June 22, 2021
The issue of Constituency delimitation is a hot topic of discussion for democracy advocates who believe in the principle of representative democracy and the guarding of it by the number of seats and votes allocated to each community or region through their members of parliament who participate in decision making at a national level through the National Assembly. Research from the Cornell Institute for African Development (IAD) indicates that “the demarcation of electoral constituency boundaries in sub-Saharan Africa entails technical challenges and politically sensitive dilemmas. The political arena remains dominated by hegemonic parties that control the state’s bureaucratic machinery, limiting the capacity to revise constituency boundaries impartially. Numerous countries have replaced or reformed their delimitation bodies, and independent members appear to be appointed. Whether parliaments, executives, or independent commissions, oversee demarcating constituency boundaries; evidence shows that most sub-Saharan African states still lag behind in the impartial delimitation of constituencies. They have not succeeded in applying transparent procedures to strengthen stakeholders’ confidence in the process and to dissipate gerrymandering allegations.”
In Zambia, the Constitution of Zambia as amended by Act No.2 of 2016 provides for the delimitation of wards and constituencies for purposes of elections. The Constitution under Article 58 (1) and (2) provides that Zambia shall be divided into wards and constituencies for purposes of elections and further that the number of Constituencies shall be equal to the number of seats of elected members in the National Assembly. The number of seats for elected members in the National Assembly is provided for under Article 68 (2) (a) as one hundred and fifty-six members elected directly based on a simple majority vote under a first-past-the-post system.
Pursuant to Article 229 (2) (g) of the Constitution, the power to delimit electoral boundaries is the mandate of the Electoral Commission of Zambia. Simply put, the Electoral Commission of Zambia is responsible for dividing Zambia into constituencies and wards for purposes of elections. Article 58(5) of the Constitution of Zambia compels the Electoral Commission of Zambia to conduct a review of the boundaries of constituencies and wards, at intervals of not more than 10 years while Article 58(6) of the Constitution of Zambia provides that the names and details of the boundaries of constituencies and wards shall be published in the Gazette and shall come into effect on the next dissolution of Parliament or Councils.
Article 59(e) of the Constitution provides that the Electoral Commission of Zambia shall, in delimiting the boundaries of constituencies and wards, seek to achieve an approximate equality of constituency and ward population, subject to the need to ensure adequate representation for urban and sparsely populated areas. To add some context and interest you with numbers, as it stands, the number of constituencies per province which represent the number of seats each province has in the National Assembly is as follows; the Copperbelt Province has 22 seats, western Province has 19, Eastern province has 18 seats, Southern province has 18, Central province has 16, Luapula province has 15, Lusaka province has 13, Northern Province has 13, North-Western Province has 12 while the people of Muchinga Province have 10 seats in the National Assembly. Whether this is adequate representation for each of the provinces is a topic for another day. What is important to note is that the need to ensure adequate representation for urban and sparsely populated areas is a constitutional factor in a representative democracy and that is the position in the Zambian Constitution. The big question that remains for most Zambians is – why has the Electoral Commission of Zambia not increased the number of constituencies despite carrying out a delimitation exercise that probably cost huge sums of taxpayers’ money?
Gazette notice No. 643 of 2021 of the Republic of Zambia government Gazette, shows that the Electoral Commission of Zambia published the revision of wards details, which also affect the number, names, and boundaries of wards in particular constituencies, this was done in fulfillment of the requirement to publish details in a Gazette pursuant to article 58(6) of the Constitution.
The direct consequence of Article 58 (2) as read together with Article 68(2) (a) is that delimitation of constituencies cannot be done in order to give effect to an increase in the number of constituencies without an amendment to the Constitution. This is because, the Constitution of Zambia (Amendment) Act No. 2 of 2016, pursuant to Article 68(2)(a), has already set the constitutional number of seats of directly elected members of the National Assembly to one hundred and fifty-six. The provisions of Article 58 (6) of the Constitution cannot be an automatic amendment to the Constitution of Zambia with regards to the number of seats in the National Assembly.
The provisions of the Constitution of Zambia cannot be automatically amended. Article 68(2) (a) provides for the number of members of the National Assembly, elected directly based on a simple majority, each representing a constituency. This is the only valid and legal number of members who represent constituencies. To add to the number of constituencies without altering this number would be invalid and unconstitutional. The only valid and legal way to alter the Constitution of Zambia is by way of Article 79 (2) (b), which is through a bill presented in parliament, which bill cannot be passed unless it is supported on second and third reading by the votes of not less than two thirds of all the members of the Assembly.
In conclusion, the review conducted by the Electoral Commission of Zambia and done pursuant to article 58 (5) of the Constitution, and publishing of the details in the Gazette pursuant to article 58(6), could not allow for the delimitation of constituencies so as to increase the number of constituencies in Zambia, this is due to the limitation in article 68 (2)(a) of the Constitution which seals the number of seats for directly elected members of parliament. To increase the number of constituencies through a delimitation, one would have to amend the Constitution. This would require wide stakeholder consultations during the delimitation process in order to have the number of votes necessary for a constitutional amendment. The other mode would have been to amend article 68(2) (a) by leaving the number of seats for directly elected members of parliament to be prescribed in subsidiary legislation instead of the Constitution. However, this has the danger of leaving room for gerrymandering to favour any sitting government’s agenda of increasing its voting power in parliament. This is the same danger which we fought to avoid when we advocated for the fall of the Constitutional Amendment Bill No. 10 of 2019 (“Bill 10”) which sought to amend the Constitution of Zambia to remove the limit on the number of constituencies. As it stands, the Constitutional provision specifying the number of seats in parliament is a much-needed safeguard against gerrymandering. The delimitation of Constituencies can still be achieved by employing a wider stakeholder consultation strategy that is transparent and responds to requirements of adequate representation for populations or communities that may be inadequately represented due to geographical or population factors and call for Constitutional amendments reflecting the views from consultations that could influence an increase in the number of constituencies through majority vote in the Parliament. This will also allow constituency demarcations to reflect demographic changes in Zambia while still upholding citizens’ confidence in the delimitation process.
Source: The Mast