Zambia Constitutional Review: A Reflection

Published on 25th November 2011

President Michael Sata                                           Photo courtesy
On November 18th, 2011, I wrote an article which was published by Zambia News Features and Lusaka Times, dubbed, “President Michael Sata is Driving Too Fast to Keenly Observe the Traffic Rules.” Some readers construed this as partisan review. I do not support any one party in Zambia; I am for Zambia. I try to objectively look at issues and events bordering on the future of democracy in Zambia. I will not relent until Zambia becomes a shining example of democracy in Africa, if not in the world!  Zambian democracy will only be strengthened if we continue to give constructive criticisms of the policies of government. It is better to prevent accidents than to cure their devastative effects. That is one of the reasons I wrote Zambia: Struggles of My People. On constitutional reform, President Sata is scoring big and deserves commendation.

Constitutional Review: Good Idea but Bad Priority

President Sata is scoring big on the constitutional review, although it should not be a priority, for two reasons. First, there is no constitutional crisis in Zambia. In fact, the very fact that the Patriotic Front (PF) won the election, notwithstanding initial constitutional reservations, shows that constitutional reforms can wait. All previous administrations (Chiluba, Mwanawasa, and Banda) “have all prioritised the constitution!” One would think the country had a constitutional crisis. Clearly, it does not have. There is room for much improvement but we have a durable constitution in place by which we have time and again effected peaceful change of leadership.

Second, government`s priority must be the elimination of poverty. The suggested constitutional improvements do not address the eradication of poverty. In fact, there is talk of the process talking from what has been allocated elsewhere in the Chikwanda budget. Re-allocating to this exercise in the form of contingencies, may disadvantage the poor even further. However, President Sata still needs to be commended for delivering his promise of constitutional review within 90 days. Afterall, that was his election platform.

Fewer Political Mistakes in Their First Terms

In their first term of presidency, Zambian presidents are angels. Kaunda welcomed political pluralism in the First Republic; Chiluba promoted democratic institutions and principles, and he was less corrupt in the first term; Mwanawasa traversed the political lines to include all in his first administration. Banda grew the economy. However, for some unexplainable reasons, in their second terms, our presidents tend to become autocratic, and even corrupt, in the case of late President Chiluba. Moreover, in their honeymoon political seasons, usually in the first 100 days, new presidents can do more and achieve more in relativity because the general populous tends to be less critical of the newer administrations’ policy gaffes. President Sata is playing well to this mantra. And I am sure he will succeed where the previous administrations have failed, on constitutional reforms.

History Revisited: A Legacy of Unequal Constitutions

(1) 1953, 1962 & 1964: Discriminatory Nature of Westminster Model Constitutions

In order to have a concise grasp of the constitutional review process and the rumpus this has caused in the case of Zambia, it is prudent to begin the analysis from far before independence. In 1953, at the dawn of the Federation of Rhodesia and Nyasaland, an Order-in-Council was drafted to allocate powers to the federal government and to the territorial governments. This was followed in 1962 by a constitution to accommodate the participation of the European settlers and the Africans in the Legislative Council. This constitutional review granted more electoral privileges to the settlers than to the Africans. In 1964, just before independence, another constitution was drafted to provide a more representative framework leading to the independence of Northern Rhodesia. It also dissolved the Federation after the secession of Nyasaland. These so-called Westminster model constitutions were not the phathomation of the Africans. They were designed for the emerging nations of former British Colonies and Protectorates.

(2) 1973: Elimination of Opposition Politics

The real first Zambian constitutional review was the creation of the 1973 constitution which eliminated all political opposition. It emerged from the recommendations of the Chona Commission for a One-Party Participatory Democracy. Kaunda and UNIP realized that the only way of sorting out internal conflicts in Zambia was the proscription of all political parties with the sole exception of UNIP, mandated by article 4 of the 1973 constitution. (For a thorough discussion on the One-Party Participatory Democracy, see Chapter Eight of my book, Zambia: Struggles of My People).

(3) 1991: Adhoc Constitution

In 1991, arising out of the public’s demand for a return to multiparty politics, Kaunda passed a resolution for constitutional amendment. This resulted in the Constitution Act of August 30th, 1991. In essence it was this constitution, whose commission was chaired by the Solicitor-General, Mphanza Patrick Mvunga, which re-introduced multiparty politics to Zambia.

Due to the emergent nature under which the Constitution Act, 1991, was enacted, the immediate concern of the newly installed MMD government was to re-enact a constitution it believed was comprehensive and broad-based enough to represent the general wishes of the people. The 1991 constitution, which I prefer to refer to as an Adhoc Constitution, was no longer seen as a legitimate document. It had already outlived its mandate, which was the facilitation of the transition to multiparty politics.

(4) 1996: Lame Duck Constitution

In 1993, both as part of an election promise and as a search for a comprehensive constitution, late president Chiluba appointed a Constitution Review Commission, chaired by John Mwanakatwe. Upon the completion of making substantive recommendations the draft constitution was presented to late president Chiluba in June 1995.    

Final amendments were made to the constitution in 1996. These amendments, however, met two cardinal drawbacks: First, the MMD government rejected the following recommendations of the Mwanakatwe Constitution Review Commission, namely (1) a Bill of Rights to include women, children, economic, social and cultural rights; (2) the introduction of a Constitutional Court; and (3) the adoption of the constitution through a Constituent Assembly. Second, people were infuriated for government’s refusal to take into account most of the submissions they made.

(5) 2003: Dragged Constitutional Review Commission

Consequent to this constitutional unrest, the 2001 eleven presidential contenders all pledged to review the constitution if elected into office. In 2003, the Wila Mung’omba Constitution Review, also known as the Dragged Constitutional Review Commission was constituted. It was the initiative of late President Mwanawasa and it came about by Statutory Instrument Number 40 of April 17th, 2003.  The Mung’omba Commission comprised 31 terms of reference which included the protection of human rights, the examination of the death penalty, the elimination of discriminatory provisions in the Zambian constitution, and the promotion of good democratic governance, among other recommendations.

One of the recommendations of the Mung’omba Commission under Chapter 27 of its report dubbed, “Methods of Amending the Constitution” was the adoption of the constitution either through a Constituent Assembly or a Constitutional Conference. The latter method was chosen. Consequent to this recommendation, under the National Constitutional Conference (NCC) Act, Number 19 of 2007, the National Constitutional Conference (NCC) was established. In this way, and for the first time since constitutional history, the will of the people of amending the constitution through a constitutional conference was respected. The NCC sat under the chairmanship of Chifumu Banda flanked by three vice-chairpersons – Faustina Sinyangwe, Regina Musokotwane and Leonard Hikaumba – with Mwangala Zaloumis as its spokesperson.

The NCC adoption process was designed as follows: after 14 months of debate, recommendations and comments, the final text of the new constitution would be decided either by submitting to the Minister the entire adopted constitution for submission to a National Referendum or by any one of the two options (1) presenting to the National Assembly for enactment if the Draft Bill did not contain any provisions to alter Part III or Article 79 of the Zambian Constitution or (2) submitting to a referendum, if the Draft Bill contains provisions to alter Part III or Article 79 of the Zambian Constitution or any provisions in the Mung’omba Draft Constitution on which there was no agreement either through consensus or secret ballot.

(6) National Constitutional Conference (NCC)

The NCC Constitution of Zambia Bill was defeated in Parliament on March 29th, 2011. The bill had “sought to provide for the printing and publication of the amended constitution.”  The Church hailed the failure as “an act of God.”  It failed for three main reasons: (1) it was an expensive venture; (3) mostly dominated by the MMD; and (3) lacked consensus, especially, when it came to the fifty-plus-one simple majority.
    
“The People’s Constitution”: Composition and Logic

The Silungwe-Chaired-Constitution Technical Committee appointed by President Sata is another of his pluses in the running of Zambian public affairs. It is relatively smaller, more inclusive and cost-effective. First, the committee includes at least a representative from legal experts, the clergy, politicians, civil servants, chiefs, professional associations, and the civil society. The Evangelicals who have complained lately that they have no representation should be comforted because “the majority of people on that committee are born again.” Calls to “include a representative from the labour movement” are unnecessary, because roughly all these persons appointed represent a particular labour sector.

Second, since 1991, this is the “most tenable and cost-effective way to draft the new constitution as compared to the wastage incurred by the bloated National Constitutional Conference.” Twenty is a good number (although I personally feel the president should have included four of the Zambian legal minds stationed in the Diaspora: Prof. Hansungule, Prof. Ndulo, Prof. K. Mwenda and Mr. Munyonzwe Hamalengwa). The rationale is simple: the president has ably reasoned that there is no need to waste tax-payers’ money when previous reviews have done the necessary work. In addition, the president has delivered his promise, albeit of initiating the process, within 90 days. President Sata needs to be supported by all Zambians, especially when it comes to the fight against poverty. When he succeeds, we all benefit. When he fails, it is our children who will bear the ills.

By Charles Mwewa
Author: Zambia-Struggles of My People
http://www.zambiastruggle.com/


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