The National Constitution And Business

The National Constitution amending process has been extended for a further four months to finalize outstanding issues before presenting the amendments to Parliament for implementation.

At the moment about half the number of set up committees have concluded their deliberations and detailed their recommendations. The other half is yet to complete this task.

Private Investment is fundamentally hinged on the system of Governance and subsidiary laws that affect the operations, profitability, and sustainability of any company. The more facilitative, rational, and predictable the systems are, the more attractive will be the country for private investment.

The public debates in the media that have characterized the constitution amending teams gravitate more towards specific legislation than towards substantive constitution principles.

This is seen in the citizenship dialogue where the constitution team is more engaged in detailing the various permutations of Zambian citizenship description, than to simply state the principles to be used to determine citizenship and what rights, obligations and responsibilities that a citizen has in the country.

The details of citizenship tend to change from decade to decade as the country evolves and as the world evolves too. These details are therefore amended as required by using the subsidiary laws, which in the case of citizenship would be the Citizenship Act. This subsidiary law route provides an avenue to avoid constitution changes every now and then. In fact, within the provisions of some Acts, a Minister may issue a Statutory Instrument to introduce some new rules and regulations that are deemed not to need Parliamentary approval and Presidential assent. These mechanisms facilitate the running and management of a country in a reasonably efficient manner, and yet provide for checks and balances by using the constitution as the basic references, and the judiciary to interpret the constitution and all subsidiary laws when a dispute arises.

The dialogue on Public Finance has not surfaced the value, importance, and impact of the role of the office of the Accountant General. The discussions concentrated much more on the role of the Auditor General which is very important, but should not take away from the fact that auditing is a function that looks at historical records and therefore at best, can only offer advice on how to better manage and account for public finances. On the other hand, the role of the Accountant General is to develop accounting systems for the public sector, to monitor and evaluate how the systems are employed, and to develop and implement any corrective measures that may be necessary. This is where the real work is in as far as managing and accounting for public finance. The constitution should highlight the role and value of the Accountant General and articulate the principles and mandate of this office.

If the constitution amendment process is going to look at detail, then we run the risk of introducing so many specific provisions that will be challenged in our courts of law. We may end up with a permanent constitution review commission that will be fire fighting and fixing the problems that will have been introduced in this current constitution amending initiative.

The current difficulties in interpreting the ZDA Act is a good case in point. The Act highlights the investment bands that attract various levels of incentives, but does not specify a minimum investment amount for an investor that s looking to start business in Zambia and is not looking for any incentives. The immigration department has its own interpretation, the ZDA has its own interpretation, the Ministry of Commerce has its own interpretation, and one may suggest that the judiciary will have its own interpretation too. The various interpretations may not all be the same. Therein lies our investment attraction dilemma. The various interpretations invoke different responses from the various Governemnt Ministries and we end up with a very difficult investment climate with unseen barriers. These hidden barriers may be the reason why any significant investor in Zambia seeks to have audience with the State President in an effort to thwart off any negative actions that may be taken by members of the Civil Service.

One may ask then, what amendments can be done that will offer a significant shift forwards in our Governance system?

It seems there are many areas that an enthusiastic team of intellectuals may want to change in the constitution, but fundamentally there may be only a few key areas that make good common sense.

For instance, changes in the constitution that guarantee the separation of powers whereby the legislature, the executive and the judiciary become totally independent organs, will fundamentally change the system of governance. This measure will introduce checks and balances amongst the three arms of governance that would essentially free the public from being government watchdogs and whistle blowers. The legislature would hold the executive accountable, the judiciary would hold both the legislature and executive accountable, the legislature sets up the judiciary, and the electorate holds the legislature accountable.

This fundamental change in governance requires that parliamentarians cannot become members of the executive and vice versa, and that the judiciary is funded immediately and independently as per the constitution to remove any possibilities of compromise of functions, or the judiciary being held to ransom through selective financing by thee executive.

In addition, the legislature would need to be held accountable to the electorate and therefore the constitution may want to have a recall clause for members of parliament that are found to be wanting by their electorate. This power of recall will provide the checks and balances on members of parliament. The people who voted them in will have the power to petition their members of parliament out of office if necessary.

The rest is dependent on how forceful we are as a country in ensuring that our Civil Service operates within the rules and regulations provided. It is folly to attempt to always put in place a hard rule in a system where some degree of discretion is required. The remedy to ensuring that the discretion is not abused, is to hold the office bearer accountable for his or her actions, and to mete out the appropriate punishment for conduct that is unprofessional or not in the best interests of the public.

A constitution that develops responsive members of parliament, an accountable executive, and an independent and unbiased judiciary, is a constitution that will be responding to the wished of the people. It will also be a constitution that will promote economic development, attract investment, and provide an atmosphere of peace, stability, and equity in the nation.

Published 29 September 2009