Patrick Jabani
28 November 2008
opinion
THE manner in which a constitution is finally adopted is crucial in determining its legitimacy, popularity and acceptability.
Since independence, Zambia has been using undemocratic means of adopting its constitutions.
The Government has always appointed members of constitution review commissions to make-believe that the Constitution was being made through people's consensus.
The Government would then turn around and make its own recommendations through the white paper, accepting, rejecting and modifying some of the people's wishes.
Throughout the history of Constitution reform in Zambia, there has often been tension between the need to encourage consensus and popular involvement on the one hand, and the desire by the Government to ensure that its authority is not undermined.
Mistrust between the Government and citizens over the ground rules of Constitution-making have often led to frustration and despondency.
The Report of the Mung'omba Constitution Review Commission (CRC) has made a glaring observation that there is no provision relating to "adoption" of the Constitution in the Republican Constitution.
"Adoption is a concept which is not recognised by the Zambian Constitution and is, therefore, not part of the practice of the Zambian Parliament," the Report reveals.
One of the most important legacies of the late president Levy Mwanawasa was to end this negative historic trend when he allowed that the Constitution be adopted through the National Constitutional Conference (NCC).
Even the most jaundiced critics of the NCC must admit that this move by president Mwanawasa was a bold step towards enacting a people's Constitution that truly answers the common parlance of a Constitution made by the people for the people.
Despite whatever critics may want to think, the NCC's composition and inclusiveness is by far more superior to the other alternative - the Constituency Assembly in the form recommended by the Mung'omba Constitutional Review Commission. Of course any system is prone to improvements but the beginning is here - thanks to the late President.
It is true that a prophet is not recognised in his own land and that people only recognise your good deeds when you are no more.
However, for the legacy being discussed in this article, Dr Mwanawasa may be gone, but his bold action lives on.
The bold decision by Dr Mwanawasa has brought a paradigm shift in Zambia's method of adopting the highest law of the land, thereby confirming the late president's popular nick name Lawyer-wa-ma-Lawyer (lawyer of lawyers).
This democratic shift has won Zambia international accolades with United Nations Development Programme resident representative Macloed Nyirongo saying the universal body would carefully study Zambia's participatory way of adopting the Constitution in order to recognise it as one of the best practices in Africa.
"The UNDP is pleased with the method Zambia has chosen to adopt its Constitution and we are tracking your Constitution-making process as it is exemplary in Africa," Nyirongo said.
He acknowledged that Dr Mwanawasa had given the people of Zambia a participatory method of formulating and adopting their own Constitution.
He observed that the NCC had a wide representation and was composed of people of high integrity entrusted by the Government to carry out the honourable task of adopting Zambia's Constitution.
Hitherto, successive Zambian governments had exercised a selective acceptance of Constitution recommendations through the white paper, thereby defying popular sovereignty and the collective wisdom of the people.
Zambian governments had always initiated fundamental constitutional changes through review commissions under the Enquiries Act to engage the public in making recommendations on the premise that the Constitution was made by the people for the people.
But this has over the years been perceived as a contradictory and futile exercise because the Government reserved to itself the right to appoint members of the commission, accept or reject any or all recommendations as well as make any other modifications.
The Government has always rejected proposals to adopt the Constitution through other alternative means, arguing that the provisions of Article 62 in the present Constitution make it inconsistent for Parliament to abdicate its vested power to legislate in favour of any subordinate body such as the Constituent Assembly.
The Government has argued that it is not constitutionally permissible to adopt a procedure other than the one provided for in the existing Constitution prior to the amendment of Article 79.
However, for the first time in Zambia's constitutional history, the Government has allowed recommendations from the CRC to be adopted by the people through a widely representative body - the NCC.
This should be seen as a good beginning.
Indeed, the formulation of a new Constitution should be more inclusive, broad-based, gender-representative and encourage the participation of citizens in order to give the Constitution-making process legitimacy.
There is no doubt that the NCC, vested with legislative powers, has the widest political representation, with all members of Parliament being members of the Constitution-making body.
Because Parliament alone is not representative of all the various social interests in the country, it would be folly to allow this legislative body to adopt the Constitution- especially given the historic political party dominance of Zambia's Parliament.
NCC members have, therefore, included inter-alia, party officials, eminent persons, freedom fighters, senior citizens, senior civil servants, councilors, religious organisations, professional bodies, public commissions, the labour movement, women's organisations, non-governmental organisations, youth organisations, the media, as well as security and defence forces.
There are currently 496 members of the NCC, with 2) per cent of them being women.
While the fears, which many people have concerning the possibility of Parliament 'doctoring' the NCC Constitution Bill, are legitimate in view of the past experiences in Constitution-making in Zambia , the current arrangement has an in-built guarantee that what the NCC will adopt will most likely be enacted by Parliament.
One of the reasons why Parliament is most likely to enact the NCC Bill is that the same MPs are also members of the NCC and are, therefore, part of the adoption process.
It is, therefore, unlikely that the very MPs will choose to 'betray' the people by altering the Constitution they helped to adopt.
Moreover, there is no single political party with two-thirds (106) seats in Parliament and, therefore, in a position to single-handedly pass a Constitutional Bill.
Furthermore, there are only three years to go before the next general elections in 2011 and it is unlikely there is a single party that would want to excite the wrath of the people by 'hijacking' the new Constitution.
Past chairman of one of Zambia's CRCs, Professor Patrick Mvunga, says Dr Mwanawasa will be fondly remembered for allowing broader participation by all interest groups in adopting the Constitution instead of leaving it up to the Government to choose only that which suited it.
Prof Mvunga, who is a prominent constitutional lawyer and university lecturer, said it would have been a good thing for all eligible members to participate in the Constitution-making process.
He observed that those who had boycotted had disadvantaged themselves and the people they represented.
But he hastened to point out that those who had abstained were also exercising their constitutional right to stay away.
Prof Mvunga was, however, happy that some of those who had boycotted were now following NCC deliberations keenly and actually participating from outside the conference arrangement.
The NCC is mandated by the Act of Parliament of 2007 to examine, debate and adopt proposals to alter the draft constitution submitted by the Mung'omba CRC.
NCC chairman Chifumu Banda has, however, said that the conference was also examining the reports and constitutions produced by earlier CRCs with a view to salvaging any useful provisions from them.
Apart from Part 111 ( Bill of Rights) and Article 79, the Constitution does not require a Referendum in the amendment or alteration of the rest of the constitution.
The NCC Act provides for the members to decide whether to submit the entire new Constitution through the minister of Justice to a national referendum or part thereof which does affect Part III or Article 79 not either agreed by the Conference to Parliament for adoption.
The draft constitution adopted by the NCC shall be published for 60 consecutive days before further reaction from the public in their own localities.
It will be gathered for a final draft to be submitted either to a national referendum or Parliament by the Minister of Justice.
Whatever document will come out of the NCC efforts will, at least, prove one important thing that Zambia has shifted for good from a government-determined to a people-determined alteration of the Constitution.
From now onwards, the people's participation in the formulation of their own Constitution shall be the method by which the Zambian Constitution shall be altered.
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