How Not to Amend The Constitution: A Comment on The Purported Amendments to Bill 10

By Felicity Kayumba Kalunga and O’Brien Kaaba_ How Not to Amend The Constitution: A Comment on The Purported Amendments to Bill 10
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By Felicity Kayumba Kalunga and O’Brien Kaaba.

June 19, 2020

On 21st June 2019, the government published the Constitution of Zambia (Amendment) Bill No. 10 (commonly referred to as Bill 10), pursuant to Article 79(2) of the Constitution of Zambia which requires that a Bill for alteration of the Constitution must be published in the Government Gazette not less than 30 days before its First Reading in the National Assembly. Bill 10 was subsequently tabled before the National Assembly for First Reading on 2nd August 2019. This Bill 10 has been the subject of immense controversy and rejection, for good cause in our view, by many stakeholders, including the Law Association of Zambia, major opposition political parties, the three main church mother bodies and several NGOs.

Bill 10 has also been challenged in the Constitutional Court by the Law Association of Zambia and Chapter One Foundation under cause No. 2019/CCZ/0013, but the case was dismissed by the Constitutional Court, paving way for Parliament to proceed with the enactment process. The National Assembly tabled Bill 10 for the Second Reading on 17th March 2020 but deferred voting on it to a later date, citing the COVID-19 pandemic as the reason for the indefinite postponement.

Many stakeholders have been calling on government to completely withdraw Bill 10 and allow for a consensus-based process of amending the Constitution. In a bizarre turn of events, however, Secretary to Cabinet, Simon Miti, issued Gazette Notice No 534 of 2020 on 12th June 2020, republishing Bill 10 with what was said to be proposed amendments. The unfolding of bizarre events continued, with the Minister of Justice, Given Lubinda, subsequently applauding the republishing of Bill 10 as an expression of government’s willingness to incorporate the wishes of the people. We argue in this article that this process of enacting legislation is deeply flawed, has no legal basis, and is unconstitutional.

Although the Legislature or Parliament is vested with power to enact laws according to Article 62 of the Constitution, that power must be exercised in a manner consistent with all the procedures laid down by the Constitution and other laws. This is known as the “manner and form” constitutional doctrine which requires Parliament to follow a set of formal rules and laid down procedures before a Bill can be enacted into law. The doctrine makes a distinction between the formal conditions for legislation to be passed and the substance of that legislation. For example, in order to pass valid legislation, Parliament must first be properly constituted and then it must express its will in a proper manner and form, in full compliance with the procedures for enactment of legislation, which include the stages that a Bill must go through before becoming law. It is only when the formal rules for enacting legislation are complied with that the properly expressed will of Parliament can become law.

A plethora of authorities confirm this position. In the case of Bribery Commissioner v Ranasinghe [1965] AC 172 PC, Lord Pearce categorically stated: “A legislature has no power to ignore the conditions of lawmaking that are imposed by the instrument which itself regulates its power to make law.” Similarly, Baroness (now Chief Justice) Brenda Hale, in the case of R (Jackson) v AG [2005] EWCA civ 126, held that: “[I]f Parliament is required to pass legislation on particular matters in a particular way, then Parliament is not permitted to ignore those requirements when passing legislation on those matters.” The consequence of violating the manner and form for enactment of legislation is that the concerned legislation may be rendered null and void. For example, in the case of Harris and Others v Minister of Interior and Another 1952 (2) SA 428 (A), the Appellate Division of the South African Supreme Court nullified an Act of Parliament on the basis that the correct procedure was not used to enact the law. The South African Constitutional Court in the case of Doctors for Life International v The Speaker of the National Assembly and Others Case CCT 12/05(2006) also pointed out that any law enacted in a procedurally flawed manner would be null and void and of no effect. The manner and form [of] constitutional doctrine is also important because it upholds the principle of the rule of law which is one of the foremost values of constitutional supremacy upon which the Zambian Constitution is founded.

Article 62 of the Constitution of Zambia vests legislative authority in Parliament, while Article 77 empowers the National Assembly to regulate its own procedures and make Standing Orders for the conduct of its business. The current regulations are to be found in the Standing Orders 2016. Parliamentary business must therefore, be conducted in a manner and form prescribed by the Constitution and the current Standing Orders. Conduct of parliamentary business in a manner that violates these requirements renders the ensuing product a nullity.

As already stated, Parliament adjourned at the time when it was considering Bill 10 – at the Second Reading Stage. The newly Gazetted Bill 10, with proposed parliamentary amendments published on 12th June 2020 purports to amend the original Bill 10 which is currently on the floor of the National Assembly at Second Reading stage, pending voting on it. As provided by Article 79(2) of the Constitution, a two thirds majority vote of all members of Parliament is required if the Bill is to be enacted into law. The procedure that has been adopted is contrary to the manner and procedure for enacting legislation as laid down in the Constitution of Zambia and the Standing Orders 2016. According to Standing Orders 103 to 106, no amendments can be made to a Bill that is on the Floor of the House during the Second Reading. At this stage, members of Parliament must only debate the Gazetted Bill, which in this case is the version of Bill 10 that was Gazetted on 21st June 2019, in accordance with Article 79 of the Constitution of Zambia. The members of Parliament can also, at this stage consider the report of the Select Parliamentary Committee, which had been appointed to consider Bill 10 in line with Standing Order 103. It must, however, be emphasized that the report of the Select parliamentary Committee cannot and does not amend the Bill. Amendments to the Bill are only permitted at the Committee Stage, after the Bill has passed the Second Reading stage and this must be with the support of not less than two thirds of all members, according to Article 79(2) of the Constitution.

Even at the Committee Stage, the manner and procedures for introducing amendments are strictly regulated by Standing Orders 107 to 114. Amendments at the Committee Stage are done by a Committee of the Whole House which debates every clause and proposed amendment. There is therefore no procedure that allows any Minister, let alone, the Minister of Justice to unilaterally amend a Bill that is before the House. What has purportedly been done by Given Lubinda in his capacity as Minister of Justice, through publishing the so called amended Bill 10 in the Government Gazette on 12th June 2020 is not tenable for it is unconstitutional. Further, the Standing Orders strictly regulate the introduction of new clauses in a Bill at the Committee Stage. This does not require republication of the Bill with proposed amendments in the Government Gazette because a written notice to the Clerk of the National Assembly would suffice in line with the provisions of Standing Order 110.

We now turn to the substantial content of the Gazetted Bill 10. The purported amendments to Bill 10 are poorly presented, with visible deletions of some provisions and rough introduction of new ones. Curiously, some of the provisions that have not been crossed out in the proposed amendment contravene the recommendations of the Parliamentary Select Committee that was tasked to receive views from stakeholders. The purported amendments have gone further to propose new provisions that were neither in the Bill which was purportedly a product of the National Dialogue Forum, NDF, nor the report of the Select Committee on Bill 10. The NDF, like Bill 10 has suffered heavy and justifiable criticism for not being representative of the interests of Zambian populace. The net effect of all these deliberate acts is that the government, through the Minister of Justice has lowered the standard of participation in the process of constitution making, further than the non-representative NDF. This is creamed off by the introduction of amendments whose origins are in the preserve of the knowledge of the Minister of Justice and the Attorney General.

It merits repetition that the process of amending a Bill that has gone through the Second Reading in the House is governed by Orders 107 to 112 of the Standing Orders 2016. The import of these provisions is that a Bill cannot be amended until it has passed through the Second Reading stage. Further, that Bill can only be amended at the instance of the House and in a manner prescribed by the Standing Orders. The law does not give leeway for any minister or other person to unilaterally amend the Bill at that stage. The purported amendments must, therefore, be regarded as being of no legal force. The only legally recognizable Bill 10 as we write this article, is the one which is already before the House and not the one that has been newly Gazetted.


This article is solely from:

The Mast Online, 19th June, 2020.

And it is Posted here for the purpose for the purpose of being easily accessed by law students at The University of Zambia.

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