Source: CGTN Africa
By Inutu Akolwa, Yamikani Ngoma and Innocent Siachitoba
INTRODUCTION
On 24th August, 2021, President Hakainde Hichilema, in his inaugural speech emphasised that his Government will enhance good governance and strictly uphold the rule of law.[1]He stated that the UPND Government will live up to its campaign promises by ensuring that all citizens are equal before the law. He further stated that the UPND Government will promote national unity and good governance by strict adherence to the rule of law.
The Minister of Home Affairs and Internal Security Mr. Jack Mwiimbu reiterated the above sentiments in a ministerial statement made before Parliament where he affirmed that the New Dawn Administration is anchored on the rule of law and that the bedrock of the Government is a conducive governance environment for the country’s political stability, security, economic growth and sustainable development.[2]
Further, in its Manifesto,[3] the UPND administration places a high priority on the establishment of a sound legal environment that ensures the rule of law, peace, justice, civil liberties, and security for all. The UPND in this regard pledges to focus on securing the law, including making necessary changes to the Constitution, as well as widening the democratic space, fostering dialogue, debate and tolerance of different views.[4]
Emphasis on the rule of law in Zambia like in many other African countries is fairly recent and is as a result of changing perceptions and social discourse. This has been shaped by the manner in which political power was exercised and prevailing ideological orientations. The rule of law is not a constant and is often reshaped by social discourse and the changing attitudes and values in a society.[5]
Source: Lusaka Times
This Article seeks to discuss governance and the rule of law and how it is understood by some members of the public in Zambia. From the findings the Commission drew a conclusion and accordingly made recommendations. In this regard, a snap survey was carried out on a cross-cutting mix of respondents on their understanding of governance and the rule of law, how it has been applied in Zambia by the respective governments of Zambia and what they expect under the new government. The respondents represent Zambians from different walks of life who are personally affected by how governance and rule of law are implemented in Zambia.
GOVERNANCE AND THE RULE OF LAW
Zambia is a member State of the African Union. The objectives and principles enshrined in the Constitutive Act of the African Union,[6] emphasises the significance of good governance and the rule of law.[7] Specifically, the African Union seeks to promote democratic principles and institutions, popular participation and good governance in its states parties.[8] The African Charter on Democracy, Elections and Governance[9] reiterates the commitment of its States parties which include Zambia to promote among other things principles of good governance and the rule of law.[10]
Source: Findlaw
The rule of law may be defined as:
“a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”[11]
Good governance is seen to embody the following key elements: [12] Internal rules and restraints (including internal accounting and auditing systems, independence of the judiciary and the central bank, civil service and budgeting rules); “Voice” and partnership (including mechanisms for public deliberation of proposed laws and the enabling of partnerships among different actors in society); and Competition (including competitive social service delivery and private participation in infrastructure).
The principle of the rule of law is premised upon the respect for, and the supremacy of, the Constitution and constitutional order in the political arrangements of the state. Whilst good governance entails the promotion of democratic culture and practice, building and strengthening governance institutions and inculcating political pluralism and tolerance.[13]
Good governance and the rule of law are prerequisites for peace and stability, without which societies cannot function, let alone flourish.[14] The commitment to transparency and accountability inherent in good governance promotes the rule of law over corruption, allowing the many benefits of other sustainable development initiatives and economic inputs to reach those in society who most need to benefit from them.[15] The following have been identified as some of the outputs of good governance and the rule of law: Legitimate, effective, responsive institutions and policies (“embedded autonomy”) ; Understandable processes and outcomes; Transparency; Incentives to sustain good governance; Vertical accountability; Horizontal accountability.[16]
What then is required for the respective arms of government to attain the confidence of the public and become a central element in a society which enjoys good governance and the rule of law?
Legislative reform and administrative measures will be required to realise the tenets of good governance and the rule of law. For instance, in regard to the attainment of an independent Judiciary, Kenya provides one approach to reform. The 2010 Kenyan Constitution,[17] required all judges to step down and reapply for their positions. A vetting committee was established to ascertain the competence and integrity of the judges. The vetting Committee was composed of Kenyan and international judges.
In South Africa Sections 174 to 178 of the Constitution provide for the appointment of judicial officers. Firstly, the Judicial Service Commission draws up a list of candidates that must have three more games than the number of vacancies. The Commission does this after calling for nominations and holding public interviews.[18]
In Zambia we must likewise strike a “delicate balance” to develop a comprehensive, transparent and workable reform process that duly emulates the integrity, independence and effectiveness of all branches of government (i.e the Judiciary, Legislature and the Executive).
THE SNAP SURVEY FINDINGS
A snap survey was conducted by the Commission using semi-structured questionnaires which had both close-ended and open-ended questions. The analysis of the findings was done by using the Statistical Package for Social Sciences, Version 20 as well as Thematic analysis. This snap survey had a total of 25 respondents consisting of 15 males and 10 females to ensure gender parity. It must be underscored from the outset that this exercise was a snap purposive survey whose central aim was to get an overview of how people understand the concepts of good governance, the rule of law, as well as their expectation from the new dawn government. This follows therefore that the snap survey had limitations in terms of the sample size which was used meaning that it cannot be generalised to the larger population of Lusaka Province.
BACKGROUND INFORMATION OF THE SURVEY
The table shows the respondents by their age group and sex variable, and it was noted that many respondents were in the age group 25 to 39, a clear indication that in terms of age-sex structure, the population which was surveyed was young.
RESPONDENTS AND PLACE OF SURVEY
The snap survey was purposively conducted in Woodlands, Bauleni Market and Nyumba Yanga Market in Lusaka. The rationale for selecting these places was due to their proximity where different groups of people engage in various economic activities. In terms of residential differentials, 13 respondents indicated that they resided in high density areas whereas 6 participants revealed that they were from medium density places and 4 were from low density areas. Largely, the respondents who were interviewed were business persons such as marketeers, hair dressers, taxi drivers , and some pump attendants (fuel). Also interviewed was an innovator, information technology specialist and a governance and rule of law expert. The table below summarises the number of respondents by their occupation and education attainment.
RESPONDENTS’ UNDERSTANDING OF GOOD GOVERNANCE AND RULE OF LAW
The following were the synthesised definitions of what constitute good governance and the rule of law according to the respondents.
Good Governance
- The exercise of power or authority by political leaders for the well-being of their country’s citizens or subjects
- Accountability of decision making and performance
- Equity of inclusiveness
- All institutions should work independently without interference
- Separation of powers, that is the Executive, Judiciary and the Legislature
Rule of law
- Freedom of Assembly and Association
- Everybody is subject to the law of the land
- Access to justice for all regardless of one’s ethnicity, race, tribe or socio-economic status
- Checks and balances on the use of power by individuals and Government
Promotion of good governance and the rule of law
The findings revealed that in some instances government previously had not promoted good governance and the rule of law. It was revealed that governments had not given people power and that the elite had been controlling the country at the expense of the majority less privileged in society. The findings further showed that governments have not fully recognised all the freedom fighters and only few of them have been receiving praises, yet those who took part in the independence struggle are many. The respondents also alleged that some previous governments did not promote good governance and the rule of law stating that the new dawn Government has brought some changes. The concerns that were raised with regard to lack of good governance and rule of law include the following;
- There is no separation of powers, e.g, the President in the Executive appoints the Chief Justice in the Judiciary.
- There were a lot of injustices in the former regime, lack of freedom of speech and expression, political violence, corruption, caderism resulting in the oppression of the general public and it gave too much powers to cadres-controlling public places such as markets and bus stations;
- Past governments, had a tendency of shielding those that supported them from prosecution;
- Bias in the application of the law, for instance, the then opposition leader Hakainde Hichilema was not allowed to enter Chipata; and
- Rich people get justice while the poor segregated
There were also sections of respondents who argued that Zambian governments have promoted good political governance and rule of law. The findings showed that when one commits a crime he or she is judged within the confines of the law and all governments showed good characteristics of good governance. It was further submitted that previous Governments and the current one have promoted the rule of law as law breakers are apprehended by law enforcement officers accordingly and without fear and favour.
Expectations from the New Dawn Government
The following are the expectations from the persons who were interviewed:
- To give power to the people by empowering them through the land. By giving them right to exercise their cultural rights
- Developing good laws
- Provides rules that will bar ethnic hatred, environment rules, its too dirty
- Alleviation of poverty, improve on business opportunities
- Practice separation of powers
- Chief Justice must be voted for not appointed
- The prerogative of mercy power by the President must be removed
- No caderism in markets, no police interference, health care improvement
- Transparency and accountability, uphold human rights, promote equality among citizens
- Empowering marketeers, improvement of health care
- Listen to people’s views in order to improve their welfare
- Involve stakeholders like Civil Society Organisations (CSOs) in promoting good governance
- Ensuring that trading places are kept clean
- Creation of employment
- Equal opportunities when it comes to recruitment -ZP, ZAF, Zambia Army, Teachers and other Government posts
- Inclusive of most vulnerable groups in society
- Street vendors shouldn’t be taken away from the streets, free education, good health system
- Lessen the period to get land titles and they should be given to all
- End worker abuse by foreign nationals
- Equitable distribution of services
SUMMARY FINDINGS
The snap findings revealed that people understand good governance differently. The common definition that stood out strong is that good governance means using political power for the benefit of the citizens and this accounted for 36 percent of the respondents while the aspect of the separation of power stood at 28 percent. In terms of the rule of law, 36 percent of the respondents stated that in order to enhance the rule of law, checks and balances on the use of power by individuals and Government ought to be promoted at all levels of governance structure. There were varying positions on whether Zambian Governments have promoted good governance and the rule of law, responses in the negative outweighed the responses in the affirmative. The respondents have many expectations from the new dawn government, prominent among them are; creation of employment, promotion of the rule of law, separation of powers, equal job opportunities for all, among others.
RECOMMENDATIONS
- All persons and institutions both public and private, including the State itself, should be accountable to the Constitution and the laws of Zambia
- The law should be fairly, and equally adjudicated and enforced in accordance with international human rights norms and standards.
- Ensure the credibility of the processes for appointing and dismissing judges in a manner that ensures judicial independence.
- Ensure checks and balances with regards to separation of powers of the three arms of government in the promotion of governance and rule of law.
- The Government should ensure equitable distribution of goods and services and this should ultimately reflect in the extent to which the security and prosperity of individuals is being well-served by the governments.
- Mechanisms should set in place to ensure accountability and transparency in service delivery by State institutions.
- Government and the pertinent stakeholders must conduct civic education on good governance and the rule of law.
- There is need to conduct a large-scale survey with a nationally representative sample which will give a true picture with regard to good governance and the rule of law.
FOOT NOTES
[1] Inauguration speech by the President of the Republic of Zambia his excellency, Mr. Hakainde Hichilema delivered on Tuesday, 24th august, 2021
[2] Tuesday, 28th September, 2021 | National Assembly of Zambia (parliament.gov.zm) accessed 17/11/2021
[3] Party Manifesto 2021-2026
[4] Ibid
[5] 2016 International Institute for Democracy and Electoral Assistance, ‘Challenges to the Rule of Law in Africa’ took place on 12–13 April 2016 in Pretoria, South Africa, document available at Challenges to the Rule of Law in Africa (idea.int)
[6] Available at 34873-file-constitutiveact_en.pdf (au.int)
[7] Articles 3 and 4
[8] Article 3(g)
[9] Available at African Charter on Democracy, Elections and Governance | African Union (au.int)
[10] See the preamble of the said Charter
[11] Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies (2004).
[12] Good Governance & the Rule of Law, January 2015, Business Priorities for the UN Sustainable Development Goals also see World Development Report (1997).
[13] The African Charter on Democracy, Elections and Governance
[14] Good Governance & the Rule of Law, January 2015, Business Priorities for the UN Sustainable Development Goals
[15] Ibid
[16] Good governance: rule of law, transparency, and accountability | ETICO – IIEP UNESCO | Platform on ethics and corruption in education by Michael Johnston Department of Political Science, Colgate University
[17] Article 166
[18] www.concourt.org.za/index.php/judges