By Chambwa Moonga
ARTICLE 101 (3) of the Republican Constitution has been amended by the just-ended National Dialogue Forum and there is now a provision for formation of a coalition government where presidential candidates fail to reach the 50 per cent plus one threshold.
A Wynter Kabimba chaired technical committee of the National Dialogue Forum (NDF) made the amendments to the subject Article and the Forum later reached consensus on the amendments.
Article 101 (1) of the 2016 amended Constitution states that a President shall be elected by registered voters in accordance with Article 47 (1) and this Article.
101 (2) states that the returning officer shall declare the presidential candidate who receives more than fifty per cent of the valid votes cast during the election as President-elect.
101 (3) states that if at the initial ballot a presidential candidate does not receive more than fifty per cent of the valid votes cast, a second ballot shall be held within thirty-seven days of the initial ballot, where the only candidates shall be the presidential candidates who obtained – (a) the highest and second highest number of valid votes cast in the initial ballot; or (b) an equal number of the valid votes cast in the initial ballot, being the highest votes amongst the presidential candidates that stood for election to the office of President.
101 (4) states that a person may within seven days of the declaration made under clause (2), petition the Constitutional Court to nullify the election of a presidential candidate who took part in the initial ballot on the ground that— (a) the person was not validly elected; or (b) a provision of this Constitution or other law relating to presidential elections was not complied with.
But NDF delegate Guess Nyirenda, who was the secretary of the technical committee, told the Forum on Wednesday that Article 101 (3) be amended to read that if at the initial ballot a presidential candidate does not receive more than fifty per cent of the valid votes cast, the candidate with the highest number of votes cast shall be given 14 days to negotiate and put together a coalition government with a political party that participated in the initial ballot, except that the combined votes of the parties forming the coalition government meet the threshold of more than 50 per cent.
The amended Article 101 (4) states that where there is a failure to form a coalition government within a period specified in clause 3, a second ballot shall be held within 37 days of the initial ballot where the only candidates shall be the presidential candidate who obtained (a) the highest and second highest number of valid votes in the initial ballot or, (b) an equal number of valid votes cast in the initial ballot being the highest votes amongst the presidential candidates that stood for election to the Office of President.
“Those are the major changes we made but then, the other clauses in Article 101 (1) just flow the way they were – there were no changes,” Nyirenda said.
“However, I want to mention that at the end, we felt that we need to bring in a new Article 102 and that should be between Article 101 and the current 102. This Article is basically to define and describe the coalition government.”
He added that the two clauses that the technical committee proposed under the new Article 102 were that (1) parties in the coalition government shall deposit the agreement with the Constitutional Court which shall certify the coalition government and (2) withdrawal from the coalition government should be heard and determined by the Constitutional Court.
Other members of the technical committee were Eastern Province minister Makebi Zulu and a Mr Samwimbila.
On electoral systems, the technical committee amended Article 47 (1).
The said Article, in the current Constitution, states that elections to the Office of President shall be conducted directly, under a majoritarian electoral system, where the winning candidate must receive more than fifty per cent of the valid votes cast, and in accordance with Article 101.
The amended one states that elections to the Office of President shall be conducted directly, under a majoritarian electoral system, where the winning candidate must receive more than fifty per cent of the valid votes cast, subject and in accordance with Article 101.
In buttressing the provision of a coalition government, Kabimba told the Forum that Zambians were coming from a background of divisive politics.
“We are all Zambians; we are all brothers and sisters…. We are supposed to be free, to walk in ministries, government departments, irrespective of which political party we are affiliated to. The bedrock of that will be nothing other than a coalition arrangement because it will force us to speak to one another,” noted Kabimba.
NDF chairperson Professor Muyunda Mwanalushi then said: “I think consensus has been made around the concept of a coalition government being introduced in our governance system. Is there any need for further…..”
Delegates to the Forum chorused no, with isolated voices of yes.
Later in the evening on Wednesday, NDF secretary Patrick Chisanga issued a press statement highlighting the outcome of the 16 day Forum.
The NDF was holding its deliberations at Mulungushi International Conference Centre in Lusaka.
“I wish to take this opportunity to thank everyone that sacrificed their time to come and participate at this important national undertaking, the National Dialogue Forum. The Forum has sat for a total number of 16 days from the initial 10 days that were provided for in the National Dialogue Act of 2019…” Chisanga stated.
He then listed what the Forum adopted as proposed laws for possible enactment by Parliament.
The adopted proposals are the draft Constitution of Zambia (amendment) bill, 2019, the draft electoral process (amendment) bill, 2019 and the draft public order bill, 2019.
Chisanga outlined that the Forum made a number of amendments to the Constitution bill 2019.
The amendments include a revised the preamble to confirm that “indeed” Zambia remains a Christian nation by removing the words multi-religious and the principle for formation of coalition government.
Others are confirmation that the National Assembly shall only dissolve at the date of the general election to allow members of parliament to complete their full five year term and provide for entry of women and marginalised groups in Parliament and councils through the mixed member electoral system.
Affirmation of people’s right to freedom of conscience by removing Section 9 clause 1 of the public order bill which penalised people who refuse to sing the national anthem is the other constitutional amendment.
“This means that it is not mandatory for any group to sing the national anthem, except at public functions,” Chisanga stated.
He further named other amendments as revision of the period for hearing of a presidential petition to 30 calendar days from the 14 days and provision for the appointment of deputy Ministers.
“Further, civil servants intending to seek political office must resign from their jobs two years before elections,” he stated.
He also named the draft electoral process bill, 2019, amendments, as proposed by the NDF.
They include the reduction of the campaign period from three months to 60 days, provision for the independent candidates to select their symbols from the list made available by the Electoral Commission of Zambia (ECZ) and provision for the Commission to publish the election time table in a national wide circulation, “in addition to the gazette.”
Meanwhile, Chisanga indicated that on the public order bill, 2019, provisions for the enjoyment of the right of freedom of assemble and association, and regulation of the conduct of public gatherings for the preservation of public order were the proposed amendments made.
“The bills will then go to Parliament where they will be enacted into law. As a Forum, I’m happy to inform you that we have completed our task and the resolutions have since been adopted,” stated Chisanga, adding that there was transparency in the process of validating and refining the bills.