The Constitution Of Zambia
It has been observed that there exist loopholes and a lacuna in the Zambian Constitution as regards safeguards that would ensure accountability on part of the executive, and a framework that would promote effective checks and balances on the executive’s power and authority, by the judiciary. Equally, there have been a number of instances in which the independence and integrity of the judiciary appeared to be compromised because of the manner in which judges are appointed. Furthermore, there have been numerous occasions on which the executive has appeared to have too much power at its disposal, resulting in abuse of power in one way or another. These observations seem to suggest that there appear to be a lack of adequate checks and balances on the executive branch of Government in Zambia, a situation which renders the autonomy of both the legislature and judiciary impractical.
According to a report on African governance, many African countries’ executive branches of Government, including that of Zambia, have historically been the most powerful division of Government. In Zambia, the tendency of the executive to monopolize power and abuse discretionary authority has been observed throughout the country’s constitutional regimes, in different forms and means. For instance, Bertelsmann Stiftung has highlighted the shortcomings of legal boundaries in the context of exercising executive powers, hence advocating for a system of legal regime that seeks to set boundaries or limit executive powers. It asserted that in the Zambian context, the executive’s dominance clearly extends beyond the stipulations of the Constitution. It further asserts that the legislature is poorly equipped to act as an effective check on government actions, and only in very rare cases has the legislature vetoed executive decisions.
The former Chief Justice Ernest Sakala’s thesis on the autonomy and independence of the judiciary highlights realities and challenges that have confronted the judiciary’s independence over the years, as a result of the executive’s authority to appoint judges. However, Justice Sakala did not advocate for an absolute separation of powers.
Professor Alfred Chanda emphasized that an executive that is checked by other wings of government is absolutely critical for prevention of abuse of powers by the President, who is both the Head of State and the Executive. It is worth noting that both Sakala and Chanda’s arguments are not focused on constitutional regime that places clear limits on the executive.
The Zambian Constitution does not expressly mention the existence of the separation of powers. However, it outlines a framework of government that presupposes the existence of the doctrine by clearly providing for and stating the functions of the three organs of government – the executive, legislature and judiciary. The framework ensures non- interference of each of these organs in the functions of the others as they are checked in the event that interference occurs. The main problem lies in the wide and unlimited powers bestowed on the presidency, which are subject to abuse by the executive. The need, therefore, to limit these powers is of utmost urgency. In addition, the empowerment of the judiciary to make its own judicial appointment of personnel, free from interference by the executive, is of paramount importance. Only then will the supremacy of the Constitution and the rule of law become alive in Zambia.
Dr Charles Sinkala