Maravi

Our hybrid system of government has failed

Our hybrid system of government has failed
By The Post
Thu 29 Dec. 2011, 14:00 CAT

THE call by Professor Michelo Hansungule for serious reforms in our Judiciary and Parliament is timely. We say this because political accountability is key to our democratic consolidation. We have to increase our focus on building and strengthening institutions that can create the required accountability structures.

It is thus important to look more closely into what enables our Judiciary and Parliament to fulfil such functions, and also to understand the limits to their roles under the current conditions.

We need to increase the capacity of our Judiciary and Parliament to contribute in processes of democratic consolidation and social transformation. We need to critically look at the important questions regarding the accountability function of our courts vis-a-vis the political authorities, their role in promoting socioeconomic development, and their capacity to provide access to justice to marginalised groups.

We also need to critically look at the important questions regarding the accountability function of our Parliament vis-a-vis the Executive, its role in promoting socioeconomic development, and its capacity to protect and promote the interests of the poor and the disadvantaged.

Our institutional setup is a hybrid between the Westminster parliamentary system and the United States presidential system. We have a President who has more or less the powers of the President of the United States but without strong institutions like the American Congress and Senate to provide the required effective checks on the extensive powers of the president.

We have a Westminster-type of parliament in which the president, who is the head of government in addition to being head of state, does not sit to answer questions from, and give explanations to, members of parliament like the Prime Minister does in the British Parliament.

Further, in our system, Parliament is weakened by appointments of its members to the executive. More than a third of our members of parliament are cabinet ministers and deputy ministers. This makes parliament more or less an extension of the executive rather than an independent arm of the state.

Most parliamentarians, especially in the ruling party, cannot act independently in relation to the Executive because they either have presidential appointments or are looking forward to being appointed to this or that position by the Executive. And this includes even members of the opposition because some of them sometimes look for favours or even appointments from the executive.

It is either we go totally the Westminster way and have a titular president as head of state and a prime minister who sits in parliament as head of government or we go completely the American way and have a congress and senate that is totally independent of the executive. This hybrid has failed to work.

But what is frightening is the fact that all the constitutional reforms we have had since independence have failed to bring about meaningful independence and power balance between Parliament and the Executive.

Even our Judiciary cannot be said to be independent in the way we would like it to be. Our Judiciary is still very dependent on the Executive for literally everything. No wonder some of our very senior judges believe that the Judiciary should only in the rarest circumstances rule against the Executive.

We are not joking about this or being malicious in saying this. One of our presidents has been told this by one of our country's most senior judges. If this is the belief among our judges, where does it leave the accountability function of our courts? This means that there is need for reforms in our Judiciary that will help redefine the role of our judges and what they should aim for, given the constraints of their political and economic context.

We need to increase the capacity of our courts to hold political power holders, particularly the Executive, to account. We say this because the courts are the main guardians of our Constitution and the rule of law.

The Zambian people want to see increased levels of political accountability, that is a situation where political power holders and organs exercise their powers in a way that is transparent, in the sense that it enables other institutions and the public to see whether it is done in accordance with the rules, where the power holders are answerable in the sense of being obliged to provide reasons for their decisions in public, and where there are institutional checks or control mechanisms in place to prevent abuse of power and ensure that corrective measures are taken in cases where the rules are violated.

We also have to acknowledge the fact that our change from a one party system to a more democratic form of government has not been followed by significant changes in the social and economic structure of our society to improve the plight of the poor majority.

On the contrary, the twin processes of political and economic liberalisation, while bringing an increase in people's formal constitutional rights, have led to a downscaling of social services - which for many is a downscaling in the value of their new-found liberty. In this context, it might seem that the political opening, paradoxically, has made marginalised groups more dependent on the judiciary to defend their rights.

The question is whether our judges are able and willing to take up such a role. In a democratic system, judges should fulfil two main tasks, namely, to clear the channels of political change and to ensure protection of disadvantaged groups. Our judges are the guardians of our democratic process. They are the referees in the democratic game.

And given the state of the political, economic and social environment in our country, reform ing our parliamentary system has been found necessary with a view to addressing some of the limitations which exist in the institution.

This is so in order to enhance parliamentary scrutiny of the activities of the Executive and also to allow for increased people's participation in the affairs of their country. Furthermore, this will help increase accountability, transparency and good governance in the government system.

We need reforms that will substantially improve the role, the processes and accountability of our Parliament to the extent that it is not only deliberating, but anticipating, and leading. As a representative institution, our National Assembly should not only want to have public confidence in its motives and actions, but should want to genuinely deserve that confidence.

It is therefore very important that we pay a lot of attention to the reform of our institutions of the state because without that, we will continue to have more and more unending constitution review programmes.

We should not run away from addressing the key issues that seriously affect the governance of our country and that make constitution review programmes necessary at all times and that is, the distribution of power and its management among the three arms or branches of the state.

Again, we emphasise the fact that our hybrid system of government has failed to deliver and calls for serious review and reforms.

Labels: JUDICIARY, MICHELO HANSUNGULE

posted by MrK @ 6:40 PM