31 January 2013

Zambia: Western Province Convention Retains Most First Draft Constitution Articles

FOR six days, delegates from the Western Province converged at the Mongu College of Education to discuss the supreme law of the land, the Republican Constitution.

That was during the second round of the Provincial Constitution Convention which was being held simultaneously in Luapula, Muchinga and Northern provinces.

This was a follow up to the first round held in Central, Copperbelt and North-Western provinces.

Currently, Lusaka and Eastern provinces are having provincial conventions.

The Western Province delegates deliberated on 320 Articles of the Draft Constitution besides analysing submissions made by delegates at district level with a view to come up with their own resolutions.

Initially, the delegates formed nine thematic groups, with each working group given several Articles in the Draft Constitution coupled with district and vernacular resolutions to consider and then come up with their recommendations.

The thematic group resolutions were then put up for debate by all eligible delegates, resulting in the final Western Province resolutions.

The Western Province Constitution Convention drew participants ranging from secondary school pupils, persons with disabilities, senior citizens, faith-based and non-governmental organisations and members of Parliament, among others.

However, the delegates resolved to retain a majority of the Articles as they appeared in the First Draft Constitution.

On the amendments, it was resolved that Paragraph Six of the Preamble be amended to include children and youths so that it reads "confirm the equal worthy of women, men, children and youths...", thereby, upholding the resolution of one of the districts in the province.

Still on the Preamble, it was further resolved that two new paragraphs be included on the Preamble to provide for the Barotseland Agreement.

Recognise also and accept that the Barotseland Agreement 1964 signed between the Government of Northern Rhodesia, the Government of Barotseland and by Her Majesty's Government in the United Kingdom on the May, 18, 1964 is the basis of the unitary status of the Republic of Zambia"; and the resolution was the recognition of Zambia's origin as a Union of two territories Northern Rhodesia and Barotseland and upholding this historical origin.

The proposal by Mongu and Senanga districts to also include a paragraph recognising the Litunga as King of Barotseland was not upheld for the reason that it was not necessary to provide as such in the Preamble of the Constitution but in the definition section of the First Draft Constitution.

The proposal by Mongu delegates at the district consultative fora to delete the word "indivisible" from the eighth paragraph of the Preamble was also rejected by delegates at provincial level.

On Part II of the First Draft Constitution, it was resolved that Article 4 be amended by including the Barotseland Agreement in Clause (1) to read as follows: "Zambia is a sovereign State created at independence from union of two territories Northern Rhodesia and Barotseland as contained in the Barotseland Agreement of 1964. It consists of territory waters, and space described and delineated in an Act of Parliament."

The rationale was that, having recognised the origin of the unitary State in the Preamble, it was necessary for Article 4 to reinforce this recognition since the Article was on the Republican status of Zambia.

The provision as amended is necessary as it accepted, recognises and explains the origin of the unitary nature of Zambia which is the very basis of the existence of Zambia as a unitary State.

Including a clause that explained and integrated the Barotseland Agreement would enable the future generation to understand Zambia's background, especially the "unitary" concept.

The concept was needed to be understood from the perspective of the two nations, Barotseland and Northern Rhodesia, that joined together to form "One Zambia, One nation", hence upholding national unity and peace the country enjoyed.

On Part III of the First Draft Constitution, delegates recommended that Article 10 be amended by including in Clause (3) that labour laws shall strictly be assured and followed by investors besides the inclusion of a new Clause (6), spelling out seven things Government was expected to do to promote human development.

On Part IV (Citizenship), the resolution was that Clauses (1) and (3) of Article 16 be amended by extending the period of ordinarily resident in Zambia of an ancestor from three to 10 years in paragraph (b) of Clause (1).

Similarly, it was resolved that the period of a married spouse applying for citizenship be from three to 10 years in Clause (3).The Dual Citizenship clause (1) was upheld as it was stipulated in the First Draft Constitution in Article 18.

On Part V (Bill of Rights) of the First Draft Constitution, it was resolved that Article 28 be retained and thus the death penalty was upheld as was the case in the aforementioned document.

The resolution by four districts to amend Clause (3) by replacing the death sentence with life imprisonment was not upheld by a vote of 64 in favour of the death sentence, while 61 were against.

Among the reasons in support of the death sentence, for instance by Mongu Adolescent Reproductive Health Advocates (ARHA) executive director Cassandra Matale was that there was need to provide justice to the victims of capital offences and that life imprisonment would be at the cost of taxpayers.

Opposing the death penalty, Western Chapter Local Government Association of Zambia vice-president Kunga Kalimbwe argued that Zambia was a Christian Nation and that the Bible talked about vengeance being left to God.

United Party for National Development (UPND) Senanga Member of Parliament (MP) Likando Mufalali proposed that the words "which begin at conception" in Clause (1) of Article 28 in the Draft Constitution should be removed.

Mr Mufalali cited an incident in Ireland where a girl died, while pregnant because that country's Constitution could not allow doctors to terminate her pregnancy despite it posing to be a life-threatening risk.

Mr Mufalali said the Republican Constitution currently in use was better and was highly praised by several countries at a conference in Kenya because Clause (1) of Article 28 was clear and straight forward on termination of pregnancies.

He observed that other countries using a Clause with the words "which begins at conception" were basing it either on religion or beliefs.

It was also recommended that paragraph (d) of Clause (3) of Article 47 be amended by reducing the duration in which a judgement may be enforced by execution against the State from one year to three months.

It was resolved that paragraph (a) of Clause (1) of Article 58 be amended by inserting the word "free" at the beginning of the paragraph, thanks to submissions by persons with disabilities like John Siyubo, Joseph Sandu and Mukubonda Kashweka.

Another notable amendment on the Bill of Rights was on paragraph (c) Clause (2) of Article 65 by adding the words "and that this money paid, shall not be deducted from one's gratuity or pension".

On the electoral systems and processes (PART VI), the delegates resolved to maintain what was stipulated in the First Draft Constitution, with one of them being the 50 per cent plus one vote (Article 75, Clause (1)).

On Part VII (Executive), the resolution on Article 89 Clause (3) was to amend it by including two more paragraphs to"(f) Ensure appointments in the public service commissions and parastatal institutions promote and uphold national unity (there must be regional balancing); and

(g) Ensure that the distribution of development resources is nationally balanced."

As for Article 97, delegates declared that it be amended on paragraph (c) of Clause (1) by adding the words "for a period of not less than 10 years."

The resolution was arrived at following a vote which saw those in support of 10 years getting 73 votes, while the delegates in favour of 20 years polled 20 votes.

The rationale for the amendment was that a person who had lived in Zambia for 10 years would be in a better position to know the challenges the country was facing.

It was also resolved that Article 120 Clause (2) (a) be amended by adding the words "but shall ensure that there is provincial balancing in the appointments" to the sentence appearing in the First Draft Constitution.

In the same clause, it was recommended that it should include (b) with a sentence reading: "Providing the appointment of ministers be ratified by Parliament."

The delegates declared on Part IX (Judiciary) that Clause (1) of Article 185 be amended by reducing the retirement age of a judge from 75 to 65 years. The resolution was adopted by a vote of 56 in favour of the amendment, while 29 were for retaining the provision of the First Draft Constitution.

Similarly, the resolution on Article 190 Clause (5) was to reduce the retirement age of a local court magistrate from 75 years to 65 years, thereby upholding the resolution of one district in the province.

The rationale for that amendment is to pave way for young persons to take over as magistrates and manage the courts effectively and efficiently.

Another amendment was on Article 201 by incorporating the provisions of the Barotseland Agreement with regard to administration of Western Province.

The proposed amendment was adopted by a vote of 48 delegates in favour, while 29 were against.

The rationale is that the Preamble has been amended to incorporate the Barotseland Agreement and, therefore, its provisions should be incorporated where applicable.

Further, the Western Province Convention resolved that Article 203 be amended by including, after clause (4), the following provisions:

(a) In the case of Barotseland, there shall be established the Barotse National Council in accordance with the tradition of the people of Barotseland and members of the Barotse National Council shall also be members of the Provincial Assembly of Barotseland.

(b) The provisions agreed upon for inclusion in the Constitution of Zambia at the Constitution Conference held in London in May 1964 shall form part of this Constitution and shall have full force and effect in Barotseland.

(c) The government of Zambia shall take such steps as are necessary to ensure that the laws for the time being in force in the Republic of Zambia are not inconsistent with

the provisions of the Barotseland Agreement of 1964.

The resolution was adopted by a vote of 55 in favour with five against. The rationale is that the Preamble has been amended to incorporate the Barotseland Agreement and, therefore, its provisions should be incorporated where applicable.

Article 212 was amended during the Convention by providing a clause to read; "There shall be an office in each ward to enable people access the councillor and information".

The rationale is that ward offices are critical in the development of the country and should be provided for in the Constitution.

The delegates further resolved to amend Article 214 by providing a minimum of 21 years of age as opposed to 18 in paragraph (b) of clause (3), councillors reside in the ward they are contesting in paragraph (d) of clause (3) and that the councillors shall be paid monthly allowance and gratuity at the end of the term in Clause (6).

Delegates also recommended that Article 219 be amended by providing that the councillor who has resigned should not be allowed to contest any elections for a minimum period of 10 years.

This is to punish councillors who get elected and decide to resign from office before the end of their term, thereby, causing an expensive by-election.

Article 254 was amended by replacing the term "regularly" with "monthly" in Clause (1) and providing in paragraph (c) of Clause (3) that the name of the employee who has passed away remains on line payroll until after all the benefits are paid to the next of kin, thereby, upholding the resolution of one district in the province.

The rationale for replacing the word "regularly" with "monthly" is because the former is not specific and could mean after several months, therefore, subjecting the retiree to suffering.

As for the other amendment, the rationale is that the provision needs to expressly provide for the relatives for a deceased employee to be catered for in terms of payment of salary in favour of the deceased until after all the benefits are paid to avert suffering.

It was also resolved that Article 280 be amended by including a paragraph (g) which will provide for budget allocation to be shared equitably among all the provinces, thereby, upholding the resolution of one district in the province.

The move is to ensure that the national cake is shared equitably among all the provinces of the country to avoid some provinces lagging behind in development.

Further, it was resolved that Clause (3) Article 294 be amended to read: "The President shall through Lands Commission, Chiefs, local communities and local authorities, alienate land to citizens or non-citizen, as provided by this Constitution and by or under an Act of Parliament".

The rationale is that it must be mandatory for the President to consult all the listed parties and not only one of the parties in the process of alienating land. In this way, the provision would address concerns of local people who feel that land under customary law should be properly regulated and administered in consultation with all stakeholders so as to reduce land conflicts and mistrust.This is also to facilitate the devolution of power.

The proposal to include the Barotseland Agreement of 1964 in the above proposed amendment on account of making it consistent with the preamble amendment regarding recognition of the Agreement, was not upheld by a vote of 55 against the amendmentwhile 34 were in favour.

The third round of the Provincial Constitution Convention is expected to start on January 28 to February 2, 2013 in Eastern, Southern and Lusaka provinces. A National Constitution Convention will follow thereafter.

The Convention elected four people (two male and two female) to represent the Western Province at the National Convention.

Undoubtedly, the current Constitution-making process has embraced people from all walks of life from district, provincial to national level, but only time will tell if this will be the people-driven document the country has been yearning for more than the years.

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