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
http://mbinjimufalo.blogspot.com/2012/12/a-microcosm-of-obtuse-reasoning.html
[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".
