The major objective of this essay is to defend the assertion that separation of power in Zambia is relative. This essay will begin by giving a brief description of the concept Separation of Powers. executive, legislature and the judiciary. Thereafter, a Main Body shall provide a detailed discussion over the assertion after which a conclusion will be given to summarise the discussion. According to the online business dictionary, Separation of Powers is a constitutional principle that limits the powers vested in any person or institution.
It is this principle that divides government authority into three branches namely the Executive (President or Prime Minister and the cabinet), Legislature (Parliament or Senate) and the Judiciary (Chief justice and other Judges). From this definition, Separation of Powers entails that each organ of the state, namely t will perform its functions without undue interference from the other organs. Each organ therefore, should be left to do what is assigned to it under the constitution.
If any organ is not performing well it ought to be reminded and its performance monitored by way of accountability. This is not interference but a system of checks and balances in the interest of good government. But separation of powers does not mean insulation of powers because the three organs of the State, particularly the Executive and the Legislature, are at one level or another bound to interact and indeed complement each other in the running of the affairs of the State (World bank, 1992).
The executive branch of the government of Zambia is made up of the chief of state president Michael Sata; vice president Guy Scott; the president is both the chief of state and head of government. Cabinet is appointed by the president from among the members of the national assembly. Chief of state includes the name and title of the titular leader of the country who represents the state at official and ceremonial functions but may not be involved with the day to day activities of government.
Head of government includes the name and title of the top administrative leader who is designated to manage the day to day activities of government. For example in the UK the monarchy is the chief of state while the prime minister is the head of government. The legislative arm of the government; unicameral National assembly in Zambia is made up of 158 seats, 150 are elected by a popular vote, 8 members are nominated by the president to serve 5year terms (Bratton, 1994). Some of the functions of the legislature include;
a) Impeach the president for gross misconduct, commission of a criminal offence or violation of the constitution; b) Remove the president, cabinet ministers or any other official holding constitutional office such as the Chief Justice, Supreme Court and High Court Judges by a vote of no confidence for incompetence; c) Approve the national budget and make alterations without changing the total figure; d) Scrutinize public expenditure as well as Defense, Constitutional and special expenditure; e) Ratify the declaration of a state of emergency and approve its extension; f) Ratify the country’s foreign policy and international treaties to be entered into on behalf of the country; g) Create public offices; h) Dissolve itself. The judiciary is made up of the court system of Zambia, these include; Supreme Court (final court of appeal; justices area appointed by the president), High Court (has unlimited jurisdiction to hear civil and criminal cases, Magistrate’s court and Local court (ibid).
The constitution stipulates a hybrid form of government; a mixture of presidentialism with elements of the Westminster tradition of parliamentary democracy. The current system is, however, closer to the presidential model with delegated powers, and even “close to the top end of the range of presidential powers” (Burnell 2003: 48). As in other presidential systems the distribution of power between the legislative (parliament) and the executive (the presidency), is unbalanced in favour of the latter. As the 1995 Constitution review commission clearly spelled out: the president is in a position to “exercise a dominant influence on the legislature”; and “no sufficient countervailing safeguards are in place to check the executive branch and thus balance the powers” (GRZ 1995: 15, 17).
One, if only formal, indication of the weakness of parliament in the Third Republic might be that the average number of bills passed did not exceed that of its predecessors in the First or Second republics. The legislature and even single MPs have various means of controlling the government and initiating legislation. These include the private member bills, Standing Orders, parliamentary questions, the Committee of Supply, the Public Accounts Committee, the Estimates Committee, the Committee on Government Assurances, the Committee on Delegated Legislation, before 1999, seven departmental orientated ‘watch-dog’ committees, as well as the ad-hoc select committees which can consider the ratification of presidential nominations to official appointments such as the attorney-general, Supreme Court judges or the governor of the Bank of Zambia.
The problem with all the committees and the provisions for individual MPs to get a hold on the government is that – despite MPs’ lack of special expertise due to shifting membership in committees as well as the lack of support staff it provides “answerability” without “enforceability”, which is essential for an “effective instrument of accountability” (Burnell 2002: 307). The vast MMD majority until 2001 and the ability of government to control and monopolize the legislative timetable made parliament even weaker, although MMD MPs were by no means under the strict control of the party whip or leadership. Since the MMD lost its majority in the 2001 elections and experienced more serious internal factionalism, there are clear indications that the government has to be more responsive to parliament. However, through the powerful position of the Assembly Speaker the ruling party and the government is still largely able to control Assembly procedures.
A similar context applies to those institutions that are supposed to be instruments of horizontal accountability, such as the Anti-Corruption Commission (ACC), the Office of the Auditor-General, the Commission for Investigations, the Drug Enforcement Commission (DEC), the ECZ and the HRC. These institutions have been proven largely ineffectual, although the courts have sometimes made rulings against the government. Again, there seems to be some improvement since 2001, which, however, seems to be well calculated and directed by the Mwanawasa government at least in the case of the ACC, when the latter was allowed to investigate corruption cases of the Chiluba government.
The reason why these institutions are unable to make an impact is because, although legally autonomous, they have very few powers (apart from one exception; the ACC cannot initiate prosecution on its own), and are financially dependent on the government. They are chronically underfunded and despite being presidential appointees, all commission heads do have secure conditions of service. These institutions are therefore highly sensitive to signals coming from the Office of the President, which prompted the MMD’s first Minister for Legal Affairs Rodger Chongwe to refer to them as “agencies of illusion” GRZ (1999: 104). The Republican Constitution provides for impeachment proceedings against the president for violations of the constitution (Article 37).
This provision is difficult to implement and needs a one-third majority in parliament to debate a motion alleging the president has committed “any violation of the Constitution or any gross misconduct”, while a two-thirds majority is then necessary to start an investigation by a tribunal appointed by the chief justice. If this tribunal finds that “the particulars of any allegation specified in the motion have been substantiated”, the National Assembly might by a motion of not less than two-thirds resolve that the president has been guilty. Only then shall the president cease to hold office. All attempts to impeach the president have failed in the past.
Legally the civil service is non-partisan, but in practice the administration has often been politicized. This is not only a heritage of the old one-party system and a legacy of neopatrimonial rule, but has also been employed deliberately by the new administration. One case in point is Chiluba’s introduction of the post of district administrators (DAs), which are political appointees to direct politics at the district level under his control. The partisan application of the Public Order Act by the police in favour of the ruling party in the run-up to elections is another example. Generally, what has come to be known as ‘rampant’ or ‘endemic’ corruption in the cabinet and other state bodies is only possible with a willing civil service.
In an authoritarian political and administrative culture where superiors are not supposed to be challenged and ‘hints’ by superiors are taken as ‘orders’, and in which legal-rational procedures are not regularly adhered to, but irregular (not to say illegal) actions or non-actions are taken as ‘normal’, the civil service cannot be non-partisan but is an instrument of the ruling party. Peter Burnell’s analysis of the endemic “financial indiscipline” clearly shows that the political and administrative framework for this “enjoys active connivance from senior government figures and is an entrenched feature of the politico-administrative culture” (Burnell 2001b: 49) in other words: it is deliberately nurtured by the political elite for personal and political gain. At present, local government is not only dysfunctional in its set up but is in many respects derelict.