28 January 2013

Zambia: Muchinga Debates First Draft Constitution

THE United Nations (UN) quips that a Constitution is the highest law of the land that provides a strong foundation for a State based on the rule of law.

The Constitution defines and limits the powers of Government and its various branches, vis-à-vis each other, and the people.

The Muchinga Provincial Constitution-making convention was held from January 14 to 19, and deliberated on the various clauses that

have so far been tackled by different quarters of the society on how they want the Constitution to be shaped.

No doubt, explosive debates characterised the deliberations of the Convention on the first Draft Constitution with the provincial constitution-making resoundingly covering intended reforms of an existing constitution.

The debates on the First Draft Constitution, which were punctuated with intellectual under-tones, were a lucid signal that the design of a Constitution and its process of development, no doubt, play a significant role in peaceful political transitions and post-conflict peace-building.

A delegate to the convention, Donory Chileshe from Chinsali endorsed the truism that it was cardinal to thoroughly debate the Draft Constitution because the final yet balanced and people-driven constitution would stand the test of time.

Deputy Home Affairs Minister Stephen Kampyongo, who was among the more than 100 delegates at the Muchinga Convention, repeatedly reminded fellow delegates that the approach to the debate on the Draft Constitution should revolve around national ownership and inclusiveness of people's views and the process should be participatory and transparent.

The synopsis of the Muchinga Provincial Convention resolutions showed that relating to parts of the Constitution, the preamble was retained without any amendments and no justification was provided for that.

All paragraphs of the preamble of the First Draft Constitution including the declaration of the Republic as a Christian nation have been retained without any amendments.

The declaration of Zambia as a Christian nation is stated in the preamble which delegates said was consistent with the values and aspirations of the Zambian people hence should be retained as contained in the first draft.

Barely four days into the convention, Muchinga delegates managed to debate more than 80 per cent of the 320 articles contained in the First Draft Constitution.

In a week, the delegates retained more than 90 per cent of all articles in the Draft Constitution were retained without any amendment with Article 203 of Part XI which proposes setting up of Provincial Assemblies (PA) in the country unanimously sailing through.

The heated debate on Article 203 was marred by counter points of order as some delegates argued that establishing the PA would be a drain on tax-payers' money.

A delegate Malozo Sichone, who is Eastern Province Minister, said it would be costly to establish ten PAs in all provinces of Zambia.

Mr Sichone objected to the retention of the Article, arguing: "I see it as a talk show! It is costly to establish the Provincial Assemblies in all ten provinces. You shall need ten speakers and other logistics to run the assemblies. We may fail to run this country and find ourselves in a cacoon."

Alfred Soka argued that PAs would enable people to contribute towards development of the provinces and ensure prudent utilisation of resources and implementation of development programmes in the province.

Senior Chief Nkula of Chinsali District said there was nothing wrong for traditional rulers to attend council meetings, adding: "It is important for chiefs to be present where issues of development are concerned."

Debating Part XIII on Chieftaincy and House of Chiefs Act 226 of the First Draft Constitution, Mr Kampyongo said the House of Chiefs should be conversant with the succession of chiefs.

On Election of the President, Article 97 on Qualifications and Disqualifications for Nomination for Election as President which allows a person to qualify as candidate if he or she is a citizen by birth or decent and has no dual citizenship residing in Zambia was retained.

The provision on the presidential candidate to have minimum qualifications of Grade 12 to hold the highest public office as contained in Article 97 (1) clause (e) received a thumbs up from the delegates.

They submitted that the term of office for the President should be five years and that the National Assembly may, by not less than one-third of the members of Parliament, by notice in writing to the Speaker, petition the Speaker that the physical or mental capacity of the President to person executive functions ought to be investigated.

They also submitted that where the President ceases to hold office by virtue of clause (11), the vice-president assumes the Office of President as a consequence of clause (12) and that the president shall appoint a vice-president, which is subject to the approval of the National Assembly.

The provision which allows the President, when out of the country or absent from office for whatever reason other than grounds contained in Article 104, to allow the vice-president to perform executive functions specified by the President in writing until he returns to office was supported by delegates.

A total of 62 out of 98 delegates voted for Dual Citizenship to be retained while 36 opposed it.

Part VI of Article 75 (1) on the Electoral System, which was retained, states that elections to the Office of the President shall be conducted directly on the basis of a majoritarian system, which allows the winning candidate to receive not less than 50 per cent plus one vote of the valid votes cast.

Out of the 106 votes cast, 65 delegates retained Article 75 (1) while 41 opposed the Proportional Representation System Article 75 (2) which states that elections to the National Assembly shall be conducted under a (PRS) where a candidate is elected from a multi-member constituency in an Electoral District.

Oscar Muwowo said the PRS will foster transparency and ensure accountability of leaders, adding that the system would equally ensure non-corrupt practices during the elections.

Kebby Malila said the rights of the media to operate without being regulated by another organisation or Government was not negotiable and voted for the retention of Article 38.

Abel Shawa said the media has been agitating for self regulation like the Law Association of Zambia (LAZ) and should be allowed to legally regulate itself.

He said the Act should be embraced as it deals with tension existing between freedom and order, adding: "Without the Public Order Act, there is recipe for chaos in the country."

The death penalty was retained while Article 28 sub-section 3 which states that a person may be deprived of life if that person has been convicted of a capital offence and sentenced to death was also retained.

More so, the delegates retained Article 33 (1) which states that a person shall not be held in slavery while others suggested that slavery, servitude and Forced Labour be redefined.

They amended Article 60 which states that minority and marginalised groups shall be provided special opportunities for access to employment and develop socially acceptable cultural values, languages and practices.

Article 52 under the Bill of Rights allows women to have rights to reproductive health and change nationality of their children, access to family planning and related information sailed through while other Articles retained included freedom of persons, protection from inhuman treatment, security of persons, protection of privacy of persons, home and property and communication and freedom of religion and conscience.

The articles on acquisition and protection of property, equality before law and most parts of the Bill of Rights articles were retained.

Rosemary Kabonga of Mpika argued that article 45 on equality before the Law be retained so should Article 46 on fair administration as its rationale guarantees all persons to have the right to fair administration.

She said Article 48 on Rights of Suspects and Arrested Persons allows suspects to be given dignified treatment and be protected from inhuman and degrading conditions and that every person has human rights until proved guilty.

Other recommendations rested on the creation of the Customary Land Regulatory Body to monitor and halt illegal traditional land allocation in Zambia.

It was argued against the land and general provision that most traditional leaders were corruptly allocating land and denying the locals the opportunity to own land.

Isaac Simutowe of Mafinga said the functions of the Customary Land Regulatory Body should be created by an Act of Parliament to enable it effectively provide checks and balances in traditional land allocation.

Mr Simutowe was supported by a Chinsali delegate, Choyocha Mwale who said abuse of authority by most chiefs has greatly contributed to the displacement of subjects in chiefdoms when the traditional rulers allocate land to investors and that they was no law to protect the poor subjects.

Technical Committee member Simon Kabanda assured that measures have been put in place to curb Government inference in the Constitution-making process.

"This will ensure that Government was not accused of having doctored the Final Draft Constitution in future. Government has already demonstrated commitment to ensure a credible constitution-making process and the onus was on the delegates to deliver on the expectation of the general public," Mr Kabanda said.

Delegation leader for Muchinga Technical Committee, Reuben Lifuka said the Constitution-making process was everyone's business and that the constraints of funds and the time factor determine the methodology in the Constitution-making process.

Muchinga Province Minister Charles Banda said the Constitution-making process should be approached with the seriousness it deserves to maintain its legitimacy that would stand the test of time.

The provincial minister said the First Draft Constitution was only a working document reflecting submissions of Zambians to the previous Constitution review commissions and other relevant processes.

Mr Banda said the final quality of the Final Draft Constitution will definitely depend on the collective efforts of all Zambians in ensuring that the country was clear on what it wants the national document to contain.

The technical committee on drafting the Constitution was appointed by President Michael Sata on November 16, 2011 and the committee started its work at the beginning of December last year.

The Muchinga convention was designed to merely clarify issues pertaining to what was contained in the First Draft Constitution and the technical committee has successfully held the first three provincial conventions in the North, Western, Copperbelt and Central provinces.

Recommendations of the province are slated to be presented at the National Constitutional Convention to be held in April to consolidate the Final Draft Constitution before being presented to Parliament for enactment.

The convention attracted, among others, traditional leaders and representatives of NGOs, church, private sector, youth, local authority, tertiary education, trade unions, chamber of commence, women and disabled people.

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