The decision of the Government that under a One-Party system UNIP should be supreme convert! the Party into a supreme organization over the
r
Government as established under the Republican Constitution. The Pa r t y ' s 4
supremacy had to be achieved through the Constitution of Zambia.
1. Zambia: NCEOPPDZ, Report, 1 9 7 2 , Terms of Reference 9(f), p. 69.
2. ibid. p. 47, par. 148.
3. N C E O P P D Z - S R A G , 1 9 7 2 , p. 24.
4. Infra, p. 195.
The NCEOPPDZ refrained from making an express recommendation on the 'supremacy' of the Party. It instead opted for a 'weak' President and a 'strong' Prime Minister by proposing that the Prime Minister
appointed Ministers, Deputy Ministers and the Attorney-General in consultation w i t h the President. The Prime Minister was to be the head of Government and he was to preside over Cabinet meetings.^" On the Party side, the Secretary-General was to appoint the Chairmen of sub-Committees of the Central Committee and he was to preside over the Central Committee meetings. 2 If these recommendations had been accepted by the Party and
the Government, one of their effects would have been that UNIP would have continued to exist and operate like any other ruling political party under a multi-party system: separate and independent of but subordinate to, the Government. All these recommendations were rejected b y the Party and the Government, and, instead, the powers of appointing Ministers, junior Ministers and Chairmen of sub-Committees of the Central Committee and the chairmanship of the Central Committee and the Cabinet, were vested in the President.
The NCEOPPDZ's failure to make a direct recommendation on the 'supremacy' of the Party, resulted in the absence of provisions to
3
that effect in the Constitution (Amendment) (No. 5) Act, 1972, whose
sec. 12a introduced the One-Party system in Zambia, or in the Constitution of Zambia Act, 1973, 4 which contains the present One-Party State
Constitution o f Zambia. 5 The feeling was that UNIP was supreme over all
institutions in the land. Its supremacy ought not to be theoretical nor
g
was it enough to merely reduce it to a constitutional provision. But legal supremacy could only be achieved through law: law asserting UNIP's
central role and the much sought 'supremacy' over public institutions and
1. Zambia: NCEOPPDZ, Report, 1 9 7 2 , par. 57, p. 14
2. ibid. paras. 146-148, pp. 46 and 47.
3. 1972, No. Ip-s u p r a , p. 131.
4. 1973, No. 27; 'supra, p. 133.
5. ibid. A r t . 4.
6. UNIP: President K.D. Kaunda, opening the National Council, June 30-3rd July, 1975.
192.
Government came only in 1975 and in 1980 and institutionalized Party supremacy over State organs. In theory, the 'supremacy' of the Party means what it says, that is the supremacy of the political party. But in practice a political party being a body of persons pursuing political ends, 'supremacy' means the supremacy of those in the leadership of the Party. However, because the Party's legal status is unsettled and its capacity is non-existent, 'Party' supremacy would only exist as a facade for 'Presidential' supremacy: for it is the President of the Party who actually exercises the political authority of the Party. The Constitution of Zambia, however, provides for the supremacy of the decisions of the Central Committee of the P a r t y
:-47C(1). The Central Committee shall formulate the policy of the Government and shall be responsible for advising the President with respect to the policy of the Party and the Government and with respect to such other matters as may be referred to it by the President.
(2) Where a decision of the Central Committee is in conflict with a decision of the Cabinet, the decision of the Central Committee shall prevail.
This provision is mis-leading because the members of the Central Committee formally participate in a collective decision-making process.
That role of the Central Committee remains the same notwithstanding the recent enlargement of that organ of the Party and the inclusion of Cabinet Ministers in it. Although members of the Central Committee are nominated2
by the President, once they have been formally elected as MCCs b y the Party Congress, they acquire the status of elected MCCs and as such they cannot be removed from the Committee except as provided by the Constitution of
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the Party. Their status is, therefore, different from that of Cabinet Ministers who serve at the President's pleasure. The provision entrenches the 'supremacy' of the President by portraying the Central Committee as
1. Zambia: Constitution of Zambia (Amendment) Act, 1975, No. 22.
2. Supra, pp. 168-174.
3. S u p r a , p. 140.
193.
an advisory body. It is not. It is basically an elected representative body. The President is a member of the Central Committee like any other MCC, but he is primus inter pares.
Commenting on the provisions of sec. 3 of the Constitution of Tanzania, 1977, which re-organized the One-Party system in that country under CCM, it has been said that the question of party supremacy is not a meta-legal one, as it is sometimes made out. In legal theory, party supremacy "may only mean the supremacy of the decisions of the party, not the supremacy of individuals within the part y " .^ This statement is, prima f a c i e , correct; however, if Nwabueze is correct in what he says about
Zambia and other former British-ruled African States, 'supremacy' is vested in individuals but only expressed through the medium of the party. He says:
the President is the government. His responsibility for it is entire and undivided. The executive power is vested in him alone, and in the exercise of it he is bound by no one else's advice. With h i m too lies the ultimate responsibility for policy.^
Under the One-Party system of Zambia, the President plays a role in both the adoption and the implementation of policy. There is no provision in both the Party and the State Constitution on how to resolve a conflict between a decision of the Central Committee and of the President. Because of his dominant position, the decision of the President w o u l d probably prevail over that of the Central Committee. There is no likelihood o f a conflict between a decision of the Central Committee and Cabinet m a i n l y because the President, the Secretary-General, the Prime Minister and the Secretary of Defence and Security are members of both the Central Committee and Cabinet. Secondly, no w that practically all members o f the Cabinet are members of the Central Committee,^ it would be ironic for the same persons
1. Kumar, U., "Justice in a One-Party African State: The Tanzanian Experience", Verfassung und Recht in U b e r s e e , 19, January, 1986, p. 257.
2. Nwabueze, B.O., Presidentialism in Commonwealth A f r i c a ; C. Hurst & Co.
1974, p. 175.
3. UNIP: Constitution, 1988, Art. 58(1) (b).
194.
to be making conflicting decisions in Central Committee with those they made in Cabinet. Thirdly, under a One-Party system, there should be only one approved or official policy on any particular subject at a p articular time. These factors lessen the possibility of conflict between the Central and Cabinet but they increase the strength of the supremacy of those in the leadership of the Party, in particular the President. In practice the supremacy of the Party is the supremacy of those in the leadership of the Party which is exercised and expressed in the guise of decisions of the Party.
The primary purpose of Art. 47C, aforementioned, is to 'legalize' the role of the Central Committee in the public administration o f Zambia.
Although Art. 4 of the Constitution of Zambia establishes a One-Party system, it does not establish UNIP which remains a 'society' under the Societies Act. Party organs are not organs of the State, consequently, any role of the Party's organ has to be expressly provided for b y law, e.g.
that the Party Congress elects the Presidential Candidate,^" or that the Central Committee (now the Committee of Chairmen ) shall approve candidates2
3