.
Article 199 Jurisdiction of Supreme Court Jurisdiction of Supreme Court Jurisdiction of 199. (1) The Supreme Court is 185. (1) The Supreme Court is the The Conference adopted Article Supreme Court the final court of appeal of Zambia, final court of appeal of Zambia, 199 of the Mung‟omba Draft except in constitutional matters. except in constitutional matters. Constitution with amendments (2) The Supreme Court shall have - (2) The Supreme Court shall have - and re-numbered it as Article (a) appellate jurisdiction to (a) appellate jurisdiction to 185. hear and determine hear and determine appeals from - appeals from the Court of The Conference: (i) the Court of Appeal; and (a) deleted clause (2) (a) (ii) to Appeal; and (b) any other jurisdiction avoid rendering the Court of (ii) any other court or conferred on it by this Appeal irrelevant and so that tribunal, except the Constitution or any other the judicial hierarchy was Parliamentary law; adhered to; and Election Tribunal (3) Subject to Article 192 (3), an and the Local appeal shall lie to the Supreme (b) observed on clause (3) of
389 Government Court from a decision of the Court Article 199 that seeking leave Election Tribunal of Appeal with leave of the Court of to appeal was procedural whose decisions Appeal.” and necessary. are final, prescribed by an Act of Parliament; and (d) any other jurisdiction conferred on it by this Constitution or any other law. (3) Subject to Article 206 (3), an appeal shall lie to the Supreme Court from a decision of the Court of Appeal with leave of the Court of Appeal.
Article 200: Composition for Sittings of Composition for Sittings of Composition for Constitutional Court Constitutional Court Sittings of 200. (1) The Supreme and 186. (1) The Supreme and The Conference adopted Article Constitutional Constitutional Court, when sitting as Constitutional Court, when 200 of the Mung‟omba Draft Court the Constitutional Court, shall be duly sitting as the Constitution with amendments constituted by an uneven number of Constitutional Court, and and re-numbered it as Article not less than three and not more than determining a matter, 186. nine of the judges of the Supreme and other than an interlocutory Constitutional Court, which number matter, shall be duly The Conference decided that: shall include at least one Judge with constituted by an uneven specialization in constitutional and number of not less than (a) the wording in Article 198 human rights law. three judges of the stating that “an uneven Supreme and
390 (2) The Constitutional Court shall Constitutional Court. number of not less than three be constituted by the full bench when judges” be incorporated in reviewing a decision made by it. (2) The Constitutional Court shall, clause (1) of Article 200; and when determining an election petition or reviewing a decision (b) decided that clauses (1) and made by it, be constituted by the full (2) of Article 200 be bench as shall be determined by an harmonised taking into Act of Parliament.” account that clause (2) would . apply when the Constitutional Court was reviewing its own decisions and determining presidential election petitions. Article 201: Jurisdiction of Constitutional Court Jurisdiction of Constitutional Court Jurisdiction of 201. (1) Subject to clause (2), the 187. (1) The Constitutional Court The Conference adopted Article Constitutional Constitutional Court shall have shall have original and 201 of the Mung‟omba Draft Court original and final jurisdiction – final jurisdiction – Constitution with amendments (a) in all matters of (a) to determine a and re-numbered it as Article interpretation of this presidential 187. Constitution; election petition (b) to determine an election challenging the The Conference decided that: petition challenging election of the (a) the Constitutional Court the election of a President elect; should have original and President-elect; final jurisdiction in the (c) to determine whether any (b) to determine matters provided for in provision of this disputes between Article 201 (1) (b), (f), (g) and Constitution or any law State organs or (h) so that, among other
391 relating to election of a State institutions; things, constitutional matters President has been (c) to determine were expeditiously dealt complied with; whether or not a with; (d) to determine a question of matter falls within violation of any provision the jurisdiction of (b) the Constitutional Court of the Bill of Rights; the Court; and should have appellate (e) to determine whether an Act (d) in any jurisdiction in the matters of Parliament, a Bill or Constitutional provided for in Article 201 statutory instrument matter provided for (1) (a), (d) and ((e) so as to, contravenes this by this Constitution among other things, Constitution; or an Act of decongest the court; (f) to determine disputes Parliament. between State organs or (c) clause (2) be deleted; and State institutions at (2) The Constitutional Court National or Local shall have appellate (d) clauses (4) to (9) be relegated government level jurisdiction – to an Act of Parliament concerning their (a) in all matters of because those matters were constitutional status, interpretation of this procedural. powers or functions; Constitution; (g) to determine whether or (b) to determine whether an not a matter falls within Act of Parliament or the jurisdiction of the Statutory Instrument Court; and contravenes this (h) in any constitutional matter Constitution; and provided for by this (c) to determine a question Constitution or an Act of of violation of any Parliament. provision of the Bill of (2) The Constitutional Court Rights.
392 shall not have original or final (3) The Constitutional Court may jurisdiction over any matter that is review a decision made by it. within the jurisdiction of the Parliamentary Elections Tribunal and (4) Parliament shall enact the Local Government Election legislation to provide for the Tribunal, as provided by this powers, sittings and Constitution. procedures of the (3) The Constitutional Court Constitutional Court. may review a decision made by it. (4) A person or group of persons who alleges that – (a) an Act of Parliament, a Bill or any other law or anything done under the authority of any law; or (b) any act of or omission by any person or group of persons or authority; is inconsistent with or in contravention of this Constitution, may petition the Constitutional Court for a declaration to that effect and for redress. (5) Where upon the determination of a petition under clause (4), the Constitutional Court
393 considers that there is need for redress, in addition to the declaration sought, the Court may – (a) make an order for redress; or (b) refer the matter to the High Court to determine the appropriate redress. (6) Where in any proceedings in any court a question arises as to an interpretation of any provision of this Constitution the court shall refer the question to the Constitutional Court for determination. (7) Where a question is referred to the Constitutional Court under clause (6), the Court shall give its decision on the question and the court in which the question arose dispose of the case in accordance with that decision. (8) Where a petition is submitted under clause (4) or a question is referred under clause (6), the Constitutional Court shall proceed to hear and determine the petition or question as soon as possible and may, for that purpose, suspend any other matter pending before it. (9) The Constitutional Court shall
394 not order security for costs on matters relating to public interest litigation.
Article 202: Production of official documents Production of official documents Production of official 202. (1) When in proceedings in a The Conference deleted Article 202 The Conference decided to delete documents court, other than the Supreme Court, a on the production of official Article 202 of the Mung‟omba question arises as to the production documents. Draft Constitution because it of an official document and the was adequately covered in the person or authority that has custody, State Proceedings Act, the State legal or otherwise of the document, Security Act and the Rules of refuses, on request, to produce that Evidence. document on the ground - (a) that the document belongs to a class of documents which is prejudicial to the security of the State or injurious to the public interest; or (b) that the disclosure of the contents will be prejudicial to the security of the State or injurious to the public interest; the court shall stay the proceedings and refer the question to the Supreme
395 Court for determination. (2) The Supreme Court may - (a) order the person who or the authority that has custody of the document to produce it for inspection by the Supreme Court; and (e) determine whether or not the document shall be produced in the court, from which the reference was made, after hearing the parties or their legal representatives or after having given them the opportunity of being heard. (3) Where the Supreme Court considers that the document shall be produced, it shall make an order for that person or authority to produce the document or so much of the contents of it as is essential for the proceedings. (4) Where the question of the discovery of an official document arises in any proceedings in the Supreme Court, in the circumstances mentioned in clause (1), the Supreme Court shall be governed by clauses (2)
396 and (3) for the determination of the question that has arisen. Article 203: Chief Justice Chief Justice Chief Justice 203. (1) There shall be a Chief 188. (1) There shall be a Chief The Conference adopted Article Justice who shall be – Justice who shall be the 203 of the Mung‟omba Draft (a) the head of the Judiciary; head of the Judiciary; Constitution with amendments and (2) The Chief Justice may issue and re-numbered it as Article (b) the president of the orders and give directives 188. Constitutional Court. considered necessary by the (2) The Chief Justice may issue Chief Justice for the efficient The Conference supported the orders and give directives considered administration of the Judiciary. provision but decided that clause necessary by the Chief Justice for the (3) In the absence of the (1) should be amended to refer to efficient administration of the Chief Justice or in the event of a the Chief Justice as “head of the Judiciary. vacancy in the office, the Deputy Judiciary” and not “president” (3) In the absence of the Chief Chief Justice shall perform the since the Court was not a “stand- Justice or in the event of a vacancy in functions of the Chief Justice alone” court. the office, the Deputy Chief Justice until the Chief Justice resumes shall perform the functions of the office or an appointment is Chief Justice until the Chief Justice made to the office of Chief resumes office or an appointment is Justice. made to the office of Chief Justice. Article 204: Deputy Chief Justice Deputy Chief Justice Deputy Chief 204. (1) There shall be a Deputy 189. (1) There shall be a Deputy The Conference adopted Article Justice Chief Justice who shall, unless Chief Justice who shall, 204 of the Mung‟omba Draft otherwise provided in this Part - unless otherwise Constitution with amendments (a) perform the functions of provided in this Part- and re-numbered it Article 189. the Chief Justice as stated (a) perform the functions under Article 203; of the The Conference amended the
397 (b) be the president of the Chief Justice as stated provision by referring to the Court of Appeal; under Article 203; Deputy Chief Justice as “head of (c) assist the Chief Justice in the (b) be the head of the the Court of Appeal” and not performance of the Court of Appeal; “President of the Court of administrative (c) assist the Chief Justice Appeal” for the reasons given in functions of the Chief in the performance of the discussion of Article 203 of Justice; and the administrative the Mung‟omba Draft (d) perform any other function functions of the Chief Constitution above. assigned by the Chief Justice; and Justice. (d) perform any other (2) Where - function assigned by (a) the office of the the Chief Justice. Deputy Chief(2) (2) Where – Justice is vacant; (a) the office of the (b) the Deputy Chief Deputy Chief Justice is Justice is vacant; acting as Chief Justice; or (a) the Deputy Chief (c) the Deputy Chief Justice is acting as Justice is for any Chief Justice; or reason unable to (b) the Deputy Chief perform the functions Justice is for any of that office; the reason unable to President shall, in perform the consultation with the functions of that Judicial Service office; the President Commission, shall, in designate a judge of consultation with
398 the Supreme Court to the Judicial Service perform the functions Commission, of the Deputy Chief designate a judge Justice until the of the Supreme Deputy Chief Justice Court to perform resumes duty or a the functions of the substantive Deputy Chief appointment is made Justice until the to the office. Deputy Chief Justice resumes duty or a substantive appointment is made to the office.
Article 205: Court of Appeal Court of Appeal Court of Appeal 205. The Court of Appeal shall consist 190. The Court of Appeal shall The Conference adopted Article of - consist of – 205 of Mung‟omba Draft (a) the Deputy Chief Justice; and (a) the Deputy Chief Constitution with amendments (b) not more than six Judges. Justice; and and re-numbered it as Article (b) such number of judges 190. as shall be determined by an Act of The Conference decided that the Parliament. number of judges of the Court of . Appeal should be specified in an Act of Parliament to allow for ease of amendments if need arose.
399 Article 206: Jurisdiction of Court of Appeal Jurisdiction of Court of Appeal Jurisdiction of 206. (1) The Court of Appeal, as 191. (1) The Court of Appeal, The Conference adopted Article Court of Appeal appellate court, shall have as appellate court, has jurisdiction 206 of Mung‟omba Draft jurisdiction to determine, as provided to determine, as provided under Constitution with amendments under an Act of Parliament – an Act of Parliament, appeals and re-numbered it as Article (a) appeals from the High Court; from the High Court, the 191. and Industrial Relations Court and (b) appeals from other courts or tribunals. The Conference: tribunals, except the (2) Subject to Article 199 (3), an (a) approved clause (1) subject to Parliamentary Election appeal shall lie to the Supreme the deletion of reference to Tribunal and the Local Court from a decision of the Court the Parliamentary Election Government Election Tribunal of Appeal with leave of the Court Tribunal and the Local whose decisions are final. of Appeal.” Government Election (2) Subject to Article 199 (3) an Tribunal which the appeal shall lie to the Supreme Court Conference decided should from a decision of the Court of Appeal not be established; with leave of the Court of Appeal. (3) If the Court of Appeal refuses (b) approved clause (2); and to grant leave to the Supreme Court on any matter, that decision shall be (c) decided to delete clause (3) final and binding. because the right to appeal was a human and constitutional right.
Article 207: Sittings of Court of Appeal Sittings of Court of Appeal Sittings of Court 207. The Court of Appeal when 192. The Court of Appeal when The Conference adopted Article of Appeal determining an appeal, other than an determining an appeal, other than 207 of Mung‟omba Draft interlocutory appeal, shall be - an interlocutory appeal, shall be – Constitution with amendments
400 (a) constituted by an uneven (a) constituted by an uneven and re-numbered it as Article number of not less than three number of not less than 192. judges of the Court of Appeal; three judges of the Court and of Appeal; and The Conference amended (b) presided over by the paragraph (b) by substituting the (b) presided over by the Deputy Deputy Chief Justice, and words “the most senior judge of Chief Justice, and in the in the absence of the the Court as constituted shall absence of the Deputy Chief Deputy Chief Justice, the preside” with “the most senior Justice, the most senior judge of most senior judge of the judge of the Court of Appeal.” the Court as constituted Court of Appeal. shall preside.
Article 208: Sittings of Court of Appeal Sittings of Court of Appeal Sittings of Court 208. (1) The High Court shall 193. (1) The High Court shall The Conference adopted Article of Appeal consist of - consist of - 208 of the Mung‟omba Draft (a) the Chief Justice, as an ex- (a) the Chief Justice, as an ex- Constitution with amendments officio member; and officio member; and and re-numbered it as Article (b) such number of judges as (b) such number of judges as 193. shall shall be determined by be determined by an Act an Act of The Conference decided to of Parliament. substitute the word “single” with Parliament. (2) The High Court shall “one” in order to avoid (2) The High Court shall be be duly constituted by one judge of ambiguities arising out of the use duly constituted by a single judge of the Court. of the word “single” which the Court. might be construed to refer to marital status. Article 209: Jurisdiction of High Court Jurisdiction of High Court Jurisdiction of 209. The High Court have, subject to 194. (1) Subject to this The Conference adopted Article
401 High Court this Constitution - Constitution, the High Court 209 of the Mung‟omba Draft (a) unlimited and original shall have: Constitution with amendments jurisdiction in any civil or (a) unlimited and original and re-numbered it as Article criminal matter; and jurisdiction in any civil or 194. (b) appellate and review jurisdiction criminal matter: as conferred on it by or under an Provided that the High The Conference: Act of Parliament. Court shall not have (a) observed that there was need jurisdiction with respect to – to qualify jurisdiction of the (i) proceedings in which High Court as was the case the Industrial in Article 94 of the current Relations Court has Constitution where there exclusive jurisdiction was in-built qualification as provided by an Act that labour and industrial of Parliament; or relations were reserved for (ii) in any matter in which the Industrial Relations the Constitutional Court (IRC); Court has original and final jurisdiction; (b) noted that since the (b) in all matters of Constitutional Court was the interpretation of this court of first instance on Constitution; constitutional matters, the (c) to determine whether an Act of High Court should not have Parliament or Statutory unlimited original Instrument, contravenes this jurisdiction; and Constitution; and (d) to determine a question of (c) decided that Article 209 violation of any provision of the should be harmonised with Bill of Rights. Article 210, taking into
402 (2) The High Court shall have account the decision of the appellate and review jurisdiction Conference on the as conferred on it by or under an jurisdiction of the Act of Parliament. Constitutional Court, and (3) A person or group of persons Article 94 of the current who alleges that – Constitution. (a) (a) an Act of Parliament or any thing done under the authority or any law; or (b) (b) any act of or omission by any person or group of persons or authority; is inconsistent with, or in contravention of, this Constitution, may petition the High Court for a declaration to that effect and for redress. (4) Where upon the determination of the petition under clause (3), the High Court considers that there is need for redress, in addition to the declaration sought, the court may make an order for redress and determine the appropriate
403 redress. (5) Where in any proceedings in any court a question arises as to the interpretation of any provision of this Constitution, the court shall refer the question to the High Court for determination. (6) Where a question is referred to the High Court under clause (5), the court shall give its decision on the question and the court in which the question arose shall dispose of the case in accordance with that decision. (7) Where a petition is submitted under clause (3) or a question is referred under clause (5) the High Court shall proceed to hear and determine the petition and question as soon as possible and may, for that purpose, suspend any other matter pending before it. (8) The High Court shall not order security for costs on matters relating to the public interest litigation.
404
Article 210: Supervisory jurisdiction of High Supervisory jurisdiction of High Supervisory Court Court jurisdiction of The Conference adopted Article High Court 210. (1) The High Court shall 195. (1) The High Court has 210 of the Mung‟omba Draft have supervisory jurisdiction over supervisory jurisdiction over Constitution with amendments courts subordinate to the High Court courts subordinate to it and over and re-numbered it as Article and over any body or authority that any body or authority that 195. exercises a judicial or quasi - judicial exercises a judicial or quasi– power. judicial power. The Conference substituted: (2) The High Court, in the exercise (2) The High Court, in the of its supervisory powers under exercise of its supervisory power (a) the words “shall have” with clause (1), may make orders and give under clause (1), may make orders the word “has” in clause (1) directions to ensure the fair and give directions to the courts of Article 210; and administration of justice. subordinate to it to ensure the fair (b) the words “subordinate to administration of justice. the High Court” with “subordinate to it.”
Article 211: Divisions of High Court Divisions of High Court The Conference adopted Article Divisions of 211. (1) The Industrial Relations 196. Parliament may enact 211 of the Mung‟omba Draft High Court Court and Commercial Court shall be legislation to create other courts as Constitution with amendments established as divisions of the High divisions of the High Court – and re-numbered it as Article Court. (a) to sit and adjudicate in any 196. (2) The Industrial Relations part of Zambia; and Court shall have exclusive jurisdiction (b) to adjudicate over specified The Conference agreed that: in Industrial and labour relations Subject areas, within the (a) the Industrial Relations matters, as provided by an Act of jurisdiction of the High Court should be Parliament. Court, and provide for the established separately from composition, powers, sittings
405 (3) Parliament may enact and procedures of the High Court; and legislation to provide for the those courts. (b) the Industrial Relations composition, powers, sittings and Court should retain its procedures of the Industrial Relations rules and procedures Court and Commercial Court. which were flexible; (4) Parliament may enact legislation to create other courts as (c) the Chairperson and Vice- divisions of the High Court – Chairperson of IRC (a) to sit and adjudicate in any should be at the same part of the country; and level as High Court (b) to adjudicate over specified Judges; subject areas, within the jurisdiction of the High (d) members of the IRC be court, and provide for the appointed by the Judicial composition powers, sittings Service Commission; and and procedures of those (e) the establishment of the courts. Commercial Court should be relegated to an Act of Parliament.
Article 197: Article 197: Industrial Relations (New Article) Court The Conference decided to 197. (1) The Industrial introduce a new Article 197 as a Relations Court has exclusive consequence of having jurisdiction in industrial and established the IRC as a “stand- labour relations matters as alone” court in Article 178. provided by an Act of Parliament. (2) The members of the Industrial Relations Court shall be
406 appointed by the Judicial Service Commission. (3) Parliament may enact legislation to provide for the composition, powers, sittings and procedures of the Industrial Relations Court. Article 212: Accessibility to courts Accessibility to courts Accessibility to 212. Parliament shall enact legislation The Conference decided to delete The Conference deleted Article courts to provide for accessibility to the Article 212 of the Mung‟omba Draft 212 of the Mung‟omba Draft courts, including the lowest levels of Constitution on accessibility to Constitution because it was not administration as far as is necessary courts. clear whether accessibility to the and practicable. courts meant access to justice, having courts all over the country or it referred to the physical entry into courts for persons with disabilities.
Article 213: Appointment of Judges of Superior Appointment of Judges of Superior Appointment of Courts Courts Judges of Superior The Conference adopted Article Courts 213. (1)The President, after 213 of the Mung‟omba Draft 198. (1) The President shall, on consultation with the Judicial Service the recommendation of the Constitution with amendments Commission and subject to ratification Judicial Service Commission, and and re-numbered it as Article by the National Assembly, shall subject to ratification by the 198. appoint the - National Assembly, appoint – (a) Chief Justice; (a) the Chief Justice; The Conference: (b) Deputy Chief Justice; (b)the Deputy Chief (a) decided that the President (c) other judges of the should make the
407 Supreme and Justice; appointments of judges “on Constitutional Court; (c) the judges of the the recommendation of the (d) the judges of the Court of Supreme and “Judicial Service Appeal; and Constitutional Court; Commission (JSC)” instead (e) the judges of the High (d) the judges of the of in consultation with the Court. Court of Appeal; Judicial Service Commission, (e) the judges of the High to avoid the observed public Court; perception that judges, in and discharging their work, were (f) the Chairperson and inclined to favour the Deputy Chairperson of appointing authority; and the Industrial Relations Court. (b) included paragraph (f) in clause (1) as a consequence (2) Article 214 to 220 of an earlier decision by the apply to the Chairperson and the Conference that the Deputy Chairpersons of the Chairperson and Deputy Industrial Relations Court. Chairpersons of the IRC should be at par with judges of the High Court. Article 214: Acting Appointments Acting Appointments Acting 214. Except with respect to the Chief 199. Except with respect to the The Conference adopted Article Appointments Justice and the Deputy Chief Justice, Chief Justice and the Deputy 214 of the Mung‟omba Draft where - Chief Justice, where – Constitution with amendments (a) the office of a judge of a (a) the office of a judge of and re-numbered it as Article superior court becomes a superior court 199. vacant; or becomes vacant; or (b) the Chief Justice informs (b) the Chief Justice The Conference decided to recast
408 the informs the President the last paragraph of Article 214 President that there is a that there is a need to to empower the President to need to make an acting make an acting make acting appointments of appointment; appointment; serving judges to higher offices the President shall, in consultation on the recommendation of the with the Judicial Service Commission, the President shall, on the JSC. shall appoint a person qualified to act recommendation of the Judicial in the respective court until the Service Commission, appoint a appointment is revoked by the person qualified to act in the President acting in accordance with respective court until the the advice of the Judicial Service appointment is revoked by the Commission. President acting in accordance with the advice of the Judicial Service Commission.”
Article 215: Qualification for Appointment of Qualification for Appointment of Qualification for Judges of Superior Courts Judges of Superior Courts Appointment of 215. (1) A person shall not 200. (1) Subject to clause (2), a The Conference adopted Article Judges of Superior qualify for appointment as a judge of person shall not qualify for 215 of the Mung‟omba Draft Courts a superior court unless that person appointment as a judge of a Constitution with amendments has attained the age of forty-five superior court unless that person is and re-numbered it as Article years, is of proven integrity and - of proven integrity and - 200. (a) holds or has held high judicial (a) holds or has held high office; or judicial office; or The Conference: (b) has been an advocate, in the case (b) has been an advocate, in the (a) deleted the minimum of - case of – age requirement for (i) the Supreme and (i) the Supreme and Constitutional appointment as Judge Constitutional Court, Court, for not less than fifteen of Superior Courts as it
409 for not less than years; would disadvantage fifteen years; (ii) the Court of Appeal, for not newly qualified career (ii) the Court of less than twelve years; or adjudicators; and Appeal, for (iii) the High Court, for not less not less than than ten years. (b) deleted paragraph (c) twelve of clause (1) of Article years; or (2) A person appointed as Judge 215 as a consequence (iii) the High Court, to a specialised court shall have of having relegated the for not less than the relevant expertise in the area of qualifications of judges ten years. jurisdiction of that court, as of the Constitutional provided by an Act of Parliament. Court as outlined in (c) in the case of a Judge of the Article 197 ( c) to an Constitutional Court, has the Act of Parliament. qualifications specified by Article 197 ( c). (2) A person appointed as Judge to a specialised court shall have the relevant expertise in the area of jurisdiction of that court, as provided by an Act.
Article 216: Tenure of office of judge of superior Tenure of office of judge of Tenure of office court superior court of judge of 216. (1) Subject to clause (3), the 201. (1) Subject to clause (3), The Conference adopted Article superior court Chief Justice and the Deputy Chief the Chief Justice and the Deputy 216 of the Mung‟omba Draft Justice shall hold office until they Chief Justice shall hold office until Constitution with amendments attain the age of seventy-five years they attain the age of seventy and re-numbered it as Article and shall then retire. years and shall then retire. 201.
410 (2) Any other judge of a superior (2) A judge of a superior court shall retire from office on court shall retire from office on The Conference: attaining the age of seventy- five attaining the age of seventy years. (a) decided that the retirement years. (3) A judge of a superior age for judges be reduced (3) A judge of a superior court court may retire upon attaining to seventy (70) years from may retire at any time after attaining the age of sixty-five years. the recommended age of the age of sixty-five years. (4) A person who retires seventy-five (75) years. (4) A person who has retired as a as Judge shall not be eligible for That was because judge shall not be eligible for appointment as a judge. members were of the appointment as a judge. (5) Where a judge of a view that judges would (5) Where a judge of a superior superior court has attained the not be able to conduct court has attained the prescribed prescribed retirement age their work effectively retirement age specified under this specified under this Article and after the age of seventy Article and there are proceedings that there are proceedings that were (70) years; and were commenced before the judge commenced before the judge attained the age of retirement, the attained the age of retirement, the (b) supported the judge may continue in office, for a judge may continue in office for a recommendation of period not exceeding six months, to period not exceeding six months, giving judges the option deliver judgement or to perform any to deliver judgment or to perform to retire after attaining other function in relation to those any other function in relation to the age of 65. proceedings. those proceedings.”
Article 217: Removal of Judge from Office Removal of Judge from Office The Conference adopted Article Removal of 217. A judge of a superior court 202. A judge of a superior court 217 of the Mung‟omba Draft Judge from may be removed from office only on may be removed from office only Constitution with amendments Office the following grounds: on the following grounds: and re-numbered it as Article (a) inability to perform the (a) inability to perform the 202. functions of office arising functions of office arising
411 from infirmity of body or from infirmity of body or The Conference observed that mind; mind; or the grounds for the removal of (b) breach of the code of conduct (b) breach of the code of conduct judges were clearly outlined in provided for in this Constitution provided for by an Act of the Judicial Code of Conduct. or by an Act of Parliament; Parliament.” Therefore, the Conference (c) corruption; amended Article 217 of the (d) incompetence; Mung‟omba Draft Constitution (e) bankruptcy or insolvency; to take into account the (f) stated misbehaviour or provisions of that Code. misconduct; or (g) undue or unreasonable delay in the delivery of a judgement.
Article 218: Procedure for Removal of Judge Procedure for Removal of Procedure for 218. (1) A person who has a Judge The Conference adopted Article Removal of complaint against a judge of a 203. (1) The President shall 218 of the Mung‟omba Draft Judge superior court, based on the grounds where the President has Constitution with amendments specified under Article 217, may reasonable grounds to believe and re-numbered it as Article submit a petition to the Judicial that the question of removing 203. Complaints Commission established a judge of a superior court under this Constitution. ought to be investigated, The Conference, in order to (2) The Judicial Complaints appoint a tribunal in safeguard the integrity of the Commission shall, on receipt of a accordance with this Article. Judiciary, agreed that the petition, determine whether the following should be incorporated petition is not frivolous, vexatious or (2) A person who has a in Article 218 of the Mung‟omba malicious and thereafter submit the complaint against a Judge of a Draft Constitution: petition and a report on the matter to superior court, based on the (a) some provisions in the President within twenty-one days. grounds specified under Article 98 (2), (3), (4)
412 (3) The President shall, within Article 203, may submit a and (5) of the current fourteen days of receipt of the petition petition to the Judicial Constitution and and the report submitted under clause Complaints Authority Article 218 (1) and (2) (2), refer the petition and the report to established under an Act of of the Draft the National Assembly. Parliament. Constitution; (4) On the receipt of the petition (b) a recommendation by and the report by the National (3) The Judicial the National Assembly, the Speaker shall constitute Complaints Authority shall, Assembly; a committee of the National Assembly on receipt of a petition, (c) a role for the President to examine whether - determine whether the to initiate the removal (a) the petition is not frivolous, petition is not frivolous, process; and vexatious or malicious; vexatious or malicious and (e) a role for an individual and thereafter submit the petition to initiate a complaint ( b) the grounds do or do not and a report on the matter to against a judge and relate to the physical or the President within twenty- the procedure of mental incapacity of the one days. where to direct such a judge; and submit a report complaint. to the speaker. (4) The President shall within (5) Where the report of the fourteen days of receipt of a committee, constituted under clause petition and the report (4) states that the petition is not submitted under clause (3), if frivolous, vexatious or malicious and the report states that the the grounds do not relate to the petition is not frivolous, physical or mental incapacity of a vexatious or malicious, and if judge – the President considers that (a) the Speaker shall constitute a the question of removing the tribunal, as provided under Judge under this Article ought clause (6), to investigate the to be investigated, then –
413 complaint against the judge; (a) the President shall appoint and a tribunal which shall (b) the National Assembly may consist of a Chairperson recommend to the President the and not less than two suspension of the judge from other members, who office. hold or have held high (6) A tribunal to investigate a judicial office; and complaint against a judge, as provided under (b) the tribunal shall inquire clause (5), shall be composed of - into the matter and (a) a retired judge of the report on the facts Supreme Court, or the thereof to the President Supreme and and advise the Constitutional Court President whether the who shall be the Judge ought to be Chairperson; removed from office (b) a legal practitioner who under this Article. qualifies to be appointed a judge (5) Where a tribunal of the Court of appointed under clause (4) Appeal; and advises the President that a (c) one other person with Judge of a Superior Court experience in public ought to be removed from service matters. office, the President shall (7) Where a complaint relating to remove such judge from the removal of a judge is based on the office, subject to ratification by physical or mental incapacity of the the National Assembly. Judge, the Speaker shall constitute a
414 medical board composed of not less (6) If the question of than three medical practitioners, removing a judge of superior nominated by the body responsible court from office has been for the registration of medical referred to a tribunal under practitioners, registered under the clause (4), the President may Laws, to examine the judge. suspend the judge from (8) A tribunal or medical board, performing the functions of constituted under this article, shall office, and any such conduct an investigation of the suspension may at any time be complaint or medically examine the revoked by the President and judge, as the case may be, and submit shall in any case cease to have its recommendations, in writing, to effect if the tribunal advises the National Assembly, within thirty the President that the judge days of being constituted. ought to be removed from (9) Proceedings under this Article office.” shall be held in camera and the judge being investigated or examined shall be entitled to appear and be heard and to be represented by a legal practitioner or other expert. (10) Where a tribunal or medical board, constituted under this Article, recommends to the National Assembly that the judge - (a) should be removed from office on the grounds specified in the recommendation; or
415 (b) should not be removed from office for the reasons specified in the recommendation; the National Assembly shall endorse the recommendation and the Speaker shall inform the President about the recommendation made by the tribunal or medical board. (11) Where a medical board or a tribunal constituted under this Article recommends that a judge be removed from office, the President shall remove the judge from office. Article 219: Remuneration of Judges Remuneration of Judges Remuneration of 219. (1) The Judicial Service 204 (1) The Judicial Service The Conference adopted Article Judges Commission shall review and submit Commission shall review and 219 of the Mung‟omba Draft recommendations for the emoluments submit recommendations for the Constitution with amendments and other conditions of service of emoluments and other conditions of and re-numbered it as Article judges to the Emoluments service of judges to the Minister 204. Commission. responsible for finance. (2) The Emoluments Commission (2) The Minister The Conference: shall review recommendations from responsible for finance shall (a) substituted the term the Judicial Service Commission and review recommendations from “Emoluments make appropriate recommendations the Judicial Service Commission Commission” with for the emoluments of Judges for and make appropriate “Minister responsible for ratification by the National Assembly. recommendations for the Finance” in clauses (1), (2) (3) The National Assembly shall emoluments of judges for and (3); and
416 enact legislation providing for the ratification by the National emoluments and the other terms and Assembly. (b) approved clauses (4) and conditions of service for judges, taking (3) Parliament shall enact (5) without amendments. into consideration the legislation to provide for the recommendations of the Emoluments emoluments and the other terms Commission. and conditions of service of (4) The emoluments of a judge judges, taking into consideration shall not be reduced to the the recommendations of the disadvantage of the judge during the Minister responsible for finance. judge‟s tenure of office. (4) The emoluments of a (5) A judge shall not, while the judge shall not be reduced to the judge continues in office, hold any disadvantage of the judge other office of profit or emolument. during the Judge‟s tenure of office. (5) A judge shall not, while the judge continues in office, hold any other office of profit or emoluments.”
Article 220: Oath Oath of Office of Judges Oath of Office of Judges of Office of 220. A judge shall, before assuming 205. A judge shall, before The Conference adopted Article Judges office, take the Judicial Oath set out in assuming office, take the Judicial 220 of the Mung‟omba Draft the Third Schedule. Oath as may be prescribed by or Constitution with amendments under an Act of Parliament. and re-numbered it as Article 205.
The Conference amended the Article by providing that the
417 oath of office of judges should be in an Act of Parliament to allow for ease of amendments if need arose.
Article 221: Appointment, Retirement and Appointment, Retirement and Appointment, Removal of Judicial Officers Removal of Judicial Officers Retirement and 221. (1) The Judicial Service Removal of Commission shall appoint such 206. (1) The Judicial Service The Conference adopted Article Judicial Officers number of judicial officers as the Commission shall appoint, such 221 of the Mung‟omba Draft Judicial Service Commission considers number of Judicial officers as the Constitution with amendments necessary for the proper functioning Judicial Service Commission and re-numbered it as Article of the Judiciary. considers necessary for the proper 206. (2) The Judicial Service functioning of the Judiciary. Commission shall appoint judicial The Conference amended Article officers on such terms and conditions, (2) The Judicial Service 221 as follows: including emoluments, as shall be Commission shall appoint approved by the Emoluments judicial officers on such terms (i) substituted “Emoluments Commission. and conditions including Commission” with “Minister (3) An Act of Parliament shall emoluments, as shall be responsible for finance” in provide for the qualifications for approved by the Minister clause (2); appointment to a judicial office. responsible for finance. (ii) included in clause (4) the (4) A judicial officer, except a local following words: that “and court justice, shall retire on attaining (3) An Act of Parliament shall may retire with full the age of sixty years. provide for the qualifications for benefits on the attainment of (5) A local court justice shall retire appointment to a judicial office. fifty-five years”; and at the age of seventy-five years. (4) A judicial officer, except a (iii) that in clause (5) “a local court magistrate, shall Local Court Justice”
418 retire on attaining the age of should read “Local Court sixty years and may retire with Magistrate” in line with an full benefits on the attainment amendment to the Local of fifty-five years. Courts Act.
(5) A local court magistrate shall retire at the age of seventy years.”
Article 222: Jurisdiction and Divisions of Lower Jurisdiction and Divisions of Jurisdiction and Courts Lower Courts Divisions of 222. (1) Parliament shall enact 207. (1) Parliament shall enact The Conference adopted Article Lower Courts legislation to provide for the legislation to provide for the 222 of the Mung‟omba Draft jurisdiction, powers and procedures jurisdiction, powers and Constitution with amendments of the subordinate courts, the local procedures of the subordinate and re-numbered it as Article courts and other lower courts. courts, the local courts and other 207. (2) There shall be established a lower courts. Family Court and Juvenile Court as a (2) There shall be established a The Conference decided: divisions of the subordinate courts Juvenile Court as a division of (a) to delete reference to the and local courts. the subordinate court. Family Court because (3) The composition, jurisdiction, (3) The composition, establishment of the powers, sittings and procedures of the jurisdiction, powers, sittings and Court was an Family Court and Juvenile Court as procedures of the Juvenile Court administrative matter divisions of the subordinate courts shall be provided by or under an which should be left to and local courts shall be as provided Act of Parliament.” the discretion of by or under an Act of Parliament. Parliament and the Chief Justice; and
419 (b) that the Juvenile Court should be a division of the subordinate court as opposed to local court because local court magistrates were not adequately trained to deal with matters relating to juveniles. Article 223: Judicial Service Judicial Service Judicial Service 223. The office of judge and judicial The Conference deleted Article 223 The Conference deleted Article officer are offices in the Judicial of the Mung‟omba Draft 223 of the Mung‟omba Draft Service. Constitution on the Judicial Service. Constitution because it was superfluous.
Article 224: Judicial Service Commission Judicial Service Commission Judicial Service 224. (1) There is hereby 208. (1) There is hereby The Conference adopted Article Commission established the Judicial Service established the Judicial Service 224 of the Mung‟omba Draft Commission. Commission. Constitution with amendments (2) The Judicial Service (2) The members of the Judicial and re-numbered it as Article Commission shall consist of: Service Commission shall be 208. (a) the Chief Justice who shall appointed by the President. be the (3) Parliament shall enact legislation The Conference decided that the Chairperson; to provide for the functions, powers, composition of the Judicial (b) the Attorney-General; independence, composition, tenure Service Commission should be (c) one person nominated by of office, staff, procedures, provided by or under an Act of the Civil Service operations, finances and financial Parliament which would be
420 Commission; management of the Commission. easier to amend. (d) the Permanent Secretary responsible for public service management; (e) one Judge of the Supreme and Constitutional Court nominated by the Chief Justice; (f) one Judge of the Court of Appeal nominated by the Chief Justice; (g) one member of the Law Association of Zambia, with not less that fifteen years practice as a lawyer, nominated by the Association; (h) the Dean of the Law School of any public university; (i) one member of the Human Rights Commission; (j) one representative of magistrates nominated by a body representing magistrates; and (k) the person responsible for
421 the administration of the local courts. (3) The members of the Judicial Service Commission shall be appointed by the President. (4) A person nominated under clause (2) (c) and (g), shall not qualify to be appointed a member of the Judicial Service Commission unless that person is of proven integrity. (5) A person nominated under clause (2) ( c) , (g), (i) or (j) shall hold office for a term of four years and shall be eligible for re-appointment for only one further term of four years. (6) A member referred to in clause (6) shall vacate office – (a) at the expiry of the term of office specified under that clause; or (b) if the member is elected or appointed to an office that is likely to compromise the independence of the Judicial Service Commission, as determined by the Chief
422 Justice. (7) A member who represents a body or institution shall vacate office if that body or institution nominates another person to represent it. Article 225: Functions of Judicial Service Functions of Commission The Conference deleted Article 225 The Conference deleted Article Judicial Service 225. (1) The functions of the of the Mung‟omba Draft 225 of the Mung‟omba Draft Commission Judicial Service Commission shall be - Constitution on the functions of the Constitution and decided that (a) to supervise the Judicial Service Commission. the functions of the Judicial operations of the Service Commission should be Judicial Service; relegated to an Act of Parliament (b) to advise the as envisaged in clause (3) of Government on the Article 208 for ease of administration of justice amendments if need arose. and matters that relate to the Judiciary; (c) to review and make recommendations on the emoluments and other terms and conditions of service of judges and judicial officers to the Emoluments Commission; (d) subject to this Constitution,
423 to appoint, discipline and remove judicial officers and other employees of the Judicial service; (e) to prepare and implement programmes for the continuing education and training of judges, judicial officers and other employees of the Judicial Service;
(f) to advise the Government on access to justice and legal aid; and (g) perform any function conferred on it by or under this Constitution or by or under an Act of Parliament. (2) The Judicial Service Commission shall be independent and shall not be subject to the direction or control of any person or authority in the performance of its functions under this Constitution or any other law.
424 Article 226: Chief Administrator of Judicial Chief Administrator of Judicial The Conference adopted Article Chief Service Service 226 of the Mung‟omba Draft Administrator Constitution with amendments of Judicial 226. (1) There shall be a Chief 209. (1) There shall be a Chief and re-numbered it as Article Service Administrator for the Judicial Service Administrator of the Judicial Service 209. who shall be appointed by the who shall be appointed by the President on the recommendation of President on the recommendation of The Conference decided that the Judicial Service Commission. the Judicial Service Commission. clause (2) be deleted and the (2) The Chief Administrator - (2) Parliament shall enact functions of the Chief (a) shall be responsible for the legislation to provide for the Administrator of the Judicial day-to- day administration qualifications and functions of the Service be provided for in an Act of the Chief Administrator. of Parliament which would be Judicial Service and for easier to amend if such a need the implementation of the arose. decisions of the Judicial Service Commission; (b) shall be the controlling officer for the Judicial Service; and (c) shall perform any other function as provided by or under an Act of Parliament.
Article 227: Secretary to Judicial Service Secretary to Commission Judicial Service The Conference deleted Article 227 The Conference deleted Article Commission 227. The Chief Administrator shall
425 be the Secretary to the Judicial Service of the Mung‟omba Draft 277 of the Mung‟omba Draft Commission Constitution on the Secretary to Constitution. Judicial Service Commission. The Conference decided that the Registrar of the High Court, who was a lawyer, should be the Secretary of the Judicial Service. Article 228: Judicial Oath Judicial Oath Judicial Oath 228. A judicial officer shall, before 210. A judicial officer shall, before The Conference adopted Article assuming office, take the Judicial Oath assuming office, take the Judicial 228 of the Mung‟omba Draft set out in the Third Schedule. Oath as may be prescribed by or Constitution with amendments under an Act of Parliament. and re-numbered it Article 210.
The Conference amended the Article by substituting the term “Third Schedule” with ”as may be prescribed by or under an Act of Parliament” for ease of amendment if need arose.
Article 229: Rules of court Rules of court Rules of court 229. (1) Parliament shall enact 211. The Chief Justice may prescribe The Conference adopted Article legislation to empower the Chief rules of practice and procedure for 229 of the Mung‟omba Draft Justice to prescribe rules and the courts and tribunals established Constitution with amendments procedures for the courts and under this Constitution or any other and re-numbered it as Article tribunals established under this law. 211. Constitution or any other law. (2) Rules made under clause (1) The Conference decided that
426 shall provide for expeditious Article 229 be substituted with determination of cases before the Article 94 (8) of the current courts and tribunals. Constitution with appropriate modifications.
PART XII LOCAL GOVERNMENT ARTICLE PROVISIONS OF MUNG’OMBA RESOLUTIONS OF THE RATIONALE/REMARKS NO. DRAFT CONSTITUTION CONFERENCE Article 230: System of Local Government System of Local Government Establishment and objectives of Establishment and objectives of local Establishment and objectives of local government government local government
230. There is hereby established a local 212. (1) There is hereby The Conference adopted Article government system the objectives of established a system of local 230 of the Mung‟omba Draft which are to – government that shall be based on Constitution with amendments (a) ensure that powers, functions, decentralisation. and re-numbered it as Article responsibilities and resources from (2) The objectives of local 212. the National Government are government are to – transferred to the district council and (a) promote the people's The Conference: sub-district authorities in a participation in democratic coordinated manner; governance at the local level; (a) observed that petitioners to (b) promote the people‟s participation (b) enhance the capacity of district the Mung'omba Constitution in democratic governance at the local councils to plan, control, co-operate, Review Commission level; manage and execute policies in overwhelmingly demanded for decentralisation as the
427 (c) promote cooperative governance respect of matters that affect the desired system of Local with the national government in order people within their respective Government. Consequently, to support and enhance the localities; the Conference decided that developmental role of local (c) promote social and economic the opening paragraph to government; development at the district level; Article 230 be revised into (d) enhance the capacity of district (d) promote a safe and healthy two sections in order to councils to plan, control, co-operate, environment; provide for the desires of the manage and execute policies in (e) establish for each district people and the respect of matters that affect the council a sound financial base with Decentralisation Policy people within their respective reliable and predictable sources of embarked upon by localities; revenue; and Government; (e) promote social and economic (f) ensure accountability of district (b) deleted paragraph (a) development at the district level; Councils. because it could be
(f) establish for each district council a interpreted to mean that the sound financial base with reliable and central government would predictable sources of revenue; surrender all its powers,
(g) oversee the performance of functions and persons employed by the National responsibilities to the local
Government to provide services in the authorities; districts and to monitor the provision (c) approved paragraphs (b), of Government services or the (d), (e), (f) and (h) be implementation of projects in the without amendments; and districts; (h) ensure accountability of district (d) decided to delete paragraphs and sub-district authorities; and (c) and (i) because they (i) recognize the right of the districts were not clear; and to manage their local affairs and to paragraph (g) because its form partnerships, networks and provisions were part of the
428 associations to assist in management current responsibilities of and to further their development. Cabinet Office.
Article 231: Co- Co-operation between National The Conference deleted Article 231 The Conference deleted Article operation Government and local government of the Mung‟omba Draft 231 of the Mung‟omba Draft between and between local authorities Constitution on co-operation Constitution because it was National between national government and observed that it would be Government and 231. (1) The National Government local government and between local tantamount to introducing a local government and the local government shall – authorities. federal system of governance of and between (a) exercise their powers and perform councils which would create local authorities their functions in a manner that does serious functional problems. It not encroach on the geographical, was therefore, decided that functional or institutional integrity of functional relationship between either government and shall respect the Central Government and the constitutional status, institutions local authorities be provided for and rights of the other; and under an Act of Parliament as (b) maintain liaison with each other that relationship was amenable for the purpose of exchange of to change over time. information, co-ordination of policies, administration and enhancement of capacity. (2) District councils shall assist, support and consult with each other and shall, as appropriate, implement the laws being issued by the other. (3) District councils shall, to the extent necessary in any particular circumstance, co-operate in the
429 performance of their functions and, for that purpose, may set up joint committees and joint authorities. (4) District councils involved in an inter-district dispute shall make every reasonable effort to settle the dispute by means of procedures provided by or under an Act of Parliament for that purpose and shall exhaust all other remedies before they approach a court to resolve the dispute.
Article 232: Structures and principles of Structures and principles of The Conference adopted Article Structures and decentralised government decentralised government 232 of the Mung‟omba Draft principles of 232. (1) Parliament shall enact 213. (1) Parliament shall enact Constitution with amendments decentralised legislation applicable to provinces, legislation applicable to provinces, and re-numbered it as Article government districts and local authorities. districts and local authorities. 213. (2) The National Government shall (2) The Government shall ensure The Conference: ensure the decentralisation of the decentralisation of functions, (a) adopted clause (1) without functions, powers and responsibilities powers, resources and amendments; to the province, the district and such responsibilities to the province, the (b) in clause (2), included the sub-districts as may be provided by or district and local authorities as may word “resources‟ and under an Act of Parliament. be provided by or under an Act of substituted the word (3) The principal role of a Parliament. “National” with provincial council is to co-ordinate the “Government” because implementation, within the districts Zambia was a unitary forming the province, of programmes State. The words and projects that extend to two or “such as sub-districts”
430 more districts of the province and to were substituted with provide a forum through which the “Local Authorities”; local authorities recommend policy and and legislation concerning the province for enactment by Parliament. (c) resolved to delete clauses (3) (4) The principal role of a district and (4) of Article 232 of council is to administer the district, Mung'omba Draft implement programmes and projects Constitution because: in the districts, issue by-laws and recommend local Bills for enactment (i) the clauses were details by Parliament. which should be provided for in an Act of Parliament. It was also noted that the provisions in those clauses were covered under clauses (1) and (2) of the same Article; and (ii) there would be difficulties in differentiating between local authorities, district boundaries and sub- districts.
431 Article 233: Districts and district councils Districts and district councils Districts and 233. (1) The Republic of Zambia 214. (1) The Republic of The Conference adopted Article district councils shall be divided into districts as may Zambia shall be divided into 233 of the Mung‟omba Draft be specified by or under an Act of districts as may be specified by or Constitution without Parliament. under an Act of Parliament. amendments and re-numbered it (2) (2) The district shall be the principal (2) The district shall be the as Article 214. unit for the decentralisation of principal unit for the functions to the local level. decentralisation of functions to the The Conference noted that sub- local level. districts were not explicitly (3) (3) There shall be such number of (3) There shall be such number of mentioned and, that issues of wards in each district as may be wards in each district as may be structures were details that specified by or under an Act of specified by or under an Act of should not be provided for in the Parliament. Parliament. Constitution but in an Act of (4) (4) There shall be established for each Parliament. district a district council. (4) There shall be established for (5) (5) Every district council shall be a each district a district council. body corporate with perpetual (5) Every district council shall be a succession and a common seal and body corporate with perpetual may sue and be sued in its corporate succession and a common seal and name. may sue and be sued in its corporate (6) Parliament shall enact name. legislation to determine the different (6) Parliament shall enact legislation types of district councils and their to determine the different types of corporate names. district councils and their corporate names.
Article 234: Functions of district councils Functions of district councils The Conference adopted Article Functions of 234. (1) Subject to this 215 (1) Parliament shall enact 233 of the Mung‟omba Draft
432 district councils Constitution, a district council shall be legislation to prescribe the functions Constitution with amendments the highest executive and legislative of district councils which shall and re-numbered it as Article authority of the district. include- 215. (2) (2) Parliament shall enact legislation (a) the preparation of to prescribe the functions of district comprehensive development plans The Conference observed that: councils which shall include - for the district for submission to the (a) providing for initiation of (a) (a) the preparation of comprehensive Government for integration into the local bills by district development plans for the district for national development plan; councils would inhibit submission to the National (b) the formulation and execution of necessary corrective Government for integration into the plans, programmes and strategies interventions by National development plan; for the effective mobilisation of Government; (b) (b) the formulation and execution of resources for the development of the plans, programmes and strategies for district; (b) clause (1) of Article 234 of the the effective mobilisation of resources (c) the issuance of by-laws, Mung'omba Draft for development of the district; within its jurisdiction; Constitution was lifted from (c) (c) the issuance of by-laws, within its (d) co-ordinating the functions of the South African jurisdiction, and recommending or wards and other authorities within Constitution which provided initiating local Bills for enactment by the district; for a federal system where Parliament; (e) disaster prevention and local authorities initiated (d) co-ordinating the functions of management; and bills. That arrangement wards and other sub-district (f) any other function provided by would be improper for authorities within the district; or under an Act of Parliament. Zambia, where initiation of (e) (e) providing organised fora through bills was the preserve of which the people in the district can relevant ministries, in participate in the formulation of consultation with the proposals for local Bills, budget Ministry of Justice; submissions, development programmes and district council by- (c) paragraphs (e) to (p) of
433 laws; Article 234 (2) were details to (f) (f) levying and collection of prescrib ed be provided in an Act of taxes, rates, levies, tolls duties and Parliament; and fees; (g) (g) developing measures for the (d) there was need to amend protection of natural resources and paragraph (d) to provide for the environment; (h) developing and "disaster prevention and maintaining infrastructure; (i) the management." In amending supply of water and the provision of the clause, the Conference sanitation; (j) disaster management; observed that the function (k) the management of the currently fell under Central decentralised structures relating to Government. health and education; (l) the The Conference adopted the regulation of trade and business; (m) amendments in order to enable the provision of agricultural extension local authorities participate in the services; (n) provision of community function at the local level and policing and prison facilities; (o) address current operational preparation of progress reports for the challenges relating to district; and (p) any other function bureaucracy in managing provided by or under an Act of disasters. Parliament.
434
Article 235: Election of councillors and Election of councillors and Election of composition of district councils composition of district councils councillors and The Conference adopted Article composition of 235. (1) Subject to clause (5), 216. (1) Subject to clause (5), 235 of the Mung‟omba Draft district councils elections to a district council shall be elections to a district council shall be Constitution with amendments conducted under the mixed member conducted under the mixed member and re-numbered it as Article representation system specified under representation system specified 216. Article 95 and as provided under this under Article 80 and as provided Article. under this Article. The Conference: (2) A district council shall consist (2) A district council shall (a) adopted clauses (1) and (2) of the following councillors: consist of the following councillors: without amendments; (a) a mayor; (a) a mayor; (b) approved clause (3) with (b) other councillors elected (b) other councillors elected amendments, and also directly for each of the number directly for each of the number of amended clause (4) by of wards in the district on the wards in the district on the basis providing that a councillor basis of the first past-the-post of the first past-the-post segment could be entitled to a further segment of the mixed member of the mixed member allowance at the expiry of representation system, as representation system, as term of office; and prescribed by or under an Act prescribed by or under an Act of (c) introduced a new provision of Parliament; Parliament; on functions and duties of a (c) forty per cent of the total councillor as reflected in number of councillors elected (c) forty percent of the total clause (3) of Article 216. on the basis of the proportional number of councillors elected representation segment of the on the basis of the The Conference observed that: mixed member representation proportional representation
435 system from a party list segment of the (a) clause (1) was linked to submitted to the Electoral mixed member clauses (2) and (3) of Article Commission by each political representation system from a 95 in the Mung'omba Draft party contesting the elections, party list submitted to the Constitution which provided as prescribed by or under an Electoral Commission by each that local government Act of Parliament; political party contesting the elections should be (d) members of the National elections, as prescribed by or conducted under the mixed Assembly from the district; under an Act of Parliament; member proportional (e) three chiefs elected from the (d) members of the National representation (MMP) chiefs in the district by the Assembly from the district; system; chiefs to represent all the chiefs (e) three chiefs elected from the in that district; chiefs in the district by the (b) the MMP system was good (f) one representative from the chiefs to represent all the because, if adopted, some of Defence Forces and national chiefs in that district; the councillors would be security agencies operating in (f) one representative from the elected through the First- the district; and Defence Force and national Past-the-Post (FPTP) system (g) one representative of the security agencies operating in while others would be business community in the the district; v appointed through the district. (g) one representative of the Proportional Representation (3) The term of a district business community in the (PR) system. That would council shall be five years. district. address the non- (4) A councillor shall be paid such (3) The functions and duties of a representational problem allowances as may be determined by councillor shall be provided for by faced by minority and the Minister responsible for local or under an Act of Parliament. disadvantaged groups government, subject to the ability of particularly persons with the district council to pay the (4) The term of a district council disabilities and the youths. allowances. shall be five years and shall run The provision would also concurrently with the term of the facilitate the appointment of
436 National Assembly. people with special expertise.
(5) The mayor, deputy mayor, chairman or vice-chairman of a council shall be elected by the councillors referred to in clause (2) from among the elected councillors referred to in paragraph (b) of clause (2) and as provided by or under an Act of Parliament.
(6) A councillor shall be paid - (a) such allowances as may be prescribed by or under an Act of Parliament; and (b) a further allowance, at the expiry of that councillor‟s tenure of office, as recommended by the Minister responsible for finance and prescribed by or under an Act of Parliament, in addition to any allowances payable under paragraph (a).
437
Article 236: Tenure of office and vacation of Vacation of office of councillor Tenure of office office of councillor and vacation of 236. Article 162 shall apply to the 217. (1) Subject to clause (2), a The Conference adopted Article office of office of councillor. councillor shall vacate office upon 236 of the Mung‟omba Draft councillor the dissolution of the council. Constitution with amendments (2) The office of a and re-numbered it as Article councillor shall become vacant if - 217. (a) the councillor ceases to be a citizen of Zambia; The Conference decided to (b) the councillor resigns in harmonise the provisions in writing addressed to the Article 236 with Article 162 of the Mayor; Mung'omba Draft Constitution (c) the election of that councillor and also aligned the provisions is nullified by the Local with the office of councillor. Government Election Tribunal; The marginal note to Article 236 (d) the councillor acts contrary to was amended by removing a code of conduct as provided “tenure of office" because it was by or under an Act of covered in Article 216 (4), above. Parliament; (e) the Councillor resigns from the political party which sponsored the Councillor for election to the Council; (f) if circumstances arise that, if the holder of the office were not a councillor would
438 disqualify the councillor for election as such; or (g) the councillor dies. (3) A councillor who causes a vacancy in a district council due to the reasons specified under paragraphs (b), (c), (d) and (e) of clause (2) is not eligible to contest in a council election for the duration of the term of that district council. (4) Where a councillor who holds a proportional representation seat, causes a vacancy in the council due to death or resignation, the vacancy shall be filled by the next candidate on the political party‟s list as provided by or under an Act of Parliament. (5) Where a Councillor, who occupies a proportional representation seat, is expelled from the political party that has been allocated that seat, the seat shall be filled by the next candidate on the political party's list as provided by an Act of Parliament. (6) Where a councillor, who occupies a ward -based seat, is
439 expelled by the political party which sponsored that councillor for election, the councillor shall not lose the seat unless the expulsion is confirmed by a court. (7) Where a court confirms the expulsion of a councillor who occupies a ward-based seat, a by- election shall be held to fill the vacancy: Provided that no by- election to fill the vacancy created by the expulsion of a councillor who occupies a ward-based seat shall be held where the period remaining before the expiry of the term of office of that councillor is less than twelve months. (8) If a political party is dissolved - (a) a councillor holding a ward-based seat shall
440 retain the seat in the council; and (b) a councillor holding a proportional representation-seat shall cease to be a councillor and the party shall lose the seat which seat shall be re- allocated to another political party as provided by or under an Act of Parliament. (9) The creation or dissolution of a coalition of parties of which a councillor's political party forms part of does not amount to a councillor resigning from the party for the purposes of paragraph (e) of clause (2).
Article 237: By- By-election for district council Vacancies and by-elections for election for district council The Conference adopted Article district council 237. Article 163 shall apply to the 210. (1) 218. (1) Where a 237 of the Mung‟omba Draft office of councillor. vacancy occurs in the office of a Constitution with amendments councillor as specified under clause and re-numbered it as Article (2) of Article 235, the Mayor shall, 218.
441 within seven days of the occurrence of the vacancy, inform in writing, The Conference decided to the Electoral Commission of the harmonise the provisions in vacancy. Article 237 with those in Articles (2) Subject to clauses (2) 163 and 100 (1) of the and (3) of Article 100, where a Mung'omba Draft Constitution vacancy occurs in the district in order to relate them to the council, a by-election shall be held district council. within ninety days of the occurrence of the vacancy: The Conference also changed the Provided that no by- marginal note to read: "Vacancies election to fill the and by-elections for District vacancy which occurs Council." That was to relate the in a district council for by-elections to the occurrence of a ward based-seat shall a vacancy in the office of be held where the councillor and the District period remaining Council. before the expiry of the term of office of the councillors of that district council is less than twelve months.
Article 238: Expulsion of councillor 219. Expulsion of councillor Expulsion of 238. (1) A councillor who has A councillor who has been expelled The Conference adopted Article councillor been expelled by that councillors‟ by that councillors‟ political party 238 of the Mung‟omba Draft political party and who has and who has challenged the Constitution with amendments
442 challenged the expulsion in court shall expulsion in court shall hold the seat and re-numbered it as Article hold the seat in the district council in the district council pending the 219. pending the conclusion of the petition conclusion of the petition or matter. or matter. The Conference observed that it (2) If a matter referred to under was necessary to provide for clause (1) is decided in favour of a parity of governance between the councillor that councillor shall retain offices of member of Parliament the seat in the district council as an and councillor in relation to the independent. procedure that applied for expulsion of office bearers. That was in view of a similar provision which the Conference had earlier made for the expulsion of a member of Parliament.
The Conference, however, decided to delete clause (2).
Article 239: Qualifications and disqualifications Qualifications and Qualifications for election to district council disqualifications for election to The Conference adopted Article and 239. (1) A person shall qualify to district council 239 of the Mung‟omba Draft disqualifications be elected as a councillor of a district 220. (1) A person shall qualify Constitution with amendments for election to council, excluding councillors to be elected as a councillor of a and re-numbered it as Article district council specified under Article 235 (2) (a), (d), district council, excluding 220. (e), (f) and (g), if that person– councillors specified under Article (a) is not a member of the National 235 (2) (a), (d), (e), (f) and (g), if that The Conference: Assembly but qualifies to be person– (a) adopted the provisions in
443 elected as a member of the (a) is not a member of the National paragraphs (a), (b) and (e) National Assembly, subject to Assembly but qualifies to be of clause (1) of Article 239; this Article; elected as a member of the (b) is not less than eighteen years of National Assembly, subject to (b) deleted clause (2) of Article age; this Article; 239 of the Mung'omba c) has obtained, as a minimum (b) is not less than eighteen years of Draft Constitution and academic qualification, a grade age; substituted it with a new nine certificate of education or (c) has obtained, as a minimum clause (2) as reflected in its equivalent; academic qualification, a grade revised Article 220; (d) has been resident in the ward twelve certificate of education or (c) harmonised the provisions in for which the election is sought its equivalent; paragraph (f) of clause (2) for a period of five years (d) is resident in the district or has with the provisions in immediately preceding the been resident in the ward for Article 65 of the current election or is resident in the which the election is sought for Constitution. district and is in possession of a a period of two years certificate of title showing immediately preceding the (d) decided to raise the minimum ownership of property in the election; and academic qualification for district; and (e) has a certificate of clearance councillor because they (e) has a certificate of clearance showing the payment of council were managers of District showing the payment of council rates and rentals, where Councils who should be rates and rentals, where applicable. able to provide policy applicable. (2) A person shall be direction in their districts; (2) The disqualifications that apply disqualified from being elected as and to the election of a member of the councillor if that person - (e) substituted the word "ward" National Assembly shall apply to an (a) holds, or is validly nominated as with "district" in paragraph election of a councillor to a district a candidate in an election for, (d) in order to allow the council. membership of the National eligible residents in the Assembly; whole district to participate (b) holds or is acting in any office
444 that is specified by an Act of in the elections and make Parliament the functions of them broad-based. which involve or are connected with the conduct of elections; ( c) is of unsound mind;
(d) is an undischarged bankrupt or insolvent; (e) is serving a sentence of imprisonment or is under a sentence of death; (f) within a period of five years before that person's nomination for election, has been convicted of an offence under any law and been sentenced therefore for a period exceeding six months; (g) has been removed from public office on grounds of gross misconduct; (h) has been found guilty of corruption by any court or tribunal; (i) holds the office of Mayor; (j) is a Chief; or (k) is a member of the Defence Force and security agencies operating in the district.
445 (3) In this Article, the reference to a sentence of imprisonment shall be construed as not including a sentence of imprisonment the execution of which is suspended or a sentence of imprisonment in default of payment of a fine.
Article 240: Petitions and Local Government Petitions and Local Government Petitions and Election Tribunal Election Tribunal Local Government 240. (1) A person may file a 221. (1) A petition to challenge The Conference adopted Article Election Tribunal petition with a Local Government the election of a councillor to a 240 of the Mung‟omba Draft Election Tribunal, established under ward-based seat of a district council Constitution with amendments clause (2), to challenge the election of may be lodged with the Chairperson and re-numbered it as Article a mayor or a councillor elected for a of the Electoral Commission by one 221. ward-based seat. or more of the following persons: (2) The Chief Justice shall establish (a) a person who lawfully voted The Conference: an ad hoc Local Government Election or had a right to vote at the (a) resolved to harmonise the Tribunal to hear and determine election to which the election provisions in Article 240 of whether - petition relates; the Mung'omba Draft (a) a person has been validly (b) a person claiming to have had Constitution with the elected as a councillor; or a right to be nominated as a provisions in the current candidate for election as Constitution in order to (b) the seat of a councillor has councillor at the election to clearly outline the become vacant. which the election petition procedure to be followed (3) A Local Government Election relates; or when filing for an election Tribunal shall be presided over by a (c) a candidate for election as petition. Also to clearly
446 magistrate of the First Class sitting councillor at the election to state who qualified to with two other members, appointed which the election petition petition; by the Chief Justice from amongst relates. legal practitioners or retired (2) A petition under this Article (b) In adopting clause (4), the magistrates of the First Class. shall be filed within seven days after Conference observed that: (4) A petition shall be determined the date of the declaration of the (i) the establishment of the within ninety days of the filing of the election results. Local Government election petition. (3) The Chairperson of the Tribunal would take (5) A decision of the Local Electoral Commission shall, within justice closer to the Government Election Tribunal shall seven days of the receipt of the people in the be final and the Tribunal shall stand petition under clause (1), submit it to provincial centres and dissolved on the determination of the the Chief Justice. therefore, reduce on election petition. (4) The Chief Justice shall upon cost; (6) A councillor whose election is receipt of a petition from the petitioned shall hold the seat in the Chairperson of the Electoral (ii) the addition of legal district council pending the Commission under clause (3), practitioners to the determination of the petition. establish an ad hoc Local Tribunal as provided (7) The expenses of the Local Government Election Tribunal to for in clause (5) would Government Election Tribunal shall hear and determine whether - enhance the quality of be a charge on the Consolidated Fund. (a) a person has been validly adjudication in the elected as a councillor; or election petition and (b) any provision of this achieve finality.; and Constitution or any other law (iii) the provision would relating to elections of shorten the process of councillors has been disposing of election complied with. petitions and ensure (5) A Local Government Election that justice was not Tribunal shall be presided over by a unnecessarily
447 magistrate of the Subordinate Court delayed. of the First Class sitting with two other members, appointed by the The term "Consolidated Fund" Chief Justice from amongst legal was substituted with "National practitioners or retired magistrates Treasury Account" in clause (9). of the Subordinate Court of the First Class. (6) A petition shall be determined within ninety days of the filing of the election petition. (7) Any party aggrieved by a decision of the Local Government Election Tribunal may appeal to the High Court. (8) A councillor whose election is petitioned shall hold the seat in the district council pending the determination of the petition. (9) The expenses of the Local Government Election Tribunal shall be a charge on the National Treasury Account.
Article 241: Recall of councillor The Conference deleted Article 214 The Conference deleted Article Recall of of the Mung‟omba Draft 241 of Mung‟omba Draft councillor 241. (1) A councillor who holds Constitution on recall of councillor. Constitution. a ward-based seat may be recalled by
448 the electorate in that ward as follows : While aware of the argument (a) a recall shall only be that the provision might initiated where a councillor has provide protection and persistently neglected to perform the safeguards against abuse of the councillor‟s responsibilities in the mandate of the office of ward as may be required of the councillor, the Conference councillor by law; noted that the provision would (b) a recall shall be initiated promote witch-hunting by some by a petition signed by at least fifty losing candidates and lead to per cent of the registered voters in the more frequent and costly by- ward; and elections as recalls might be (c) the petition shall be initiated on flimsy grounds. presented to the Chairperson of the Electoral Commission who shall The Conference decided to constitute a tribunal to inquire into the delete provisions in the Article matter and report back within thirty except provisions in clause (4) days with its recommendation. which were fused into Articles (2) A councillor who is the subject 215 and of an inquiry under clause (1) shall 219 on election of councillor, have the right to be heard, be present composition of and have representation before the district councils and expulsion tribunal constituted under clause (1). of councillors, respectively. (3) The Chairperson of the Electoral Commission shall, within fourteen days of the receipt of the tribunals‟ recommendations, act in accordance with the recommendations of the tribunal.
449 (4) An Act of Parliament shall provide for - (a) the functions and duties of a councillor in relation to the ward a councillor represents; (b) the grounds on which a councillor may be recalled; and (c) the composition, powers, sittings and procedures of a tribunal constituted under this Article.
Mayor Article 242: 242. (1) There shall be a mayor The Conference deleted Article 242 The Conference deleted Article Mayor for every district council. of the Mung‟omba Draft 242 of Mung‟omba Draft (2) A mayor shall be – Constitution on the mayor. Constitution because: (a) elected directly by universal adult suffrage through a secret ballot (a) electing a mayor through by registered voters resident within universal adult suffrage the district; would be cumbersome (b) elected for a term of five years and costly as it would and may be elected for only one require additional further term of five years; and resources to hold (c) subject to the same tripartite elections to qualifications and disqualifications which the election of an that apply to an election of a member executive mayor would to the National Assembly. be added; (3) The emoluments of a mayor (b) the Speaker of the shall be determined by the National Assembly, an
450 Emoluments Commission upon equally important recommendations of the district position, was currently council. elected by the members of (4) A mayor shall, for purposes of Parliament; and any benefits determined by the (c) it would create Emoluments Commission under problems due to clause (3), be deemed to have political alignments. completed a term of office if the mayor served for at least three years. Article 243: Functions of mayor The Conference deleted Article Functions of 243 of the Mung‟omba Draft mayor 243. (1) A mayor shall exercise The Conference deleted Article 243 Constitution. executive functions of a district, of the Mung‟omba Draft subject to this Constitution and any Constitution on the functions of Article 243 was deleted by other law. mayor. Conference as a consequence of (2) Without limiting clause (1), a having deleted Article 242. mayor shall - (a) preside at the meetings of the district council and the district executive committee; (b) oversee and monitor generally the functions of the district council and give directions on matters of policy as determined by the district council; and (c) perform any other function specified by or under an Act of Parliament.
451 Article 244: Conduct of councillors Conduct of councillors Conduct of councillors 244. (1) A councillor shall act in The Conference deleted Article 244 The Conference deleted Article accordance with the code of ethics of the Mung‟omba Draft 244 of the Mung'omba Draft provided in this Constitution and by Constitution on conduct of Constitution and resolved that or under an Act of Parliament. councillors. issues relating to ethics were (2) A councillor shall not act in a details that should be relegated way that is inconsistent with a to an Act of Parliament. councillor‟s civic duties and responsibilities. Article 245: 245. Councillors shall be The Conference deleted Article Accountability of accountable, collectively and The Conference deleted Article 245 245 of the Mung‟omba Draft councillors individually, to the residents in their of the Mung‟omba Draft Constitution. districts and to the National Constitution on accountability of Government for the exercise of their councillors. The Conference observed that powers and performance of their provisions relating to functions. accountability of councillors should be provided for in an Act of Parliament. Article 246: District Executive Committee The Conference deleted Article District Executive The Conference deleted Article 246 246 of the Mung‟omba Draft Committee 246. (1) There shall be of the Mung‟omba Draft Constitution. constituted for every district council Constitution on district executive an executive committee. committee. The Conference observed that (2) An executive committee shall the provision would have been consist of – applicable where an executive (a) the mayor; mayor was to be elected by (b) the principal administrative officer universal adult suffrage.
452 of the district council; and (c) such other officers that shall be appointed by the mayor with the approval of the district council;
Article 247: Functions of district executive Functions of committee The Conference deleted Article district executive 247. Subject to this Constitution, an The Conference deleted Article 247 247 of the Mung‟omba Draft committee executive committee of a district of the Mung‟omba Draft Constitution as a consequence of council shall perform the executive Constitution on functions of district having deleted Article 246. functions of the district council and executive committee. shall- (a) ensure the implementation of Acts of Parliament and district by- laws within the district; and (b) perform any other function provided by or under an Act of Parliament. Article 248: Principal administrative officer and Principal functions The Conference relegated Article administrative 248 of the Mung‟omba Draft officer and 248. (1) There shall be appointed The Conference deleted Article 248 Constitution to an Act of functions for every district council a principal of the Mung‟omba Draft Parliament. The provisions administrative officer who shall be the Constitution on principal called for detailed description administrative head of the district and administrative officer and functions. and were amenable to change shall be responsible for the day-to-day overtime, therefore, not suitable administration of the district. for inclusion in the Constitution.
453 (2) The principal administrative officer shall - (a) implement Acts of Parliament and district by-laws within the district; (b) co-ordinate and supervise the activities of the district council and other sub-district authorities in the district; (c) co-ordinate and monitor Government functions between or among districts and between districts and the Government; and (d) perform any other function provided by or under an Act of Parliament. (3) In the performance of the functions under clause (2), the principal administrative officer shall be subject to the decisions and directions of the district council and shall be answerable to the council.
Article 249: Other committees of Other committees of district council The Conference deleted Article district council 249 of the Mung‟omba Draft 249. A district council – The Conference deleted Article 249 Constitution. (a) shall appoint standing of the Mung‟omba Draft
454 committees and assign to them such Constitution on other committees of The Conference decided that the functions as the council may consider district council. provisions in Article 249 be necessary for the effective and provided for in an Act of efficient administration of the district; Parliament as they were and amenable to change over time. (b) may appoint ad hoc committees consisting of councillors or non-councillors or both, to advise on any matter referred to them by the council.
Article 250: Funds for district council Funds for district council Funds for district 250. (1) There shall be 222. (1) There shall be established a The Conference adopted Article council established a Local Government Local Government Equalisation 250 of the Mung‟omba Draft Equalisation Fund. Fund. Constitution with amendments (2) Parliament shall, annually, (2) Parliament shall, annually, and re-numbered it as Article appropriate a percentage of the total appropriate a percentage of the total 222. annual revenues of the Republic, as annual revenues of the Republic, as may be determined by the may be determined by the Minister The Conference resolved to Emoluments Commission, to the responsible for finance, to the Local adopt the Article as provided in Local Government Equalisation Fund Government Equalisation Fund for the Mung'omba Draft for the sustenance, development and the sustenance, development and Constitution except for clause (5) administration of the communities in administration of the communities which was deleted because it a district. in a district. was covered in Article 240 of (3) The revenue referred to under (3) The revenue referred to under Mung‟omba Draft Constitution. clause (2) shall be in addition to clause (2) shall be in addition to The Article would compel revenues raised by a district council revenues raised by a district council Government to adequately fund and retained by it. and retained by it. local authorities, particularly, in
455 (4) The Government may provide (4) The Government may view of a decentralised additional funds and grants beyond provide additional funds and grants government system where what is provided under clause (2) to a beyond what is provided under operations of the local authorities district council, conditionally or clause (2) to a district council, in providing quality services to unconditionally. conditionally or unconditionally. the people would be critical. (5) Subject to this Constitution, a district council shall be competent to levy, impose, recover and retain property rates, levies, charges, fees, taxes, tolls and tariffs as may be necessary to perform its functions. Article 251: Staff Staff of Local government of Local government 251. A district council shall appoint The Conference deleted Article 251 The Conference deleted Article such staff and employees as are of the Mung‟omba Draft 251 of the Mung'omba Draft necessary for the effective Constitution on staff of local constitution. implementation of the functions of the government. district council. The Conference resolved that the responsibility to employ officers of councils should be provided for in an Act of Parliament. Article 252: Provinces Provinces Provinces The Conference adopted Article 252. The Republic of Zambia shall be 223. The Republic of Zambia shall 252 of the Mung‟omba Draft divided into provinces as shall be be divided into provinces as shall be Constitution without provided by or under an Act of provided by or under an Act of amendments and re-numbered it Parliament. Parliament. as Article 223.
456 The Conference deemed the provision on "Provinces" necessary.
Article 253: Provincial administration Provincial administration Provincial 253. (1) There shall be 224.(1) There shall be established for The Conference adopted Article administration established for each province a each province a provincial 253 of the Mung‟omba Draft provincial administration. administration. Constitution with amendments (2) A Provincial Minister shall be (2) The functions of the and re-numbered it as Article the political head of the province and Provincial Administration shall be 224. the representative of the President in prescribed by or under an Act of the province. Parliament. The Conference: (3) A provincial Permanent (3) A Provincial Deputy Minister (a) adopted clause (1) as Secretary shall be the administrative shall be responsible for the provided in the Mung'omba head of the province. administration of any province as Draft Constitution; the President may assign to such Provincial Deputy Minister. (b) revised clause (2) to provide that the functions of the Provincial Administration should be prescribed in an Act of Parliament since those functions were amenable to change; and (c) substituted clauses (3) and (4) with the provisions in clause (3) of Article 46 of the current Constitution.
457 Article 254: Provincial council Provincial 254. There shall be established a The Conference deleted Article 254 The Conference deleted Article council provincial council consisting of – of the Mung‟omba Draft 254 of the Mung'omba Draft (a) the Provincial Minister; Constitution on Provincial council. Constitution. (b) the provincial Permanent
Secretary; While acknowledging the validity of having a provincial (c) the mayors of the district body the Conference observed councils in the province; that: (d) three chiefs, representing (a) a Provincial council all the chiefs in the would not be an ideal province, who shall be institution and that the elected by the chiefs in Provincial the province; and Administration established under (e) such other officers as may Article 253 would be specified by or under an adequately perform the Act of Parliament. desired role; (b) creation of a Provincial council negated the intentions and vision of decentralisation, whose primary focus was on the district and lower organs; and (c) providing for Provincial council would be tantamount to
458 advocating for a federal system and would aggravate red tape and stifle the operations of district councils.
Article 255: Functions of provincial council Functions of 255. (1) The functions of a provincial provincial council shall be to – The Conference deleted Article 255 The Conference deleted Article council (a) co-ordinate and consolidate of the Mung‟omba Draft 255 of the Mung‟omba Draft district plans into provincial Constitution on functions of Constitution as a consequence development plans for submission to Provincial council. of having deleted Article 254. the National Government; (b) monitor the utilisation of In addition, it was observed resources and implement that the functions outlined in development programmes in the Article 255 (1) were currently province; the functions of the provincial (c) coordinate and ensure the administration. auditing of local government institutions in the province; (d) prepare provincial progress reports for the National Government on the implementation of development programmes and projects; (e) ensure implementation of the National Government‟s policies in the province;
459 (f) implement national development projects and programmes; (g) ensure proper utilisation and maintenance of Government buildings, equipment, plant, machinery and other infrastructure in the province; (h) retain oversight responsibility over functions of the district councils in the province in areas of – (i) financial accountability; and (ii) developmental programmes; and (iii) perform any other function provided by or under an Act of Parliament. (2) A provincial Permanent Secretary shall be responsible for ensuring the implementation of the functions specified under clause (1).
Article 256: Reserved power over non- Reserved power performing district councils The Conference deleted Article 256 The Conference deleted Article over non- of the Mung‟omba Draft 256 of the Mung‟omba Draft performing 256. (1) A provincial council Constitution on reserved power over Constitution. district councils
460 shall assume the functions of any non-performing district councils. district council in any of the following The Conference observed that: circumstances, where: the (a) the principle of having a (a) a district council supervisory institution was requests and it is in a district council‟s important but that should be interest to do so; provided for in an Act of (b) it has become extremely Parliament; difficult or impossible for a district council to full-fill its functions and (b) details relating to Article 256 obligations; were adequately covered (c) a district council has under Article 253; and failed to meet established minimum standards for rendering of services in (c) the role of the Provincial the district; Administration be restricted (d) it is prudent to prevent a to coordination of policy district council from taking implementation and unnecessary action that is prejudicial advisory functions and that, to the interests of another district powers under Article 256 council or to the province as a whole; were too wide. and (e) it is necessary to The primary focus of maintain the economic and sovereign decentralisation was on the unity of the Republic. district and lower organs. Failure (2) Where a provincial council to empower the district councils intends to assume the functions of a would result in continued district council under clause (1) it shall inability to provide quality - services. (a) prior to assuming those
461 functions obtain the written permission of the Minister responsible for local government; and (b) issue a directive to the district council giving reasons why the provincial council is assuming the functions of the district council and stating what the district council is required to do in order to resume its operations. (3) Where a district council fails to carry out remedial action as required under clause 2 (b), a provincial council shall perform the functions of a district council for a period not exceeding ninety days after which fresh elections shall be held to elect other councillors. (4) The performance of the functions of a district council, by a provincial council under this Article, shall be exercised through persons or officers and under directives provided by or under an Act of Parliament. (5) Any person may challenge the assumption by a provincial council of the functions of a district council, under this Article, in the
462 Constitutional Court. (6) Parliament shall enact legislation to provide for the governance and regulation of a district council during the period a provincial council is performing the functions of a district council. Article 257: Legislation to further regulate local The Conference deleted Article Legislation to government 257 of the Mung'omba Draft further regulate Constitution. local government 257. Parliament shall enact legislation The Conference deleted Article 244 to provide for – of the Mung‟omba Draft The Conference observed that: (a) wards and other sub-district Constitution on legislation to further (a) Article 257 of the authorities of the district councils; regulate local government. Mung'omba Draft (b) the financial control and Constitution was accountability measures needed to be interrelated with Articles put in place for compliance by district 232 (3) and 233 of the councils; Draft Constitution; (c) matters that relate to the raising (b) both Articles 232 (1) and of loans, grants and other financial 257 provided that instruments by district councils; Parliament shall enact (d) the election of councillors and legislation related to the mayors of district councils; same institutions; (e) the manner in which district (c) enactment of legislation councils shall initiate local bills for was a primary mandate enactment by the National Assembly; of Parliament. It would, and therefore, be superfluous (f) the effective implementation of to restate it;
463 this Part. (d) Articles 232 (3) and 234 (2) (e), like Article 257 (e), provided for a forum through which district councils would initiate local bills; (e) allowing local authorities to initiate bills to Parliament would be inappropriate and inconsistent with the existing Policy formulation process; and (f) regarding Article 257 (c), district councils were corporate bodies which could sue or be sued and had the inherent legal right to raise finances.
PART XIII CHIEFTAINCY AND HOUSE OF CHIEFS
Article 258: Institution of Chieftaincy Institution of Chieftaincy Institution of The Conference adopted Article 258 Chieftaincy 258. (1) The institution of 225. The institution of Chieftaincy of the Mung‟omba Draft chieftaincy together with its together with its traditional councils Constitution with amendments and traditional councils as established by as established by customary law and re-numbered it as Article 225.
464 customary law and its usage is its usage is hereby guaranteed, subject hereby guaranteed, subject to this to this Constitution. The Conference decided to delete Constitution. (2) Nothing in this Article or any other clause (2) of Article 258 in the (2) Parliament shall not enact provision in this Constitution shall be Mung'omba Draft Constitution legislation which – construed so as to prevent Parliament because enactment of legislation (a) confers on any person or authority from enacting legislation for – was the primary mandate of the right to accord or withdraw (a) the determination by a traditional Parliament. recognition to or from a chief for any council, in accordance with the purpose; or appropriate customary law and its The words "a court" were replaced (b) in any way derogates from the usage, of the validity of the with the words "the High Court" in honour and dignity of the institution nomination, election, selection, the last line of clause (7) of Article of chieftaincy. installation or deposition of a person 258. That was in order to be (3) Nothing in this Article or any as a chief; or specific as to the level of courts the other provision in this Constitution (b) the registration of chiefs and the appeals should be made. shall be construed so as to prevent public notification in the Gazette or Parliament from enacting legislation otherwise of the recognition of a for – person as chief. (a) the determination by a traditional (3) Subject to this Constitution, the council, in accordance with the institution of chief shall exist in any appropriate customary law and its area of Zambia in accordance with the usage, of the validity of the culture, customs and traditions or nomination, election, selection, wishes and aspirations of the people installation or deposition of a person to whom it applies. as a chief; or (4) In a community where the (b) the registration of chiefs and the issue of the installation of a chief has public notification in the Gazette or not been resolved, by the community otherwise of the recognition of a concerned, the issue shall be referred person as chief. to the House of Chiefs for resolution.
465 (4) Subject to this Constitution, (5) If any person is aggrieved with the institution of chief shall exist in a resolution of the House of Chiefs any area of Zambia in accordance that person may appeal to the High with the culture, customs and Court. traditions or wishes and aspirations (6) Parliament may enact of the people to whom it applies. legislation to provide for the (5) In a community where the succession and installation of chiefs in issue of the installation of a chief has accordance with customary law and not been resolved, by the community its usage. concerned, the issue shall be referred to the House of Chiefs for resolution. (6) If any person is aggrieved with a resolution of the House of Chiefs that person may appeal to a court. (7) Parliament may enact legislation to provide for the succession and installation of chiefs in accordance with customary law and its usage.
Article 259: Concepts and principles relating to Concepts and principles relating to Concepts and chieftaincy chieftaincy and principles relating to principles chieftaincy relating to 259. The following concepts and chieftaincy principles shall apply in relation to 226. The following concepts and The Conference adopted Article 259 the chieftaincy : principles shall apply in relation to the of the Mung‟omba Draft (a) the institution of chief shall be Chieftaincy: Constitution with amendments and a corporation sole with perpetual (a) the institution of Chieftaincy re-numbered it as Article 226.
466 succession and capacity to sue and be shall be a corporation sole with sued and to hold assets or properties perpetual succession and with The Conference observed that in trust for itself and the people capacity to sue and be sued and to clauses (b) and (c) were not explicit under a chief‟s jurisdiction; hold assets or properties in trust for and decided to amend their (b) a chief may own assets or itself and the people under a chief's provisions. Further, the words "the properties acquired in a personal jurisdiction; people concerned" were replaced capacity; and (b) nothing in paragraph (a) shall be with the words “the people under a (c) a chief shall enjoy privileges taken to prohibit a chief from holding chief's jurisdiction”. and benefits – any asset or property acquired in a (i) conferred by the personal capacity; and Government; or (c) a chief shall enjoy such (ii) a district council; and privileges and benefits as may be (iii) bestowed by or under conferred by the Government and the culture, custom and local government or as that chief may tradition. be entitled to under culture, custom and tradition.
Article 260: Participation of chiefs in public Participation of chiefs in public The Conference adopted Article 260 Participation affairs affairs of the Mung‟omba Draft of chiefs in Constitution with amendments and public affairs 260. (1) A chief may – 227. (1) A person shall not, while re-numbered it as Article 227. (a) seek and hold any public office; or remaining a chief, join or participate (b)participate in political activities in partisan politics. The Conference made the following and stand for any elective public (2) Parliament may enact observations office. legislation to provide for the role of on paragraphs (a) and (b) of clause (2) Parliament may enact chiefs and the local authority in the (1) of Article 260 of the Mung'omba legislation to provide for the role of management, control and sharing of Draft Constitution: chiefs, other traditional leaders and natural and other resources in their (a) that chiefs had the right as
467 the local government in the localities. citizens, to take part in active management, control and sharing of politics; natural and other resources in their (b) the Constitution should not be localities. discriminatory; (c) decision to take part in politics would be determined by the respective tribes; but (d) that chiefs who opted to take part in active politics should abdicate their positions. With those observations, it was decided that the paragraphs be deleted and replaced with a new text as reflected in clause (1) of Article 227.
Article 261: House of Chiefs House of Chiefs The Conference adopted Article 261 House of 261. (1) There shall be 228. (1) There shall be established a of the Mung‟omba Draft Chiefs established a House of Chiefs for the House of Chiefs for the Republic Constitution with amendments and Republic which shall be an advisory which shall be an advisory body to the re-numbered it as Article 228. body to the Government on Government on traditional, customary traditional, customary and any other and any other matters referred to it by The Conference: matters referred to it by the President the President or as may be provided (a) adopted provisions in or as may be provided by or under an by or under an Act of Parliament. clauses (1) to (4) of Act of Parliament. (2) The House of Chiefs shall consist Article 261; and (2) The House of Chiefs shall of not more than five chiefs elected by (b) amended clause (5) by consist of not more than five chiefs the chiefs from each province. substituting the term elected by the chiefs from each (3) The Chairperson and Vice- "Emoluments
468 province. Chairperson of the House of Chiefs Commission" with (3) The Chairperson and Vice- shall be elected annually from "Minister responsible for Chairperson of the House of Chiefs amongst the members of the House of finance" in line with an shall be elected annually from Chiefs. earlier decision; and amongst the members of the House 4) The Chairperson and the Vice- (c) substituted of Chiefs. Chairperson of the House of Chiefs the term "Consolidated (4) The Chairperson and the Vice- shall rotate annually amongst the Fund" was substituted Chairperson of the House of Chiefs provinces. with "National Treasury shall rotate annually amongst the (5) The Emoluments of the chiefs Account" in clause (6). provinces. serving in the House of Chiefs shall be (5) The Emoluments of the chiefs as recommended by the Minister serving in the House of Chiefs shall responsible for finance and be as recommended by the prescribed in an Act of Parliament. Emoluments Commission and (6) The expenses of the House of prescribed in an Act of Parliament. Chiefs shall be a charge on the National Treasury Account. (6) The expenses of the House of Chiefs shall be a charge on the Consolidated Fund.
Article 262: Functions of House of Chiefs Functions of House of Chiefs Functions of House of 262. Without limiting Article 261 229. Without limiting Article 229 (1), The Conference adopted Article 262 Chiefs (1), the House of Chiefs may - the House of Chiefs may - of the Mung‟omba Draft (a) consider and discuss any Bill, (a) consider and discuss any Bill, Constitution without amendments referred to it by the President, dealing referred to it by the President, dealing and re-numbered it as Article 229. with, or touching on, custom or with, or touching on, custom or
469 tradition before it is introduced into tradition before it is introduced into the National Assembly; the National Assembly; (b) discuss matters relating to (b) discuss matters relating to national development; national development; (c) initiate, discuss and decide on (c) initiate, discuss and decide on matters that relate to customary law matters that relate to customary law and practice; and practice; (d) initiate, discuss and make (d) initiate, discuss and make recommendations regarding the local recommendations regarding the local community‟s welfare; community‟s welfare; (e) consider and discuss any (e) consider and discuss any matter referred to it by the President matter referred to it by the President or approved by the President for or approved by the President for reference to the House; reference to the House; (f) submit resolutions on any Bill (f) submit resolutions on any Bill or matter referred to it by the or matter referred to it by the President and the President shall President and the President shall cause the resolutions of the House of cause the resolutions of the House of Chiefs to be laid before the National Chiefs to be laid before the National Assembly; and Assembly; and (g) recommend to the President (g) recommend to the President persons to be bestowed with honours. persons to be bestowed with honours.
Article 263: Tenure of office and vacancy Tenure of office and vacancy Tenure of 263. (1) A chief – office and (a) shall hold office in the House 230. (1) A chief – The Conference adopted Article 263 vacancy of Chiefs for a period of five (a) shall hold office in the House of of the Mung‟omba Draft
470 years and is eligible for Chiefs for a term of five years and is Constitution with amendments by election after that term; and eligible for election after that term; deleting paragraph (d) of clause (2) (b) may resign from the House of and and re-numbered it as Article 230. Chiefs upon giving one month‟s (b) may resign from the House of notice in writing to the Chiefs upon giving one month‟s The Conference was of the view that Chairperson. notice in writing to the Chairperson. a chief who held a public office (2) The office of chief in the House (2) The office of chief in the House of would not have enough time to of Chiefs shall become vacant if the Chiefs shall become vacant if the devote to the management of the chief - chief- chiefdom. (a) dies; (a) dies; (b) ceases to be a chief; (b) ceases to be a chief; (c) resigns; (c) resigns; (d) becomes a member of the (d) is adjudged or becomes an un- National Assembly or is discharged bankrupt; or appointed to any public office; (e) is declared to be or becomes of (e) is adjudged or becomes an un- unsound mind under any law. discharged bankrupt; or (f) is declared to be or becomes of unsound mind under any law.
Article 264: Oaths of members of House of Oaths of members of House of Oaths of Chiefs Chiefs The Conference adopted Article 265 members of 264. Every chief elected to the of the Mung‟omba Draft House of House of Chiefs shall take the Oath of 231. Every chief elected to the House Constitution with amendments and Chiefs member of the House of Chiefs, as set of Chiefs shall take the Oath of re-numbered it as Article 231. out in the Third Schedule. member of the House of Chiefs, as prescribed by or under an Act of The Conference substituted the Parliament. words "as set out in the schedule"
471 with the words "as prescribed by or under an Act of Parliament."
Article 265: Staff of House of Chiefs Staff of House of Chiefs The Conference adopted Article 265 Staff of 265. (1) There shall be a Clerk of 232. (1) There shall be a Clerk of of the Mung‟omba Draft House of the House of Chiefs and such other the House of Chiefs and such other Constitution without amendments Chiefs staff as may be necessary for carrying staff as may be necessary for carrying and re-numbered it as Article 232. out the functions under this Part or out the functions under this Part or any other law. any other law. . (2) The emoluments of the Clerk (2) The emoluments of the Clerk and other staff of the House of Chiefs and other staff of the House of Chiefs shall be a charge on the Consolidated shall be a charge on the National Fund. Treasury Account.
Article 266: Regulations for House of Chiefs Regulations for House of Chiefs Regulations 266. Subject to this Constitution, 233. Subject to this Constitution, the The Conference adopted Article 266 for House of the President may make regulations – President may make regulations:- of the Mung‟omba Draft Chiefs Constitution without amendments (a) for the appointment of the (a) for the appointment of the Clerk and re-numbered it as Article 233. Clerk and other staff of the House of and other staff of the House of Chiefs; Chiefs; (b) for the proceedings, sittings (b) for the proceedings, sittings and and conduct of the House of Chiefs; conduct of the House of Chiefs; (c) for the application of any of (c) for the application of any of the the privileges and immunities of the privileges and immunities of the National Assembly and its members National Assembly and its to the House of Chiefs and its members to the House of Chiefs members; and and its members; and
472 (d) providing for such other (d) providing for such other matters matters as are necessary or conducive as are necessary or conducive to to the better carrying out of the the better carrying out of the purposes of this Part. purposes of this Part.
PART XIV PUBLIC SERVICE AND COMMISSIONS
ARTICLE NO. PROVISIONS OF THE RESOLUTIONS OF THE RATIONALE/REMARKS MUNG’OMBA DRAFT CONFERENCE CONSTITUTION Article 267: Values and Principles of Public Values and Principles of Public Values and Service Service Principles of The Conference adopted Article 267 Public Service 267 (1) The guiding values and 234. (1) Parliament shall enact of the Mung‟omba Draft principles of the public service shall legislation to provide for the guiding Constitution with amendments to include– values and principles of the public clauses (1) and (2) (a), (b) and re- (a) maintenance and service. numbered it as Article 234. promotion of the highest (2) The values and principles standards of professional referred to under clause (1) shall The Conference observed that the ethics and integrity; apply to public service- principles and values though (b) promotion of efficient, (a) at national and local government important should not be itemised in effective and economic level; and the Constitution and that they use of resources; (b) in all state organs and state should be provided for in an Act of (c) effective, impartial, fair institutions. Parliament. and equitable provision of
473 services; (d) encouragement of people to participate in the process of policy making; (e) prompt, efficient and timely response to people‟s needs; (f) commitment to the implementation of public policy and programmes; (g) accountability for administrative acts of omission and commission; (h) transparency fostered by providing the public with timely, accessible and accurate information; (i ) subject to paragraph (k), merit as the basis of appointment and promotion; (j) adequate and equal opportunities for appointments, training and advancement of members of both gender and members of all ethnic groups; and
474 (k) representation of Zambia‟s diverse communities and persons with disability in the composition of the public service at all levels. (2) The values and principles stated under clause (1) apply to public service - (a) at National and local government; and (b) in all State organs and State institutions.
Article 268: Offices for Republic Offices for Republic Offices for 268. (1) Subject to this The Conference adopted Article 268 Republic Constitution and any other law – 235. (1) Subject to the other of the Mung‟omba Draft (a) the power to constitute provisions of this Constitution and any Constitution with amendments and public offices for the Republic and other law- re-numbered it as Article 235. the power to abolish any of those (a) the power to constitute public offices vests in the President; and offices for the Republic and the The Conference: (b) the power to appoint power to abolish any of those (a) approved Article 268 (1) as its persons to hold or act in offices offices vest in the President; and provisions were a prerogative of constituted for the Republic, to (b) the power to appoint persons to the President as head of the confirm appointments, to exercise hold or act in offices constituted Executive wing of government disciplinary control over persons for the Republic, to confirm under which the public offices
475 holding or acting in those offices appointments, to exercise fell; and and to remove any of those persons disciplinary control over persons (b) approved clause (2) with the from office vests in the President. holding or acting in those offices substitution of the term and remove any of those persons “Consolidated Fund” with from office vests in the President. “National Treasury Account”; (2) The expenses, including (2) The expenses, including and emoluments, of any public office emoluments, of any public office constituted under this Part shall be a constituted under this Part shall be a (c) amended clause (3) by: charge on the Consolidated Fund. charge on the National Treasury (i) substituting the words (3) In this Part “public officer” does Account. “does not include persons not include persons serving in the (3) In this Part “public officer” serving in the Judiciary” Judiciary, a member of any does not include a judge, a judicial with “does not include a Commission established by this officer, a member of any Commission judge, a judicial officer”; Constitution or an Act of established by this Constitution or an and Parliament, any officer serving in Act of Parliament, any officer serving the Parliamentary Service in the Parliamentary Service (ii) substituting the words “a Commission, a member of Commission, a member of Parliament member of Parliament, a Parliament, a councillor or any or a councillor. councillor or any person person serving under a district serving under a district council. council” with “a member of Parliament or a councillor.”
Article 269: Attorney-General Attorney-General Attorney- 269. (1) There shall be an The Conference adopted Article 268 General Attorney-General of the Republic 236. (1) There shall be an of the Mung‟omba Draft whose office is a public office and Attorney-General of the Republic Constitution with amendments and who shall be appointed by the whose office is a public office and re-numbered it as Article 236. President on the recommendation of who shall be appointed by the The Conference decided to delete
476 the Judicial Service Commission, President, subject to ratification by the clauses (4) and (5) of Article 269 and subject to ratification by the National Assembly. substituted them with clause (5) of National Assembly. (2) (2) The person appointed Attorney- Article 54 of the current (2) The person appointed General under clause (1) shall not be Constitution. That was because Attorney-General under clause (1) appointed as a Minister or hold any under the current constitution, the shall not be appointed as a Minister other public office. Attorney-General did not enjoy the or hold any other public office.(3) (3) The Attorney-General shall be- security of tenure because he/she (a) an ex-officio member of was part of the executive. (3) The Attorney-General shall be- Cabinet; (b) not less than forty-five The Conference amended clause (7) (a) an ex-officio member of years of age; and to include some provisions of the the Cabinet; (c) a person qualified to be current constitution and decided to (b) not less than forty-five appointed as a Judge of a substitute clause (8) of Article 269 years of age; and superior court. with Article 54 (3) of the current (c) a person qualified to be (4) The office of Attorney-General constitution because it was more appointed as a Judge of a shall become vacant if the holder of comprehensive. superior court. the office is removed from office by (4) Subject to this Article, a the President. person holding the office of Attorney-General shall retire from (5) The Attorney-General may office on attaining the age of sixty resign from office on giving three years and may retire on attaining the months notice in writing to the age of fifty-five years. President. (5) The Attorney-General shall 6) The functions of the Attorney- only be removed from office on the General shall include- same grounds and same procedure (a) being the principal legal as those that apply to a Judge of a adviser to the Government; superior court. (b) causing the drafting of (6) The Attorney-General may
477 resign from office on giving three and signing, all months notice in writing to the Government Bills to be President. presented to Parliament; (7) The functions of the (c) drawing and perusing Attorney-General shall include - agreements, contracts, (a) being the principal treaties, conventions and legal adviser to the documents, by whatever Government; name called, to which the (b) the signing of all Government is a party or Government Bills to be in respect of which the presented to the Government has an National Assembly; interest; (c) representing the (d) representing the Government in the courts Government in the courts or any other legal or any other legal proceedings to which proceedings to which Government is a party, Government is a party; and and (d) any other function (e) any other functions assigned to the Attorney- assigned to the Attorney- General by the President General by the President or by any other law. or by any other law. (8) Subject to this Constitution, (7) Subject to the other provisions an agreement, treaty or convention of this Constitution, an agreement, shall not be concluded without the contract, treaty, convention or legal advice of the Attorney-General, document by whatever name called, except where the National Assembly to which Government is a party or in otherwise directs and subject to the respect of which the Government has an interest, shall not be concluded
478 conditions provided by an Act of without the legal advice of the Parliament. Attorney-General, except in such (9) The Attorney-General shall cases and subject to such conditions as not be subject to the direction or Parliament may by law prescribe. control of any other person or (8) In the exercise of the power to authority in the performance of the give directions to the Director of Attorney-General‟s functions under Public Prosecutions conferred by this Constitution. clause (6) of Article 239, the Attorney-General shall not be subject to the direction or control of any other person or authority.
Article 270: Solicitor-General Solicitor-General Solicitor- 270. (1) There shall be a General Solicitor-General 270. of (1) the Republic 237. (1) There shall be a Solicitor- The Conference adopted Article 270 whose office is a public office and General of the Republic whose office is of the Mung‟omba Draft who shall be appointed by the a public office and who shall be Constitution with amendments and President on the recommendation of appointed by the President, subject to re-numbered it as Article 237. the Judicial Service Commission, ratification by the National Assembly. subject to ratification(2) (2) by the The Conference adopted clauses (1), National Assembly. (2) A person shall not qualify to be (2), (3) and (6) of Article 270 and (2) A person shall not appointed to the office of Solicitor- substituted clause (5) with clause (3) qualify to be appointed to the office General unless that person is qualified of Article (55) of the current of Solicitor-General unless that for appointment as a Judge of a Constitution. person is qualified for appointment superior court. as a Judge of a superior court. (3) The Conference observed that in Subject to this Article, a (3) The office of Solicitor-General ratifying presidential appointments, person holding the office of shall become vacant if the holder of the National Assembly consulted all Solicitor-General shall retire from the office is removed from office by stakeholders, including the Judicial
479 office on attaining the age of sixty the President. Service Commission. years and may retire on attaining the age of fifty-five years. (4) The Solicitor-General may (4) The Solicitor-General resign from office on giving three shall only be removed from office on months notice in writing to the the same grounds and same President. procedure as those that apply to a (5) A function conferred on the Judge of a superior court. Attorney-General by this Constitution (5) The Solicitor-General or any other law may be performed by may resign from office on giving the Solicitor-General- three months notice in writing to the (a) when the Attorney-General is President. unable to act owing to illness or (6) A function conferred absence from office for any on the Attorney-General by this reason; and Constitution or any other law may (b) in any case where the Attorney- be performed by the Solicitor- General has authorised the General - Solicitor-General to perform (a) when the Attorney- that function. General is unable to act owing to illness or absence from office for any reason; and (b) in any case where the Attorney-General has authorised the Solicitor-General to perform that function.
480 Article 271: Director of Public Prosecutions Director of Public Prosecutions The Conference adopted Article 271 Solicitor- of the Mung‟omba Draft General 271 (1) There shall be a Director of 238. (1) There shall be a Director Constitution with amendments and Public Prosecutions whose office is a of Public Prosecutions whose office is re-numbered it as Article 238. public office and who shall be a public office and who shall be appointed by the President on the appointed by the President subject to The Conference: recommendation of the Judicial ratification by the National Assembly. Service Commission, subject to (a) approved clause (1) ratification by the National (2) A person shall not qualify to be without amendments; Assembly. appointed to the office of Director of (2) A person shall not qualify to be Public Prosecutions unless that person (b) amended clause (2) to provide appointed to the office of Director of is qualified to be appointed as a Judge that only a person who qualified Public Prosecutions unless that of a superior court with experience to be a judge with a bias in person - biased towards criminal law. criminal law should be eligible (a) is not(3) less than forty- (3) Except as otherwise provided in to be appointed DPP; five years of age; this Constitution or any other law, the (c) referred clause (4) to a (b) has experience in Director of Public Prosecutions may- referendum for decision criminal prosecutions; (a) institute and undertake because the Conference could and criminal proceedings not attain consensus on the (c) is qualified to be against a person before a matter. appointed as a Judge court, other than a court- (d) included clause (8) to empower of a superior court. martial, in respect of an Parliament to enact legislation (3) Except as otherwise provided in offence alleged to have been to establish a National this Constitution or any other law, committed by that person; Prosecution Authority which the Director of Public Prosecutions (b) take over and continue should be headed by the may - criminal proceedings Director of Public Prosecutions. (a) institute and instituted or undertaken by undertake criminal any other person or
481 proceedings against a person authority; and before a court, other than a (c) discontinue, at any stage court-martial, in respect of an before judgment is delivered, offence alleged to have been criminal proceedings committed by that person; instituted or undertaken. (4) The functions of the Director of (b) take over and Public Prosecutions under clause (3) continue may be exercised in person or by a criminal public officer or class of public officers proceedings or legal practitioners, specified by the instituted or Director of Public Prosecutions, acting undertaken by under the general or special any other instructions of the Director of Public person or Prosecutions. authority; and (5) For the purposes of clause (3)- (c) discontinue, at (a) an appeal from a judgment any stage before in any criminal proceeding judgment is before a court or a case delivered, stated or question of law criminal reserved for the purposes proceedings of proceedings to any other instituted or court, shall be part of the undertaken. criminal proceedings; and (4) The Director of Public b) the power conferred on the Prosecutions shall not enter a nolle Director of Public prosequi except with the leave of the Prosecutions by paragraph court. (c) of that clause shall not (5) The functions of the Director be exercised in relation to
482 of Public Prosecutions under clause an appeal by a person (3) may be exercised in person or by convicted in a criminal a public officer or class of public proceeding, to a case stated officers or legal practitioner, or to a question of law specified by the Director of Public reserved at the instance of Prosecutions, acting under the that person. general or special instructions of the (6) The Director of Public Director of Public Prosecutions. Prosecutions shall not be subject to the (6) For the purposes of clause (3) - direction or control of any person or (a) an appeal from a authority in the performance of the judgment in any functions of Director of Public criminal proceeding Prosecutions: before a court or a case Provided that when the stated or question of exercise of any power in any law reserved for the case may, in the judgement of purposes of the Director of Public proceedings to any Prosecutions involve general other court, shall be consideration of public policy, part of the criminal the Director of Public proceedings; and Prosecutions shall bring the case to the notice of the (b) the power conferred Attorney-General and shall in on the Director of the exercise of powers in Public Prosecutions by relation to that case, act in paragraph (c) of that accordance with any directions of the Attorney-General. clause shall not be (7) In exercising the powers exercised in relation to conferred by this Article, the Director an appeal by a person of Public Prosecutions shall have
483 convicted in a criminal regard to the public interest, the proceeding, to a case interests of the administration of stated or to a question justice and the need to prevent and of law reserved at the avoid abuse of the legal process. instance of that 8) Parliament shall enact person. legislation to- (a) establish a National (7) The Director of Public Prosecution Authority which Prosecutions shall not be subject to shall be headed by the Director the direction or control of any of Public Prosecutions; person or authority in the (b) provide for the functions, performance of the functions of powers, independence, Director of Public Prosecutions. operations, administration, (8) In exercising the powers finances and conferred by this Article the Director financial management of the of Public Prosecutions shall have National Prosecution regard to the public interest, the Authority; (c) provide for the composition, interests of the administration of tenure of office and procedures justice and the need to prevent and of the Board of avoid abuse of the legal process. the National Prosecution
Authority, whose chairperson
shall be the Director of Public Prosecutions; (d) provide for the decentralisation of the offices of the National Prosecution Authority to the provinces and progressively to the districts;
484 and (e) provide for any other function of the Director of Public Prosecutions.
Article 272: Performance of functions of Performance of functions of Performance Director of Public Prosecutions Director of Public Prosecutions of functions during absence, illness or other during absence, illness or other of Director of cause cause The Conference adopted Article 272 Public of the Mung‟omba Draft Prosecutions 272.Where the Director of Public 239. Where the Director of Public Constitution without amendments during Prosecutions is absent from Zambia Prosecutions is absent from Zambia or and re-numbered it as Article 239. absence, or is unable to perform the functions is unable to perform the functions of illness or of office because of illness or for any office because of illness or for any other cause other cause, the President shall, on other cause, the President shall, on the the recommendation of the Judicial recommendation of the Judicial Service Commission, appoint any Service Commission, appoint any other person to perform the other person to perform the functions functions of the Director of Public of the Director of Public prosecutions Prosecutions until that appointment until that appointment is revoked. is revoked Article 273: Tenure of office of Director of Tenure of office of Director of Public Tenure of Public Prosecutions Prosecutions office of Director of 273. (1) Subject to this Article, a 240. (1) Subject to this Article, a The Conference adopted Article 273 Public person holding the office of Director person holding the office of Director of the Mung‟omba Draft Prosecutions of Public Prosecutions shall retire of Public Prosecutions shall retire Constitution with amendments and from office on attaining the age of from office on attaining the age of re-numbered it as Article 240. sixty years and may retire on sixty years and may retire on attaining attaining the age of fifty-five years. the age of fifty-five years. The Conference approved clauses
485 (2) The Director of Public (2) The Director of Public (1), (2) and (3) of Article 273 without Prosecutions may be removed from Prosecutions may be removed from amendments. office on the same grounds and office on the same grounds and same procedure as those that apply to a procedure as those that apply to a The Conference deleted clause (4), Judge of a superior court. Judge of a superior court. because the provision could be (3) The Director of Public (3) The Director of Public attained administratively. Prosecutions may resign from office Prosecutions may resign from office on giving three months notice to the on giving three months notice in President. writing to the President. (4) Parliament shall enact legislation to provide for any other function of the Director of Public Prosecutions and for the decentralisation of that office to the provinces.
Article 274: Permanent Secretaries Permanent Secretaries Permanent Secretaries 274. (1) Subject to this 241. (1) Subject to this The Conference adopted Article 274 Constitution, a ministry or Constitution, a province, ministry or of the Mung‟omba Draft department of the Government shall department of the Government shall Constitution with amendments and be under the supervision and be under the supervision and re-numbered it as Article 241. administration of a Permanent administration of a Permanent Secretary whose office is a public Secretary whose office is a public The Conference: office. office. (a) decided to include the term (2) A Permanent Secretary shall (2) A Permanent Secretary shall be “province” in clause (1) in be a career civil servant appointed appointed by the President in order to provide for office of by the President in accordance with accordance with the recommendation Permanent Secretary at the the advice of the Civil Service of the Public Service Commission. Provincial level;
486 Commission, subject to ratification (3) Parliament shall enact (b) substituted the tern “civil by the National Assembly. legislation to provide for the service” in clause (2) with (3) The functions of a Permanent functions and qualifications of a “public service” which was Secretary shall include - Permanent Secretary. more encompassing. In the (a) the organisation and same clause, the Conference administration of a did not support the department or ratification of the appointment ministry; of Permanent Secretaries by (b) tendering advice to the the National Assembly responsible Minister in because the Public Service respect of the business Commission was the and function of the appropriate institution to department or make recommendation on the ministry; appointments; (c) implementation of the policies of the (c) expressed the view Government; and that requiring Parliament to (d) responsibility for the ratify the appointments would proper financial lead to delays because there management and would be too many expenditure of public appointments requiring funds by or in ratification; and connection with the department or ministry. (d) resolved that functions of Permanent Secretary should be provided for in an Act of Parliament.
487 Article 275: Protection of Public The Conference deleted Article 275 of Protection of 275 A public officer shall not be - the Mung‟omba Draft Constitution on The Conference deleted Article 275 Public (a) victimized or protection of public officers. of the Mung‟omba Draft officers discriminated against for Constitution. having performed functions in good faith in The Conference observed that: accordance with this (a) matters relating to human Constitution or any other resources should not be in the law; or Constitution; and (b) dismissed or removed from office or reduced in (b) public officers were already rank or otherwise protected through various Acts punished without just of Parliament. cause and due process
Article 276: Services and Service commissions Public Service Commission and Services and other service commissions Service 276. (1) There shall be commissions established the following Services: 242. (1) There is hereby The Conference adopted Article 276 (a) the Civil established the Public Service of the Mung‟omba Draft Service; and Commission. Constitution with amendments and (b) the Teaching (2) The Public Service re-numbered it as Article 242. Service. Commission shall consist of a (2) Parliament shall, subject to Chairperson and not less than four or The Conference adopted Article 276 this Constitution, enact legislation to more than six other members: but resolved that it should be provide for each Service established Provided that at least one member harmonised with Article 123 of the under clause (1), for the shall be a person with a disability. current Constitution as reflected in establishment of a service (3) The Chairperson and Article 242. members of the Public Service
488 commission for each Service and in Commission shall be appointed by In addition, the marginal note was particular to provide for - the President. amended to read: “Public Service (a) the composition of (4) A person shall not qualify to Commission and other Service each service be appointed as a Chairperson or Commissions.” commission; member of the Public Service (b) the functions and Commission unless that person is - powers of each service commission; a) a person of proven (c) the operations, integrity; and procedures and b) not a member of the finances of each service National Assembly or a commission; public officer. (d) the functions of each (5) Subject to clause (6) and (7), service; the Chairperson and members of the Public Service Commission shall (e) the membership of hold office for a term of four years each service; and and shall be eligible for (f ) the structures and reappointment for only one further other provisions term of four years. necessary for the (6) The office of Chairperson or proper and efficient member of the Public Service administration and Commission shall become vacant if operation of each the holder of the office is removed Service and service from office by the President. commission. (7) Subject to the other provisions of this Article, a Chairperson or member of the Public Service Commission shall vacate office - Article, a Chairperson or member of
489 the Public Service Commission shall vacate office – (a) at the expiry of the term of office specified under clause (5); (b) if any circumstances arise that, if the person were not a member of the Commission, would cause the person to be disqualified for appointment as such; or (c) in the case of a member who represents a body or institution, if that body or institution nominates another person to represent it. (8) The President may give to the Public Service Commission or to any person, to whom the functions or powers of the Commission are delegated by or under an Act of Parliament, such general directions with respect to the exercise of the functions or powers of the Commission, as the President may consider necessary and the Commission or that person shall
490 comply with those directions. (9) Except as otherwise provided by clause (8), the Public Service Commission shall not be subject to the direction or control of any other person or authority in the exercise of its functions under this Constitution (10) Parliament shall enact legislation to provide for the functions, powers, procedures, operations, administration, finances and financial management of the Public Service Commission. (11) Parliament may enact legislation to- (a) establish other commissions that may be necessary for the efficient and effective functioning of the public service; and (b) provide for the functions, powers, independence, composition, tenure of office, procedures, operations, administration, finances and financial management of a commission established by or under this clause.
491 Article 277: Establishment of investigative Establishment of Investigative Establishment commissions Commissions of 277 (1) There is hereby established investigative 245. (1) There shall be the following investigative The Conference adopted Article 277 commissions established for the Republic commissions - of the Mung‟omba Draft investigative commissions etc. Constitution with amendments and (a) the Anti-Corruption (2) Parliament shall enact re-numbered it as Article 245. Commission; legislation to provide for the (b) the Anti-Drug Abuse functions, powers, independence, Commission; composition, tenure of office, The Conference decided that Article (c) the Judicial Complaints procedures, operations, 277 be harmonised with Articles 276 Commission; and administration, finances and financial and 278 and that Article 123 (3) of (d) the Police and Public management of an investigative the current Constitution be adopted Complaints Commission. Commission established under clause as it provided for the establishment (2) Parliament shall enact (1). of other commissions. legislation to provide for the (3) Commissions, other than functions, composition, tenure of investigative commissions, may be office, procedures, operations, established for the Republic by or administration, finances and under an Act of Parliament and shall financial management of a have functions and powers as may be Commission established under this prescribed by or under an Act of Article. Parliament.
Article 278: Other additional commissions The Conference deleted Article 278 of The Conference deleted Article 278 Other 278. Parliament may enact the Mung‟omba Draft Constitution on of the Mung‟omba Draft additional legislation to other additional commissions. Constitution. commissions (a) establish other commissions that may be necessary for the The Conference resolved that Article efficient and effective 278 be harmonised with Articles 276
492 functioning of the public and 277 as provided under service; and harmonised Article 245. With that (b) provide for the functions, decision, it was agreed that the composition, tenure of office, harmonisation should include a procedures, operations, provision for establishment of other administration, finances and commissions in future. financial management of a commission established by or under this Article Article 279: Membership of Commissions Membership 279 Subject to this Constitution, The Conference deleted Article 279 of The Conference deleted Article 279 of Parliament shall in enacting the Mung‟omba Draft Constitution on of the Mung‟omba Draft Commissions legislation in respect of a membership of commissions Constitution commission established under this Part ensure that - The Conference decided that some (a) a commission shall be provisions of Article 279 be composed of not less than harmonised with Article 278 because three persons and not the issues under that Article were more than seven persons; similar to those in Article 278 (b), (b) at least one member is a and further that the rest of the person with disability; provisions be relegated to an Act of (c) a person does not qualify Parliament. to be appointed to a commission unless that person is - (i) a citizen; (ii) permanently resident in
493 Zambia; (iii) not an office bearer or employee of any political party; (iv) a person who has not been convicted of theft, fraud, forgery, perjury or any other offence that involves dishonesty; and (v) a person of high moral standing and proven integrity; and (d) the members of a commission shall be appointed by the President, subject to ratification by the National Assembly.
Article 280: Independence and powers of The Conference deleted Article 280 of The Conference deleted Article 280 Commissions the Mung‟omba Draft Constitution on of the Mung‟omba Draft Independence independence and powers of Constitution and provided for the and powers of 280. (1) In the performance of commissions. independence and powers of Commissions
494 its functions under this Constitution commissions in clause (2) of Article or any other law, a commission 245. established under this Part shall not be subject to the control or direction of any person or authority. (2) A commission established under this Part shall be provided with adequate funding to enable it to effectively carry out its mandate. (3) A commission established under this Part - (a) shall have the power to appoint its staff; (b) may initiate its own investigations on information available to it; (c) may refer matters within its powers to appropriate State organs or State institutions for action; (d) may receive complaints from any person or group of persons on matters within its powers; and (e) shall submit annual reports to the National
495 Assembly on its activities and any other report as provided by or under an Act of Parliament.
Article 281: Appointment of Chief executive of Appointment of Chief executive of Appointment Commissions Commissions of Chief executive of 281. A Commission established The Conference deleted Article 281 of The Conference deleted Article 281 Commissions under this Part shall have a chief the Mung‟omba Draft Constitution on of the Mung‟omba Draft executive who shall be appointed by appointment of chief executive of Constitution. the respective commission commissions. The Conference decided that Article 281 be relegated to an Act of Parliament.
Article 282: Participation in politics Participation in politics The Conference adopted Article 282 Participation of the Mung‟omba Draft in politics 282. A public officer who seeks 246. (1) A public officer shall Constitution with amendments and election to a political office shall take not, while remaining a public officer, re-numbered it as Article 246. early retirement in the national join or participate in partisan interest if that officer has served for politics. The Conference agreed that every at least twenty years or resign from (2) A public officer who seeks Zambian had aright to associate the public service. election to a political office shall take with any other person, group of early retirement in the national persons or organisations. The interest if that officer has served for at Conference also observed that least twenty years or resigns from public officers‟ involvement in public service.
496 partisan politics would interfere with the efficient performance of their duties.
Article 283: Retirement of public officers Retirement of public officers Retirement of 283. (1) A public officer shall, 247. (1) A public officer shall, The Conference adopted Article 283 public unless otherwise provided in this unless otherwise provided in this of the Mung‟omba Draft officers Constitution, retire from the public Constitution, retire from the public Constitution with amendments and
service on attaining the age of sixty service on attaining the age of sixty re-numbered it as Article 247. years and may retire with full years and may retire with full benefits benefits on the attainment of fifty- on the attainment of fifty-five years. The Conference approved Article five years. (2) A public officer may, unless 283 clauses (1) and (2) of the otherwise provided in this Mung‟omba Draft Constitution. (2) A public officer may, unless Constitution, retire from the public otherwise provided in this service at any time after a continuous Clause (3) was approved with minor Constitution, retire from the public service of twenty years, with the amendments as it was felt that some service at any time after a approval of the Government. public officers might acquire special continuous service of twenty years, (3) A public officer who has retired skills while in employment. with the approval of the from the public service shall not be re- Government. engaged, except that an officer who (3) A public officer that has has special professional qualifications retired from the public service shall or has acquired special skills may be not be engaged, except that an re-engaged on contract officer that has special professional qualifications may be engaged on contract.
Article 284: Pension, gratuity and retrenchment Pension, gratuity and retrenchment The Conference adopted Article 284 Pension, benefits for public officers benefits for public officers of the Mung‟omba Draft
497 gratuity and Constitution with amendments and retrenchment 284.(1) The right of a public officer to 248.(1) The right of a public officer to a re-numbered it as Article 248. benefits for a pension, gratuity or retrenchment pension, gratuity or retrenchment public benefits is hereby guaranteed. benefits, to which the public officer The Conference: officers (2) Any benefit which a public is entitled under the terms and (a) amended clause (1) by making officer is entitled to or under an Act conditions of service or by or under reference to public officer‟s of Parliament shall not be withheld an Act of Parliament, is hereby terms and conditions of service; or altered to that officer‟s guaranteed. (b) harmonised clause (2) with disadvantage, except to an upward (2) Any pension, gratuity or Article 124 of the current adjustment to the extent provided retrenchment benefits which a public Constitution in order to avoid by law. officer is entitled to under the terms the collapse of the Pensions (3) The law to be applied with and conditions of service or by or Fund; respect to any pension benefits that under an Act of Parliament shall not (c) approved clause (3) by were granted to any person before be withheld or altered to that officer‟s substituting the term the commencement of this disadvantage, except to an upward “Consolidated Fund” with Constitution shall be the law that adjustment to the extent provided by “National Treasury Account”; was in force at the date on which law. (d) amended clause (6) the term those benefits were granted or any (3) The law to be applied with “surviving spouses” in law in force at a later date that is respect to any pension benefits that recognition of both customary favourable to that person. were granted to any person before the and statutory marriages; and (4) The law to be applied with commencement of this Constitution respect to pension benefits, other shall be the law that was in force at (e) adopted clauses (3) and (4) than as provided in clause (2), shall- the date on which those benefits were without amendments. (a) where those benefits are wholly granted or any law in force at a later in respect of a period of service date that is favourable to that person. as a public officer, member of the Defence Forces or of the (4) The law to be applied with national security agencies that respect to pension benefits, other than
498 commenced before the as provided in clause (2), shall- commencement of this (a) where those benefits are wholly in Constitution, be the law in force respect of a period of service as a immediately before that date; or public officer, as an officer in the (b) where those benefits are wholly department of the Clerk of the or partly in respect of a period National Assembly, member of of service as a public officer, the Defence Force or of the member of the Defence Forces national security agencies that or national security agencies commenced before the that commenced after the commencement of this commencement of this Constitution, be the law in force Constitution, be the law in force immediately before that date; or on the date on which(b) that period (b) where those benefits are wholly or of service commenced; partly in respect of a period of or any law in force at a later service as a public officer, date that is not less favourable member of the Defence Forces or to that person. national security agencies that (5) All pension benefits, unless commenced after the otherwise charged on a fund commencement of this established by or under an Act of Constitution, be the law in force Parliament, shall be a charge on the on the date on which that period Consolidated Fund. of service commenced; (6) In this Article “pension or any law in force at a later date benefits” includes any pension, that is not less favourable to that compensation and gratuity or similar person. allowance for persons in respect of (5) All pension benefits or their service as public officers, retrenchment benefits, unless members of the Defence Forces and otherwise charged on a fund
499 national security agencies or for the established by or under an Act of children, dependants or personal Parliament, shall be a charge on the representatives of those persons in National Treasury Account. respect of the service. (6) In this Article “pension benefits” includes any pension, compensation and gratuity or similar allowance for persons in respect of their service as public officers, officers in the department of the Clerk of the National Assembly, members of the Defence Forces and national security agencies or for the surviving spouses, children, dependants or personal representatives of those persons in respect of the service.
Article 285: Pension to be reviewed Pensions to be reviewed Pension to be reviewed 285. (1) Pensions shall be reviewed 249. Pensions shall be reviewed The Conference adopted Article 285 upwards periodically to take into upwards periodically to take into of the Mung‟omba Draft account changes in the value of account changes in the value of money Constitution with amendments and money or a review of salaries. or a review of salaries. re-numbered it as Article 249. (2) Pension in respect of service in the public service is exempt from The Conference approved clause (1) tax. without amendments. Clause (2) was deleted because it would impact negatively on the capacity of government to provide adequate
500 public services as government had no other means of raising resources apart from taxes. Further, public officers, after retirement, continued to access public services provided by government through revenue generated from taxes. Article 286: Pension and retrenchment benefits Pension and retrenchment benefits Pension and to be paid promptly to be paid promptly retrenchment benefits to be 286. (1) The payment of pension or Article 286 was revised and The Conference decided that Article paid promptly retrenchment benefit shall be paid harmonised with Article 287 as 286 of the Mung‟omba Draft on the last working day and any provided in Article 250 below. Constitution be harmonised with instalments of pension benefits shall Article 287. be paid regularly and shall be easily accessible to pensioners. The Conference observed that there (2) Where pension or were similarities in clauses (1) and retrenchment benefit due is not paid (3) (a), (b) and (c) and decided that on the last day of an employee‟s the provisions in those clauses be working day, the employee shall harmonized while ensuring that the stop work but the retiree‟s or intention of each clause was retrenchee‟s name shall be retained maintained. on the payroll until payment of the pension or retrenchment benefit. (3) A retiree or retrenchee who does not receive the retiree‟s pension or retrenchee‟s benefits on the last working day shall be entitled to -
501 (a) be retained on the payroll; (b) a salary and to any increment in salary given to public officers in the salary scale that the retiree or retrenchee was on at the date of retirement or retrenchement; and (c) a pension or retrenchment benefit based on the last salary received by the retiree or retrenchee while on the payroll by virtue of this Article.
Article 287: Legislation on pensions and Legislation on pension, gratuity and The Conference adopted Article 287 Legislation on gratuities retrenchment benefits for public of the Mung‟omba Draft pensions and officers Constitution with amendments and gratuities 287. Parliament shall enact re-numbered it as Article 250. legislation to provide for pensions 250. (1) Parliament shall enact and gratuities for service in the legislation to- The Conference decided that Article public service and for an efficient (a) provide for pensions, 287 be harmonised with Article 286 and effective system for the gratuities and retrenchment because their provisions were administration of pension benefits for service in the Public interrelated. Service and for an efficient and effective system for the
502 administration of pensions;
(b) specify the period, which period shall not exceed six months from the date of retirement or retrenchment, within which pension or retrenchment benefits shall be paid to a retired or retrenched public officer; (c) provide for the retention on the pay roll, until payment of the pension or retrenchment benefits, of a public officer who is retired or retrenched but is not paid pension or retrenchment benefits; and (d) specify what constitutes pension or retrenchment benefits for purposes of retaining a retired or retrenched public officer on the pay roll by virtue of this Article. (2) A public officer referred to under paragraph (c) of clause (1) shall stop work on their last working day but shall be entitled to – (a) a salary and to any increment in salary given to public officers in the salary scale that the public officer was on at the date of
503 retirement or retrenchment; and (b) a pension or retrenchment benefits based on the last salary received by the retired or retrenched public officer while on the pay roll by virtue of this Article. (3) Any salary which is paid to a retired or retrenched public officer while on the pay roll by virtue of this Article shall not be deducted from that retired or retrenched public officer's pension or retrenchment benefits.
504
PART XV PARLIAMENTARY OMBUDSMAN ARTICLE PROVISIONS OF THE No. MUNG’OMBA DRAFT RESOLUTIONS OF THE RATIONALE/REMARKS CONSTITUTION CONFERENCE Article 288: Establishment of office of Establishment of office of The Conference adopted Article 288 Establishm Parliamentary Ombudsman Investigator-General and re-numbered it as Article 251. ent of office The Conference approved clause (1) of 288. (1) There is hereby established of Article 288 but decided to amend Parliamenta 251. (1) There is hereby established the the Office of the Parliamentary the title from "Ombudsman” to ry office of the Investigator-General Ombudsman which shall have “Investigator-General” in order to Ombudsma which shall have offices in all the offices in all of the provinces and make it- n provinces and progressively in the progressively in the districts. (a) easier to pronounce; districts. (b) more user-friendly; and (c) understood by ordinary people.
(2) The Ombudsman shall be (2) The Investigator-General shall be Clauses (2) and (3) were approved appointed by the Parliamentary appointed by the President on the with some minor amendments. Service Commission, subject to advice of the Judicial Service ratification by the National Commission, subject to ratification by Assembly. the National Assembly. (3) Parliament shall enact legislation to provide for the (3) Parliament shall enact legislation
505 procedures, staff, financial to provide for the functions, powers resources, financial management procedures, staff, financial resources, and operations of the office of the financial management and operations Parliamentary Ombudsman. of the office of the Investigator- General.
Article 289: Qualification for appointment and Qualification for appointment and Qualificatio conditions of service conditions of service n for appointme 289. (1) A person shall qualify to be 252. (1) A person shall qualify to Having substituted “Ombudsman” nt and appointed to the office of the be appointed to the office of the with “Investigator-General” under conditions Ombudsman if that person- Investigator-General if that person- Article 288, the Conference accepted of service (a) is qualified to be appointed (a) is qualified to be appointed as a the proposed qualifications and
as a Judge of a superior Judge of a superior court; and conditions under Article 289 (1), (2),
court; and (b) does not hold the office of (3) and (4) of the Mung'omba Draft President, Vice-President, Constitution with amendments, and (b) does not hold the office of Minister, Provincial Minister, re-numbered Article 289 as Article President, Vice-President, Deputy Minister, member of the 252. Minister, Provincial National Assembly or Minister, Deputy Minister, councillor. member of the National (2) The terms and conditions of Assembly or councillor. service of the Investigator-General (2) The terms and conditions of including the grounds and procedure service of the Ombudsman, for removal from office, shall be the including the grounds and same as apply to a Judge of a superior procedure for removal from office, court. shall be the same as apply to a Judge (3) The Investigator-General shall of a superior court. not hold any other office of profit or
506 (3) The Ombudsman shall not emolument. hold any other office of profit or (4) Where the Investigator- emolument. General dies, resigns, is removed (4) Where the Ombudsman dies, from office, is absent from Zambia or resigns, is removed from office, is is for any other reason unable to absent from Zambia or is for any perform the functions of office, the President other reason unable to perform the shall, on the functions of office the National recommendation of Judicial Assembly shall, on the the Service Commission, recommendation of the appoint a person who is qualified to Investigator-General Parliamentary Service Commission, be appointed as Investigator-General appoint a person who is qualified to to act until the be appointed as Ombudsman to act resumes office or another Investigator-General until the Ombudsman resumes is appointed.
office or another Ombudsman is
appointed.
Article 290- Functions of Ombudsman The Conference deleted Article 290 Functions (Investigator-General) of the Mung'omba Draft of Constitution. This was because the Ombudsma 290. (1) The Ombudsman may Conference resolved that the n investigate an action taken or functions of Investigator-General (Investigato omitted to be taken, as specified should be provided for under an Act r-General) under clause (2), by or on behalf of of Parliament as they were amenable
any State institution in the to change over time. performance of an administrative
507 function. (2) An action taken or omitted to be taken under clause (1), is an action which is –
(a) an abuse of office; (b) an unfair or unjust decision or action; or
(c) an action not
complying with the rules of natural justice. (3) For the purpose of clauses (1) and (2), the Ombudsman may -
(a) bring an action before
a court and seek a
remedy which is
available from the
court;
(b) hear and determine an appeal by a public officer serving in the public service or an employee of any State institution relating to an act or omission taken in respect of that officer which
508 contravenes this Article; (c) make any decision after investigations, and where appropriate, on any disciplinary action to be taken against a public officer serving in the public service which decision shall be implemented by the appropriate authority; and (d) issue regulations regarding the manner and procedure for bringing complaints before the Ombudsman and the investigation of matters or complaints. (4) The Ombudsman may - (a) issue a statement of opinion on the administration of State institutions; (b) make recommendations
509 on the review, harmonisation and development of the law for the purpose of improving administrative justice in State institutions; and (c) perform any other function provided by an Act of Parliament. (5) The Ombudsman shall have the powers of the High Court in - (a) enforcing the attendance of witnesses and examining them on oath; (b) compelling the production of documents; and (c) issuing a commission or request to examine witnesses abroad. (6) A person summoned to attend to give evidence or to produce a document before the Ombudsman shall be entitled, in respect of that
510 evidence or the production of the document, to the same privileges and protections as those that a person would be entitled to before a court. (7) An answer by a person to a question put by the Ombudsman shall not be admissible in evidence against that person in any civil or criminal proceedings in any court, except for perjury under criminal law.
Article 291: Independence of Ombudsman and Independence of Investigator- Independe funding General The Conference adopted Article 291 nce of with amendments and decided to Ombudsma 291. (1) In the performance of 253. In the performance of functions of delete clauses (2), (3), (4) and (5) n and functions conferred on the the Investigator-General, the because they were either covered funding Ombudsman under this Investigator-General and the staff of under other Articles or were
Constitution or any other law, the the office of the Investigator-General misplaced. The Conference re- Ombudsman and the staff of the shall be subject only to this numbered Article 291 as Article 253. office of the Ombudsman shall be Constitution and any other law and subject only to this Constitution and shall not be subject to the direction or shall not be subject to the direction control of any person or authority. or control of any person or authority.
(2) The appointment of staff of the
511 office of Ombudsman shall be made by the Ombudsman. (3) The emoluments of the Ombudsman shall be determined by the Emoluments Commission and provided for in an Act of Parliament and shall be a charge on the Consolidated Fund.
(4) The Ombudsman shall take measures to educate the people on the functions of the Ombudsman. (5) The office of the Ombudsman shall be adequately funded to enable the office to effectively carry out its mandate. (6) The expenses of the office of the Ombudsman, including the emoluments of staff, shall be a charge on the Consolidated Fund. Article 292: Limitation of powers of Limitation ombudsman (Investigator-General) of powers The Conference deleted Article 292 of 292. The Ombudsman shall not of the Mung'omba Draft Ombudsma investigate a matter - Constitution and decided to provide n (a) which is before a court for it under an Act of Parliament in
or a quasi-judicial line with its decision under clause (3) of Article 251.
512 tribunal; (b) involving the relations or dealings between the Government and any foreign government or international organisation; or
(c) relating to the exercise of the prerogative of mercy.
Article 293: Accountability Accountability The Conference adopted Article 293 Accountabi 293. The Ombudsman shall be of the Mung'omba Draft lity 254. The Investigator-General shall accountable to the National Constitution with amendments report to the National Assembly and Assembly. because it was felt that both the shall be accountable to the President. National Assembly and the President had a role to play in the functions performed by the Investigator-General. The Conference renumbered Article 293 as Article 254. Article 294: Accounts and audit The Conference deleted Article 294 Accounts of the Mung'omba Draft and audit 294. (1) The Ombudsman shall keep Constitution and decided to provide books of account and proper records for it under an Act of Parliament as in relation to the accounts in the it was felt that provisions under
513 form approved by the Auditor- Article 294 were details. General. (2) The Ombudsman shall, within three months after the end of the financial year, submit its accounts to the Auditor-General for audit. (3) The Auditor-General shall, within three months of the submission under clause (2), make a report on the audit to the Ombudsman with a copy of the report to the President and to the National Assembly. Article 295: Annual report Annual report 295. The Ombudsman shall, within The Conference deleted Article 295
six months after the end of each of the Mung'omba Draft financial year, submit an annual Constitution and decided to provide report on the activities of the office for it under an Act of Parliament of Ombudsman, for the previous year, to the National Assembly with a copy to the President. (2) The annual report shall contain - (a) a review of all the complaints lodged with the Ombudsman;
514 (b) a summary of the matters dealt with and the actions taken on them; (c ) a summary of the remedies awarded to aggrieved persons; and (d) a statement on the areas where the Ombudsman failed to take action to remedy an injustice and the reasons for the failure.
PART XVI DEFENCE AND NATIONAL SECURITY
ARTICLE PROVISIONS OF THE NO. MUNG’OMBA DRAFT RESOLUTIONS OF THE RATIONALE/REMARKS CONSTITUTION CONFERENCE
Article 296 - Establishment of Defence Forces and Zambia Defence Force The Conference deleted Articles Establishm functions 296 to 303 of the Mung‟omba ent of 255. (1) There shall be an armed Draft Constitution and Defence 296. (1) There shall be established the force to be known as the Zambia substituted them with Articles Forces and Defence Forces of Zambia consisting of Defence Force. 100 to 108 of the current functions the – (2) The Zambia Defence Force Constitution on Defence Force (a) Zambia Army; shall be non-partisan, national in and National Security Agencies
515 (b) Zambia Air Force; and character, patriotic, professional, with amendments in order to (c) Zambia National disciplined, productive and distinguish the respective Service. subordinate to the civilian provisions from each other and authorities as established under this re-numbered them as Articles (2) The Defence Forces shall - Constitution. 255 to 263. (3) Members of the Zambia (a) preserve and defend the Defence Force shall be citizens of sovereignty and territorial Zambia who do not have dual integrity of the Republic; citizenship and are of good character. (b) foster harmony and (4) A person shall not raise an understanding between the armed force except in accordance Zambia Army, Zambia Air with this Constitution. Force and Zambia National Service and the members of Functions of Defence Force the society; (c ) co-operate with civilian 256. The functions of the Zambia authorities in times of Defence Force shall be to- public emergencies and (a) preserve and defend the National disasters; sovereignty and territorial (d) engage in productive integrity of Zambia; activities for the (b) co-operate with the civilian development of the country authorities in emergency ; and situations and in case of (e) perform other functions natural disasters; provided for each force by (c) foster harmony and or under an Act of understanding between the Parliament. Zambia Defence Force and civilians; and (d) engage in productive activities
516 for the development of Zambia.
Article 297: Establishment of national security Legislation on Defence Force Establishm agencies and functions ent of national 297. (1) There shall be established 257. Parliament shall enact security national security agencies which shall legislation to regulate the Zambia agencies consist of the – Defence Force and to provide for – and (a) Zambia Police Service; (a) the organs and structures of the functions (b) Zambia Security Zambia Defence Force; Intelligence Service; and (b) the recruitment of persons into (c) Zambia Prisons Service. the Zambia Defence Force from (2) The Zambia Police Service shall - every district of Zambia; (a) protect life and property; (c) the terms and conditions of (b) preserve peace, law and service of members of the order; Zambia Defence Force; and (c ) ensure the security of the (d) the deployment of troops outside of Zambia. people;
(d) prevent and detect crime; Zambia Police Service (e) protect the rights and
freedoms enshrined in this 258. (1) There shall be a police Constitution; service to be known as the Zambia (f) foster and promote good Police Service and such other police relationship with services as Parliament may by law members of the society; prescribe. and (2) Subject to the other provisions (g) perform other functions of this Constitution, every police provided by or under an
517 Act of Parliament. service in Zambia shall be organised (3) The Security Intelligence Service and administered in such a manner shall be responsible for - and shall have such functions as (a) security intelligence and Parliament may, by law, prescribe. counter intelligence aimed (3) The Zambia Police Service at ensuring national shall be nationalistic, patriotic, non- security; partisan, professional, disciplined, (b) defence of this competent and productive and its Constitution against any members shall be citizens of Zambia act of sabotage or who do not have dual citizenship subversion; and and are of good character. (c) other functions as provided by or under an Functions of Zambia Police Service 259. The functions of the Zambia Act of Parliament. Police Service shall include the
following: (4) The Prisons Service shall be (a) to protect life and property; responsible for the management, (b) to preserve law and order; control and security of prisoners and (c) to detect and prevent crime; and prisons and for other functions that (d) to co-operate with the civilian relate to prisoners as provided by an authorities and other security Act of Parliament. organs established under this Constitution and with the population generally.
Legislation on Zambia Police Service
518 260. Parliament shall enact legislation to regulate the Zambia Police Service and to provide for- (a) the organs and structures of the Zambia Police Service; (b) the recruitment of persons into the Zambia Police Service from every district of Zambia; (c) the terms and conditions of service of members of the Zambia Police Service; and (d) the regulation generally of the Zambia Police Service.
Prisons Service
261. (1) There shall be the Zambia Prisons Service. (2) Members of the Zambia Prisons Service shall be citizens of Zambia who do not have dual citizenship and are of good character.
Legislation on Zambia Prisons Service
519
262. Parliament shall enact legislation to regulate the Zambia Prisons Service and to provide for- (a) the functions, organs and structures of the Zambia Prisons service; (b) the recruitment of persons to the Zambia Prisons Service from every district of Zambia; (c) the terms and conditions of service of members of the Zambia Prisons Service; and (d) the regulation generally of the Zambia Prisons Service.
Establishment of Police and Prisons Service Commission
263. (1) There is hereby established the Police and Prisons Service Commission. (2) Parliament shall enact legislation to provide for the functions, powers, independence, composition, tenure of office, staff, procedures, operations, finances and financial management of the Police and Prisons Service Commission.
520
Zambia Security Intelligence Service
264. (1) There shall be a Zambia Security Intelligence Service. (2) Members of the Zambia Intelligence Service shall be citizens of Zambia who do not have dual citizenship and are of good character. (3) Parliament shall enact legislation to regulate the Zambia Security Intelligence Service and to provide for- (a) the functions, organs and structures of the Zambia Security Intelligence Service; (b) the recruitment of persons into the Zambia Security Intelligence Service from every district of Zambia; (c) the terms and conditions of service of members of the Zambia Security Intelligence Service; and (d) the regulation generally of the Zambia Security Intelligence Service.
521 Article 298 - Establishment of Police and Prisons Establishm Service Commission ent of 298. (1) There is hereby established the Police and Police and Prisons Service Commission. Prisons (2) Parliament shall enact legislation to Service provide for the functions, composition, Commissio tenure or office, procedures, finances n and financial management of the Police and Prisons Service Commission. (3) The provisions of Part XIV relating to the membership, independence, powers and appointment of the Chief Executive of a commission shall apply to the Police and Prisons Service Commission.
Article 299 - Objectives and expenses of Defence Objectives Forces and national security agencies and expenses of 300. (1) The primary objectives of the Defence Defence Forces and the national Forces and security agencies shall be to - national (a) safeguard the well-being of security the people of Zambia; and agencies (b) secure and guard the sovereignty, peace, national
unity and territorial integrity of the Republic in
522 accordance with the Constitution and other laws. (2) The Defence Forces and national security agencies shall be nationalistic, patriotic, professional, disciplined, competent and productive and their members shall be citizens who do not have dual citizenship. (3) The Defence Forces and the national security agencies shall not - (a) act in a partisan manner; (b) further the interests or cause of any political party; or (c) act against a political interest or cause permitted under this Constitution or any other law. (4) Clause (2) shall apply to every member of the Defence Forces and national security agencies but nothing this Constitution shall prevent a member of those forces and agencies from registering as a voter or voting in any National elections or referenda. (5) The Defence Forces and national security agencies- (a) shall be subject to civilian
523 authority; and (b) shall be adequately and properly equipped to enable them effectively attain their objectives and perform their functions. (6) The expenses of the Defence Forces and national security agencies shall be a charge on the Consolidated Fund. Article 300 - Peace keeping missions The Conference decided to delete Peace 300. Except where a mission or service Article 300 of Mung‟omba Draft keeping is approved by the President, with the Constitution on Peace Keeping missions prior approval of the National Missions and decided to provide Assembly signified by the votes of not for it under Article 257 dealing less than two-thirds of all the members with legislation on defence force. of the National Assembly, personnel of the Defence Forces shall not be deployed outside the Republic on a peace-keeping mission or other similar service.
Article 301 - Deployment outside the Republic The Conference decided to delete Deploymen 301. (1) Subject to any law relating to Article 301 and provide for t outside the procedure and rules for deployment deployment outside the Republic the of personnel of the Defence Forces under Article 257. Republic outside the Republic, the President may – (a) at any time order that the whole
524 or any part of the Forces shall be deployed out of or beyond Zambia; (b) order any officer of the Forces to proceed to any place outside Zambia to undergo instruction, training or duty; or (c) where the consent of the officer or soldier of the Defence Forces is first obtained, place the officer or soldier at the disposal of the military authorities of any other country or territory to be attached to the armed or air forces of that country or territory. (2) Where the President intends to exercise any power under clause (1) (a), the President shall obtain the prior approval of the National Assembly signified by not less than two-thirds of the votes of all the members of the Assembly. Article 302 - Prohibition of certain activities The Conference deleted Article Prohibition 302. Except as provided for under this 302 and resolved to provide for of certain Constitution or by an Act of Parliament, prohibition to raise an armed activities a person shall not - force under clause (4) of Article (a) raise an armed force; 255. (b) establish -
525 (i) an air force; (ii) a national service; (iii) a police service; (iv) a prisons service; or (v) a security intelligence service; or (c) be concerned in the raising of an armed force or the establishment of any of the Defence Forces and national security agencies.
Article 303 Legislation to further regulate Defence -Legislation Forces and national security agencies The Conference deleted Article to further 303 and provided for legislation regulate 303. Subject to this Constitution, to further regulate Defence Defence Parliament shall enact legislation to Forces and National Security Forces and provide generally for the effective Agencies under Articles 257 and national operation of the Defence Forces and 264. security national security agencies and shall agencies provide for - (a) the regulation of the Defence Forces and national security agencies; (b) their organs and structures; (c) their operations and
526 administration; (d) the recruitment of persons from every district of the country into the Defence Forces and national security agencies; (e) the appointment, qualifications, retirement, placement, transfer and discipline of defence and security chiefs and other personnel of the Defence Forces and national security agencies; (f) the terms and conditions of service of personnel and members; (g) such other functions as may be necessary for the effective operation of the Defence Forces and national security agencies; (h) other Defence Forces and national security agencies; and (i) the regulation of private security organisations.
527
PART XVII PUBLIC FINANCE AND BUDGET
ARTICLE PROVISIONS OF MUNG’OMBA RESOLUTIONS OF THE RATIONALE/REMARKS NO. DRAFT CONSTITUTION CONFERENCE Article 304: Imposition of tax Imposition of tax The Conference substituted the Imposition provisions of Article 304 of the of tax (1) A tax shall not be 265. (1) Subject to the Mung'omba Draft Constitution imposed except by or under an Act of provisions of this Article, taxation with provisions of Article 114 of Parliament. shall not be imposed or altered the current Constitution of (2) Where legislation, except by or under an Act of Zambia which was wider in enacted under clause (1), confers Parliament. scope. The Conference adopted powers on any person or authority to (2) Except as provided by Article 304 and renumbered it as waive or vary a tax imposed by that clauses (3) and (4), Parliament shall Article 265. legislation, that person or authority not confer upon any other person or The Conference rejected the shall make a report to the National authority power to impose or to alter, notion of Parliament enacting Assembly on the exercise of those otherwise than by reduction, any legislation conferring power on powers as provided by or under an Act taxation. “any person” other than itself or of Parliament (3) Parliament may make an authority established for the provisions under which the purposes of local government to President, the Vice-President or a waive or vary a tax, in order to Minister may, by order, provide that, prevent possible abuse. on or after the publication of a Bill Therefore, tax can only be being a Bill approved by the waived, varied or dealt with by President that it is proposed to Parliament directly or by a local introduce into the National Assembly and providing for the government authority imposition or alteration of taxation, authorized to do so by
528 such provisions of the Bill as may be Parliament. specified in the order shall, have the The Conference considered the force of law for such period and important role played by the subject to such conditions as may be President in levying taxes prescribed by Parliament: namely; to approve the tax bill to Provided that any such order shall, be introduced in Parliament and unless sooner revoked, cease to have to assent to all taxation Bills effect – before they become law.
(a) if the Bill to which it relates is not passed; within such period from the date of its first reading in the National Assembly as may be prescribed by Parliament; (b) if, after the introduction of the Bill to which it relates, Parliament is prorogued or the National Assembly is dissolved; (c) if, after the passage of the Bill to which it relates, the President refuses to assent to it;
529 or (d) at the expiration of a period of three months from the date on which it came into operation or such longer period from that date as may be specified in any resolution passed by the National Assembly after the Bill to which it relates has been introduced. (4) Parliament may confer upon any authority established by law for the purposes of local government power to impose taxation within the area for which that authority is established and to alter taxation so imposed. (5) Where the Appropriation Act in respect of a financial year has not come into force at the expiration of six months from the commencement of that financial year, the operation of any law relating to the collection or recovery
530 of any tax upon any income or profits or any duty, on customs or excise shall be suspended until that Act comes into force: Provided that - (a) in any financial year in which the National Assembly stands dissolved at the commencement of that year, the period of six months shall begin from the day upon which the National Assembly first sits following that dissolution instead of from the commencement of the financial year; and (b) the provisions of this clause shall not apply in any financial year in which the National Assembly is dissolved after the laying of estimates in accordance with
531 Article 370 and before the appropriation by Parliament. Article 305 Consolidated Fund National Treasury Account The Conference adopted Article Consolidat (1) There shall be established 266. (1) There shall be a 305 of the Mung‟omba Draft ed Fund a fund to be known as the Consolidated National Treasury Account for the Constitution with amendments Fund of the Republic. Republic which shall be held at the and re-numbered it as Article Central Bank. 266. (2) Subject to clause (3), all (2) Subject to clause (3), all moneys raised or received for the The Conference decided to moneys raised or received for the purposes of, on behalf of, or in trust for, substitute the name “Consolidated purposes of, on behalf of, or in trust the Republic shall be paid into the Fund” with “National Treasury for, the Republic shall be paid into the Consolidated Fund. Account” as there were too many National Treasury Account. institutions in the country called (3) The moneys referred to in (3) The moneys referred to in “Fund” and the name clause (2), do not include moneys- clause (2) do not include moneys – “Consolidated Fund” was a (a) that are payable under (a) that are payable hangover from the British this Constitution or an Act under this exchequer system. Constitution or an of Parliament into some other public fund Act of Parliament into established for a specific some other public purpose; or account operated for a specific purpose; or (b) that may, under this (b) that may, under this Constitution or an Act of Constitution or an Act Parliament, be retained by of Parliament, be the State organ or State retained by a State institution that receives it organ or State for the purpose of
532 defraying the expenses of institution that that State organ or State receives it for the institution purpose of defraying the expenses of that State organ or State institution.
Article 306: Withdrawal from consolidated fund. Withdrawal from National Treasury The Conference adopted Article Withdrawal Account (1) Subject to Article 307, 306 of the Mung‟omba Draft from Constitution with amendments consolidate moneys shall not be withdrawn from 267. (1) Moneys shall not be moving the provisions of clause d fund the Consolidated Fund except – expended from the general revenues in the National Treasury Account of (2) of Article 307 to Article 306 (a) to meet expenditure charged the Republic unless - with amendments and on the Consolidated Fund by (a) the expenditure is renumbered the provisions as this Constitution or by an Act authorized by a clause (3). Further, the of Parliament; or warrant under the Conference amended paragraph (b) where the issuance of those hand of the (a) of clause (2) by limiting the moneys have been authorized President; amount to be withdrawn for the by an Appropriation Act or a (b) the expenditure is services of the Republic before Supplementary charged by this the Appropriation Account came Appropriation Act. Constitution or any into force to twenty-five percent other law on the (25% of the total proposed for the (2) Moneys shall not be general revenues of year. Article 306 was withdrawn from any other public fund the Republic; or renumbered as Article 267 of the Republic unless withdrawal has (c) the expenditure is of
been authorized by an Act of moneys received by a Parliament. department of (3) Moneys shall not be government and is made under the
533 withdrawn from the Consolidated Fund provisions of any law unless the withdrawal has been which authorises that approved in the manner provided by an department to retain Act of Parliament. and expend those moneys for defraying
the expenses of the department. (2) A warrant shall not be issued by the President authorizing expenditure from the general revenue of the Republic unless - (a) the expenditure is authorized by an Appropriation Act or a Supplementary Appropriation Act; (b) the expenditure is necessary to carry on the services of the Government in respect of any period, not exceeding three months, beginning at the commencement of a financial year during which the Appropriation Act for that financial year is not in force;
534 (c) the expenditure has been proposed in a supplementary estimate approved by the National Assembly and is authorized in a Supplementary Appropriation Act; (d) provision does not exist for the expenditure and the President considers that there is such an urgent need to incur the expenditure that it would not be in the public interest to delay the authorization of the expenditure until such time as a supplementary estimate can be laid before, and approved by, the National Assembly; or (e) the expenditure is incurred on capital
535 projects continuing from the previous financial year and is so incurred before the commencement of the Appropriation Act for the current financial year. (3) Moneys withdrawn in any financial year from the National Treasury Account under paragraph (b) of clause (2) in respect of any service of the Republic - (a) shall not exceed twenty-five per cent of the amount shown as required in respect of that service in the budget estimates for that financial year; and (b) shall be set off against the amount provided in respect of that service in the Appropriation Act for that financial year when that Act comes into force.
536 (4) The President shall, immediately after signing any warrant authorizing expenditure from the general revenue of the Republic, cause a copy of the warrant to be transmitted to the Auditor- General. (5) The issue of warrants under paragraph (d) of clause (2), the investment of moneys forming part of the general revenues of the Republic and the making of advances from such revenues shall be subject to such limitations and conditions as Parliament may prescribe. (6) For purposes of this Article, the investment of moneys forming part of the general revenues of the Republic or the making of recoverable advances there from shall not be regarded as expenditure, and the expression “investment of moneys” means investment in readily marketable securities and deposits with a financial institution approved by the Minister responsible for finance.
537
Article 307: Expenditure in advance of The Conference deleted Article 307 of The Conference decided to delete Expenditur appropriation the Mung'omba Draft Constitution. Article 307 on Expenditure in e in Advance of appropriation advance of (1) Where, in any financial because paragraph (b) of clause appropriati year, the President is satisfied that the on Appropriation Act in respect of that (1) of Article 306 of the Mung'omba Draft Constitution financial year will not come into operation by the beginning of that year, provided for most of what clause the President may authorize the (1) of Article 307 contained. withdrawal of moneys from the Further the provisions in clause Consolidated Fund to meet expenditure (2) of Article 307 had been necessary to carry on the services of the infused into the new clause (3) of Government until the expiry of four Article 306 with amendment. months from the beginning of that financial year or the coming into force of the Appropriation Act, whichever is the earlier. (2) Moneys withdrawn in any financial year from the Consolidated Fund under clause (1) in respect of any service of the Republic - (a) shall not exceed the amount shown as required in respect of that service in the vote approved by the National Assembly for that
538 financial year; and (b) shall be set off against the amount provided in respect of that service in the Appropriation Act for that financial year when that Act comes into force. Article 308: Compensation Fund Compensation Fund The Conference adopted Article Compensati 308 of the Mung‟omba Draft on Fund (1) Parliament shall enact 268. (1) There is hereby legislation to establish a Compensation established the Compensation Fund Constitution with amendments Fund for purposes of paying claims for purposes of paying claims and renumbered it as Article 268. against the State and to provide for the against the State. In adopting the Article, the operation of the Compensation Fund. (2) Moneys shall not be Conference decided that the withdrawn from the compensation (2) Moneys shall not be “Compensation Fund” should be Fund unless the withdrawal is withdrawn from the Compensation created by the Constitution itself authorized under an Act of Fund unless the withdrawal is instead of providing for it in an Parliament. authorized under an Act of Parliament. Act of Parliament. (3) Parliament shall enact
legislation to provide for - (a) the operation of the Compensation Fund; (b) the control and management of the Compensation Fund; and
539 (c) any other matter necessary for the efficient and effective operation of the Compensation Fund.
Article 309 Annual Financial Estimates Annual Financial Estimates The Conference adopted Article Annual 269 309 (1) The President shall, . (1) The President shall, 309 with amendments and Financial subject to clause (2), cause to be subject to clause (2), cause to be renumbered it as Article 269. Estimates prepared and laid before the National prepared and laid before the National The Conference observed the Assembly in each financial year, not Assembly in each financial year, not urgent need to change the later than ninety days before the later than ninety days before the Budget Cycle to allow for the commencement of the financial year, commencement of the financial year, Budget to be presented and estimates of revenue and expenditure estimates of revenues and expenditure approved before the financial of the Government for the next of the Government for the next financial year to which it applied financial year. year. commenced in order to provide (2) In any year where a for the spending institutions (2) In any year where a general election takes place and an sufficient time in which to general election takes place and an election petition has been filed implement development election petition has been filed challenging the election of a projects. challenging the election of a President- President-elect, the President shall elect, the President shall cause to be cause to be prepared and laid before prepared and laid before the National the National Assembly, within ninety Assembly, within ninety days of the days of the swearing in of the swearing in of the President, estimates President, estimates of revenue and of revenues and expenditure of the expenditure of the Government for
540 Government for that financial year. that financial year. (3) Not later than six (3) Not later than six months months before the end of each before the end of each financial year, financial year, the heads of each State the heads of each State organ and State organ and State institution shall institution, shall submit estimates of submit estimates of revenue and revenues and expenditure for the expenditure for the following following financial year to the Minister financial year to the Minister responsible for finance. responsible for finance. (4) In the preparation of (4) In the preparation of estimates of revenue and expenditure estimates and expenditure under clause under clause (1) or (2), the input of the (2), the inputs of the people in the people in the wards, constituencies or wards, districts and provinces shall be districts and provinces shall be sought. sought. (5) The estimates prepared (5) The estimates of under clause (2) shall be laid before the revenue and expenditure prepared National Assembly by the Minister under clause (1) or (2) shall be laid responsible for finance, on behalf of the before the National Assembly by the President. Minister responsible for finance, on behalf of the President. (6) Notwithstanding clause (1), the (6) Notwithstanding clause President may cause to be prepared and (1), the President shall cause to be laid before the National Assembly - prepared and laid before the National Assembly – (a) fiscal and monetary (a) fiscal and programmes and plans for monetary economic and social programmes and
541 development covering plans for periods exceeding one economic and year; and social (b) estimates of revenue and development expenditure covering covering periods periods exceeding one exceeding one year. year; and (b) estimates of (7) Before the National revenue and Assembly considers the estimates of expenditure revenues and expenditure, laid before it covering periods by the Minister responsible for finance, exceeding one the appropriate committee of the year. National Assembly shall discuss and (7) Before the National review the estimates and make Assembly considers the estimates of appropriate recommendations to the revenue and expenditure, laid before National Assembly. it by the Minister responsible for (8) The committee referred to finance, the appropriate committee of under clause (7) shall, in considering the National Assembly shall discuss the estimates of the revenues and and review the estimates and make expenditure, seek public opinion from appropriate recommendations to the the districts and provinces on the National Assembly. estimates and expenditure and shall (8) The committee referred take these into consideration in its to under clause (7) shall, in recommendations to the National considering the estimates of the Assembly. revenue and expenditure, seek public opinion on the estimates and (9) The National Assembly expenditure and shall take these into may, subject to clause (2), amend but
542 shall not vary the total estimates of consideration in its recommendations revenues and expenditure and shall in to the National Assembly. any case approve the budget not later (9) The National Assembly than the thirty-first day of December. may amend, but shall not vary, the total estimates of revenue and expenditure and shall, in any case, subject to clause (2), approve the budget not later than the thirty-first day of December.
Article 310: Budget Act Legislation on Budgeting and The Conference adopted Article Budget Act Planning 310. Parliament shall enact a Budget Act 310 of the Mung‟omba Draft which shall provide for matters that 270. Parliament shall enact a Constitution with amendments relate to the annual budget and shall Planning and Budget Act which shall and renumbered it as Article include - provide for matters that relate to the 270. annual budget and to medium and In amending the Article the (a) the method for the long-term development plans and Conference observed that the preparation of the budget; shall include - scope of the proposed Budget (b) the preparation of (a) the method for the Act included both long term medium and long-term preparation of the and medium term development development plans budget; planning. Therefore, the indicating corresponding (b) the preparation of Conference resolved to change sources of financing; medium and long- the title of the Article to (c) the participation of the term development “Legislation on Budgeting and people at the district and plans indicating Planning”. The Conference also provincial levels, ensuring corresponding made minor amendments to representation from both sources of financing; what was proposed in the gender, in the formulation (c) the participation in Mung‟omba Draft Constitution of development plans and
543 preparation of the annual the formulation of by including “constituencies” budget; medium and long- and substituting the word term development estimates (d) the submission of “ ” with the words plans and the estimates of revenue and anticipated revenues and “ preparation of the expenditure expenditure for each ”. annual budget of - financial year by the (i) State organs Minister responsible for and State finance to the appropriate institutions; committee of the National and Assembly for prior (ii) the people at consideration before the the ward, preparation and constituency, submission of the actual district and estimates for the financial provincial year; and levels (e) the contents, subject to ensuring this Constitution, of the representation financial report of the of both Government provided for gender;
under Article 314. (d) the submission of anticipated revenues and expenditure for each financial year by the Minister responsible for finance to the appropriate committee of the
544 National Assembly for prior consideration before the preparation and submission of the actual estimates for the financial year. Article 311: Appropriation Bill and Supplementary Appropriation Bill and Appropriati Appropriation Bill Supplementary Appropriation Bill on Bill and Supplemen 311. (1) When the estimates of The Conference adopted Article tary expenditure have been approved by the 271 (1) When the estimates of Appropriati National Assembly they shall be the expenditure have been approved 311 of the Mung‟omba Draft on Bill appropriated in an Appropriation Bill by the National Assembly, the heads Constitution with amendments and renumbered it as Article 271. for issue from the Consolidated Fund. of the estimates together with the amount approved in respect of each The Conference- (2) Where in respect of a financial head shall be included in an year the amount appropriated under an Appropriation Bill which shall be (a) discouraged supplementary Appropriation Act is insufficient or a introduced in the National Assembly expenditure requests, but need arises for expenditure for a to provide for the payment of those acknowledged the purpose for which an amount has not amounts for the purposes specified, possibility of unforeseen been appropriated, under that Act, a out of the general revenues of the circumstances making supplementary estimate showing the Republic. supplementary expenditure amount required shall be laid before the (2) Where in respect of a unavoidable; National Assembly for approval. financial year the amount (b) rejected the practice of (3) Where a supplementary appropriated under an Appropriation presenting estimate is approved under clause (2) a Act is insufficient or a need arises for the Supplementary Supplementary Appropriation Bill expenditure for a purpose for which Appropriation showing the estimates approved shall an amount has not been appropriated Bill the following year;
545 be laid before the National Assembly in under that Act, a supplementary (c) resolved that all the next financial year. estimate showing the amount supplementary and the sources of the (4) Subject to this required expenditure requests be revenue to cover the amount Constitution, the Minister responsible shall be approved for finance shall release adequate laid before the National Assembly for by the National Assembly; by the Minister responsible appropriated funds, on quarterly basis approval and for finance: and on time, to the institutions and (d) expenditure authorised by Provided that subject to bodies entitled to the appropriations. the paragraph (d) of clause (2) of President for emergency Article 267, no supplementary purposes expenditure shall be should be approved by the incurred before the approval National Assembly before the of the supplementary estimate expenditure was effected by the National Assembly. within a (3) Where in a financial period of four months of such year expenditure has been expenditure. authorized by a warrant issued by the President under paragraph (d) of clause (2) of Article 267, the Minister responsible for finance shall cause supplementary estimates relating to that expenditure to be laid before the National Assembly for its approval before the expiration of a period of four months from the issue of the warrant or, if the National Assembly is not sitting at the expiration of that period, at the first sitting of the National Assembly thereafter.
546 (4) Where a supplementary estimate is approved under clause (2) a Supplementary Appropriation Bill showing the estimates approved shall immediately be laid before the National Assembly for approval. (5) Subject to this Constitution, the Minister responsible for finance shall release the appropriated funds, on a quarterly basis and on time, to the institutions and bodies entitled to the appropriations.
Article 272: There was no provision for accounting Grants, donations, etc. Grants, for Grants, gifts, aid-in-kind and 272. The Minister responsible for The Conference adopted a new donations, donations etc. finance shall cause to be valued all Article and numbered it as donations, gifts and aid-in-kind Article 272. The new Article was (New received in any financial year on created because when Article) behalf of the Republic, from any considering Article 309 of the source within or outside the Mung'omba Draft Constitution Republic, and shall include that which provided for Annual value in the financial report prepared Financial Estimates, the and laid before the National Conference observed that there Assembly for that financial year was need to account for the under Article 276. receipt of gifts, grants, donations and aid –in-kind.
547
Article 312: Borrowing by Government Borrowing and lending by Borrowing Government The Conference adopted Article by 312 with amendments and re- Governmen 312 (1) The Government may, subject to 273. (1) Subject to this Article, titled it as “Borrowing and t this Article, borrow from any source. the Minister responsible for finance may borrow from any source, on lending by Government”) and (2) Government shall not behalf of the Republic: renumbered it as Article 273. borrow, guarantee or raise a loan on Provided that the Minister In order to improve on behalf of itself or any State organ, State responsible for finance shall not, in accountability, the Conference- institution, authority or person except any financial year, borrow beyond (a) amended Article 273 by as authorized by or under an Act of the aggregate debt stock, including substituting the words Parliament. interest and fees on the debt, “Government” and (3) Legislation enacted under approved by the National Assembly “President” with the words clause (2) shall provide - for that year. “Minister responsible for (2) The Minister finance” in contracting (a) that the terms and responsible for finance shall not debt and in reporting to the conditions of the loan shall borrow, guarantee or raise a loan on National Assembly; be laid before the National behalf of any State organ, State (b) provided for a ceiling for Assembly and shall not institution, authority or person except borrowing by the Minister come into operation unless as authorized by or under an Act of responsible for finance they have been approved Parliament. authorized by the National by a resolution of the (3) Legislation enacted under Assembly when approving National Assembly; and clause (2) shall provide - aggregate debt for the year; (b) that any money received in (a) that the terms and and respect of that loan shall be conditions of the loan (c) could not reach agreement on paid into the Consolidated shall be laid before the paragraph (a) of clause (3) Fund or into some other National Assembly and and, therefore, referred it to public fund which exists or shall not come into the National Referendum.
548 is created for the purpose operation unless they of the loan. have been approved by a resolution of the (4) The President shall, at National Assembly such times as the National Assembly (Referred to Referendum). may determine, cause to be presented to the National Assembly information (b) that any money received concerning any loan including - in respect of that loan shall be paid into the (a) the source of the loan; National Treasury (b) the extent of the total Account or into some indebtedness by way of other public fund which principal and accumulated exists or is created for the interest; purpose of the loan. (c) the provision made for (4) The Minister servicing or repayment of responsible for finance shall, at such the loan; and times as the National Assembly may (d) the utilization and determine, present to the National performance of the loan. Assembly information concerning any loan including - (5) The National Assembly (a) the source of the may, by resolution, authorize the loan; Government to enter into an agreement (b) the extent of the for the giving of a loan or grant out of total indebtedness the Consolidated Fund or any other by way of public fund or account. principal and (6) An agreement entered accumulated into under clause (5) shall be laid before interest; the National Assembly and shall not (c) the provision
549 come into force unless it has been made for servicing approved by a resolution supported by or repayment of the vote of not less than two-thirds of the loan; and all the members of the National (d) the utilization and Assembly. performance of the (7) For the purposes of this loan. (5) Article, “loan” includes any moneys The National Assembly lent or given to or by the Government may, by resolution, authorize the Minister responsible for finance on condition of return or repayment to and any other form of borrowing or enter into an agreement for the giving National lending in respect of which moneys of a loan or grant out of the Treasury Account from the Consolidated Fund or any or any other public other public fund or account may be fund or account. (6) used for payment or repayment. An agreement entered into under clause (5) shall be laid before the National Assembly by the Minister responsible for finance and shall not come into force unless it has been approved by a resolution of a simple majority of all the members of the National Assembly. (7) For the purposes of this Article, "loan" includes any moneys lent or given to or by the Minister responsible for finance on condition of return or repayment and any other form of borrowing or lending in respect of which moneys from the
550 National Treasury Account or any other public fund or account may be used for payment or repayment. Article 313: Public Debt Management of Public debt Public Debt 313 (1) The public debt of Zambia The Conference adopted Article 313 shall be a charge on the Consolidated 274. (1) The public debt of of the Mung'omba Draft Zambia shall be a charge on the Fund and any other public fund. Constitution with amendments National Treasury Account and any and renumbered it as Article 274. (2) The National Assembly other public fund. In amending the Article the shall approve all direct borrowing by (2) The Minister Conference observed that Article the Government, before these take responsible for finance shall report 274 on Public debt actually dealt effect, for the purposes of incurring all borrowings by any State with management of debt. The public debt or loan guarantees. institution or authority in value, Conference, therefore, deleted annually, to the National Assembly. (3) For the purposes of this clause (2) as it covered (3) The Minister Article, the public debt includes the borrowing which was provided responsible for finance shall manage interest on that debt, sinking fund for under Article 273. the public debt of Zambia. payments in respect of that debt, the (4) Parliament shall enact In addition, the Conference: costs, charges and expenses incidental legislation to provide for the to the management of that debt. (a) approved two new clauses management of public debt. (2) and (3) providing for
compelling of the Minister (5) For the purposes of this responsible for finance to Article, the public debt includes the report annually to the interest on that debt, sinking fund National Assembly all payments in respect of that debt, the borrowing by any State costs, charges and expenses incidental institution or authority; and to the management of that debt. (b) charging the Minister
responsible for finance with
551 the responsibility of managing the national debt.
Article Remuneration of certain officers The Conference decided to create 275: 275. (1) There shall be paid to a new Article on Remuneration Remunerat the holders of the offices to which of certain officers and numbered ion of this Article applies such salary and it as Article 275. That was in line certain such allowances as may be with its decision to delete Article officers prescribed by or under an Act of 322 of the Mung'omba Draft (new Parliament. Constitution on the Article) (2) The salary payable to establishment of the National the holder of any office to which this Fiscal and Emoluments Article applies and the terms of Commission which was going to office shall not be altered to the duplicate and introduce conflict
552 person’s disadvantage after the in the functions currently person’s appointment. performed by the Ministry (3) Where a person’s salary responsible for finance and or terms of office depend upon the national planning and the person’s option, the salary or terms National Assembly. Therefore, for which the person opts shall, for the Conference provided for the the purposes of clause (2), be deemed remuneration of holders of to be more advantageous to the constitutional offices, by person than any others for which the adopting Article 119 of the person might have opted. current Constitution. (4) This Article applies to the offices established by this Constitution and to such other offices as may be prescribed by or under an Act of Parliament. (5) The expenses, including emoluments of any public office constituted under this Constitution by or under an Act of Parliament shall be a charge on the National Treasury Account. Article 314: Financial Report of Government Financial Report of Government Financial Report of 314 (1) The Minister responsible The Conference adopted Article Governmen for finance shall within six months after 276. (1) The Minister responsible 314 of the Mung‟omba Draft t the end of each financial year prepare for finance shall, within six months Constitution with amendments and submit to the Auditor-General the after the end of each financial year, and re-numbered it as Article
financial report of the Government in prepare and submit to the Auditor- 276. respect of the preceding financial year. General, the financial report of the In adopting Article 314, the Government in respect of the
553 (2) The financial report, preceding financial year. Conference introduced two new referred to under clause (1), shall (2) The financial report paragraphs under clause (2) to include information on - referred to under clause (1) shall include information on receipt (a) revenue and other include information on - and disposal of grants,
moneys received by the (a) revenue and other donations, aid-in-kind and on Government during that moneys received loans and grants given out by the financial year; by Government Government under Article 273. during that (b) the expenditure of the financial year; Government during that (b) the expenditure of financial year, including the Government expenditure charged by during that this Constitution or any financial year, other law on the including Consolidated Fund or expenditure other public fund; charged by this (c) debt repayments; Constitution or any other law on (d) payment made in that the National financial year for Treasury Account purposes other than or other public expenditure; fund; (e) the financial position of (c) the payments the Republic at the end of made in the that financial year; and financial year otherwise than for (f) any other information as the purposes of specified under the expenditure; Budget Act.
554 (3) The Auditor-General shall (d) debt repayments; examine the financial report submitted (e) gifts, donations by the Minister responsible for finance and aid-in-kind under clause (1) and express an opinion received on on the report. behalf of the Republic in that (4) The Minister responsible financial year and for finance shall within nine months how they were after the end of the financial year lay the disposed off; financial report of the Government, (f) loans and grants with the Auditor General‟s opinion, given out by the before the National Assembly. Government under Article 273; (g) the financial position of the Republic at the end of that financial year; and (h) any other information as specified under the Planning and Budget Act. (3) The Auditor-General shall examine the financial report submitted by the Minister responsible for finance under clause (1) and express an opinion on the report in accordance with international
555 auditing standards. (4) The Minister responsible for finance shall within nine months after the end of the financial year lay the financial report of the Government, with the Auditor- General's opinion, before the National Assembly.
Article 315: Disposal of State Assets Disposal of State Assets The Conference adopted Article Disposal of 315 of the Mung'omba Draft State Assets Any major State asset, such as a parastatal company or a commercial 277. Parliament shall enact Constitution with amendments enterprise of the State, shall not be sold, legislation to – and renumbered it as Article 277. transferred or disposed of, except with (a) regulate the manner in In doing so the Conference the prior resolution of the National which State assets shall be observed- Assembly supported by a vote of not sold, disposed of or (a) the need to provide for less than two-thirds of all the members otherwise dealt with; Parliamentary oversight in of the National Assembly. (b) provide for the role of all sales of major State assets; Parliament in the processes referred to under paragraph (b) that requiring two-thirds (a); and majority of all Members of (c) provide for the effective Parliament may prove management of State assets. restrictive in practice; and (c) that debating the disposal or sale of any major State asset in the National Assembly was sufficient to provide details of the transaction to
556 the people and their representatives. The Conference, therefore, provided for the disposal of State assets under an Act of Parliament.
Article 316 State Audit Commission The Conference decided to delete State 316 (1) There is hereby established a The Conference deleted Article 316 of Article 316 of the Mung'omba Audit State Audit Commission, which shall be the Mung'omba Draft Constitution Draft Constitution on the Commissi the policy body for the Auditor establishment of the State Audit on General‟s Office. Commission because it observed that: (2) The State Audit Commission, established under clause (a) The Office of the Auditor- (1), shall consist of five members who General (OAG) was shall serve on a part-time basis. currently performing well (3) The members of the State and only needed Audit Commission shall be persons strengthening by: from the private sector with - (i) enhancing efficiency by (a) expertise and experience in providing state audit, internal or adequate funding external audit or finance; and personnel; and (b) considerable experience in (ii) providing public finance; or mechanisms to (c) professional qualifications ensure
557 of relevance to the work of enforcement of the the State Audit recommendations Commission. of the Office of the (4) The members of the State Auditor-General; Audit Commission shall be nominated and by the relevant professional civil society (b) the establishment of the State organizations with similar objectives as Audit Commission would is relevant to the work of the State not only increase running Audit Commission and appointed by costs for the Government but the President, subject to ratification by that it would also the National Assembly. compromise the independence of the Office. (5) A member of the State Audit Commission shall serve for a term of three years and shall be eligible to serve for only one further term of three years. (6) The functions of the State Audit Commission shall include- (a) making recommendations to the President on the appointment of the Auditor-General; (b) providing policy direction to the office of the Auditor- General; and (c) performing such other
558 functions as provided by this Constitution and by or under an Act of Parliament. (7) The Auditor-General‟s Office shall be the secretariat for the State Audit Commission. (8) The expenses of the State Audit Commission shall be a charge on the Consolidated Fund.
Article 317 Auditor-General Auditor-General The Conference adopted some Auditor 317 (1) There is hereby 278. (1) There shall be an provisions of Article 317 and 320 General established the office of the Auditor- Auditor-General for the Republic of Mung‟omba Draft General the holder of which is the whose office shall be a public office Constitution and merged them Auditor-General. and who shall be appointed by the with the provisions from Articles President, subject to ratification by 121 and 122 of the current (2) The office of Auditor- the National Assembly. Constitution and renumbered the General is a public office. (2) Subject to the provisions as Article 278. (3) The Auditor-General shall provisions of this Article, the This was because the Conference be appointed by the President on the Auditor-General shall retire from observed that the provision on recommendation of the State Audit office on the attainment of sixty the Auditor-General in the Commission, subject to ratification by years of age. Mung‟omba Draft Constitution the National Assembly. (3) A person holding the was essentially the same as that office of Auditor-General may be provided for in the current (4) The Auditor-General may removed from office only for Constitution but split in clauses. only be removed from office on the inability to perform the functions of For instance, clauses (1), (2) and same grounds and procedure that apply
559 to a Judge of a superior court. the office, whether arising from (3) of Article 317 of the infirmity of body or mind, or for (5) The Auditor-General shall Mung'omba Draft Constitution is incompetence or for misbehavior and retire from office on the attainment of a split of the provision in clause shall not be so removed except in seventy years of age. (1) of Article 121 of the current accordance with the provisions of Constitution. (6) The emoluments and this Article. other terms and conditions of service of the Auditor-General shall be as (4) If the National recommended by the Emoluments Assembly resolves that the question Commission and approved by the of removing a person holding the National Assembly. office of Auditor-General from office under this Article ought to be (7) Parliament shall enact investigated, then- legislation to provide for - (a) the National Assembly (a) the shall, by resolution appoint a tribunal qualification which shall consist of a and retirement Chairperson and not from office of less than two other members, who hold or the Auditor- have held high judicial General; office; (b) the tribunal shall (b) the operations and inquire into the matter management of the office and report on the facts of the Auditor-General; thereof to the National (c) the recruitment, Assembly; and supervision, grading, (c) the National Assembly promotion and discipline shall consider the
560 of the staff of the Auditor- report of the tribunal at General; and the first convenient sitting of the National (d) the finances of the office of Assembly after it is the Auditor-General. received and may, upon such consideration, by resolution, remove the Auditor-General from office.
(5) If the question of removing the Auditor-General from office has been referred to a tribunal under this Article, the National Assembly may, by resolution, suspend that person from performing the functions of the office, and any such suspension may at any time be revoked by the National Assembly by resolution and shall in any case cease to have effect if, upon consideration of the report of the tribunal in accordance with the provisions of this Article, the National Assembly does not remove the Auditor-General from office. (6) A person who holds or has held the office of Auditor-
561 General shall not be appointed to hold or to act in any other public office. (7) A person who holds the office of Auditor-General may resign upon giving three months’ notice to the President.
Article 318 Independence of the Auditor-General Independence of Auditor General Independe In the performance of the functions nce of the conferred on the Auditor-General under “319. In the performance of the Auditor The Conference adopted Article this Constitution or any other law, the functions conferred on the Auditor- General 318 of the Mung‟omba Draft Auditor-General and the staff of the General under this Constitution or Constitution without office of the Auditor-General shall not any other law, the Auditor-General amendments and renumbered it be subject to the direction or control of and the staff of the office of the as Article 280. any person or authority. Auditor-General shall not be subject to the direction or control of any
person or authority.” Article 319 Funding of Auditor General Funding of Auditor General Funding of 319 (1) The office of Auditor-General 281. (1) The office of Auditor- The Conference adopted Article Auditor shall be adequately funded to enable General shall be funded to enable the 319 of the Mung‟omba Draft General the office to effectively carry out its office to effectively carry out its Constitution with amendments
mandate. mandate. by inserting the words “National
(2) The expenses of the office of the (2) The expenses of the office Treasury Account” in clause (2) Auditor-General, including the of the Auditor-General shall be a and renumbered it as Article 281. National Treasury emoluments of staff, shall be a charge charge on the Account. on the Consolidated Fund.
562 Article 320 Functions of Auditor General Functions of Auditor General Functions 320 (1) The Auditor-General shall 279. (1) The Auditor-General The Conference deleted Article of Auditor - shall – 320 of the Mung'omba Draft General (a) ensure that the (a) audit the accounts of - Constitution because its provisions of this Part provisions were drawn from (i) the National Government are being complied Articles 121 and 122 of the and local authorities; with; current Constitution and that for (ii) all offices financed wholly (b) ensure that the moneys that reason decided that the or partly from public expended have been provisions in Article 320 be funds including the applied to the purposes incorporated in the new Articles universities, the Central for which they were 278 and 279. Bank, State organs and appropriated by the State institutions; Appropriation Act or by (b) audit the accounts that relate to the Supplementary Appropriation Act, in the stocks, shares and stores of the Government; accordance with the approved estimates or (c) conduct financial and value for supplementary money audits, including estimates, as the case environmental audits, forensic may be, and that the audits and any other type of expenditure conforms audit, in respect of any project to the authority that that involves the use of public governs it; funds; (c) audit the accounts relating to the moneys (d) ascertain that money appropriated by Parliament or from the general raised by the Government and revenues of the Republic appropriated disbursed – by Parliament to the
563 (i) has been applied for the National Assembly and purpose for which it was the Judiciary and the appropriated; expenditure of such moneys by those (ii) was expended in institutions; conformity with the (d) audit the accounts authority that governs it; relating to the stocks and and stores of the (iii) was expended Government and the economically, efficiently accounts of such and effectively; other bodies as may be prescribed by or (e) recommend to the Director of under any law; and Public Prosecutions or any (e) audit the accounts other law enforcement agency relating to any any matter, within the expenditure charged by competence and functions of this Constitution or any the Auditor-General, that may other law on the require to be prosecuted; and general revenues of the (f) perform any other function Republic and submit a specified by or under an Act of report thereon to the Parliament. President not later than nine months after the (2) For the purposes of clause (1), end of each financial the Auditor-General or a person year. authorized or appointed by the (2) The Auditor-General Auditor-General shall have access to all and any officer authorized by the documents that relate to or are relevant Auditor-General shall have access to to an audit. all books, records, reports and other
564 (3) Accounts which are subject to documents relating to any of the auditing by the Auditor-General shall accounts referred to in clause (1) and be kept in the form approved by the which are relevant to an audit. Auditor-General. (3) The Auditor-General shall, not later than nine months (4) The Auditor-General shall, not after the end of each financial year, later than nine months after the end of submit a report on the accounts each financial year, submit a report of referred to in paragraph (c) of clause the accounts audited under clause (1) in (1) in respect of that financial year to respect of the immediately preceding the President who shall, not later financial year to - than seven days after the first sitting (a) the President; and of the National Assembly next after the receipt of such report, cause it to (b) the National be laid before the National Assembly. Assembly. (4) If the President defaults in (5) The National Assembly shall, laying the report before the National within three months after the Assembly, the Auditor-General shall submission of the report referred to in submit the report to the Speaker of clause (4), consider the report and take the National Assembly or, if the appropriate action. office of the Speaker is vacant or if (6) The Auditor-General may the Speaker is for any reason unable conduct audits of public accounts at to perform the functions of the intervals and with the regularity that office, to the Deputy Speaker, who the Auditor-General considers shall cause it to be laid before the necessary. National Assembly. (5) The National Assembly (7) The President, the shall, within three months after the National Assembly or any public officer submission of the report referred to in may, at any time, in the public interest,
565 request the Auditor-General to audit clause (4), consider the report and the accounts of a State organ, State take appropriate action including institution or body that is subject to referring any cases of malpractice or audit under this Part. financial impropriety to any public institution which is competent in the (8) The office of the Auditor- matter for necessary action. General shall be audited and the report (6) The Auditor-General shall be submitted to the National shall perform such other duties and Assembly and the President by external exercise such other powers in auditors appointed by the State Audit relation to all accounts of the Commission. Government or the accounts of other public authorities or other bodies as may be prescribed by or under an Act of Parliament. (7) The President, the National Assembly or any citizen may, at any time, in the public interest, request the Auditor-General to audit the accounts of a State organ, State institution or body that is subject to audit under this Part. (8) The office of the Auditor-General shall be audited and the report shall be submitted to the National Assembly and the President by external auditors appointed by the Minister responsible for finance.
566
Article 321 Reference by Auditor General Reference by Auditor General The Conference adopted Article Reference 321. The Auditor-General may refer any 282. The Auditor-General shall refer 321 with amendments by by Auditor case of malpractice or financial any case of mal-practice or financial substituting the word “may” General impropriety to any public institution impropriety to any public institution with the word “shall” and which is competent in the matter for which is competent in the matter for renumbered it as Article 282. action. action. This was because the Conference observed that it was necessary to report cases of financial malpractices and impropriety to any public institutions competent in the matter in order to curb the rampant increase in such cases.
Article 322 National Fiscal and Emoluments The Conference deleted Article 322 on The Conference deleted Article National Commission National Fiscal and Emoluments 322 of the Mung‟omba Draft Fiscal and 322. (1) There is hereby Commission Constitution because it was Emolumen established the National Fiscal and observed that the functions that ts Emoluments Commission of which the the proposed National Fiscal and Commissi membership, additional functions, Emoluments Commission was to on operations, management, finances and perform were already being structures shall be provided for by an performed by existing competent Act of Parliament. State institutions and State organs. (2) Without limiting clause (1), the functions of the National Fiscal and Therefore, the Conference Emoluments Commission shall include decided against creating the
567 - National Fiscal and Emoluments (a) assessing the financial and Commission but instead to adopt fiscal policies of the Article 119: Remunerations of Government and Certain Officers from the current recommending to the Constitution of Zambia and re- . Government equitable numbered it as Article 275 The financial and fiscal allocations provision of Article 275 is to be appropriated to the presented above. National Government, the provinces and local authorities; (b) recommending for the approval of the National Assembly the emoluments of public officers specified by this Constitution and other public officers, as may be provided by or under an Act of Parliament; and (c) any other function specified by this Constitution or any other law.
568
PART XVIII - CENTRAL BANK Article 323 Central Bank Central Bank Central 323 (1) There is 283. (1) There is hereby The Conference adopted Article 323 of the Bank hereby established the established the Central Bank of Mung‟omba Draft Constitution with Central Bank of Zambia. Zambia. amendments by inserting a new clause (2) (2) The Central Bank of (2) The Bank of which assigns the name “Bank of Zambia” to Zambia shall be called the Bank of Zambia shall be the Central the Central Bank of Zambia. Zambia and shall be the only Bank of Zambia and the authority to issue the currency of only authority to issue the Zambia. currency of Zambia. (3) The authority of the (3) The authority Central Bank shall vest in the Board of of the Central Bank shall Directors of the Bank as constituted by vest in the Board of an Act of Parliament. Directors of the Bank as constituted by an Act of Parliament. (4) Except as otherwise provided in this Constitution, the power to appoint, promote, and discipline and determine the terms and conditions of service of staff and other employees of the Central Bank vests in the Board of
569 Directors.
Article 324 Independence of Central Independence of Central Bank Independe Bank nce of In the performance of the 284. (1) Subject to clause (2), in The Conference adopted Article 324 of the Central functions of the Central the performance of the functions of Mung‟omba Draft Constitution with Bank Bank, the Governor, Deputy the Central Bank, the Governor, the amendments and re-numbered it as Article Governor, directors and Board of Directors and staff of the 284. staff of the Bank shall be Bank shall be subject to this The Conference observed that although the subject to this Constitution Constitution and any other law and Governor, Directors and staff of the Central and any other law and shall shall not be subject to the direction or Bank should enjoy operational independence not be subject to the control of any person or authority. and autonomy, they should remain subject to direction or control of any (2) The Minister responsible policy direction of the Minister responsible person or authority. for finance may give policy direction for Finance. to the Central Bank on any matter.
Article 325 Governor of Central Bank Governor of Central Bank Governor 325 (1) There shall be 285. There shall be a Governor of The Conference adopted Article 325 of the of Central a Governor of the Central the Central Bank who shall– Mung‟omba Draft Constitution with Bank Bank who shall be – (a) be a citizen by birth or amendments and renumbered it as Article
(a) a citizen by birth descent; 285. (b) be a person of proven or descent; In amending the Article, the Conference integrity; observed that provisions in paragraph (b), (c) (b) not less than forty- (c) be appointed by the (e), (f) and (g) of clause (1) and clauses (2) five years old; President, subject to and (3) were minute details which would ratification by the (c) a person with best be provided for under an Act of extensive National Assembly, for a
570 knowledge and fixed term of office as Parliament and, therefore, deleted them. experience in provided by or under an matters that relate Act of Parliament; and to economics, (d) hold such other finance or qualifications as may be accounting, specified by or under an banking, law or Act of Parliament. other fields relevant to banking; (d) a person of proven integrity; (e) appointed by the President, subject to ratification by the National Assembly, for a fixed term of office as provided by or under an Act of Parliament; (f) the chairperson of the Board of Directors; and (g) removed from office only on the same grounds and
571 procedure that apply to a judge of a superior court. (2) The emoluments of the Governor shall be as recommended by the Emoluments Commission and approved by the National Assembly. (3) The Governor shall before assuming office take the Official Oath, as set out in the Third Schedule. Article 326 Legislation on Central Legislation on Central Bank Legislatio Bank n on Parliament shall enact The Conference adopted Article 326 with Central 286. legislation to provide for – Parliament shall enact amendments by inserting paragraph (b) Bank legislation to provide for – which provides for Parliament to enact (a) the functions of the (a) the functions of the Bank, legislation providing for the removal of the Bank, its operations its operations and Governor and re-numbered it as Article 286. and management; management; (b) the removal from office (b) the appointment, . of the Governor; qualifications, tenure (c) the appointment, of office and other terms and conditions qualifications, tenure of of service of the Board office and other terms of Directors, other and conditions of service
572 than the Governor; of the Board of Directors, (c) election of a vice- other than the Governor; chairperson from and amongst the members (d) other matters necessary of the Board of for the effective Directors; performance of the (d) the grounds for functions of the Bank. removal of a director of the Board, other than the Governor; (e) the appointment, qualifications, retirement, tenure of office and functions of the Deputy-Governor; and (f) other matters necessary for the effective performance of the functions of the Bank.
573 PART XIX LAND AND PROPERTY
ARTICLE NO. PROVISIONS OF RESOLUTIONS OF THE RATIONALE/REMARKS MUNG’OMBA DRAFT CONFERENCE CONSTITUTION
Article Basis of Land Policy Basis of Land Policy 327: Basis of Land 327. The land policy of 287. The land policy of Zambia shall The Conference adopted Article 327 of Policy Zambia shall ensure- ensure- Mung‟omba Draft Constitution with amendments and renumbered it as Article 287. (a) equitable access (a) equitable access to land and Paragraph (b) was amended by the deletion of to land and associated resources; the word "by women" in order to avoid making associated (b) equitable access to and the Constitution discriminatory against the male resources; ownership of land; gender in matters of land alienation. (c) security of land rights and (b) equitable access recognition of indigenous Paragraph (c) was amended in order to take into and ownership cultural rights. account culture and cultural rights when of land by formulating a policy. women; (d) sustainable and productive management of land resources; (c) security of land rights for land (e) transparent and cost effective holders; administration of land;
(d) sustainable and (f) sound conservation and productive protection of ecologically management of sensitive areas;
574 land resources; (e) transparent and (g) cost effective and efficient cost effective settlement of land disputes; and administration of land; (h) that river frontages, islands and (f) sound lakeshores are not leased fenced conservation or sold. and protection of ecologically sensitive areas; (g) cost effective and efficient settlement of land disputes; and (h) that river frontages, islands and lakeshores are not leased fenced or sold.
Article 328: Classification of Land Classification of Land Classification of Land Classificati on of Land 328. All land in Zambia 288. All land in Zambia shall be The Conference adopted Article 328 of the shall be classified as classified as customary land, State land or Mung'omba Draft Constitution with an customary land, State land or such other classification as may be amendment by substituting the word such other classification as provided by or under an Act of "delimitated" with the word, "delimited" on may be provided by or under Parliament, and shall be delimited in account that the latter was mostly used in the an Act of Parliament, and shall accordance with an Act of Parliament. Zambian legislation and renumbered it as Article
575 be delimitated in accordance 288. with an Act of Parliament.
Article 329 State Land State Land : State Land 329. (1) State land is – 289. (1) State land is - The Conference adopted Article 329 of (a) land held by (a) land held by any person Mung‟omba Draft Constitution with any person under leasehold tenure; amendments and renumbered it as Article 289. under The amendments were as follows: leasehold (b) land which at the tenure; commencement of this (a) deleted paragraph (d) of Article 329 of the constitution was Mung'omba Draft Constitution because (b) land which at unalienated state land as issues regarding minerals were dealt with the defined by an act of under a new Article specifically dealing commencem Parliament; with minerals and petroleum; ent of this constitution (c) land lawfully held, used or (b) deleted paragraph (f) as it would be a was occupied by any challenge to implement it since Customary unalienated government ministry, land too contained natural resources such as state land as department, agency or trees, rivers and natural vegetation. Further defined by local authority; the provision meant that customary land an act of with watershed and river sources should be Parliament; classified state land. This would displace a (d) land in respect of which no lot of people and potentially declare some (c) land lawfully heir can by ordinary legal Chiefdoms landless. held, used or process be identified; occupied by (e) any land not classified as any customary land under this government constitution; and ministry, (f) any other land declared as department, state land by an act of Parliament. agency or
576 local (2) State land shall not be alienated or authority; otherwise used except in terms of legislation specifying the nature and (d) land on or terms of that alienation or use. under which minerals are found as specified under law;
(e) land in respect of which no heir can by ordinary legal process be identified;
(f) land occupied by, or through which, any natural resource passes including gazetted or declared national forests, game reserves and
577 water catchment areas, rivers and other natural flowing water resources, national parks, animal sanctuaries and specially protected areas; (g) any land not classified as customary land under this constitution; and (h) any other land declared as state land by an act of Parliament. (2) State land shall not be alienated or otherwise used except in terms of legislation specifying the nature and terms of that
578 alienation or use. Customary Land Customary Land Article 330: Customary 290. (1) Customary land is land held by The Conference adopted Article 330 of Land 330. (1) Customary land is communities identified on the basis of Mung‟omba Draft Constitution with an land held by communities tribe, residence or community of interest. amendment by substituting the word "ethnic" identified on the basis of tribe, with the word "tribal" in paragraph (c), of clause residence or community of (2) For the purposes of clause (1), (2) in line with the preamble. The Article was interest. Customary land includes- renumbered as Article 290. (a) land customarily held, (2) For the purposes of managed or used by clause (1), Customary land specific communities as includes – community forests, grazing (a) land areas or shrines; customarily held, (b) land lawfully alienated to a managed or specific community by any used by process of law; specific communities (c) ancestral lands traditionally as community occupied by a tribal forests, community; and grazing areas or shrines; (d) any other land declared to be customary land by an act (b) land lawfully of Parliament. alienated to a specific (3) Customary land shall not be community alienated or otherwise used until the by any approval of the chief and local authority process of in whose area the land is situated has first
579 law; been obtained and as may be provided by or under an act of Parliament. (c) ancestral lands (4) an approval under clause (3), shall traditionally not be unreasonably withheld. occupied by an ethnic community; and
(d) any other land declared to be customary land by an act of Parliament.
(3) Customary land shall not be alienated or otherwise used until the approval of the chief and local authority in whose area the land is situated has first been obtained and as may be provided by or under an act of Parliament. (4) (4) an approval under clause (3), shall not be unreasonably withheld.
580 Article 331: Vesting of Land Vesting Of Land Vesting of The Conference adopted Article 331 of Land 331. (1) Land in Zambia is 291. (1) Land in Zambia is vested in the Mung‟omba Draft Constitution with vested in the President and is President and is held by the President in amendments and renumbered it as Article 291. held by the President in trust trust for and on behalf of the people of for and on behalf of the people Zambia. The Conference amended the Article by of Zambia. substituting the words "Lands Commission" with (2) All land in Zambia shall be the words "Commissioner of Lands" because the (2) All land in Zambia administered and controlled for the use Article on Lands Commission was deleted. shall be administered and or common benefit, direct or indirect, of controlled for the use or the people of Zambia. common benefit, direct or indirect, of the people of (3) Subject to clause (3) of Article 290, Zambia. the president may, through the Commissioner of Lands, chiefs or local (3) Subject to clause (3), authorities, alienate land to citizens as the president may, through the provided by this constitution and by or Lands Commission, chiefs or under an act of Parliament. local authorities, alienate land to citizens or to non-citizens, (4) Subject to clause (3) of Article as provided by this 290), land situated in a district shall be constitution and by or under administered by the local authority in an act of Parliament. that district. (4) Subject to article 330 (3), land situated in a district shall be administered by the local authority in that district.
Article 332: Land Tenure Land Tenure The Conference adopted Article 332 of Land Mung‟omba Draft Constitution and renumbered Tenure 332. (1) Land in Zambia 292. (1) Land in Zambia shall be it as Article 292.
581 shall be alienated and held on alienated and held on the basis of the basis of customary, customary leasehold or other tenure, as In adopting Article 322, the Conference observed leasehold or other tenure, as provided by this constitution or by or that The restriction on leasing land to non- provided by this constitution under an Act of Parliament. citizens was necessary in order to ensure that or by or under an Act of land was reserved for future generations since Parliament. (2) Subject to clause (1), State land land was a fixed asset which did not expand. may be held on a lease of ninety-nine (2) Subject to clause (1), State years or such lesser years as may be land may be held on a lease of provided by legislation for different ninety-nine years or such categories of State land. lesser years as may be provided by legislation for (3) A person who is not a citizen shall different categories of State only be entitled to lease land for a land. restricted period of time, as provided by (3) A person who is not a an Act of Parliament. citizen shall only be entitled to (4) Parliament shall enact legislation lease land for a restricted period to provide for the categories of non- of time, as provided by an Act citizens that may hold land and the of Parliament. conditions under which they may do so. (4) Parliament shall enact legislation to provide for the categories of non-citizens that may hold land and the conditions under which they may do so.
Article 293: Minerals And Petroleum The Conference created Article 333 on Minerals Minerals and Petroleum to specifically address matters And 293. (1) All rights of ownership in, relating to how the various stakeholders Petroleum searching for, mining and disposing of, including individuals, communities and (New minerals and petroleum wheresoever Government to a particular piece of land would
582 Article) located in Zambia are hereby vested in benefit from proceeds accruing from the the president in trust for and on behalf exploitation of minerals and petroleum of the people of Zambia. discovered on that land. However, that the details of administering these (2) The provisions of this article provisions should go to an Act of Parliament. have effect notwithstanding any right, title or interest which any person may possess in any water body or over the soil in, on or under which minerals and petroleum are found.
(3) A person holding land which is the subject of a mining right shall take equity in the mining which is the subject of the right in lieu of compensation.
(4) Subject to this Article, Parliament shall enact legislation regulating: - (a) the exploitation of minerals and petroleum; (b) the equitable sharing of royalties arising from mineral and petroleum exploitation; (c) the conditions for payment of indemnities arising out of exploitation of minerals and
583 petroleum; and (d) the conditions regarding the restoration of derelict lands. (5) Minerals, mineral ores and petroleum shall be exploited taking into account the interest of the individual landowners, local communities and the Government.
Article 333: Regulation of Land use and Regulation of Land use and Regulation Development of Property Development of Property The Conference adopted Article 333 of the of Land use Mung‟omba Draft Constitution with and 333 (1) The state is 294.(1) Subject to Article 63, the state is amendments and renumbered it as Article 294. Developme empowered to regulate the use empowered to regulate the use of any nt of of any land, interest or right in land, interest or right in land in the The Conference adopted clause (1) subject to Property land in the interest of defence, interest of defence, public safety, public Article 63 of the Mung‟omba Draft Constitution public safety, public order, order, public morality, public health, land in order to provide for safeguard measures to public morality, public health, use planning or the development or protect the citizens against overriding powers of land use planning or the utilisation of property. the President. development or utilisation of property. (2) The state shall encourage and provide a conducive social, economic, (2)The state shall encourage political and legal environment for the and provide a conducive creation, development and management social, economic, political and of property. legal environment for the creation, development and (3) Parliament shall enact legislation management of property. ensuring that major investments in land benefit local communities and their
584 (3) Parliament shall enact economy. legislation ensuring that major investments in land benefit local communities and their economy.
Article 334: Commissioner of Lands Commissioner of Lands Commissioner of Lands Commissio ner of 334. (1) The 295. (1) There shall be a The Conference adopted Article 334 of Lands office of Commissioner of Commissioner of Lands whose office is a Mung‟omba Draft Constitution with Lands is a public office and the public office and who shall be appointed amendments and renumbered it as Article 295. Commissioner of Lands shall by the president, subject to ratification by The amendments were as follows: be appointed by the president, the National Assembly. subject to ratification by the (a) amended the provision in clause (1) in order National Assembly. (2) the commissioner of lands shall - to establish the Office of Commissioner of (a) administer, manage and alienate Lands; (2) The Commissioner of land on behalf of the president; Lands shall be the chief and (b) substituted clause (2) with a new provision administrator of the Lands (b) perform any other function because the Mung'omba Draft Constitution Commission and shall perform provided by or under an Act of provision was going to create unnecessary the functions of office under Parliament. bureaucracy. Paragraph (a) of the new the supervision of the Lands clause (2) (a) would spell out the specific Commission. (3) The term of office of the functions of the Commissioner of Lands Commissioner of Lands shall be as which were not currently spelt out. (3) The term of office of specified by an Act of Parliament. In creating paragraph (a), the Conference the commissioner of lands observed that the details of these functions shall be five years, subject to should be provided for in an Act of Parliament to renewal or until the person facilitate flexibility when need arose. attains retirement age as specified by an act of In amending clause (3), the Conference observed
585 Parliament. that there was no need to specify the period in the Constitution but that it should be provided for under an Act of Parliament. Article 335: Lands Commission Lands Commissio 335. (1) There is hereby The Conference deleted Article 335 of the The Conference deleted Article 335 of the n established a Lands Mung'omba Draft Constitution on Lands Mung'omba Constitution because: Commission which shall Commission. consist of the commissioner of (a) the existing problems or mischief that the lands and four other part -time establishment of the Lands Commission members appointed by the was going to address were not spelt out; President, subject to ratification by the National (b) the Lands Commission would create Assembly. duplicity in management of land issues as its proposed functions would be a duplication (2) Parliament shall enact of the existing responsibilities of the legislation to provide for the Ministry of Lands, particularly the Lands Commission, its Commissioner of Lands; and financial resources and financial management, (c) the proposed Lands Commission would cause procedures, administration, delays in land alienation as it would only appointments, qualifications, sit quarterly. promotions, transfer, retirement and discipline of staff, including the Commissioner of Lands, and generally for the functioning of the Commission.
(3) The Lands Commission shall establish
586 offices in every province.
(4) The expenses of the Lands Commission, including the emoluments of the staff of the commission, shall be a charge on the Consolidated Fund.
Article 336: Tenure of Office Tenure of Office 336. (1) A member of The Conference deleted Article 336 of the Having deleted Article 335 on the establishment the Lands Commission, except Mung'omba Draft Constitution on Tenure of the Lands Commission the Conference the Commissioner of Lands, of Office consequentially deleted Article 336 on Tenure of shall hold office for a term of office of a members Lands Commission. three years, subject to renewal for only one further term of three years.
(2) Parliament shall enact legislation providing for the removal from office of a member of the Lands Commission.
Article 337: Functions of Lands Functions Commission The Conference deleted Article 337 of the Having dropped Article 335 of the Mung'omba of Lands Mung'omba Draft Constitution on Draft Constitution, the Conference Commissio 337. The functions of the Functions of Lands Commission consequentially deleted Article 337. n Lands Commission shall
587 include the following-
(a) administer, manage and alienate land on behalf of the President;
(b) formulate and recommend to the Government a National Lands Policy;
(c) advise the Government and local authorities on a policy framework for the development of selected areas of Zambia and to ensure that the development of customary land is in accordance with the development plan for the area;
(d) advise the Government on, and assist in the execution of, a comprehensive programme for the registration of leasehold title in land throughout Zambia;
588
(e) conduct research related to land and natural resource use and make recommendations to appropriate authorities;
(f) facilitate the participation of communities in the formulation of land policies;
(g) monitor and have oversight responsibilities over land use planning throughout the country; and
(h) any other function provided by or under an Act of Parliament. Article 338: Legislation on Land Legislation on Land Legislation on Land 338. Parliament shall enact 296. Parliament shall enact legislation The Conference adopted Article 338 of the legislation to: to: Mung‟omba Draft Constitution with (a) revise, consolidate and (a) revise, consolidate and rationalise amendments and renumbered it as Article 296. rationalise existing laws existing laws relating to land; relating to land; In making the amendment to paragraph (g), the
589 (b) prohibit speculation in land; Conference observed that: (b) prohibit speculation in land; (c) revise sectoral land use law in (a) the minimum or maximum amount of land a accordance with national land farmer required depended on the purpose (c) revise sectoral land use policy; the land was going to be used for; law in accordance with national land policy; (d) regulate the manner in which any (b) a limit on the size of land was also important land may be converted from one and not whether it was arable or not; and (d) regulate the manner in classification or category to which any land may be another; (c) arable land today may not be arable in converted from one (e) protect, conserve and provide future; and classification or category equitable access to all state land; to another; (d) land that may be of no use today may be (f) enable the settlement of landless very useful in future due to technological (e) protect, conserve and people including the advancement. provide equitable access rehabilitation of spontaneous to all state land; settlements of rural and urban In making amendments to paragraph (h), the (f) enable the settlement of communities; Conference observed that the paragraph was landless people including meant to address the current challenges where the rehabilitation of (g) prescribe minimum and some of the citizens were holding large tracts of spontaneous settlements maximum extent of land holding; land, which they did not utilize in full, at the of rural and urban expense of many Zambians who were landless. communities; and (h) address imbalances in the alienation of land; Further, the Conference created paragraphs (i) (g) prescribe minimum and and (j) to- maximum land holding (i) provide for a periodic audit of acreage in arable areas. land holding and tenure; and (a) address land alienation problems that might arise in other provinces as was currently the (j) provide security of tenure for case in Southern Province where a number customary land which shall be of indigenous citizens had been displaced issued by a chief. from their customary land in order to pave
590 way for development projects;
(b) assist the Government to make informed decisions on matters of land alienation in relation to available land; and
(c) provide security of tenure for customary land where people were being evicted by reigning chiefs even if tenure was authorised by their predecessors.
PART XX ENVIRONMENT AND NATURAL RESOURCES Article 339: Basis of Environment Policy Basis of Environment and Natural Basis of Resources Policy Environme 339. The management and nt Policy development of Zambia's 297. The environment and natural The Conference adopted Article 339 of the natural resources shall – resources policy of Zambia shall provide Mung‟omba Draft Constitution with that the management and development of amendments and renumbered it as Article 297. (a) respect the integrity of Zambia's environment and natural In amending Article 339, the Conference decided natural processes and resources shall ensure sustainable to- ecological communities exploitation, utilisation, management and including conservation conservation of the environment and (a) include natural resources since PART XX was of habitats and species; natural resources for the present and not restricted to issues on environment only; future generations. and (b) ensure sustainable exploitation, utilisation, (b) provide the provisions of paragraphs (c) to (l) management and under an Act of Parliament. conservation of the environment and natural resources for
591 the present and future generations;
(c) ensure equitable sharing of benefits, amongst the local communities accruing from exploitation and utilisation of the environment and natural resources;
(d) ensure equitable access to all natural resources;
(e) recognise that natural resources have an economic and social value and this should be reflected in their use;
(f) not bestow private ownership of any natural resource or authorise its use in perpetuity;
(g) ensure gender mainstreaming by promoting equity between the opposite
592 gender and involve women in decision making processes relating to the use of natural resources and ensure efforts to reduce poverty are undertaken;
(h) ensure that social and cultural values and methods traditionally applied by local communities for the sustainable management of the environment and natural resources are observed;
(i) ensure that planning and utilisation of the environment takes account of disadvantaged areas and their inhabitants;
(j) promote energy saving and the use of solar energy and other renewable energy sources;
593
(k) prevent pollution and ecological degradation; and
(l) allocate adequate resources to reclaim and rehabilitate degraded areas and those prone to disasters to make them habitable and productive;
Article 340: Protection of the Protection of the Environment Protection Environment of the 298. Every person has a duty to co- The Conference adopted Article 340 of the Environme 340. Every person has a operate with State organs and State Mung‟omba Draft Constitution without nt duty to co-operate with state institutions and other persons - amendments and renumbered it as Article organs and state institutions 298. and other persons - (a) to ensure ecologically sustainable development and use of natural (a) to ensure ecologically resources; sustainable (b) to respect, protect and safeguard development and use of the environment; natural resources; (c) to prevent or discontinue an act (b) to respect, protect and which is harmful to the safeguard the environment; environment; (d) to direct the appropriate authority (c) to prevent or discontinue to take measures to prevent or
594 an act which is discontinue an act or omission harmful to the which is harmful to the environment; environment; and (d) to direct the appropriate (e) to maintain a clean, safe and authority to take healthy environment. measures to prevent or discontinue an act or omission which is harmful to the environment; and
(e) to maintain a clean, safe and healthy environment. Article 341: Conservation of Environment Conservation of Environment Conservatio The Conference adopted Article 341 of the n of 341. In the utilisation and 299. In the utilisation and management Mung‟omba Draft Constitution with an Environme management of the of the environment the State shall - amendment in Paragraph (b) by including the nt environment the State shall – phrase "and carbon trading" in order to provide (a) protect genetic resources and for issues relating to carbon trading. Article 341 (a) protect genetic biological diversity; was renumbered as Article 299. resources and biological (b) discourage waste and encourage diversity; recycling and carbon trading; (b) discourage waste and (c) establish systems of encourage recycling; environmental impact (c) establish systems of assessment, environmental audit environmental impact and for monitoring of the assessment, environment; environmental audit and for monitoring of (d) encourage public the environment; participation;
595 (d) encourage public (e) protect and enhance the participation; intellectual property in, and (e) protect and enhance the indigenous knowledge of, intellectual property in, biodiversity and genetic resources and indigenous of the local communities; and knowledge of, (f) ensure that the environmental biodiversity and genetic standards enforced in the republic resources of the local are of essential benefit to all communities; and citizens. (f) ensure that the environmental standards enforced in the republic are of essential benefit to all citizens.
Article 342: Utilisation and Development Utilisation and Development of Natural The Conference adopted Article 342 of Utilisation of Natural Resources Resources Mung‟omba Draft Constitution with and amendments and renumbered it as Article 300. Developme 342. (1) The State shall 342 The Conference dropped all the nt of ensure the protection, provisions in Article 342 (1). In adopting Article 342, the Conference deleted Natural management, promotion and clause (1) of Article 342 of the Mung'omba Draft Resources sustainable development of Legislation on Environment and Natural Constitution because its provisions were natural resources in Resources addressed by Article 297. accordance with the basic policy under this part and 300. Parliament shall enact legislation With the deletion of clause (1), of Article 342, shall- to: clause (2) was revised into an Article titled (a) provide for the utilisation and Legislation on environment and natural (a) ensure an increase in management of a natural resources and additional clauses were created. output and profits; resource by a local authority in (b) undertake strategic the area where the natural
596 research to ensure their resource is located; enhancement; (c) eliminate unfair trade (b) regulate sustainable exploitation, practices in their utilisation, management of production, processing, natural resources and equitable distribution and sharing of benefits accruing from marketing; natural resources; (d) regulate their exportation and (c) regulate the origin, quality, importation; methods of (e) regulate their origin, production, harvesting and quality, methods of processing of production, harvesting natural resources; and and processing; (d) protect the intellectual property (f) eliminate processes and rights and indigenous knowledge activities that are of local communities in likely to endanger or biodiversity and access to genetic curtail their existence; resources. and (g) utilise them for the benefit of all the people of Zambia. 2. Parliament may enact legislation to provide for the utilization and management of a natural resource by a local authority where the resource is located and shall enact legislation to: (a) regulate sustainable
597 exploitation, utilization, management of national resources and equitable sharing of benefits accruing from natural resources; and (b) protect the intellectual property rights and indigenous knowledge of local communities in biodiversity and access to genetic resources.
Article 343: Agreements Relating to Agreements Relating to Natural Agreements Natural Resources Resources Relating to The Conference Adopted Article 343 of the Natural 343. A transaction involving 301. A transaction involving the grant Mung‟omba Draft Constitution with Resources the grant of a right or of a right or concession by or on behalf of amendments and renumbered it as Article 301. concession by or on behalf of any person, including the government, to In amending the Article, the Conference created any person, including the another person, for the exploitation of paragraphs (a) and (b) to - government, to another any natural resource of Zambia shall be in person, for the exploitation of accordance with this constitution and (a) address the continued utilization of natural any natural resource of royalties shall be paid in respect of the resources without replenishing; and Zambia shall be in accordance exploitation of the natural resource: with this constitution and provided that – (b) ensure that the local communities from where royalties shall be paid in (a) where the right or concession is natural resources were exploited also respect of the exploitation of in respect of a renewable natural benefited from the exploitation of the natural the natural resource resource, the holder of the right resources. or concession shall replenish the natural resource that is exploited; and
598
(b) there is equitable sharing of the royalties paid in respect of the exploitation of the natural resource.
PART XXI REVIEW, ADOPTION AND AMENDMENT OF CONSTITUTION PROVISIONS OF THE RESOLUTIONS OF THE RATIONALE/REMARKS ARTICLE MUNG’OMBA DRAFT CONFERENCE NO. CONSTITUTION Article 344: Review, Adoption and Review, Adoption and Amendment of Review, Amendment of Constitution Constitution Adoption The Conference adopted Article 344 of and 344. (1) A complete 302. (1) A complete review or Mung‟omba Draft Constitution with Amendment review or replacement of this replacement of this Constitution shall be amendments and renumbered it as Article 302. of Constitution shall be done by done by the people of Zambia exercising The Conference adopted clause (1) of Article 344 Constitution the people of Zambia their constituent power in accordance of the Mung‟omba Draft Constitution without exercising their constituent with an Act of Parliament which provides amendments. power in accordance with an for the conditions, the process and Act of Parliament which method of review. provides for the conditions, the process and method of review.
(2) Nothing in this (2) Nothing in this Constitution or The Conference adopted clause (2) of Article 344 Constitution or any other law any other law shall be construed as of the Mung‟omba Draft Constitution with an shall be construed as preventing the people of Zambia from amendment by inserting the words “in preventing the people of adopting a Constitution in exercise of accordance with an Act of Parliament” at the Zambia from adopting a their constituent power in accordance end of the provision in place of the words
599 Constitution in exercise of with an Act of Parliament. “through any means, including the use of a their constituent power Constituent Assembly or Referendum.” This through any means, including was to avoid tying future amendments to a the use of a Constituent specific body such as the National Constitutional Assembly or referendum. Conference or Constituent Assembly in recognition of the fact that values and needs change and, therefore, prescribing methods of adopting the Constitution would limit citizens from forming their own roadmaps.
(3) Subject to this (3) Subject to this Constitution, a The Conference adopted clauses (3) and (4) of Constitution, a provision of provision of this Constitution may be Article 344 of the Mung‟omba Draft Constitution this Constitution may be amended by an Act of Parliament. without amendments. amended by an Act of Parliament. (4) An amendment of a provision of this Constitution shall be in accordance
with the procedure laid down in this Part. (4) An amendment of a provision of this Constitution shall be in accordance with the procedure laid down in this Part.
(5) A Bill to amend a The Conference decided to delete clauses (5) and provision of this Constitution (6) of Article 344 of the Mung‟omba Draft shall have the sole purpose of Constitution. The deletion was consequential amending that provision and upon the adoption of clause (1) of Article 344 and shall not provide for any other clause (7) of Article 344 of the Mung‟omba Draft matter. Constitution.
(6) A Bill to amend a provision of this Constitution
600 which is on the objectives, principles or structures of local government, shall not be introduced in the National Assembly unless the Bill has been approved by a resolution supported by the votes of not less than two-thirds of all councillors of the district councils.
(7) For the purpose of this (5) For the purpose of this Part, The Conference adopted clause (7) of Article 344 Part, “amend” means to alter, “amend” means to alter, repeal, replace, of the Mung‟omba Draft Constitution without repeal, replace, vary, add to or vary, add to or cancel, whether in part or amendments and renumbered it clause (5) cancel, whether in part or in in whole, a provision in this Constitution. whole, a provision of this Constitution. Article 345- Amendment by Referendum Amendment by Referendum Amendment by Referendum Amendment by The Conference adopted Article 345 of the Referendum Mung‟omba Draft Constitution and with amendments and renumbered it as Article 303.
The Conference adopted clause (1) of Article 345 345. (1) A Bill to amend 303. (1) A Bill to amend this of the Mung‟omba Draft Constitution without this Constitution in respect of Constitution in respect of any of the amendments. any of the following areas following areas shall be by a referendum shall be by a referendum and and in accordance with this Article:
601 in accordance with this The Conference adopted paragraph (a) of clause Article: (a) Articles 4 and 5; (1) of Article 345 of the Mung‟omba Draft Constitution with amendments by entrenching (a) the supremacy and only Article 4 on Republican status of Zambia defence of this Constitution and Article 5 on sovereignty of Zambia in order and the Republic of Zambia to prevent the ceding of Zambia‟s territory to and its sovereignty, Parts I other territories without the consent of the and II; people.
The Conference deleted paragraph (b) of clause (b) the Bill of Rights, Part VI, (b) citizenship, Part V; (1) of Article 345 of the Mung‟omba Draft except Articles 64 to 70 inclusive; Constitution for the following reasons:
(a) that if a person‟s rights in respect of their citizenship were violated the matter could
be addressed through the Bill of Rights; and
(b) that matters of citizenship were very fluid
and, therefore, it was not advisable to
define and limit those matters by
entrenching them in the Draft Constitution.
602
(c) the Bill of Rights, Part (c) Article 113 (1) and (2) on the The Conference adopted paragraph (c) of clause VI; tenure of office of the President (1) of Article 345 of the Mung‟omba Draft of Zambia; Constitution with amendments by not entrenching Articles 64 to 70 that dealt with economic, social and cultural rights because if those rights were entrenched and there were problems in the implementation then the country would have to go to a referendum, which would be costly.
(d) Representation of the (d) the institution of Chieftaincy, Article The Conference adopted paragraph (d) of Article People, Articles 93 to 109; 225 (1); and 345 (1) of the Mung‟omba Draft Constitution with an amendment and renumbered it as paragraph (c) to entrench the tenure of office of the President of Zambia only. This was meant to deter would be leaders with motives of extending their stay in office.
(e) the Executive, Articles The Conference deleted (e) of clause (1) of Article 121, 122, 123, 124, 129, 130, 345 of the Mung‟omba Draft Constitution 131, 132, 133, 135, 136, 137, because it was not necessary to entrench the 138, 139; Articles providing for the Executive.
The Conference resolved to delete paragraph (f) of Article 345 (1) of the Mung‟omba Draft (f) the Legislature, Articles Constitution because the provision would inhibit 158 and 170; creativity of leaders as a result of the provisions it sought to entrench Articles 158 and 170 relating to the Legislature.
603
(g) the Judiciary, Articles The Conference deleted paragraph (g) of Article 193, 194 and 216; 345 (1) of the Mung‟omba Draft Constitution as it was not necessary to entrench the establishment of courts of Judiciary, the vesting of judiciary powers and the tenure of office of Judges of superior courts, which provisions were covered (e) the review, adoption and amendment by Articles 193, 194 and 216. of Constitution, Part XXI. (h) Review, adoption and The Conference adopted paragraph (h) of Article amendment of Constitution, 345 of the Mung‟omba Draft Constitution with Part XXII; amendments by replacing “Part XXII” with “Part XXI” in order to accurately reflect the part of the Draft Constitution where the provisions were contained. Paragraph (h) was renumbered (e).
The Conference resolved to delete paragraph (i) (i) Local Government, Part XII; of Article 345 of the Mung‟omba Draft and Constitution because it was of the view that it should not be entrenched in the Draft Constitution. The part has 28 Articles dealing with system of Local Government.
The Conference adopted paragraph (j) of Article (j) Chieftaincy and House of 345 of the Mung‟omba Draft Constitution with Chiefs, Part XIII amendments by entrenching clause (1) of Article 225 in the Draft Constitution and not the whole of Part XIII. Paragraph (j) was renumbered as paragraph (d) of clause (1) of Article 345. This
604 was to prevent the institution of chieftaincy from being abolished as was the case in some African countries. Chiefs were the custodians of Zambia‟s culture, customs and traditions; therefore, if the institution was not entrenched, Zambia‟s culture, customs and traditions would be lost.
(2) A Bill to amend any (2) A Bill to amend any provision of The Conference adopted clause (2) of Article 345 provision of this Constitution, this Constitution, in the areas specified of the Mung‟omba Draft Constitution without in the areas specified under under clause (1), shall be published in the amendments. clause (1), shall be published Gazette and shall be laid before the in the Gazette and shall be laid National Assembly for first reading at the before the National Assembly end of one month after the publication. for first reading at the end of one month after the publication.
(3) After the first reading, (3) After the first reading, the The Conference adopted clause (3) of Article 345 the Speaker shall suspend Speaker shall refer the Bill to the Electoral of the Mung‟omba Draft Constitution with an further action on the Bill, Commission for a referendum to be held amendment by deleting the words “suspend referred to under clause (2), on the Bill within ninety days of receipt further action on the Bill referred to under and refer the Bill to the of the Bill. clause (2) and.” Electoral Commission for a referendum to be held on the Bill within ninety days of receipt of the Bill.
(4) If in a referendum at (4) If, in a referendum, the majority The Conference adopted clause (4) of Article 345 least fifty percent of the of all the persons registered as voters of the Mung‟omba Draft Constitution with registered voters vote and vote in favour of the Bill, the National amendments by deleting reference to the
605 seventy percent vote in favour Assembly shall proceed to pass the Bill. percentage of voters in preference for the of the amendment the majority of registered voters. The Conference National Assembly shall was of the view that the Mung‟omba Draft proceed to pass the Bill Constitution provision was not appropriate referred to under clause (2). because the threshold of at least fifty percent was not adequate as it did not connote a majority vote.
Article 346- Amendment without Amendment without referendum Amendment referendum The Conference adopted Article 346 of without Mung‟omba Draft Constitution with referendum amendments and renumbered it as Article 304. 304 (1) A Bill to amend a The Conference adopted clause (1) of Article 346 346. (1) A Bill to amend a provision of the Constitution, other than of the Mung‟omba Draft Constitution without provision of the Constitution, a Bill specified in Article 345, shall be in amendments. other than a Bill specified in accordance with this Article. Article 345, shall be in accordance with this Article. (2) A Bill referred to in clause (1), shall be published in the Gazette and shall be laid The Conference adopted clauses (2) and (3) of before the National Assembly one month Article 346 of the Mung‟omba Draft Constitution (2) A Bill referred to, after the date of its publication. and merged them and renumbered them as under clause (1), shall be (3) A Bill referred to in clause (1), clause (2) of Article 304. published in the Gazette. shall not be taken as passed by the National Assembly unless the Bill is approved at the second and third readings by the votes of not less than (3) A Bill referred to, two-thirds of all the members of the under clause (1), shall be laid National Assembly. before the National Assembly one month after the date of its The Conference adopted clause (4) of Article 346
606 publication. of the Mung‟omba Draft Constitution with an amendment by replacing the words “at least two-thirds” with the words “not less than” in conformity with the wording in Article 79 of the current Constitution. Also the words “by a (4) A Bill referred, to secret vote” were deleted because the Members under clause (1), shall not be of Parliament were accountable to their taken as passed by the constituents who would want to know how they National Assembly unless the had voted on Bills that affect them. Clause (4) of Bill is approved at the second Article 346 of the Mung‟omba Draft Constitution and third readings by the was renumbered as clause (3) of Article 304. votes of at least two-thirds of all the members of the National Assembly, by a secret vote.
Article 347- Certificate of Compliance Certificate of Compliance Certificate 347. A Bill for the 307. A Bill for the amendment of a The Conference adopted paragraphs (a) and (b) of amendment of a provision of provision of this Constitution which has of Article 347 of the Mung‟omba Draft Compliance this Constitution which has been passed in accordance with this Part Constitution without amendments and been passed in accordance shall be assented to by the President only renumbered it as Article 305. with this Part shall be assented if – to by the President only if – (a) it is accompanied by a certificate (a) it is accompanied by a from the Speaker that this Part has been certificate from the Speaker complied with in relation to it; and that this Part has been (b) in the case of a Bill to amend a complied with in relation to it; provision that requires a referendum, it is and accompanied by a certificate from the (b) in the case of a Bill to Electoral Commission, signed by the amend a provision that Chairperson of the Commission and
607 requires a referendum, it is bearing the seal of the Commission, accompanied by a certificate signifying that the Bill was approved at a from the Electoral referendum in accordance with this Part. Commission, signed by the Chairperson of the Commission and bearing the seal of the Commission, signifying that the Bill was approved at a referendum in accordance with this Part.
PART XXII MISCELLANEOUS
PROVISIONS OF THE RESOLUTIONS OF THE RATIONALE/REMARKS ARTICLE MUNG’OMBA DRAFT CONFERENCE NO. CONSTITUTION Article 348- Legal Aid Legal Aid Legal Aid The Conference adopted Article 348 of the Mung'omba Draft Constitution with amendments and renumbered it as Article 306.
The Conference adopted clause (1) of Article 348 348. (1) For the 306. (1) For the purposes of of the Mung‟omba Draft Constitution with purposes of enforcing any enforcing any provision of this amendments by replacing the words “is entitled provision of this Constitution, a person may be granted to” with the words “may be granted” in order to Constitution, a person is legal aid in accordance with an Act of clarify that not all persons were entitled to legal entitled to legal aid in Parliament, in connection with any aid. The Conference also included the words “in connection with any proceedings relating to this Constitution accordance with an Act of Parliament,” in order proceedings relating to this and any other matter if that person has to recognise that provision of legal aid in Zambia Constitution and any other reasonable grounds for taking, was governed by Legal Aid Board through the
608 matter if that person has defending, prosecuting or being a party Legal Aid Act. reasonable grounds for to the proceedings. taking, defending,
prosecuting or being a party to the proceedings. The Conference adopted clause (2) of the Draft (2) Parliament shall enact (2) Parliament shall enact legislation Constitution without amendments. legislation to regulate the to regulate the grant of legal aid.
grant of legal aid.
Article 349- Interpretation of Interpretation of Constitution The Conference adopted Article 349 of the Interpretation Constitution Mung'omba Draft Constitution with of amendments and renumbered it as Article 307. Constitution 349. (1) This 307. (1) If there is a conflict between The Conference deleted clause (1) of Article 349 Constitution shall be different language versions of this of the Mung‟omba Draft Constitution. The interpreted in a manner that - Constitution the English language provision was deleted to avoid monotony (a) promotes its version shall prevail. because the rules of the interpretation outlined purposes, values and by the provision were the same as those principles; developed by the courts and were provided for (b) advances the Bill of the relevant statutes. Rights and the rule of law;
(c ) permits the
development of the law; and
(d) contributes to good
governance. The Conference adopted clause (2) of Article 349
(2) In this Constitution– of the Mung‟omba Draft Constitution without
(2) If there is a conflict amendments and renumbered it as clause (1).
between different language
versions of this Constitution The Conference deleted the preamble and
609 the English language version substituted it with a preamble that did not make shall prevail. reference to the doctrine of interpretation to avoid monotony as the Courts of Law and or (3) Every provision of Common Law had developed the same doctrine. this Constitution shall be construed according to the doctrine of interpretation (a) a power granted or duty imposed The Conference adopted paragraphs (a) of that the law is always by this Constitution may be Article 349 of the Mung‟omba Draft Constitution speaking and accordingly - exercised or performed, as occasion without amendments. requires, by the person holding the office to which the power is granted (a) a power granted or or the duty is assigned; duty imposed by this
Constitution may be
exercised or
performed, as occasion
requires, by the person
holding the office to
which the power is
granted or the duty is assigned;
(b) any reference in this (b) any reference to a person holding The Conference adopted paragraphs (b) and (c) Constitution or any an office under this Constitution or of Article 349 of the Mung‟omba Draft other law to a person under any other law, includes a Constitution with amendments. holding an office under reference to the person lawfully this Constitution or performing the under any other law, functions of that office at any includes a reference to particular time; the person lawfully performing the (c) a reference to an office, State organ
610 functions of that office or State institution or locality at any particular n amed in this Constitution shall be time; read with any formal alteration (c) a reference in this necessary to make it applicable in Constitution or any the circumstances; other law to an office, State organ or State institution or locality named in this Constitution shall be read with any formal alteration necessary to make it applicable in
the circumstances;
(d) a reference in a (d) a reference in a provision applying The Conference adopted paragraph (d) of Article
provision applying that provision to another provision 349 of the Mung‟omba Draft Constitution
that provision to shall be read with any formal without amendments.
another provision shall modification necessary to make it
be read with any applicable in the circumstances; and formal modification necessary to make it applicable in the circumstances; and
(e) a reference in this (e) a reference to an office, body or The Conference adopted paragraph (e) of Article Constitution to an organisation is a reference to that 349 of Mung‟omba Draft Constitution with office, body or office, body or organisation, or if amendments. organisation is a the office, body or organisation has reference to that office, ceased to exist, to its successor or to body or organisation, the equivalent office, body or
611 or if the office, body or organisation. organisation has ceased to exist, to its successor or to the (3) For the purposes of this equivalent office, body Constitution and any other law, a person The Conference adopted clauses (4), (5), (6), (7), or organisation. shall not be considered as holding a (8), (9), (10) and (11) of Article 349 of the public office by reason only of the fact Mung‟omba Draft Constitution without (4) For the purposes of that the person is in receipt of amendments. this Constitution and any emoluments in respect of service under other law, a person shall not or for the Government. be considered as holding a public office by reason only (4) Under this Constitution or any of the fact that the person is other law, power to appoint a person to in receipt of emoluments in hold or to act in an office in the public respect of service under or service includes the power to confirm for the Government. appointments, to exercise disciplinary
control over the person holding or acting
(5) Under this Constitution in the office and to remove that person or any other law, power to from office. appoint a person to hold or to act in an office in the (5) A provision of this Constitution or public service includes the of any other law, to the effect that a power to confirm person, an authority or institution is not appointments, to exercise subject to the direction or control of any disciplinary control over the other person or authority in the person holding or acting in performance of any functions under this the office and to remove that Constitution or that law, does not person from office. preclude a court from exercising jurisdiction in relation to any question (6) A provision of this whether that person, authority or Constitution or of any other institution has performed those functions
612 law, to the effect that a in accordance with this Constitution or person, an authority or the law. institution is not subject to the direction or control of (6) Where in this Constitution or any any other person or other law, power is given to a person or authority in the performance an authority to do or enforce the doing of of any functions under this an act, the power includes the necessary Constitution or that law, and ancillary powers to enable that does not preclude a court person or authority to do or enforce the from exercising jurisdiction doing of the act. in relation to any question whether that person, (7) Where in this Constitution or any authority or institution has other law, power is conferred on a person performed those functions in or an authority to issue orders, make accordance with this rules, regulations, other statutory
Constitution or the law. instrument, a resolution or direction, the
power includes the power to be exercised
(7) Where in this in the same manner, to amend or revoke
Constitution or any other the orders, rules, regulations other law, power is given to a statutory instrument, resolution or person or an authority to do direction. or enforce the doing of an act, the power includes the (8) In this Constitution, unless the necessary and ancillary context otherwise requires - powers to enable that person (a) persons include corporations; or authority to do or enforce (b) words in the singular include the the doing of the act. plural and words in the plural include the singular; and (c) where a word or expression is (8) Where in this defined any grammatical variation or Constitution or any other cognate expression of that word shall be
613 law, power is conferred on a read with the changes required by the person or an authority to context. issue orders, make rules, (9) A person shall not be regarded as regulations, other statutory disqualified for appointment to any office instrument, a resolution or to which a public officer is not qualified direction, the power includes to be appointed by reason only that that the power to be exercised in person holds a public office if that person the same manner, to amend is on leave of absence pending or revoke the orders, rules, relinquishment of that office. regulations other statutory instrument, resolution or (10) Subject to this Constitution, direction. reference in this Constitution to the power to remove a public officer from
(9) In this Constitution, office shall be construed as including unless the context otherwise references to any power conferred by any requires - law to require or permit that officer to
(a) persons include retire from public service. corporations;
(b) words in the singular (11) Any reference in this Constitution The Conference adopted clause (12) of Article include the plural and words to a law that amends or replaces any 349 of the Mung‟omba Draft Constitution with in the plural include the other law shall be construed as including an amendment by replacing the word “re-acts” singular; and a reference to a law that modifies, re- with the word “re-enacts” as it was considered to (c) where a word or enacts, with or without amendment or be more appropriate and renumbered it as clause expression is defined any modification, or makes different (11). grammatical variation or provision in lieu of that other law. cognate expression of that word shall be read with the changes required by the context. (12) Where any Act passed after the Clause (13) of Article 349 was adopted by the (10) A person shall not be commencement of this Constitution, Conference with amendments by replacing the regarded as disqualified for repeals any provision thereof then, unless terms “amend” “amends”, “amended” and
614 appointment to any office to the contrary intention appears, the repeal “amending” with the terms “repeal”, “repeals”, which a public officer is not shall not – repealed” and “repealing,” respectively. The qualified to be appointed by Conference considered the terms to be more reason only that that person appropriate in the context. holds a public office if that person is on leave of absence (a) revive anything not in force or Clause (13) was renumbered as clause (12). pending relinquishment of existing at the time at which the that office. repeal takes effect;
(11) Subject to this (b) affect the previous operation of Constitution, reference in any provision so repealed or this Constitution to the anything duly done or suffered power to remove a public under any provision so repealed; officer from office shall be (c) affect any right, privilege, construed as including obligation or liability acquired, references to any power accrued or incurred under any conferred by any law to provision so repealed; require or permit that officer to retire from public service. (d) affect any penalty, forfeiture or
confiscation or punishment (12) Any reference in this incurred under the provision so Constitution to a law that repealed; or amends or replaces any other law shall be construed as (e) affect any investigation, legal including a reference to a law proceeding or remedy in respect that modifies, re-acts, with or of any right, privilege, obligation, without amendment or liability, penalty, forfeiture or modification, or makes confiscation or punishment and different provision in lieu of any investigation, legal that other law. proceeding or remedy may be instituted, continued or enforced
615 and any penalty, forfeiture or confiscation or punishment may (13) Subject to this be imposed, as if the repealing Constitution, where any Act Act had not been passed. to amend a provision of this Constitution, amends any provision then, unless the (13) Where this Constitution confers The Conference adopted clause (14) of Article contrary intention appears, any power or imposes any duty, the 349 of the Mung‟omba Draft Constitution the amendment shall not - power may be exercised and the duty without amendments and renumbered it as shall be performed as occasion requires. clause (13).
(a) revive anything not (14) Where by an Act which amends, The Conference adopted clause (15) of Article in force or existing at the repeals or re-enacts, with or without 349 of the Mung‟omba Draft Constitution with time at which the modification, any provision of this an amendment by including the words “repeals amendment takes effect; Constitution and which is not to come or” in the opening paragraph in order to include
into force immediately on the publication circumstances when the Act repeals any
(b) affect the previous of the Act there is conferred - provision in the Constitution. Clause 15 was operation of any provision (a) a power to make or a power renumbered as clause (14). so amended or anything exercisable by making statutory duly done or suffered under instruments; any provision so amended; (c) affect any right, (b) a power to make appointments; or privilege, obligation or liability acquired, accrued or (c) a power to do any other thing for the incurred under any purposes of the provision in question; provision so amended; that power may be exercised at any time on or after the date of publication of the Act in the Gazette, except that an instrument, appointment or thing made (d) affect any penalty, or done under that power shall not, forfeiture or confiscation or unless it is necessary to bring the Act into
616 punishment incurred under force, have any effect until the the provision so amended; commencement of the Act. or (15) Parliament shall enact legislation The Conference deleted clause (16) of Article 349 (e) affect any to provide for the computation of time of Mung‟omba Draft Constitution and investigation, legal for purposes of this Constitution. substituted it with a new provision to provide an proceeding or remedy in enabling provision for the computation of time. respect of any right, The Conference observed that details in the privilege, obligation, provision of the Mung‟omba Draft Constitution liability, penalty, forfeiture would best be elaborated in an Act of or confiscation or Parliament. This would facilitate ease of punishment and any amendments if the situation so demanded. The investigation, legal new clause was renumbered as clause (15). proceeding or remedy may be instituted, continued or enforced and any penalty, forfeiture or confiscation or punishment may be imposed, as if the amending
Act had not been passed.
(14) Where this
Constitution confers any power or imposes any duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.
(15) Where by an Act which amends and re-enacts,
617 with or without The Conference deleted clause (17) of Article 349 modification, any provision of the Mung‟omba Draft Constitution because its of this Constitution and principle was adequately addressed in the which is not to come into provision which the Conference earlier adopted force immediately on the which stated that “The State shall direct the policies publication of the Act there is and laws towards securing and promoting gender conferred - equality.” (a) a power to make or a power exercisable by making statutory instruments; (16) Where any person is empowered The Conference approved clause (18) of Article to make an appointment under this 349 of the Mung‟omba Draft Constitution (b) a power to make Constitution that person shall ensure that without amendments and renumbered it as appointments; or equitable consideration is given to clause (16).
persons of both gender.
(c) a power to do any other thing for the purposes of the provision in question; that power may be exercised at any time on or after the
date of publication of the Act in the Gazette, except that an instrument, appointment or thing made or done under that power shall not, unless it is necessary to bring the Act into force, have any effect until the commencement of the Act.
618 Article 352- (16) In computing time for Definitions The Conference adopted Article 352 of the Definitions the purposes of any Mung‟omba Draft Constitution with provision of this amendments in order to provide for additional Constitution, unless a terms not earlier defined or in order to amend contrary intention is definitions to some terms and renumbered it as expressed - Article 308. (a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing is done;
(b) if the last day of the period is Sunday or a public holiday, which days are in this clause referred to as “excluded days”, the period shall include the next following day, not being an excluded day;
(c) where any act or
proceeding is directed or
allowed to be done or taken
on a certain day, then, if that
day happens to be an
excluded day the act or
proceeding shall be
considered as done or taken in due time if it is done or
619 taken the next day afterwards, not being an excluded day;
(d) where an act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of the time.
(17) Where any person is empowered to make appointments under this
Constitution that person shall ensure that either gender is not less than thirty percent of the total appointments made.
(18) Where any person is empowered to make an appointment under this Constitution that person shall ensure that equitable consideration is given to persons of both gender.
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Definitions
352. In this Constitution 308. In this Constitution, unless the unless the context otherwise context otherwise requires – requires – “Act of Parliament” means a law enacted by Parliament;
“adult” means an individual “adult” means an individual who has who has attained the age of attained the age of eighteen years; eighteen years;
“affirmative action” includes “affirmative action” includes any any measure designed to measure designed to overcome or overcome or ameliorate an ameliorate an inequity or the systematic inequity or the systematic denial or infringement of a right or denial or infringement of a freedom; right or freedom; “Article” means an Article of this Constitution;
“Bill” means a draft of a “Bill” means a draft of a proposed law; proposed law;
“Bill of Rights” means the “Bill of Rights” means the rights and rights and freedoms set out freedoms set out in Part VI and includes
621 in Part VI and includes their their status, application, interpretation, status, application, derogations, and enforcement as interpretation, derogations specified under that Part; and enforcement as specified under that Part;
“chief” means a person “chief” means a person recognised as recognised as chief and who chief and who derives allegiance from the derives allegiance from the fact of birth or descent in accordance with fact of birth or descent in the customs, traditions, usage or consent accordance with the customs, of the people led by that chief; traditions, usage or consent of the people led by that chief;
“child” means a person who “child” means a person who is below the is below the age of eighteen age of eighteen years; years;
“citizen” means a citizen of “citizen” means a citizen of Zambia; Zambia;
“commission” means a “commission” means a commission commission established by or established by or under this Constitution; under this Constitution; “constituency” means any of the “constituency” means any of constituencies into which Zambia is the constituencies into which divided as provided by this Constitution; Zambia is divided as provided by this Constitution;
622 “constituency-based seat” “constituency-based seat” means a means a National Assembly National Assembly seat which has been seat which has been contested for or won through the first- contested for or won through past-the-post segment of the mixed the first-past-the-post member representation system; segment of the mixed member representation system;
“Constitutional Court” “Constitutional Court” means the means the Supreme and Supreme and Constitutional Court when Constitutional Court when it it is sitting as a Constitutional Court; is sitting as a Constitutional Court;
“councillor” means a “councillor” means a member of a city, member of a city, municipal municipal or district council; or district council;
“court” means a court of “court” means a court of competent competent jurisdiction jurisdiction established by or under the established by or under the authority of this Constitution; authority of this Constitution; “direct election” means an election –
(a) to the office of the President; (b) for a member of the National Assembly; (c) for a councillor of a district council;
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“district council” includes a “district council” includes a city or city or municipal council; municipal council;
“disability” means any “disability” means a permanent restriction resulting from an physical, mental, intellectual or sensory impairment or inability to impairment which in interaction with perform any activity in the various barriers may hinder the person’s manner or within the range full and effective participation in considered normal for a society on an equal basis with others; human being;
“election tribunal” means an “election period” means the period which ad hoc Presidential Election begins on the day nominations are filed Tribunal, Parliamentary and ends on the day of announcement of Election Tribunal or Local election results; Government Election Tribunal constituted by this Constitution;
“Electoral Commission” “Electoral Commission” means the means the Electoral Electoral Commission of Zambia Commission of Zambia established under this Constitution; established under this Constitution;
“emolument” includes “emolument” includes salaries, salaries, allowances, benefits allowances, benefits and rights that form and rights that form an an individual‟s remuneration for services individual‟s remuneration rendered, including pension, gratuity and for services rendered, other benefits on retirement;
624 including pension, gratuity and other benefits on retirement;
“Emoluments Commission” means the National Fiscal and Emoluments Commission established under this Constitution;
“executive functions” means “executive functions” means the the functions of the President functions of the President set out in this set out in this Constitution; Constitution;
“financial year” means the period of twelve months ending on the 31st December in any year or on such other day as may be prescribed by or under an Act of Parliament: Provided that by an Act of Parliament prescribing a day other than the 31st December as the terminal day of the financial year, the period of twelve months may be extended or reduced for any one financial year for the purposes of effecting such prescribed change;
“First Deputy Speaker” “First Deputy Speaker” means the person means the person elected elected First Deputy Speaker under First Deputy Speaker under
625 Article 166 (3) (a); Article 152 (4);
“functions” includes powers “functions” includes powers and duties; and duties;
“gender” means female or “gender” means female or male and the male and the role individuals role individuals play in society as a result play in society as a result of of their sex and status; their sex and status;
“general election” means “general election” means Presidential, Presidential, National National Assembly and local Assembly and local government elections when these are government elections when held on the same day; these are held on the same day;
“individual” means a natural “individual” means a natural person; person;
“incumbent President” “incumbent President” means a person means a person who is who is currently in office as President currently in office as and who is to hand over to the President- President and who is to hand elect; over to the President-elect; “Investigator-General” means the Investigator-General whose office is established under this Constitution;
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“judgment” includes a “judgment” includes a decision, an order decision, an order or decree or decree of a court or any authority of a court or any authority prescribed by an Act of Parliament; prescribed by an Act of Parliament;
“judicial officer” includes a “judicial officer” includes a magistrate, magistrate, local court justice local court magistrate and a senior and a senior employee of the employee of the Judicial Service; Judicial Service;
“Laws” means the Laws of “Laws” means the Laws of Zambia; Zambia; “Local government election tribunal” means an adhoc local government tribunal constituted by this Constitution;
“mayor” includes a “mayor” includes a chairperson of a chairperson of a municipal or municipal or district council; district council;
“Minister” means a Cabinet “Minister” means a Cabinet Minister; Minister;
“mixed member “mixed member representation system” representation system” means the electoral system specified by means the electoral system this Constitution for –
627 specified by this Constitution (a) electing a person as a member of the for – National Assembly or as a (a) electing a person as a councillor; and member of the (b) nominating a person on a party list National Assembly or to represent a political party that is as a councillor; and contesting a proportional (b) nominating a person representation seat in a National on a part list to Assembly election or district council represent a political election; party that is contesting a proportional representation seat in a National Assembly election or district council election;
“oath” includes an “oath” includes an affirmation; affirmation;
“office holder” means a “office holder” means a person who person who holds an office of holds an office of trust as a public leader trust as a public leader or in or in the public sector; the public sector;
“older member of society” “older member of society” means an means an individual who is individual who is above the age of sixty- above the age of sixty-five five years; years;
“Ombudsman” means the Parliamentary Ombudsman
628 whose office is established under this Constitution;
“party list” means a list of “party list” means a list of candidates candidates submitted by a submitted by a political party in political party in accordance accordance with a law relating to with a law relating to elections; elections;
“person” includes an “person” includes an individual, a individual, a company, an company, an association of persons association of persons whether corporate or unincorporated; whether corporate or unincorporated; “person with disabilities” means a person who has a permanent physical, mental, intellectual or sensory impairment which in interaction with various barriers may hinder that person’s full and effective participation in society on an equal basis with others;
“political party” means an “political party” means an association or association or organisation organisation whose members are citizens whose members are citizens and whose objectives include the and whose objectives include contesting of elections in order to form the contesting of election in government or influence the policy of the order to form government or National or local government; influence the policy of the National or local government;
629
“power” includes privilege, “power” includes privilege, authority authority and discretion; and discretion;
“public fund” includes moneys donated to non- governmental organisations;
“public office” includes an “public office” includes an office the office the emoluments of emoluments of which are a charge on or which are a charge on or paid out of the National Treasury paid out of the Consolidated Account, other public fund or out of Fund, other public fund or moneys appropriated by Parliament; out of moneys appropriated by Parliament;
“public officer” means a “public officer” means a person holding person holding or acting in a or acting in a public office; commission public office; or a statutory body in which the government has a controlling interest;
“public service” includes “public service” includes service in a service in a public office or public office or State institution; State institution;
“President-elect” means the “President-elect” means the person who person who has been has been declared by the Returning declared by the Returning Officer as having won an election to the Officer as having won an office of President; election to the office of
630 President;
“presidential candidate” “presidential candidate” means a person means a person nominated nominated to stand for election as to stand for election as President; President;
“presidential election” “presidential election” means an means an election to the election to the office of President; office of President and includes the election of a Vice-President as a running mate to the President;
“proportional representation “proportional representation seat” means seat” means a National a National Assembly or district council Assembly or district council seat contested for or won through the seat contested for or won proportional representation segment of through the proportional the mixed member representation representation segment of system; the mixed member representation system;
“Provincial Minister” means “Provincial Minister” means a Minister a Minister appointed by the appointed by the President for a President for a province; province; “Republic” means the “Republic” means the Republic of Republic of Zambia; Zambia;
“Second Deputy Speaker” “Second Deputy Speaker” means the means the person elected person elected Second Deputy Speaker
631 Second Deputy Speaker under Article 152 (4) (b); under Article 166 (3) (b); “session” means the sitting of the National Assembly beginning when it first sits after the coming into operation of this Constitution or after Parliament is prorogued or dissolved at any time and ending when Parliament is prorogued or is dissolved without having been prorogued; “sitting” means a period during which the National Assembly is sitting without adjournment and includes any period during which it is in committee;
“State organ” means the “State organ” means the Executive, Executive, Legislature or Legislature or Judiciary; Judiciary;
“Speaker” means the person “Speaker and Deputy Speakers of elected Speaker of the National Assembly” means the persons National Assembly under elected Speaker and Deputy Speakers of Article 166; the National Assembly under Article 152 (1) and (4) respectively;
“State institution” includes a “State institution” includes a ministry or ministry or department of department of the Government, a public the Government, a public office, agency or institution, statutory office, agency or institution, body or company in which the statutory body or company Government has a controlling interest or in which the Government commission or body, other than a State has a controlling interest or organ, established under this
632 commission or body, other Constitution or by or under an Act of than a State organ, Parliament; established under this Constitution or by or under an Act of Parliament;
“statutory instrument” “statutory instrument” means a rule, means a rule, regulation, by- regulation, by-law, order or other similar law, order or other similar law made under a power conferred by an law made under a power Act of Parliament; conferred by an Act of Parliament;
“superior court” means the “superior court” means the Supreme and Supreme and Constitutional Constitutional Court, the Court of Appeal Court, the Court of Appeal and the High Court and the Industrial and the High Court; Relations Court;
“Supreme Court” means the “Supreme Court” means the Supreme Supreme and Constitutional and Constitutional Court when it is Court when it is sitting as a sitting as a Supreme Court; Supreme Court;
“taxes” includes rates, levies, “taxes” includes rates, levies, charges, charges, tariffs, tolls and tariffs, tolls and duties; duties;
“treason” includes - “treason” includes - (a) instituting a war (a) instituting a war against the against the Republic or Republic or assisting any state or assisting any state or person or inciting or conspiring
633 person or inciting or with any state or person to institute conspiring with any war against the Republic; state or person to (b) effecting or attempting to effect by institute war against force of arms or other violent means the Republic; the overthrow of a State organ or (b) effecting or attempting State institution; to effect by force of (c ) effecting or attempting or being arms or other violent concerned in any act to overthrow, means the overthrow abrogate or suspend the operation of a State organ or of this Constitution; State institution; (c ) effecting or attempting or being concerned in any act to overthrow, abrogate or suspend the operation of this Constitution;
“ward” means any of the “ward” means any of the units into which units into which a district a district council area is divided under or council area is divided by an Act of Parliament; and under; and
“ward-based seat” means a “ward-based seat” means a district district council seat contested council seat contested for or won through for or won through the first- the first-past- the-post segment of the past- the-post segment of the mixed member representation system. mixed member representation system.
634