Separation of powers

Many Zambians would have wished the President elaborated a little more on the vision of the Patriotic Front over the concept of the separation of powers to which he alluded without providing an insight.

Right now the country is in the throes of a major debate over the various decisions that the executive has made concerning the Judiciary and there is no end in sight as the two arms of Government wrestle for a solution.

What is very clear is that Zambians want a dynamic, robust and transparent Judiciary that will protect them from the excesses of executive authority while at the same time ensuring that the rule of law prevails.

It is common knowledge that most autocratic Governments tend to patronize the Judiciary to the disadvantage of the ordinary people who are subjected to discriminatory treatment and judgments. Only recently the Zimbabwean opposition party MDC decided not to appeal the rigged elections because the outcome was predictable.

This is an issue that has concerned most Zambians following the Chikopa Tribunal which for all practical purposes has been commenced to subvert judicial complaints and disciplinary procedures as established  by rules and procedures  set out by written law.

Sadly the matter has been decided upon by the Supreme Court, the highest court in the land which seems to have disregarded the function of the Judicial Complaints Authority in preference for the “all knowing” overarching Presidential authority.  This is an interpretation of the constitution which disregards the separation of power made by the Judiciary itself.

The resulting confusion can be felt.

The PF manifesto is quite clear; it subordinates all Government agencies to the Central Committee of the Party. Therefore such institutions as the Judiciary are answerable to the party just as are all the judges.  This is the model that the United National Independence Party (UNIP) championed under the one party participatory democracy model.

Perhaps on the basis of this the ministry of Justice appears to be spearheading a process, which is aimed at further blurring the distinction between the party and Government.

 This is true in the case of the Dora Siliya appeal where the Party Secretary General Wynter Kabimba indicated an intention to appeal the Judgment which stopped the Electoral Commission from barring the three candidates from standing.

That pronouncement was promptly followed with an appeal by the Attorney General. It is not clear on what basis the Government is appealing as the initial matter was between aggrieved candidates and the Electoral Commission of Zambia (ECZ) who protested their exclusion from the nomination process.

We now have a very peculiar position where the Attorney General as Chief Legal advisor to the Government is appealing against a decision which the ECZ a Government Department has not appealed against. Obviously the appeal is based on the position earlier articulated by the party.

There is obviously no way that the separation of functions will be clearly articulated in an atmosphere where the ruling party presides over the  various arms of governance with an executive authority in addition to  policy direction as articulated in a party manifesto.

Most developing countries have been able to navigate the party/ Government divide by establishing strong and robust public administrations that will operate regardless of the party in power. Such countries as Italy change Government several times over in any decade, but continue to operate because the civil service is strong, predictable and truly designed to serve national rather than shifting party interests.


Categorized | Editorial

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