In any democratic country, the law demands that opinions of citizens are recognized in the governance processes so as to embrace its principle. Thus, the constitution should point out the democratic principles that correspond with the public opinion so that moral rights of every individual regardless of the political affiliation, are recognized via their contribution to the affairs of the state without any interference. To a great surprise, in some countries like Zambia, the principles of democracy have never been upheld, if it does, then it is just documented not put in practice. The fact here behind this notion is that some political parties in Zambia backsides the positive demands of the law and thus adds additional urgency to the task of misuse democratic agenda.
It is for this facts that we can link the situation in Zambia to the ideas of Albert Venn Dicey a professor of English law, who quoted in his book of Constitution, Governance and Democracy that “Democratic sentiment, further if not democratic principle, demands that law correspond with public opinion; in the case when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act.” In other words, Dicey meant that democratic values demand for participation of citizens in formulation of laws, of which the law made by citizens be practiced by those in power, and those in power should not overlook the citizens who put them in power. For that reason, however, this essay will discuss in line with Albert Venn Dicey’s notion on how best those in power should use constitution to govern in a democratically manner.
In order to discuss the aforementioned assertion, it is important to first understand the key terms that are surfaced in the question which are: Constitution, Democracy and Governance. Precisely, the term according to Emerson (2012), referred to “the government of the people, by the people and for the people.” In other words, government comes from the people’s own interests in which they have their say in one way or another in everything that affects their lives. Yet, these people who make the government, need to have a constitution which will act as the tool just in case of in the society if at all is anarchy. As such, Law Group (2003: 5) points out that “a constitution is used to set the encounters which rises among groups of individuals, In this way, it has some set of ultimate principles precedents according to which the powers of the government, rights of the governed and the relation between them are adjusted.”
On the other hand, Goss (2007, 14) describes governance as “the process of decision making by which decisions are implemented or not implemented.” In other words, people are ruled with or without their concern by those in power who are given powers to impose or maintain order within the state. To this extend, public institutions conduct, public affairs and public resources are managed in the realization of rights of citizens. Therefore, we can attest that governance cannot be done without recognizing the democratically principles via the demands of law because it deals with ideas which are difficult to achieve in its totality.
As an introductory holds in regards to the idea by Dicey, sometimes the law is used to the advantage of those in power to suit their needs. For instance, in Zambia there is a public act code of conduct which allow an individual to hold a public rally, whereby the person who want to express his or her right to assembly, has to get the permission from the police under the public law act of Zambia. In most instances, documented are just there to deceive the public, in the actual sense that public law act does not even exist. By this we mean, as it stands in Zambia, when an individual has a concern which could be discussed through huge and multitude of people, they are not allowed to hold meetings more especially if the issue to be discussed about relates to misuse of public funds by those in power that becomes a problem to such individual. Because of the powers they are interested, those in power makes private statutory instruments which abolish the moral rights of citizens and contradicts with what is written in the general constitution thereby silencing public concerns.
For example, in newly amended 2016 constitution of Zambia part V article 47 clause 1 e or c, allude to the fact that citizen are free to exercise their political right for as long it does not incite the violence in the country. McDonald (2015: Blackburn p. 58) argue this idea by saying that “the practice of public meeting appear to be more restricted by the police, it cannot meet with strict accuracy asserting that Zambian law recognizes the liberty of the press and hardly be said that our constitution knows of such a thing as any specific right of public meeting because large body of citizens are opposed to some law but question the moral right of the state to impose or maintain a given law, which has deeply perplexed democratic principles.”
As the matter of facts, democratic principles demands for the promotion of good rapport between citizens and government, therein creating a good platform for citizen participation and more responsive to those in power if accountability for public affairs pervades. This according to Mbonenyi and Ojienda (2013), will help “citizens productivity within government departments on public services and the strengthening of strategic partnerships with civil society organizations” For example, the constitution of Zambia under article 10 part II clause 1 and 2 shows the enhancement of democracy in Zambia when government creates and encourages individual initiative and self-reliance among the people, so as to promote investment, employment and wealth of the people in the country. Thus, democratic sentiment, Dicey (ibid), demands citizens have an access to wide range of economic activities in order to contribute to the public funds. The constitution in many government state therefore, should identify key challenges in the democratic governance so that populace are ruled in line with what is stipulated by the law. In this sense, democratic sentiments or democratic principles will prevail in the country.
The idea “Democratic sentiment, further if not democratic principle, demands that law should on the whole correspond with public opinion; but when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act.” (Dicey ibid) could be discussed by citing the example of recent general elections which took place in our country called Zambia. That is to mean, Zambia had elections and transitions of power, but there remains a need to promote better governance and reinforce democratic practices. Reforms are required to ensure an independent judiciary and an effective legislature, creating checks and balances that can counter corruption and lack of transparency.
The above paragraph can be discussed under article 140 of the Zambian law which allows the president to appoint Judges. These Judges are members of the electoral commission of Zambia and Judges from the supreme and high court. At the same time, article 100 (4) of the constitution gives powers to the same judges to nullify presidential candidate who takes the position. The idea here is that, if for instance the party appointed those judges is also participating in the elections, definitely that party will not fail to win the seat for the next time. The logical behind the idea of Dicey Albert Venn democratic demands that law correspond with public opinion; are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act, is the fact in Zambia because the law clearly indicate that citizens should have the ability to transparent and accountability during elections. However, their rights are been infringed.
To support this idea, Robert and Shapiro (2003: 21) argues these Judges are presidential appointees who may act biased in handling election results even when their candidate does not win, for as long these judges are appointed by this party, will try all means to make the party win. Therefore, our honest democrat will deeply be perplexed how to act to their entitlements because those in power themselves tend to impose or maintain the law in unacceptable way. Tilyenji Kaunda in the (post January, 19, 2016: 4) noted that it would be difficult for Zambia to be called democratic country by citizens themselves within the country because the governance process which take place in the state does not correspond to the demands of democratic principles. Charles (2006) also points out that “Democracy, which is seen through free and fair elections, would be acceptable to all if judicially wing is done to strengthen its capacity and make it independent from the political influence of those in government.” In this sense, we cannot disagree to the ideas of Dicey (ibid) that democratic principle demands that law should on the whole correspond with public opinion; and when a large body of citizens are opposed to their moral right of the state to impose or maintain a given law citizen honestly would fail to act in the democracy governing processes.
Ghali (1996) point out that free and elections deepen the country’s democratic tradition by encouraging citizen participation, strengthening civil society and advancing respect for human rights. It also promote improved governance practices that ensure efficient and effective delivery of basic public services for the welfare of all. Consequently, democracy, human rights and governance activities will prevail both locally, at the district level, and country-wide through a variety of stakeholders, including multiple branches of government, traditional chiefs and village leaders, civil society organizations, and everyday citizens.
For democracy to flourish in any given country, governors should have respect for Rule of law. Rule of Law as Weingast (1997) states, “are fundamental principles and procedures that guarantee the freedom of everyone to be equal before the law” meaning everyone must adhere to the same laws, and no one is above the law. In many African countries for instance Zambia, rule of law does not claim for a governance which exercise democratic principles. This is because those in positions of making the law and enforcing the laws are the ones in front of insulting it. The good example we can give is the situation where the parent warns the child on the dangers of smoking and yet the same parent found smoking by the child, definably that child will not obey. The same way Rule of Law keeps no monopoly of the verdict because top most people are giving it less regards in no way these who are below can respect them. Tannsjo (2008) says that there is no use of an accused being declared not guilty by a judge, and the police still arresting him/her anyway.
Owing from the fact above, we can attest with confidence that democratically sentiments Dicey (ibid) in Zambia does not demand that law correspond with public opinion because citizens moral right of the state are impose or maintain a given law, of which it would be difficult for them to act. For honest democratic to be acted effect effectively, each action or laws made must be measurable and foreseeable. Additionally, the judiciary must guarantee that the administration stays within what is stipulated by laws as it is argued that the precedence of the Constitution in front of the law can avoid some bad will of distorting facts.
Further, democratic principle will demand that law correspond with public opinion; if citizens are not opposed to some law of moral right of the state to impose or maintain. However, human dignity protect and upholding of all people’s rights is a big challenge which is perplexing our honest democrat feel. About Barak et al (2005), “Human dignity is the basis of Fundamental Human Rights which is uninfringeable and it must be respected and protected.” Thus, recognition of the inherent dignity and equal inalienable rights of all members of the human family regardless of the race tribe and culture is the foundation of good governance. For this reason, the dignity of human person in Zambia is not respected by the law. This is due to fact that many citizens are terribly killed in the name of tribalism. When that happen, no actions are put in place as the law demand to those who kill the others and yet we claim one Zambia one nation and been Christian nation but from the look of things this is just the statement written in documents it is not exercised by the state.
Taking one’s life is a bad thing which none of us is supposed to bear. As such the one involved in that act should be compelled to compensate the family to the diseased as part XVIII article 230a denounce that there should be a necessary steps to secure appropriate compensation where rights and freedoms are violated is prominent. By this it means a person right to life is taken and thus compensation need to be done As in this manner, we can even give a credit to Dicey for quoting that “Democratic sentiment, further if not democratic principle, demands that law correspond with public opinion; in the case when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act” because what is happening is totally showing that we do not have a law discouraging that act.
In due respect to Dicey V Albert statement, it could be alluded that state violates the rights to citizens well informed and participate in issues that affect their community. In no way will Zambia called democratic state in nature. Emerson (2012), “the simple act of informing and involving of the citizens in any matter only seen through the sensitization done through media, crusades, therein impending an education to educate the populace on matters affecting them.” As aforementioned earlier, those in power honestly do not act as demanded by democratic principles. People are misinformed as such, they lack the knowledge to act about the broken law. For example, the referendum failed because people did not have enough sensitization on the good or vileness of it. The law on Zambia stipulates that conduct civic education on rights and freedoms of information should prevail in such situations. In the situation where people are not expressing their views because are lacking informed knowledge, then honestly our feels deeply are perplexed by the state. Good governance equality promotes good relations, but in the Zambian democracy it is missing
It is important to inform people in different parts of the country. If possible let the information be simplify in one’s mother language to let them understand. The problem is that the sensitization is done in official language that not everyone understands. To add more on this point, Barak et al (2006) asserts, “Groundwork of democracy is the equal interests of all citizens.” So, when a body of people is clearly organized together as a unit for purposes of governing, they should create a conducive environment in which every man desires to have his own thoughts to act as the based on the informed information as the constitution of Zambia demands. Owing from MolnГЎr (2014), democratic sentiment entails all ordinary citizens have equal influence in what they feel is best for them.
Democratic sentiment, further if not democratic principle, demands that law should on the whole correspond with public opinion. This is true in line with Tannsjo (2008), if we went back to the 1989 resign by his excellence Dr Kenneth Kaunda when he sent out his subordinates to go around the country to correct the different views from citizens on matters affected them. This move showed complete demands or principles of democracy in the governing processes. But, due to lack of morally upright subordinates, the information gotten from the populace was twisted which resulted in the imposition of wrong laws which led people into sufferings. That is the reason Albert Dicey (ibid) when a large body of citizens are asked to maintain moral right while manipulation of law is tempered with, surely democrat feels deeply become perplexed to act accordingly. This equally indicates that of course those in governance processes will pretend they are governing the state in right with the public opinions but citizens are indirectly opposed and that become difficult of them to act evidently.
On the other hand, democratic sentiments entails that government should provide opportunities to its citizens so that they can contribute to the economic development of the state. That has somehow seen in this country for instance. The opening of shopping malls and many more has led to the employment among Zambian citizens. However, to some extent, some laws are been opposed to citizen in the name of employment. This is so because to citizens of own country, taxes are everywhere such that no citizen would be allowed to run the business on a free basis. To foreigners, no restriction because with them they are promoting more jobs in the country but in the actual sense they are depleting the resources of the state. Apart that, land ownership has now moved from the owners of the state to the aliens. In other words, citizens are failing to act on thee maters, when they try to do so, are compelled to face the court through the statutory instruments been implemented without even the consultations from the citizens. Tannsjo (2008) puts it rightly that global democracy is important, but it should not be governed with the views of sidelining the owners of that state.
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