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EXECUTIVE
1.
THE PRESIDENCY
The commission
therefore recommends that there should be an executive president who
should be head of state and government.
This is accepted.
2.
ELECTION OF PRESIDENT
The commission
recommends that the Zambian President should be popularly elected by
adult suffrage as at present.
This is accepted
but elections should be by universal adult suffrage through secret
ballot.
3.
DATE OF PRESIDENTIAL ELECTIONS
The commission
recommends that presidential elections should be held on the first
Thursday of September after every five years. Commissioners wished to see
the independence celebrations every five years coincide with the granting
by people, of a new mandate to govern to the politicians. In a small way,
the people would cultivate devotion to national interests immediately
after campaigning along party lines. Thus a national event would heal the
divisions that might have been generated by party passions.
This is not
accepted. Fixing a specific date is unrealistic given the likelihood of
natural disasters and other occurrences beyond control.
4.
QUALIFICATIONS
1.
CITIZENSHIP
The commission debated these propositions
carefully and by a majority agreed that to qualify for the office of
President the candidate:
a.
Must be a Zambian citizen born in Zambia;
b.
His/her parents must be Zambians born in Zambia of Zambian
citizens.
This is accepted but should read as
follows:
a.
Must be a Zambian citizen; and
b.
Both his/her parents must be Zambians by birth;
c.
Has been a resident in Zambia for 20 years.
This is not accepted.
1.
AGE
The commission was of the view that as
the voters were the best judges, there were no good reasons advanced,
which would compel a departure from the status quo and accordingly
recommends that:
a.
The minimum age should remain at 35 years and
b.
There should be no maximum age limit.
These are accepted.
1.
EDUCATION
The commission
recommends that there is no need to put education as a qualification for
the office of president. It was sufficient that a candidate was
conversant in English.
This is accepted.
2.
MORAL INTEGRITY
The commission
observed that the question of moral integrity tended to be highly
subjective and did not favour the inclusion of moral qualification in The
Constitution. The commission felt that good character was all that was
necessary.
This is accepted.
3.
FINANCIAL STANDING OF A PRESIDENTIAL CANDIDATE
The commission recommends that:
a.
A person’s financial standing should be a qualification for
presidential elections;
This is accepted.
b.
A candidate should not be entitled to take part in a
presidential election unless he or she makes a statutory declaration of
his/her assets and liabilities which should be open to public inspection
at such time and place as may be prescribed by an Act of the National
Assembly.
This is accepted.
1.
POLITICAL AFFILIATIONS
In this respect,
the commission recommends that an independent presidential candidate
should be eligible for elections. This is consistent with the proposed
bill of rights and democracy.
This is not
accepted because Zambia is committed to multi-party democracy. As such,
every effort should be made to promote party politics. Moreover, the
proposal may not be efficacious for Zambia because he/she may not be able
to form a government.
2.
RELIGION
The commission
found no justification in putting religion as a qualification and recommends
that religion should not be used as a requirement for presidential
office.
This is accepted.
3.
CERITFICATE OF GOOD HEALTH
It was the
commission’s view that matters relating to good health, like an upper age
limit are best left in the wisdom of the voter. Accordingly, a
certificate of good health should be a prerequisite for a presidential
election.
This is accepted.
4.
RECOMMENDED QUALIFICATIONS FOR PRESIDENT
The commission recommends that a person
should be qualified as a candidate for election as President if:
a.
He/she is a citizen of Zambia born in Zambia;
b.
His or her parents were/are Zambian citizens born in Zambia;
c.
He/she has attained the age of thirty-five years;
d.
He/she is of good character; and
e.
He/she is otherwise qualified to be elected as a member of
the National Assembly.
These are accepted as amended under
11.4.1(a) and (b) above.
1.
TERM OF OFFICE OF THE PRESIDENT.
The commission
recommends that every president should hold office for a period of five
years and should be eligible for re-election to one more five- year term.
This is accepted
and no person who has twice been elected president should be eligible for
re-election to this post.
2.
SUPPORT OF REGISTERED VOTERS FOR A PRESIDENTIAL CANDIDATE
The commission recommends
that a candidate should not qualify as a presidential candidate unless he
is supported by not less than one hundred registered voters from each
province.
This is not
accepted because the present requirement of 200 registered voters all
round is adequate.
3.
PRESIDENTIAL CANDIDATE TO QUALIFY FOR ELECTIONS TO THE
NATIONAL ASSEMBLY.
The commission
therefore recommends that a presidential candidate should be allowed to
stand for parliamentary elections and upon assumption of office of
president resign the National Assembly seat.
This is not
accepted.
4.
AN INCONCLUSIVE PRESIDENTIAL POLL
The commissioners
considered Article 34(8), which envisages an inconclusive presidential
poll. The commission appreciates that there was a need to clarify the
provision so as to reflect clearly the intention that where no
presidential candidate receives more than fifty percent of the votes, a
further poll should be taken for the first two candidates, and that in
the event of equality of votes in that election, the National Assembly
should elect the President.
This is not
accepted. The president should win by a simple majority.
5.
VACANCY IN THE OFFICE OF THE PRESIDENT
The commission proposes a new political
scheme where the Vice-President would be running mate of the president,
and consequently, a vacancy in the office of the president would
automatically imply that the vice president takes over the functions,
duties and powers of the office of president.
This is not accepted. The president
should continue to appoint the vice president.
11.10 THE HAND-OVER OF POWER
1.
PERIOD OF HANDOVER
The commission recommends that there be a
thirty-day period for a smooth transfer of power. During this period the
incumbent President will be responsible for the day to day administrative
duties of the office of the President but would make decisions only with
the consent of the president should elect on important matters. In
particular, the out-going president should neither initiate serious
policy relating to war, state of public emergency or threatened emergency
should only be invoked with the consent of the president –elect.
This principle is accepted subject to the
following:
a.
The incoming President is sworn in immediately after being
declared winner;
b.
The period of hand over is 14 days; and
c.
The outgoing president should not initiate policy measures,
make any appointments to public office or invoke the provisions relating
to declaration of war, state of public of threatened emergency;
1.
ENCOURAGEMENT OF A CULTURE OF HANDOVER
The commission recommends that an
administrative mechanism supported by the adoption of precedents from
other countries be devised to allow the incumbent president meet and
congratulate the winner publicly.
This is accepted.
10. PRESIDENTIAL
ELECTION PETITION
In order to
expedite petitions relating to presidential elections, it is recommended
that such petitions should lie directly to a full bench of the Supreme
Court.
This is not
accepted because the provisions of Article 44 in the present constitution
are adequate.
11. FUNCTIONS OF THE
PRESIDENT
The commission recommends that the
president be granted the traditional functions of a head of state and
head of government, and in particular the president should:
a.
Formulate the policy of the government;
b.
Accredit, receive and recognise, ambassadors, and appoint
ambassadors, plenipotentiaries, diplomatic representatives and
consulates;
c.
Pardon or reprieve offenders;
d.
Negotiate and with the approval of the national Assembly,
sign international agreements and treaties and delegate the power to do
so;
e.
Establish and dissolve government ministries and departments
subject to the approval of the National assembly;
f.
Confer honours on citizens, residents and friends of Zambia
in consultation with interested and relevant persons and institutions;
g.
Appoint such persons as are required by The Constitution or
any other law to be appointed by him;
h.
Sign and promulgate any proclamation which by law he is
entitled to proclaim as president;
i.
Initiate laws for submission to and consideration by the
National Assembly; and
j.
Have supreme command over the armed forces.
These are not accepted because functions
of the president are already provided for under Article 44 of the present
constitution.
10. IMPEACHMENT OF
THE PRESIDENT
The commission
accepted the traditional grounds for impeachment which includes gross
misconduct, abuse of office, violation of The Constitution and laws and
wilful violation of the Oath of office.
This is noted.
11. PROCEDURE OF
IMPEACHMENT
The commission
recommends that with respect to the impeachment of the president, the
provision in Article 37 were adequate. However, the choice by the Chief
Justice of members of the tribunal should not be limited only to persons
who hold or have high judicial office. In this way, the Chief Justice
would be afforded wide scope to empanel a tribunal from other
distinguished jurists who might not or may never have held high judicial
office.
This is not
accepted because the provisions of Article 37 of the present constitution
are adequate.
12. ORDER OF
PRECEDENCE
The commission
thought that it would be wise to address the question of the order of
precedence of holders of state offices, and recommends that the president
should take precedence over all persons in Zambia, and in descending order,
the Vice President, the Speaker of the National assembly and the Chief
Justice, should take precedence over all persons in Zambia.
This is not
accepted because it is not a constitutional matter.
13. PRESIDENTIAL
BENEFITS AND EMOLUMENTS.
The commission was
of the view that a retired president should only be entitled to one or
pension irrespective of whether he/she served one or two terms.
This is not
accepted because this matter is appropriately covered under Act No. 40 of
1993, titled "Benefits of Former President’s Act"; and also
Benefits of Former Presidents (Amendment Act No. 33 of 1994). The
commission recommends that the President’s pension benefits should be
protected along the lines of Article 42(3) of the present constitution
and that every retired President should be entitled to only one pension
regardless of the period he/she served in the office of the president.
This is not
accepted because it is already in the present constitution.
14. CABINET
Petitioners wished to see a retention of
Cabinet consisting of:
a.
The President
b.
The Vice President and
c.
Ministers
This is noted.
10. THE VICE
PRESIDENT
1.
ELECTION OF THE VICE PRESIDENT
The commission
recommends that in the light of the logic of political considerations and
the wishes of the majority of petitioners who addressed the subject, the
Vice President should be a running mate of the President
This is not
accepted.
2.
DISCHARGE OF PRESIDENTIAL FUNCTIONS BY THE VICE PRESIDENT.
The commission
recommends that provisions similar to those contained in Article 39 and
45(4) should be reflected in the new constitution.
This is noted.
3.
VACANCY IN THE OFFICE OF THE VICE PRESIDENT
The commission
recommends that the succeeding President should nominate the vice
president from the National Assembly and the National Assembly should be
requested to ratify the candidate. Further, in the event of a denial of
ratification, the president should make another nomination to the
National Assembly and if the National Assembly still refused
ratification, the president should give the national assembly three more
names from which the national assembly would be obliged to elect a
Vice-President.
This is not
accepted because it is already covered under Article 38(3) of the present
constitution.
4.
SIMULTANEOUS VACANCIES IN THE OFFICE OF THE PRESIDENT AND
VICE PRESIDENT.
The commission
recommends that as much as possible judges should remain above politics
and should not be considered for political office even in the event of a
vacancy in the office of the president and the vice president. However,
the speaker of the national assembly is closely connected to political
affairs and is a much better alternative. The commission therefore,
recommends that where both the office of the president and the office of
vice president fall vacant at the same time, the speaker of the national
assembly should assume the office of vice president for a period not
exceeding ninety days for the purpose of ensuring that elections to the
offices of president and vice president are held within the said period.
This is not
accepted because of the reasons advanced at 11.18.3 above.
5.
QUALIFICATIONS AND REMOVAL OF THE VICE PRESIDENT.
The commission
recommends that as the vice president was constitutionally qualified to
perform all the duties relating to the Office of the President, he too,
would be entitled to enjoy the same qualification and suffer similar
disqualifications as those that apply to the President.
This is not
accepted for reasons advanced at 11.9.
11. MINISTERS
The commission unanimously recommends that:
a.
Ministers should be appointed from outside the National
Assembly, from among the citizens of Zambia on the basis of ability,
merit, and experience, and such appointments should be subject to
ratification by the national assembly.
This is not
accepted because in reality, strict adherence to the doctrine of the
separation of powers in impracticable. It is, therefore, desirable that
people who initiate policy should be able to defend it inside parliament
and that ministers should be able to defend it inside parliament and that
ministers should be appointed from inside parliament.
b.
In the event the president appoints a member of the national
assembly to a ministerial post that member should thereafter resign
his/her seat.
This is not accepted in view of the
reaction at (a) above.
1.
NUMBER OF CABINET MINISTERS
The commission
recommended that there is need for The Constitution to provide a total
number of not more that eighteen (18) Cabinet Ministers.
This is not
accepted.
2.
FUNCTIONS OF THE CABINET
The commission
recommends that in keeping with the new constitutional design, cabinet
should essentially be an advisory body of the president. Thus, in all
respects ministers should be responsible for such business of the
government including administration of any ministry or department of
government, as the president may direct.
This is not
accepted because of the decision at 11.19. (a), above.
3.
MINISTERIAL ACCOUNTABILITY
The commission
recommends that there continue to be collective accountability of cabinet
to the national assembly. In addition, individual ministers should be
accountable to the president and the National Assembly for the
administration of their ministries. This is accepted subject to the
removal of the words "and the National Assembly".
4.
VOTE OF NO CONFIDENCE
The commission recommends that:
a.
The national assembly should have power to pass a vote of no
confidence in individual ministries but not in the entire cabinet. This
is not accepted because ministers are accountable to the president as individuals
and as part of the executive. They are accountable to the National
Assembly as a collective group and as such a vote of no confidence in
individual ministers would be contrary to the principle of collective
responsibility.
b.
The national assembly should have no power to pass a vote of
no confidence on the president whose mandate to govern is derived from
the people.
This is accepted.
c.
A minister in whom a vote of no confidence has been passed
should be removed from office by the president.
This is not
accepted for reasons given at (a) above.
1.
QUALIFICATIONS OF MINISTERS.
The commission
recommends that there should be no special qualifications for appointment
to the office of minister but the minimum requirements for election to
the National Assembly should be observed.
This is accepted.
2.
ASSISTANT MINISTERS
The commission recommends that ‘deputy
ministers’ should not be given powers to deputise ministers. Strictly
speaking, they are merely assistants and their duty is to assist
ministers in the performance of their functions. To address this change
in the nomenclature from the usage of ‘Deputy Minister’ to ‘Assistant
Minister’.
This is not accepted.
2.
ATTORNEY GENERAL
The commission recommends that the
Attorney General should be appointed by the president subject to
ratification by the National Assembly.
This is not accepted because the
provisions of Article 54 of the present constitution are adequate.
10. THE SOLICITOR
GENERAL
The commission
recommends that the Solicitor General, who, in the absence of the
Attorney General should exercise the powers of the Attorney General, be
appointed by the president subject to ratification by the national
assembly. The commission noted that in practice the attorney general and
solicitor general work very closely with each other, and for this reason
The Constitution should settle beyond doubt the solicitor general’s right
to discharge the functions of the attorney general in the latter’s
absence
This is not
accepted because the provisions of Article 55 of the present constitution
are adequate.
11. THE DIRECTOR OF
PUBLIC PROSECUTIONS
The commission
recommends that in the interests of safeguarding the independence of the
Director of Public Prosecutions. This conclusion is fortified further on
account of the need to remove completely any executive influence on the
criminal justice system. In a similar vein, the commission recommends
that the Director of Public Prosecutions should be appointed by the
Judicial Service Commission subject to ratification by the National Assembly.
This is not
accepted because the provisions of Article 56 of the present constitution
are adequate.
Further, the
commission recommends that in the interest of justice and fair play, the
Director of Public Prosecutions whenever entering a nolle prosequi, or
whenever he discontinues a prosecution commenced by another person or
authority, be obliged to give reasons to the court.
This is not
accepted.
12. SECRETARY OF THE
CABINET.
The commission
recommends that in consultation with the Public Service Commission the
president should appoint the secretary to the Cabinet subject to
ratification by the national assembly.
This is not
accepted. The president should appoint the secretary to the Cabinet
subject to ratification by the National Assembly.
13. APPOINTMENT OF
PERMANENT SECRETARIES
The commission recommends that Permanent
Secretaries should be appointed by the Public Service Commission on the
basis of professionalism, merit and experience.
This is not accepted. The president
should appoint permanent secretaries in consultation with the secretary
to the cabinet.
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