Considerations for Comprehensive and Structured Reforms in Zambia

The Need for Reforms

If the statistics are believed, most Zambians live in poverty and are marginalised from participating in decisions that affect their future. To change this trend and the trajectory for many Zambians, the new administration needs to consider bold reforms. Over the last few years, Zambia has faced numerous challenges which the public sector has appeared ill-equipped to address. The need for political change that ushered in the Patriotic Front in 2011 and the subsequent tightly contested elections have spotlighted how engaged citizens have been on governance issues and the constant need for any administration in office to adequately respond to contemporary challenges facing citizens and institutions. Simply put, citizens want the government to work better. The significance of the reforms to be undertaken is not lost on the current administration; the United Party for National Development 2021 Manifesto emphasises the need for comprehensive reforms.

This article builds on the wealth of literature that identifies needed reforms and highlights the challenges to implementing the reforms. First, this article examines the need for broad public sector reforms; then, it examines the need for and challenges facing judicial and parliamentary reforms.

Public Sector Reforms

There is little doubt about how strong the Executive branch of government is in Zambia. The strength and influence over the other state organs have been particularly evident over the last few years. The 2016 constitutional amendment only slightly addressed the perceived excessive power held by the Executive. For democracy to work, the country needs a sound functioning system of separation of powers. Therefore, the administration must be objective and sincere enough to reign in Executive Authority. The first thought on reigning in executive authority is by implementing comprehensive public sector reforms to address inefficiency, increase transparency and accountability, and reduce waste of resources. The public service has been rife with cronyism, nepotism, and corruption allegations. Some appointments made by President Hichilema since his election have been criticised.

Under the Seventh National Development Plan, a public service staff audit was planned. However, the extent that the audit was implemented is not clear. The audit was supposed to develop clear organisational charts for all public institutions. The audit would have also been the basis for developing new and updating the job descriptions for every position to ensure that each position was filled by people qualified for the jobs. The Constitution (Article 173) supports the idea that appointment to the public service should be merit-based and professional. One unstated argument concerning the public service is the need to ensure that even before we begin to debate who takes up a position, we determine whether a position is necessary in the first place. The debate over presidential appointments should also extend to looking into institutions that play similar functions and whether there is a need for duplication.

We cannot discuss reforms without addressing the numerous concerns about how parastatals and statutory bodies in Zambia have so far operated. For parastatals, there remains a lack of clarity about the legality and role of the Industrial Development Corporation. There are also concerns about duplicating management and technical structures between the Industrial Development Corporation and other parastatals. For statutory bodies, particularly those that rely on contributions from members of the public, there have to be brave decisions made about the remuneration structures and wastage as well as duplication of functions. As the need for austerity measures is evident, the new administration must be brave about decisions concerning the use of public resources. The Auditor-General’s report findings highlight the need for a critical examination of some parastatals and statutory bodies, especially if they are centres for the mismanagement of public resources.

An additional concern regarding parastatals is the lack of transparency in their operation and the lack of democratic oversight in how they operate. As debate increases about democratic corporations, the government has an opportunity to explore models for how parastatals operate in Zambia. An area of personal interest is the link between investments by both private and public institutions and how local communities benefit from the exploitation of natural resources. Parastatals are uniquely placed to ensure that local communities benefit, but without any democratic oversight or transparency, there are concerns about how parastatals use resources. Further, the fact that many parastatals are top-heavy and spend a considerable amount of money on management and administrative costs only adds to the need for reforms that examine the efficacy of these entities.

Judicial Reforms

The appointment of Chief Justice, Hon Dr Malila SC, has been met with a sense of optimism by many, including this writer. In Zambia, quite rarely does a person get to define the office they hold; often, the office defines the holder. In his inaugural address, the Chief Justice highlighted some of the judiciary’s challenges and what he thought should be done to address them. Just how much support the judiciary will get shall be essential for achieving the Chief Justice’s vision set out in his inaugural address. Ensuring that the reforms translate to increased public confidence and trust in the judiciary will be critical.

One of the first challenges envisaged as these reforms are considered is, who will drive the reform agenda? The vision for the judiciary set out by the Chief Justice requires legal reforms for which the judiciary may not be best placed to develop and drive. In this regard, how the judiciary and stakeholders’ views about the needed reforms will be trusted to parliament to enact remains to be seen. This challenge is exacerbated by the fact that there appears to be no transparent system of intragovernmental relations between the judiciary and the other State Organs other than through judgments. The debate about the judiciary’s contribution to the Constitutional Amendment Bill No. 10 highlights the murky area of intragovernmental relations between the judiciary and the other state organs and the extent to which the judiciary should participate in developing the law. Nevertheless, the judiciary is a part of the State and should identify legislative interventions that enhance its functions and communicate them to the institutions responsible for enacting legislation. The challenge remains the inadequate transparent methods for communicating the reform proposals.

The reforms that the judiciary can drive to enhance its institutional efficiency require broad stakeholder participation. Any future reforms will be influenced by the willingness of the judiciary to embrace industrious proposals for reforms. Sometimes, reforms only increase bureaucracy or deny citizens access to essential services. In this regard, the hope is that potential reforms demystify the judiciary and make the process of accessing justice timely and straightforward. It would be interesting to examine how many technicalities are raised in court cases and how much time it takes to address them as separate from the main cause of action. To ensure that citizens are not excluded from providing input into how the judiciary reforms, all the proposals have to be considered from the perspective of how they impact citizens. New models and understanding of good governance indicate broadening participation in decision making, the decisions about how the judiciary reforms should not be an exception to this.

Parliamentary Reforms

As the new administration sets out to implement its agenda, the need for interventions to be supported by an adequate legal regime is of paramount importance. All the various reforms require wide-ranging legislative interventions to be realised. It is often said that Zambia has good laws that are not implemented. Democracy is characterised by the rule of law, which means that laws are implemented uniformly for the good order of society. The law should therefore give the impetus for its implementation. Therefore, enhancing the rule of law and ensuring that “good” laws are enacted by parliament is critical for the new administration. While there has been criticism of judicial pliancy in the erosion of democracy over the last few years, very little has been said about how ineffective the National Assembly has been in curbing Executive excesses. A strengthened National Assembly is critical for two things; firstly, it provides oversight over the Executive and secondly, as part of parliament, it enacts laws that form the basis for accountability and transparency. Unfortunately, the problems faced by the Zambian parliament are similar to many of the challenges facing legislatures around the world. Writing about Democracy’s Deficits, Professor Issacharoff has argued that failing political parties and the weakness of legislative branches of government are contributors to failing democracies. The challenges faced by our democracy call for a critical reflection on how the legislature can be strengthened. Like in many countries facing democratic uncertainty, voting on strictly party lines is a problem in Zambia. As politicians and elected representatives, Members of Parliament must balance their personal, partisan, and political inclinations against genuine and often necessary contemporary issues that the law and their oversight functions should address. The experience from the attempt to enact Bill. No 10 illustrates this challenge, and in a similar vein, the failure of the National Assembly to address debt contraction since 2016 further illustrates the challenges faced by our National Assembly. The reforms required to strengthen the legislature are in some instances clear. For example, there is a need to develop simpler, more effective, transparent processes and mechanisms for the National Assembly to provide oversight. One area for reform that is unclear is how there can be increased accountability for Members of Parliament to constituents beyond the five-year election cycle. Governance requires continuous participation and accountability. Developing mechanisms for holding MPs accountable is an essential step towards ensuring greater oversight of the Executive.

Similarly, as we discuss enhancing the capacities of the National Assembly, the quality of legislation has to improve significantly. Improving legislation requires looking at the mechanisms for drafting legislation within the National Assembly and enhancing the system for drafting legislation under the Executive. The legislative process in Zambia involves the Executive and Legislature; therefore, examining how the process works under each organ is essential for understanding the challenges and developing solutions. There is significant duplication of functions and waste of resources in the drafting process of laws in Zambia. Further, the recent debate around lacunas in the Zambian Constitution and other laws calls for a need to look at how laws are developed and improve the quality of the content in our laws. The National Values and principles should not be viewed as aspirational but should guide state policy and legislation to ensure accountability. Enhancing the quality of our laws will significantly enhance the judiciary’s work and provide a solid basis for Executive accountability. The law should not only prevent injustice, but it should also be able to correct incidences of injustice. The number of times the failed Bill of Rights referendum is mentioned in human rights discourse indicates the inadequacy of the legal framework to prevent injustice. However, the extent that parliament has been unable to develop laws that adequately address contemporary injustice indicates the need to reform how legislation is enacted in Zambia and develop mechanisms that can make parliament more responsive.

Conclusion

While there appears to be much optimism about the new administration, there are some valid concerns about the foundational framework for implementing reforms. Since September, there have been no deliberate efforts to put a policy foundation for comprehensive reforms. One particular concern perhaps not addressed in this article relates to the approach taken to achieve equitable gender representation in decision making positions. Related to equitable representation are questions about how inclusive and engaging the new administration is of poor people. It appears that politicians spend most of their campaigns speaking to poor people, and once in power, they spend most of their time speaking with the wealthy about poor people. Welsh Politician Aneurin Bevan is quoted as saying, “Either poverty will use democracy to win the struggle against property, or property, in fear of poverty, will destroy democracy.” One of the challenges we have faced fighting poverty in Zambia is that citizens, particularly the poor people, are seen as objects and not subjects in the development agenda.

The public service the world over now appears to be the vehicle of choice for entrenching forms of elitism. In America, we observed how Trump appointed family and friends to advisory and critical decision-making positions regardless of qualifications; in the UK, we can observe how contracts were given to friends of those in critical decision-making positions. While the poor are increasingly marginalised from decision making, the wealthy are increasingly getting involved in policy and legislative decision making. In Zambia, we can observe this through whom the current and previous Presidents have appointed and met regularly and how lucrative contracts for services appear to have benefitted and continue to benefit the allies and friends of those in power. Given how prominent the public service is in entrenching elitism, it is perhaps time we begin to debate public service reforms that include mechanisms that can prevent perpetuating inequality.

Finally, as the adage goes, “Sunlight is the best disinfectant.” The new administration needs to embrace a culture of sharing information beyond just sound bites. Citizens need information that they can use to make decisions and participate in governance. As the government embarks on the various reforms and implements various policies, there must be a free flow of information. There is no need for policy or legislative recommendations that will be public to be confidential and treated as secret. The new administration must enact the Access to Information legislation. Even then, the legislation should form a floor for what type of information citizens can access and not be used as another tool to limit or restrict the free flow of information.