By CHARLES SIMENGWA –
ZAMBIA is steadily moving onto a higher rung on the governance ladder by seeking to introduce vital Constitutional offices in line with the principles of democracy.
Part 18, Chapter 252 of the Constitution of Zambia (Amendment) Bill of 2015 has provided for the setting up of the office of public protector.
Having such an office would be indicative of the great strides being made towards making Constitutional democracy and the fulfilment of human rights a reality for the Zambian people.
Government, in collaboration with key interest groups, has been studying ways to open more spaces through which the Zambian people would be better governed.
Some important steps taken so far, such as implementation of the decentralisation policy, demonstrate the seriousness which the Government has attached to transparency and accountability, through the devolution of power.
These decisions provide further proof that the Government is decidedly a stranger to fascism, which is an extreme right-wing political system that is in favour of central Government and which does not allow any opposition.
Some political and social commentators have unfairly presented a caricature of Zambia’s governance record, but, on the contrary, there is useful evidence indicating the country has fared a whole lot better than others in Africa and beyond the continent.
Governance has been variously defined. For instance, in 2002, the United Nations High Commissioner for Human Rights referred to governance as “the process whereby public institutions can conduct public affairs, manage public resources and guarantee the realisation of human rights. The true test of ‘good’ governance is the degree to which it delivers on the promise of human rights.”
The United Nations Development Programme has viewed governance as “the exercise of economic, political, and administrative authority to manage a country’s affairs at all levels.
“It comprises processes, mechanisms and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations, and mediate their differences.”
For the World Bank, “governance is epitomised by predictable, open and enlightened policy making; a bureaucracy imbued with a professional ethos; an executive arm of Government accountable for its actions; and a strong civil society participating in public affairs; and all behaving under the rule of law.”
In all these values, the public protector has an important role in remedying governments’ administrative injustices or failures, and reconciling the people with the State.
Canadian Human Rights Commissioner, Michelle Falardus-Ramsay holds that “the right to complain, when securely embedded, is surely one of the most significant human rights activities that we can strive for.”
Complaints of maladministration and human rights questions that arise daily have a huge bearing on the lives of people, who should know and appreciate that they have a protected right to complain against public institutions.
People’s quality of life and the enjoyment of citizenship could hinge quite directly on how effectively these questions are resolved.
According to the Constitution of Zambia (Amendment) Bill, there will be a public protector who will be appointed by the President, on recommendation of the Judicial Service Commission, and subject to ratification by the National Assembly.
A person qualifies for appointment as public protector if he/she is qualified to be appointed as a judge, and does not hold a State or Constitutional office.
The office of public protector will be decentralised to the province and progressively to the districts around Zambia.
The procedures, staff, finances, financial management, administration and operations of the office of the public protector will be prescribed.
Functions of public protector
The public protector may investigate an action or decision taken or omitted to be taken by a State institution in the performance of an administrative function.
An action or decision taken or omitted to be taken is one which is unfair, unreasonable, or illegal, or not compliant with the rules of natural justice.
The public protector may take an action before a court, hear an appeal by a person relating to such an action or decision taken, or omitted to be taken in respect of that person, and make a decision on an action to be taken against a public officer or Constitutional office holder.
Such a decision would be implemented by an appropriate authority.
The public protector will not be subject to the direction or control of any person or an authority in the performance of the functions of the office.
He/she will have the same powers as those of the High Court in enforcing the attendance of witnesses and examining them on oath, examining witnesses outside Zambia, compelling the production of documents, and enforcing decisions issued by his/her office.
In addition, the public protector will also possess powers to cite a person or an authority for contempt for failure to carry out a decision.
A person summoned to give evidence or to produce a document before the public protector will be entitled, in respect of that evidence or the production of the document, to the same privileges and protection as those before a court.
An answer by a person to a question raised by the public protector is not admissible in evidence against that person in civil or criminal proceedings, except for perjury.
Limitations of power
The public protector will not investigate a matter which is before a court, court martial, or a quasi-judicial body; relates to an officer in the Parliamentary Service or Judicial Service; involves the relations or dealings between the Government and foreign government or an international organisation; relates to the exercise of the prerogative of mercy; or is criminal in nature.
Performance of functions
Where the public protector is absent from Zambia, or is unable to perform  the functions of office due to illness or other causes, the President will appoint a person qualified to perform the functions of the public protector until that appointment if revoked, or until the public protector returns to office.
Tenure of office
The public protector will retire from office upon attaining the age of 60 years. However, he/she may retire, with full benefits, upon attaining the age of 55 years.
The public protector may be removed from office on the same grounds and procedure that apply to a judge.
He/she may resign from office by giving three months notice, in writing, to the President.
The office of the public protector will report to the National Assembly on matters concerning its affairs.
In South Africa, where the office has so far proved to be effective, the public protector deals with rights problems in all areas of government by means of complaint handling, own motion, and systemic investigations, as well as interaction with government agencies.
The office of the public protector was set up in terms of South Africa’s Constitution to investigate complaints against government agencies or officials.
Advocate Thulisile Madonsela became South Africa’s third public protector in October 2009.

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She was appointed by President Jacob Zuma, after being recommended by a special parliamentary committee.
She receives and investigates complaints from the public against government agencies or officials, and has the power to recommend corrective action and to issue reports.
The services offered by the public protector are free and available to all citizens.
The public protector in South Africa is subject only to the Constitution and the law, and is independent of government and any political party.
No person or organ of State may interfere with the functioning of the public protector’s office.
Anyone can complain to the public protector, who will then investigate the complaint. If a complaint is justified, she will do whatever is possible to find a solution to the problem, which includes recommending changes to the system.
The public protector can also report the matter to Parliament, which will debate the matter and ensure that the recommendations are followed.
Investigations are mostly done informally, but the public protector can summon people to give evidence under oath or affirmation when this becomes necessary.
Complainants are encouraged not to fear being victimised for “blowing the whistle” on corrupt or improper practices.
All information that comes to the public protector, including the identity of complainants and their sources of information, is treated as confidential.
Under the South African system, the public protector could investigate the Government at any level, starting from the central and provincial government, State departments and local authorities.
Any person performing a public function may be probed. These include anyone performing any official duty which affects South Africans.
A good example is that of a State employee such as a police officer or an electoral officer.
Corporations or companies like Eskom and Telkom, where the State is involved, and statutory councils, such as the Human Sciences Research Council or the Council for Scientific and Industrial Research, may be investigated by the public protector.
The public protector is tasked with investigating improper prejudice suffered by the complainant or another person.
This can be by way of abuse of power, unfair, discourteous or other improper conduct, undue delays, violation of a human right, or any other decision taken, or situation brought about by the authorities.
Maladministration, dishonesty or improper dealings with respect to public money, improper enrichment, and receipt of improper advantage are also matters that could be examined by the public protector.
There are some exceptions, though. The South African public protector cannot look into judgements by judges and magistrates, including sentences imposed by them.
Similarly, he/she cannot inquire into private acts by individuals, private companies, or doctors or lawyers who are not working for the State.
However, the staff of the public protector could help by guiding grieving parties where to complain or what to do in such cases.
It is beyond dispute that the office of the public protector has many qualities from which Zambia could draw immense benefits to further raise its governance profile.