4 February 2012

Zambia: Constitution Committee - Route to People-Driven Constitution

Photo: State House
President Sata at his inauguration (file photo).


A CONSTITUTION is an important piece of legislation for any given nation as it gives guidelines on governance issues.

From the onset, the Patriotic Front (PF) Government has shown commitment to ensuring that the people of Zambia receive a new Constitution in the shortest period possible.

It was in this vein that on November16, 2011, Republican President Michael Sata, appointed a twenty-member technical committee to under-take the drafting of the Zambian Constitution over a period of twelve months.

This means that Zambia is destined to have a new constitution which will be for the people and by the people.

The technical committee on Drafting the Zambian Constitution is being chaired by former Chief Justice Annel Silungwe and his deputy is Dr Julius Sakala and the spokesperson being Mr Simon Kabanda.

The secretary role is being played by Mrs Thandiwe Daka Oteng who is deputised by Mrs Sindiso Sichone and Mr Like Mukelabai.

Other members of the technical committee are Minister of Justice Sebastian Zulu, Professor Patrick Mvunga, Professor Margaret Munalula, Dr Winnie Sithole Mwenda, his Royal Highness Chief Luchembe, Reverend Susan Matale, Mr Reuben Lifuka, and Fr Yves Buntungwa.

The rest are Mr Ernest C. Mwansa, Mr Paulman Chungu, Mr Wila Mung'omba, Mrs Mwangala Zaloumis, Ms Charity Mwansa.

The Committee on drafting the Constitution was sworn in by President Sata on December 1, 2011, and it began its work immediately.

As is widely known, most of the ground-work in coming up with a new Constitution for Zambia has already been done by previous constitutional review commissions. One of the major roles of the technical committee on Drafting the Zambian Constitution will therefore involve, reviewing of Zambia's previous draft constitutional reports and then drafting a new national constitution based on the committee's findings from the previous review process.

The committee has been tasked to review the Mung'omba Draft Constitution of 2005 and use it as a basis on which to develop the national Constitution.

Spokesperson for the technical committee Mr Kabanda reiterates that the committee has begun the process of developing working documents, taking into account the reports and Draft Constitutions of the previous review commissions, including the report of the Electoral Reforms Technical Committee (ERTC).

Mr Kabanda states that the committee has also developed and adopted its rules of procedure and programme of work.

The committee has also identified local and international experts to give their comments on the first draft Constitution.

According to the programme of work or roadmap, the Technical Committee will produce the first Draft Constitution by the end of this month.

Chairperson of the committee Justice Silungwe confirmed that the first draft of the Zambian Constitution will be released at the month-end.

Justice Silungwe who was once chief justice but is now retired says that the first Draft Constitution will be released to the President and the general public at the same time at the month-end, thereby allaying fears from the general public that there will be a Government White Paper.

He explained that the first draft would then be translated into seven local languages, these are Lozi, Tonga, Luvale, Kaonde , Lunda, Bemba, Nyanja and the Braille version for the blind people

The idea is to bring everybody on board and make the process more inclusive hence the need to translate the document into the known local languages.

"Then we will prepare guidelines for provincial and district sector groups and the first draft will be distributed to all districts which will sit and elect people to represent them at the provincial conventions where comments to the Draft Constitution will be made. The first draft will also go to the national and international experts for their comments," he said.

Judge Silungwe said that among the experts expected to include their inputs in the Constitution process are Professor Muna Ndulo, Professor Michelo Hansungule, Dr Chaloka Beyani, Retired South African chief Justice Chalskerson, Dr Chuma Himoonga.

Others on the list are Former Chief Justice Mathew Ngulube, Justice Frederick Chomba, Gambia judge of supreme court of appeal representative, Prof Maybin Mbao, constitutional lawyer John Sangwa, Ms Eness Chiyenge and Ms Gladys Mutukwa.

He maintains that the final draft of the Constitution would be ready by June this year amidst wide speculation that it may not.

Justice Silungwe further explained that the technical committee would among other things also look at the constitutions of Ghana, Nigeria, Kenya, Uganda, Namibia, South Africa, Sychelles and many others in its process of coming up with a good Constitution for Zambia.

The technical committee has been meeting stakeholders among them the church leadership of North-mead Assemblies of God, Young Leaders initiative, United Nations representative, the Oasis Forum, with the latest having been the Zambia Congress of Trade Unions, (ZCTU).

ZCTU president, Leonard Hikaumba appealed to the committee to ensure that this was the last Constitution process which would lead to a Constitution that would stand the test of time for Zambia.

"We desire to have a good Constitution. Since there have been so many attempts to come up with a people driven one we want to see this as a final process so that money can be set aside for other developmental programmes," Mr Hikaumba said.

He said the ZCTU would participate in ensuring that Zambians had a people driven Constitution.

"We want to see the draft and we appeal to the political leadership and opposition to work together so that they come up with a good Constitution. We don't want a situation where there is a new Constitution every time there is a new Government," he said.

Justice Silungwe assured the public that everything would be done to give the people of Zambia a good constitution in a reasonable time.

He envisages that the public discussions on the Draft Constitution will enable the people at large to comment on the draft constitution.

The programme states that in March and April 2012, the Technical Committee will prepare and adopt guidelines for provincial conventions and will facilitate the provincial conventions.

Towards the end of April 2012, the technical committee also expects to facilitate stakeholders and sector groups constitution conventions where comments from various stakeholders will be received from members of the public.

In May 2012, the Technical Committee will make the second Draft Constitution taking into account comments from the provincial and sector groups Constitution conventions, as well as comments from the local and international experts on constitutional law and practice.

The programme of the committee also states that towards the end of May, the committee will facilitate the National Constitution Convention, which will include representatives from the provincial and sector groups Constitution conventions.

At the end of June 2012, the committee will produce the final Draft constitution, having taken into account comments of the national constitution convention stakeholders, the people and constitutional experts. According to the committee, this will be the Final Draft Constitution on which the Constitution of Zambia Bill 2012 will be based.

As it happens in most processes, questions have been raised regarding the legality of the decision to appoint the technical committee by President Michael Sata.

Justice Silungwe in responding to these concerns answered that the legality of the technical committee is derived from Article 33 and 44 of the Constitution, which gives the President executive powers, as Head of State, to appoint a committee like this one to carry out exercises such as the one the committee has been given as long as his decisions are not contrary to the laws of the country.

Minister of Justice Sebastian Zulu, who is also a member of the technical committee assures that the committee has the backing of the Constitution and urges members to work hard in delivering a good and acceptable Constitution to the Zambian people.

Thus far, the technical committee has prepared the rules of procedure of meetings and consultations and the programme of work has since been adopted for use.

The committee is also developing a strategy and guidelines to be used for consultations of the members of the public which will be done through public discussions, provincial Constitution conventions, a Constitution convention of sector groups and one national constitution convention.

This is not the first time that Zambia is undergoing a Constitution-making process. The country has under-taken four Constitution review processes since 1972.

The Chona Commission of 1972 led to the adoption of the Constitution of December 1973 which introduced a one-party participatory democracy under the UNIP Government.

The Mvunga Commission was appointed in 1990 to recommend a Constitution that would serve a plural political system. Additionally in 1993, the Mwanakatwe Commission was appointed with vast terms of reference resulting in the 1996 amendments to the 1991 Constitution.

The Mung'omba Commission, which was appointed in 2003, produced its report and Draft Constitution in December 2005.

After this, the Government established the National Constitutional Conference (NCC) which came up with the 2010 Draft Constitution that was rejected by Parliament in 2011.

After all these fruitless efforts, it is justifiable for members of the public to question the need for another Constitution making process.

But Mr Zulu says the activity of coming up with a Draft Constitution this year is to ascertain whether the provisions of previous constitutions and reports establish a constitutional democracy and a culture of constitutionalism for Zambia, and are suitable for the existing political, socio-economic, technological and scientific environment of the country, and most importantly reflects the wishes, values and aspirations of the Zambian people.

Even as it carries out its mandate, the committee has been urged to observe and apply guiding principles which include upholding national interest, accountability to the people and respect for fundamental human rights.

"This can only be done if the process is transparent, participatory and all comments from all stakeholders are considered," Mr Zulu says.

There will be no Government white paper this time around even if the Draft Constitution will be handed over to the President.

On the controversial issue of the budget for the committee, Justice Silungwe dismisses assertions by some members of the public that members of the technical committee were receiving hefty allowances of up to K2 million for each sitting.

Justice Silungwe says members of the technical committee would be given between K650,000 and K750,000 as remuneration for each sitting.

He says the communication budget only would amount to K4 billion but the full budget for the technical committee would be released by the Ministry of Finance at a later stage.

Justice Silungwe, who is also former Chief Justice, appeals to Zambians to support the on-going Constitution making process if it was to be a success.

He says money for the Constitution would come from votes that had already been approved by Parliament as well as supplementary budgets.

"The endeavour is a national one and we need all Zambians to participate to ensure that we achieve a good Constitution for the country and generations to come," he says.

When all has been said and done, the Constitution of Zambia Bill 2012 and the report of the technical committee will be submitted to President Sata and afterwards to the stakeholders and the public at large.

It is the hope of the people now that with the expertise of the technical committee, its skills and knowledge, the outcome of the Draft Constitution will reflect the wishes of the people of Zambia.

As for the Zambians, the ground has been set and the onus is now on all of them to participate in the Constitution-making process because at the end of the day, it is important for Zambia to realise a people-driven Constitution that will reflect the views and aspirations of the people and also stand the test of time.

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