By Dr. O’Brien Kaaba
June 6, 2025
INTRODUCTION
The Minister of Justice, Honourable Princess Kasune, on 26 March, 2025 announced the constitution amendment process. The Minister laid out a roadmap to the amendment and indicated that the reforms will focus on non-contentious issues and, to avoid a protracted and costly process, the government would simply undertake the process premised on the requirements of Article 79 of the Zambian Constitution. According to the published roadmap, the constitutional amendment Bill should have been published on 21 May, 2025 and introduced into the National Assembly on 24 June, 2025. The Bill was duly published on 23 May 2025, two days behind schedule. This article reviews the Constitution of Zambia (Amendment) Bill No 7 of 2025. It highlights the major areas of concern in the Bill in order to show that, contrary to assertions by the government, the proposed reforms are deeply problematic and counterproductive.
MIXED MEMBER PROPORTIONAL REPRESENTATION
Clause 47 of the Bill adjusts the electoral system by introducing mixed member proportional representation at parliamentary level. This entails that there will be two ways through which one becomes a Member of Parliament (MP), that is, either through being elected on geographical constituency under the current system of the first past the post, and through parties allocating candidates based on proportional representation. Clause 68, in relation to proportional representation (PR), proposes 20 reserve seats for women, 12 for youths and three (3) for persons with disabilities (PWDs).
There is, however, lack of clarity about how the PR strand will work. Clause 47(3), which ideally should give an indication how this ought to work simply states that the seats under the PR electoral system
“shall be distributed, after an election, by the Electoral Commission, to political parties, in proportion to the total number of votes obtained by a political party on the proportional representation ballot, as prescribed.”
Although prescribing details of the process may come in the subordinate law, that may not cure the uncertainties in the empowering provision in the constitution. The words “proportional representation ballot” suggest that there will be a separate ballot as the basis for allocating PR seats. If that is the case, it would mean seats will not be allocated based on a party’s performance either at presidential or parliamentary level but on the basis of a separate ballot. Assuming this is the intention, would there be a single PR ballot for the three categories of target groups for inclusion (women, youths and PWDs)? If there will just be a single ballot for all the three categories, how then will the law deal with the situation of a voter who would like to assign the three categories to different parties? If, on the contrary, the intention is to run a ballot for each category, that will entail three separate national elections, in addition to the current three categories of elections at local government, national assembly and presidential election. Consequently, the cost of the election will balloon. Although clause 47(3) in Bill 7 indicates that subordinate legislation will prescribe the PR system to be used, since the conceptual defect would be in the constitution itself, subordinate law will be incapable of curing that.
The government has indicated that the decision to amend the constitution is partly influenced by its desire to make parliament more inclusive for women, youths and PWDs. Indeed, the mixed member proportional representation system was designed to mitigate the disproportionalities created by the simple majority geographical seats. But to be effective, the system needs to be designed carefully. A close look at the proposed version in the Draft Bill suggests the Bill will not cure the under representation of the marginalized groups. The 20 seats reserved for women is only a paltry 7.8 percent of the 256 proposed seats; the 12 seats for youths is only 4.6 percent, and the 3 seats for PWDs is 1.7 percent. Cumulatively, the allocated seats for the target groups for inclusion would still be less than 15 percent. Simply put, the proposed reform will increase the cost of running the election and potentially cause disruption of the electoral process, yet without achieving the target of making the legislature more inclusive.
It should be noted that although the design of an electoral system has a bearing on the equality of representation of men and women, a poorly designed PR system intended to improve the representation of women may actually end up hurting them. As Lihiru has argued, a PR system such as the one proposed under the Bill, where parties simply apportion seats to women who have not gone through any competitive process, undermines the credibility and standing of such women and may instead strengthen stereotypes and not help resolve underlying structural problems. As a result, Lihiru argues,
“The PR system in this case does not give women with special seats electability status, attach women to geographical areas for accountability purposes, nor does it provide uniform procedures to guide party nomination for these seats.”
There is also further danger that a poorly designed quota system may undermine women’s ability to compete in geographical constituencies. Lihuru, for example, analysed the impact of the quota system under the 2013 Zimbabwean Constitution and found as follows: “ There is an unspoken presumption within the political parties that if the Constitution provides for 60 seats for women, then the FPTP constituencies are designated for men.48 Since the introduction of gender quota in Zimbabwe in 2013, the political parties, including ZANU-PF and MDC-Alliance, have discouraged women from vying for FPTP seats contrary to article 4 of CEDAW that requires temporary special measures, including quota system, not to cause discrimination against women. Political parties argue that women already have guaranteed seats under a quota system and, hence, should not be vying for FPTP seats.49 Consequently, since the onset of the quota system in 2013, women have been consistently leaving FPTP seats for quota seats. Also, the nomination of women for FPTP seats by political parties declined from 105 in 2008 to 90 (13 per cent) in 2013 and subsequently to 12,4 per cent in the 2018 elections.50 Only 70 (11 per cent) of women contested for FPTP seats out of 636 candidates in the 2023 general elections.51 Similarly, since 2013, the number of women elected from FPTP constituencies has declined. After Zimbabwe’s 2013 elections, the number of elected women in the National Assembly fell from 34 to 29 and then to 25 (11,9 per cent) in the 2018 elections.52 After the 2023 elections, the number of women directly elected to parliament dropped to 22 (10,5 per cent).53 Only 30 per cent of the women who contested won, a decline of 1,9 per cent from the 2018 elections.54 The evidence that gender quota causes a decline in the number of women winning constituencies communicates that the purpose of gender quota to facilitate the realisation of equal representation of men and women in Zimbabwe’s parliament is far-fetched.”
From this perspective, the proposed PR system is defective in many regards as it does not change current dynamics of the underrepresentation of women, but instead has potential to further undermine their capacity to compete on a broad basis.
INCREASING THE NUMBER OF PARLIAMENTARY SEATS FROM 156 TO 256
Clause 68 proposes to increase the size of the National Assembly from the current 156 seats to 256. No justification for this has been given except an indication in the Memorandum of the Bill that the increment is intended to “actualize the delimitation report by the Electoral Commission.” Anomalously, however, the purported report on which the proposed change is based has not been published. Without transparency, there is no way of knowing what informed how the drafters arrived at those figures. The lack of transparency naturally heightens suspicion about the motives for increasing the number of MPs.
But of great concern is the implication on constitutional stability and electoral democracy. If the size of parliament can be increased arbitrarily, without any discernible basis and without legitimate justification, the constitution and the electoral system would be at the mercy of those who control government at any particular time. Allowing those in power to draw electoral or constituency boundaries as they wish has the risk that the boundaries will be drawn in a manner that gives them advantage, leading to outcomes that may not be reflective of the wishes of the people. Nic Cheeseman and Brian Klaas have argued that abdicating this responsibility to those in power is “the electoral equivalent of allowing foxes to guard henhouses.” For example, ahead of the 2008 election in Zimbabwe, the Mugabe regime increased the size of parliament from 120 to 210 members and allocated most of the new seats to rural areas where it had support rather than the urban areas where support had eroded. In the Zambian context where a constitutional amendment needs two-thirds support in parliament, it would mean a future government can easily reach that threshold by arbitrary resetting electoral boundaries and parliamentary seats to its advantage. If the Bill passes, it would set a very dangerous precedent that would undermine constitutional stability.
NOMINATED MPs
Clause 68(e) proposes to increase the number of nominated Members of Parliament (MPs) from the current eight to 10. No justification has been given for this. However, Zambia’s independence constitution (1964), which allowed the president to nominate not more than five MPs, also provided the reasons for allowing the President to do so. Section 60 of the 1964 constitution stated:
“ The President may appoint as nominated members of the National Assembly such persons, not exceeding five in number, as he considers desirable in the public interest in order to enhance the representative character of the Assembly or to obtain the service as a member of the Assembly of any person who, by reason of his special qualifications, would be of special value as such a member.”
As can be seen, the rationale from beginning has been to allow the President to either enhance the representative character of the National Assembly, or to bring on board special talent. The position, however, is an antithesis of democracy as such MPs enjoy no direct mandate from the people as they are not elected. This point was strongly made by petitioners to the Chona Commission, forcing the commission to record the public sentiments on this as follows: “Views were expressed that there should never be nominated Members of Parliament because every member of Parliament should represent a constituency except for the Speaker of the National Assembly whose full- time duties in that office would not allow him to perform constituency functions satisfactorily.” The Chona Commission, however, rejected these public submissions, stating:
“We felt that the Head of State should be left with some discretion to bring to Parliament special talent.”
However, as a compromise, the Chona Commission recommended reducing the number of nominated MPs from 5 to 3.
The issue, has, however, continued to feature in almost all subsequent constitution making processes. The Mungomba Review Commission, which perhaps carried out the most extensive consultations across the country, reported wide discontent about having nominated MPs as follows:
“The call for an increase in the number of nominated MPs was closely contested by a large number of petitioners who wanted the number to be reduced.”
As a result, the Mungomba Commission recommended:
“The Commission recommends that the constitutional provision for nominating MPs should be repealed.”
The Mungomba Commission went further to explain its misgivings about the democratic credentials of nominated MPs:
“The Commission appreciates the misgivings expressed by petitioners who were not in favour of the concept of nominating MPs. The concept is perceived as not being in conformity with ideals of competitive democracy and the sovereign will of the people. The Commission notes that in countries where this concept exists, it is used either to enhance the strength of the ruling party in Parliament and/or integrate targeted minority or disadvantaged groups. In the Zambian situation, the provision appears to have been used more to enhance the strength of the Executive both in the Cabinet and in Parliament. Further, when viewed especially against the background of dominance by the ruling party in Parliament, this provision seems intended to tilt the balance in favour of the ruling party.”
It seems clear from past constitution making processes that whenever the issue of nominated MPs arose, the proposal was either to eradicate the position or significantly reduce the numbers. Considering this context, not only is having nominated MPs a democratic anomaly but also lacks popular support. In the circumstances, there is no justification for the government increasing the number of nominated MPs from the current eight to 10.
PARLIAMENTARY VACANCY DUE TO DISQUALIFICATION
Article 72(2) of the constitution lists circumstances when the office of a Member of Parliament becomes vacant. Article 72(2)(h), indicates that the office of MP is vacant when the MP “is disqualified as a result of a decision of the Constitutional Court.” This suggests that there is a judicial process before the office is declared vacant. However, the Bill proposes to change this wording to instead make the office vacant when the MP “is disqualified in accordance with this constitution.” This change creates unnecessary ambiguity as the constitution has no stand alone process for disqualifying candidates. The removal of reference to a judicial process may further open the disqualification power open to abuse by various entities.
PARTY REPLACEMENT OF MPs
Clause 72(8) states that when a vacancy occurs in the National Assembly, the party that sponsored the candidate elects a replacement. The provision divests the people of their power to choose their own representative. There is no basis for assuming that the people could have elected someone from the same party. One of the hallmarks of a presidential system of government, such as the one Zambia runs, is that of dual legitimacy of government. In the Juan Linzi sense, the legislature and head of the executive have full claim to democratic legitimacy. That is, both the head of the executive and legislative branches are directly elected by the people. A legislature whose members are not elected by the people cannot claim full democratic legitimacy. Political parties cannot just choose representatives for the people. The citizens are the ones who should choose individuals to lead them as well as political parties to govern public affairs.
Beyond this, there is a technical challenge. Although Article 60(1)(b) of the constitution empowers parties sponsor parliamentary candidates, the constitution does not make it a requirement that candidates can only participate if sponsored by a political party, nor are they required to belong to any political party. Article 70 of the constitution, which lists qualifications and disqualifications for parliamentary candidates, does not require any party affiliation for a parliamentary candidate. Similarly, article 71, which sets out the requirements for valid nominations for MPs simply requires an MP to pay a prescribed election fee to ECZ and to present 15 registered supporters. The process is then left to citizens to choose their MP. An MP is, therefore, elected by the people, as an individual and not as a member of a party. In this arrangement, where a political party has no directly recognized constitutional role in the election of parliamentary candidates, why should it be given the power to choose a replacement candidate for citizens?
NO DISSOLUTION OF PARLIAMENT/COUNCIL
Currently, parliament is dissolved 90 days before the general election. Clause 81(3) proposes to amend that and only dissolve parliament the day before the holding of the general election. The rationale for this is not clear. There is no discernible mischief this is intended to cure. Clause 81(4), however, states that parliament shall not sit to conduct business during the 90 days preceding a general election. At makes it clear that the MPs are not sustained in office in order to perform a public function but simply to continue to have access to public resources and benefit from incumbency. This, if implemented, would take away the semblance of the levelling of the playing field in the electoral process between candidates in power and those who are not. Ironically, Clauses 116 and 117 require cabinet to dissolve 90 days before the elections. If cabinet dissolves 90 days before elections, what then is the rationale for MPs to remain in office and be paid from public resources while not rendering any service?
The proposal not to dissolve parliament in the run towards the general election does not sit well with the country’s previous efforts to limit officialdom, abuse of incumbency and abuse of public resources during election campaigns. The Supreme Court, in the case of Lewanika and Others v Chiluba (1998) ZR 49, having encountered complaints of abuse of incumbency and public resources in the electoral process, recommended the need to have a closed season even for state sanctioned donations during the campaign period. It recommended:
“During election period there should be a closed season for any activity suggestive of vote-buying, including any public and official charitable activity involving public funds and not related to emergencies or any life-saving or life-threatening situations.”
The proposal to keep MPs in office at the climax of the election campaigns erodes the county’s previous efforts and attempts to keep the playing field level during elections.
MP IS THE COUNCIL
Clause 153(2)(b) intends to make an MP a member of the Council. This dilutes the separation between central government and local government. The development needs at local government level should be driven by those elected for that purpose at subnational level. The MP is part of central government and should have no direct role in the Council. Instead of importing the MP into the council, it would be more progressive to consider reforming and effectively implementing the country’s devolution framework. This could address the interface of accountability, development and effective representation at subnational levels. The significance of this approach was recognised by the Mungomba Commission in 2005 when it noted:
“In addition, the Commission feels that the trend for the future development of the country should be in favour of the devolution of power, functions and responsibilities to lower levels of government, instead of a concentration of these in institutions at the national or central level.”
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