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Amend non-contentious constitutional provisions before adopting draft

Should Zambians agree to implement the draft constitution in stages,  many will demand that priority is given to amendments that would provide for a majoritarian elected president and his vice-president, among others.
For a country that has had two presidential by-elections within five years it is understandable that many people want the issue of vice-president resolved before the next elections in order that the vice-president may take over whenever a sitting president dies in office as happened in 2008 and 2014 when Presidents Levy Mwanawasa and Michael Sata died.
Although the Grand Coalition on the New Constitution and many other stakeholders are adamant that a referendum to adopt the entire draft constitution be held before the next general elections, the reality of the situation is that this will not be possible.  The country is unlikely to find money to fund such a referendum this year and still fund the general elections due next year.
Those who had hoped that  donor countries would fund the referendum had better take note of the remarks of the United Sates Ambassador to Zambia and other donor envoys to the effect that  their governments would find  no justification to do so.
The amendment concerning the election and removal of a president and his vice-president could be attended to without adoption by referendum or a people representative body such as constituent assembly. What is contentious is the provision for 50 percent … for election of the president and lack of provision for separation when a vice-president falls out favour with the president and the party on which he was elected.
Although there is  disagreement over Article 99 (2) of the draft constitution that states, “The returning officer shall declare the presidential candidate who receives more than fifty percent of the valid votes as president-elect,” there is no doubt that this can be dealt with without waiting for adoption of the entire draft.
Clause (3) of the same article says, “If at the initial ballot a presidential candidate does not receive more than fifty percent of the valid votes cast, a second ballot shall be held within thirty-seven days of the initial ballot …”.  Only the two candidates with the highest number of valid votes or an equal number of valid votes cast would participate.
The controversy surrounding this provision is in the fact that the constitution allows any person who meets the provisions of Article 74 to run for president and going by past experience there can be as many as a dozen candidates, making it very difficult for one candidate to muster more than 50 percent valid votes.
Thus a second ballot becomes inevitable and at high cost to the treasury. Given that major democracies provide for first-past-the-post election, many Zambians would prefer retention of the current first-past-the-post provision and find no justification for  a costly provision of a 50 percent threshold.
Secondly, there is no guarantee that the outcome of a second ballot would produce a majoritarian elected president in relation to votes cast in the first ballot. Thus, if 2.5 million people cast valid votes in the initial ballot, the winner would have to receive at least 1,250,001 votes to be declared president.
However, going by past experience, a much lower number of people would participate in the second ballot.  Since  the second ballot is not based on the total number of votes cast in the first ballot and assuming only 1,800,000 valid votes are cast, the winner would have to receive at least 900,001 votes.
In the first ballot scenario a person receiving  46 percent of the valid votes cast, or 1,150,000 would not be declared a winner and yet in the second ballot where only 1,800,000 votes are cast and the  candidate with the highest number of votes being one who receives at least 900,001 would be declared president-elect.
Many Zambians want Article 108 which says, “There shall be a vice-president for the republic who shall be the running mate to a presidential candidate in a presidential election.”
What remains contentious is the lack of provision for separation in the event there is a serious policy and ideological disagreement between the president and his vice-president. Those who have watched “Scandal”, an American television series, will recall how the president who failed to get his vice-president to resign was only saved by a hired killer who injected him with a stuff that was not fatal but left the vice-president physically and mentally incapacitated to continue in office.
Worse things can happen  than this and what happened in Malawi where President Mbingu wa Mutarika’s vice-president, Joyce Banda, refused to resign and remained in office but sat and worked with the opposition.
Since ideological or policy disagreements do not constitute an offence under Articles 106  of the draft constitution there can be no impeachment procedures.
Article 131 (2) of the draft provides for loss of a seat by a Member of Parliament who ceases to belong to the party on whose ticket he was elected. Perhaps the drafters  could consider applying this to Article 109 to provide for  “a vice-president who loses the support/favour of the presidential candidate that nominated him to be a running mate and this is confirmed by the party’s highest policy-making body shall vacate the office.”