In search of women- The gender divide

By Edwina Mazunda
On August 12th 2021, Zambia went to the polls in what became a historical election for the Southern African country. It was historical because for the 3rd time since independence, the ruling party was defeated in a democratic election. The current President Hakainde Hichilema polled 2.8 million votes against former President Lungu’s 1.8 million votes.
The landslide victory was courtesy of the people’s lassitude from the looting of public funds and disregard for the rule of law that had characterized the governance of the previous ruling party. President Hichilema is under close scrutiny on how well he will abide by Constitutional provisions on various matters. In his inaugural speech to the United Nations General Assembly, he reiterated his call for gender equality and an emphasis on the rights of women, children and people living with disabilities. He highlighted the first female Speaker of the National Assembly, the Republican Vice President and one of the deputy speakers, as examples of his government’s commitment to gender equality.
Back at home however, some questions have been raised about the current government’s commitment to gender equality given the lack of women appointed to Cabinet and provincial ministerial positions. Under Article 259 (1) (a) and (b) of the Zambian Constitution, any person empowered to make a nomination or appointment of people to hold public office is mandated to ensure fifty percent of each gender is nominated or appointed, unless it is practically impossible to do so.
In addition to the constitutional provisions, Zambia is a signatory to international conventions that speak to the rights of women. Of note is the SADC Protocol on Gender and Development which in Article 12 requires member states to ensure that by 2015, they had at least 50% of women in decision-making positions. This requirement in the SADC Protocol led to Zambia’s 2016 constitutional amendments, i.e. among others, Article 259 cited above.
One might argue that the 50% of the female gender was practically impossible as not many women participated in the general election. However, it could be said that this is an indication of how the political parties do not, of themselves consider the equal representation of women in their parties.
However, constitutionally, the President has the authority to nominate eight Members of Parliament where it is necessary to enhance special skills, representation or gender in the National Assembly. Regrettably, of the eight nominated Members of Parliament, only two are women. To add perspective to this argument, of a total of 156 seats in Parliament, the ruling party has 11 women elected as Members of Parliament. And of the 8 nominations the President is allowed to make by the Republican Constitution, only 2 women were nominated. This means the ruling party only has 13 women in national leadership, (14 if we include the Vice-president).
One would assume recourse to the courts of law would be the best way to hold those in authority accountable. The courts, however, when presented with an opportunity to pronounce themselves on this matter and to perform the judiciary function of holding the executive accountable in the exercise of their duties, steered clear of making a decision in defence of the constitution.
In 2020, some non-governmental organisations petitioned Zambia’s Constitutional Court for a declaration, among other things, that the constitution of cabinet at the time of the petition, was unconstitutional [1]. The Petitioners stated that the method employed by then President Lungu in appointing his Cabinet and nominating members of Parliament fell short of meeting the constitutional requirements for gender parity. Regrettably, the Court excused the President’s non-conformity to constitutional provisions, by assigning him a discretionary power he does not possess. The Constitutional Court was comfortable passing a judgment that excused the former President, from ensuring gender parity on the premise that it was “practically impossible” to do so. The court did not require the appointing authority to prove such impracticality leaving no effective remedy against a lack gender representation in political appointments.
It is my hope that the government will reconsider its position on gender and not advantage of the court-given carte blanche to act as it pleases.

[1] Chapter One Foundation Limited, the Non-Governmental Organisations Coordinating Committee for Gender and Development Registered Trustees and Harriet Chibuta (suing in her capacity as Executive Director of Young Women in Action) v The Attorney General 2020/CCZ/0013 (Unreported)

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