Sunday, December 30, 2012

In the Fog of the Year

2012 is coming to a close and looking back on the political and economic governance this year, one is left wondering as to what exactly happened to a people. 2012 in my mind has merely been a year of political verbal ornamentation to a scale never witnessed before. There has been a significant variance between what is vehemently proclaimed and what is experienced.

This is a year in which there has not been much evidence of adherence to process and procedure. The rule of law has just been an alien concept. Process and procedure has always been proclaimed, but never evidenced. This, we here illustrate by acknowledging that a country is governed through rules and regulations which define process and procedure. Noteworthy is that such rules and regulations are embodied in policies, laws and institutions. Some principal tenets in these rules and regulations are the protection of fundamental rights and freedoms, the rule of law, the sanctity of the autonomy of oversight institutions and the judiciary, the separation of powers, and protection of the State from conflict of interest behaviours in persons holding public authority.

Further, the rule of law provides that they have to be respect for all law and that all individuals are held equal before the law. In addition, and that State Agencies and officials must be held accountable to the law.

First, the protection of fundamental rights and freedoms as provided in the Constitution of Zambia, have consistently been desecrated. This is to the extent that one can perhaps argue that the current Government’s understanding of the inviolability of the protection of fundamental rights and freedoms is a simile of Otto von Bismarck’s remark of “a piece of paper with negro crosses beneath[1], in contempt of the treaties between Carl Peters and local chiefs in Tanzania.

Article 20 of the Constitution of Zambia guarantees the protection of freedom of expression. Thus, when one holds an opinion on the governance of the country, this Right guarantees that such a person can communicate such opinion without interference from the State or any other person or group of persons. Unfortunately in this year, this has been severely violated. To which end, we here vehemently argue that there is a deliberate attempt to cow dissenting views into silence. We have witnessed State agents, (like the Government spokesperson) denigrate citizens for simply expressing concerns with the manner in which we are being governed. Non-Governmental Organisation (NGO) leaders have been publicly rebuked for exercising this right. NGOs are now under threat of deregistration for doing the same.

In similar circumstances, we have evidenced draconian directives that no one, no NGO can have a consultative forum on the Constitution without the supervision of the Technical committee of the Constitution review process. And we have evidence of a Minister issuing instructions that those who will do so should be arrested. Arrested for what? Since when did organising citizens to openly discuss a Constitution constitute a crime? Which law stipulates this? Clearly this Government seems not to know that, it is when Governments are not challenged, that impunity and violation of human rights become a norm.

In addition, on freedom of expression we were told the public media will operate freely and without interference from the State. The population experienced mealie meal and fuel shortages, and near stroke effects of consistent power outages, but the public media deemed this not newsworthy. How then is it possible that a free public media could not, for instance, communicate timely the ravages of mealie meal price increases on the population?

Further, freedom of assembly has also been violated. Opposition political parties no longer had rallies as the police always argued that the security situation is not conducive to allow groups of persons to assemble. Yet at no point did the police explain to us exactly what security situation was not conducive.  

Second, this is a year in which, as a people we witnessed unprecedented levels of ethno-regional biases in appointments to public office. It seemed nepotism and not meritocracy can be argued to be the rule and not the exception!

Sycophantic affirmation of membership of the ruling party for most rogue and unqualified individuals guaranteed them employment in a Public Body or Agency. Such individuals were employed without due process and procedure. We really do not recall, seeing any advertisements for employment to which these individuals responded. Employing unqualified individuals without due process and procedure simply because such individuals are strong members of a ruling party is clearly abuse of authority of office.  This is because such acts are arbitrary and can be prejudicial to the interests of the country. The work returns from these individuals near zero. They are merely an unnecessary public cost. We are a poor country, and it is indefensible that tax payers should bear the cost of political appeasements, without due returns on labour.

Inarguably, for a Public Body or Agency to employ an individual simply because of political party affiliation and without due process and procedure (and indeed the lack of transparency), is discriminatory. Article 23(2) of the Constitution of Zambia Act provides that “a person shall not be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority”.  In short, a Public Body or Agency should not employ individuals simply because they belong to a ruling party. Sic.

We also witnessed appointment of qualified individuals to Public Bodies or Agencies, where due process and procedure dictates that such positions be advertised by the respective institution. And that, the Board will subsequently recommend the individual they deem successful. This did not happen, in most cases, as no Boards were constituted timely, and there are public agencies which still do not have Boards.

Third, the much prophesied Constitution through use of a Technical Committee of Experts (though there are different interpretations as to the nature of the experts), is still in Draft form. The Draft is unfortunately a piece of work that defies even the simplest definition of a Constitution. Instead of enhancing limitation of executive powers, the Experts seem to have merely played to the dictates of the contemporary intents of political and governance hegemony. For instance, just because the President has been creating unplanned provinces, the Experts provide a perfect repertoire in the Draft.  And on Provincial Assemblies, the Experts provide derogations to the right to participate in one’s democratic governance. Elective membership to a provincial assembly they suggest, has to be by belonging to a particular defined organisation. Meaning if one does not belong to the defined group, he or she has no right to seek to represent others!

Much has been written about the Draft, with imminent persons like Muna Ndulo providing us the most illuminating critique. But the biggest sore, is its voluminous nature resulting from the attempt to include all sundries of governance provisions, when such sundries could have been left to merely be Acts of Parliament. Perhaps, the Experts in their good sense deemed it fit that, since the Draft has to be subjected to a consultative process, they might as well provide us a Draft that can not stand the test of public consultative scrutiny. We are not surprised, then that, we have to be supervised when discussing it!

Fourth, presidential actions so far show that institutions of governance and development are redundant. This is a year in which the President has seized and taken control of, without legal authority, a respective public body. The case of Road Development Agency (RDA) here clearly comes to mind. Surely, if the President deems that his appointed Minister or other public officer is inadequate, the expected norm is that the President should simply dismiss such an individual and not to usurp the responsibilities of such individuals or Body. RDA is created by an Act of Parliament, which is the Public Road Act No. 12 of 2002. In section 4(4) under functions of the Agency, the law stipulates that “the minister (not President) may give to the Agency such general or specific directions with respect to the carrying out (of) the functions of the Agency under this Act as the Minister may consider necessary and the Agency shall give effect to such directions”. 

Such actions are being witnessed, perhaps because we have a presidency’s advisory services populated with individuals from an extended ménage that have no known portfolio in governance and development advisory. Or could it be, we are evidencing a presidency that uses inadequacies in political appointees as a means of more control over them?

But tragic of all, is that on this one issue, we had the Speaker rule that, government has the prerogative to establish and dissolve government ministries and departments subject to approval by Parliament. We wish to argue here that, possibly the Speaker was not aware that unlike ministries, RDA is a creation of an Act of Parliament, and as such government could have legitimately and legally exercised its “prerogative” by amending the law. But this till today, has not been done. This makes the President’s act ultra vires. Period.

2012 is also a year in which we witnessed a President that proclaims anti-corruption erroneously defend an erring Minister. The President’s assertion that by law the Anti-Corruption Commission (ACC) is supposed to get permission from him to investigate any senior government or party official is deficient. Such law or provision of the law does not exist in the Anti-Corruption Act No 3 of 2012. The Anti-Corruption Act in section 5 provides that “Except as otherwise provided in this Act, the Commission shall not, in the performance of its functions, be subject to the direction or control of any person or authority”. This surely includes an absence of control by the President[2]!

Irrespective of how we argue this one incident, the objective facts that emerged later are that the Minister at the centre of this storm did in fact commit an offence, even if it were that he was not involved in a corrupt act. The Minister of Justice publicly admitted that he was offered a bribe, which he did not accept. Section 39 of the Anti-Corruption Act, provides that “A public officer to whom any gratification is corruptly given, promised or offered shall make a full report of the circumstances of the case to an officer of the Commission or a police officer within twenty-four hours of the occurrence of the event, and if the public officer fails to do so without reasonable cause, commits an offence and is liable, upon conviction, to a fine not exceeding two hundred thousand penalty units or to imprisonment for a period not exceeding two years, or to both”[3]

Where it to be argued the contrary, that is he could not be deemed a public officer at that material time, he still did commit a felony. This is because, section 393 of the Penal Code Act states that "Every person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completion thereof, is guilty of a misdemeanour”.

Such incidents really stir up in us the question, what corruption is really being fought? An in-depth interrogation of this incident will also show that protection of the State from conflict of interest behaviours in persons holding public authority is wanting. We read and see every now and again, how this and that public officer (elective mostly) is attempting to conduct business with a Public Body, or even within the private sector. Holding public office and being an active participant in the private sector seems not to be an exception anymore. Clearly our elective public officers have to make a choice. Stick to what we elected them for, that is, to represent our common socio-economic interests. Or they can stick to what they desire, their narrow economic (profit) pursuits. They can not have it both, as conflict of interest will always certainly be consequent. And indeed, such individuals will undermine the business competitiveness of others, as by simply being a Minister they will inherently have the advantage when it comes to public contracts! It is in this respect that we also find indefensible that an incumbent president can be a director of an active company, Ilunda Chalo Investment. We sincerely hope that the yet to be corroborated news that the President is a director, does not turn out to be true. 

Fifth, analysing presidential actions so far, one also can undoubtedly argue that development planning has gone out through the window. 2012 is a year in which we witnessed social and economic development by presidential directives.  The substitute for development planning witnessed so far, is “off-the-cuff”. Off-the-cuff development planning is unsustainable and unacceptable. This is because it is whimsical development planning. It is highly susceptible to the mood swings of the individual proclaiming such development. But significant of all, it is a cost to the country as often it is not within the country’s development framework. We should accept that a defined development framework is what directs a country’s budgetary framework. As a matter of process and procedure, thus, presidential development and or economic directives have to be within the framework of what the ruling party has embodied as the development framework for the country, and with such development framework having been subjected to a consultative scrutiny by the population. Or not just a proclamation that, it should be “compulsory for Government departments to have PF manifestos”. 

A political party manifesto is merely a marketing tool for the electorate. It is not a country’s development plan. But it can become so, only after its elements are subjected to public consultation and then embodied in a country’s policies and development plans.

In retrospect, undoubtedly 2012 has been a year characterized by a lack of clear and orderly political thought and behaviour from the ruling Patriotic Front party. It is our sincere hope that as we close the year, the ruling party will sit down (in a consultative and civil manner) to take stock of the reasons for the fog in 2012. And to learn and enter 2013 with a much more focus on the issues that affect the livelihoods of the people, and not the insatiable desire for political hegemony (as evidenced by the celebratory embrace of members of parliament that defect from their respective parties). Political hegemony does not serve the interests of the population. It merely serves to perpetuate narrow self-serving interests.

Please, when we criticise it is not that we mean harm, no. We are simply expressing our concerns. And we expect the State to simply and lucidly prove to us that our concerns are not merited. Not to denigrate us or threaten us, as this merely shows that our concerns are valid!

We will not allow ourselves to be cowed into silence, as doing so is an injustice to ourselves. We will not grovel ourselves before you, as doing so will merely serve to perpetuate impunity.

We know 2012 will go down in the ashes of the history of our country, as a year in which there have been epic State behaviours not befitting a democracy. What we have illustrated here, are but just a few of our concerns.

Any way, we sincerely hope 2013 will be better, as we believe every human desires the betterment of the other. Hence, though 2012 has been a foggy year, we wish you a happy new year!

[1] Cited in Hans-Ulrich Wehler, Bismarck und der Imperialismus, Suhrkamp Verlag, Frankfurt am Main, 51984, p. 342.
[2] And of course, the advisory ménage tried to convince us otherwise. See “A microcosm of obtuse reasoning” at
[3] The Anti-Corruption Act defines Public Officer as "any person who is a member of, or holds office in, or is employed in the service of, or performs a function for, or provides a public service for, a public body, whether such membership, office or employment is permanent or temporary, whole or part-time, paid or unpaid, appointed or elected, full time or part time, or paid or unpaid, and “public office” shall be construed accordingly".

Wednesday, December 12, 2012

A microcosm of obtuse reasoning

A response to George Chellah (Special Assistant to the president on press and public relations) press release (ref: h 
George Chellah, please sometimes find time to understand the context of an issue at hand before you expose your serious ineptitude in reasoning of the law.
The issue at hand, which LAZ lucidly explains is that the President’s assertion that by law the commission (ACC) is supposed to get permission from the President to investigate any senior government or party official, is wanting. Such law or provision of the law does not exist in the Anti-Corruption ACT No 3 of 2012. The Anti-Corruption ACT No 3 of 2012 in section 5 provides that “Except as otherwise provided in this Act, the Commission shall not, in the performance of its functions, be subject to the direction or control of any person or authority”. This surely includes an absence of control by the President!. And the only exception is provided in section 94, which states that "The President may, in consultation with the Commission, make regulations for the better carrying out of the provisions of this Act”, and the stipulated regulations cited do not provide that there has to be a regulation that provides for seeking permission from the President.
It is therefore expected of a Special Assistant to the president (Press and public relations) to prove to us (in case we are wrong) what law (or provision) exactly the president was referring to. The President’s assertion negates the rule of law. Sic. The rule of law refers to the supremacy of law, and its equal application to all individuals, including government and state officials. (I still wonder why senior party officials are supposed to be considered special citizens). Given that there is no provision in the Anti-Corruption ACT No 3 of 2012 that provides that the ACC is supposed to get permission from the President to investigate any senior government or party official, the President’s assertion are undoubtedly ultra vires, and a threat to the rule of law.
Thus, it is clear that your statement is simply a microcosm of obtuse reasoning.