13 February 2013

Zambia: Hot Debates Characterise Lusaka Constitutional Convention

AS the country eagerly awaits the direction that will result from the forthcoming National Constitutional Convention slated for April 2013, most of the resolutions from the consultative processes at both district and provincial levels are very clear - the demand for a people-driven Constitution.

Despite few amendments made during the recently held provincial constitutional conventions countrywide, some of the most notable articles of the current Constitution as well as those from the first draft document have been retained.

Some of the articles that were retained by the Lusaka Constitutional Convention include the declaration of Zambia as a Christian nation, as contained in the preamble of the first draft Constitution.

Others are the upholding of the death penalty under Article (28) and the retention of Article (75) which provides for the 50 per cent plus one of the total votes for a presidential candidate to be declared duly-elected.

The preamble of the first draft Constitution in which Lusaka Province resolved to retain the declaration of the country as a Christian nation entails that the minor amendments made to the article now acknowledge the supremacy of God Almighty.

The first draft document states that 'Zambia shall remain a free, unitary, indivisible, multi-ethnic, multi-cultural, multi-racial, multi-religious and a multiparty democratic sovereign State'.

However, delegates at the convention resolved to amend the sentence by deleting the term 'multi-religious', arguing that the term contradicted the declaration, because it tends to leave room for unchristian practices.

One of the delegates, Senior Chieftainess Nkomeshya Mukamambo II of Chongwe argued that the nation has to be guided by Christian principles and that leaving the term multi-religious would necessitate unchristian practices, which are a contradiction to the declaration.

"The declaration of Zambia as a Christian nation means we place Christ at the centre of our activities, therefore, we need to uphold what he stood for. There are nations that have declared themselves as Islamic nations, and this declaration is upheld by all who live in these countries," she argued.

But Media Institute of Southern Africa Zambian Chapter representative Kellys Kaunda argued that Christianity is a personal decision and cannot be legally binding by having it enshrined in the country's Constitution.

However, Foreign Affairs Minister Given Lubinda and his Home Affairs counterpart Edgar Lungu, both supported calls for the retention of the article, stating that the declaration acts as a guiding beacon for the formulation of State policies.

In supporting the retention of the declaration, a delegate representing the Healthcare Christian Fellowship of Zambia, Gertrude Tshuma argued that the term multi-religious diluted the declaration.

She said maintaining it as contained in the first draft Constitution, is at the expense of promoting Christianity.

Other resolutions made were that elections to the National Assembly be conducted under the proportional representation system, as well as the retention of Part Four of the draft Constitution which contains matters relating to citizenship.

Article 18 of the draft Constitution, which states that 'a citizen shall not lose citizenship by acquiring citizenship of another country', was retained, with overwhelming debates among delegates supporting dual citizenship to be enshrined in the Constitution.

Under Article 28 of the draft Constitution, which provides for the right to life, the convention resolved to retain the Article in support of the notion that a person has the right to life which begins at conception.

Clause 2 of this article also states that 'a person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or any other law'.

Clause 5 of this article, which provides that a court shall not impose a sentence of death on a convict who is pregnant, one who is a child, or where there are extenuating circumstances relating to the commission of the crime, was also retained by delegates at the convention.

During the debates, one of the most contentious issues arising were debates on Article 296 of the draft Constitution, which provides for the definition of State land, an issue that was largely debated.

No meaningful resolution was arrived at, resulting in the article being deferred for a later stage after extensive consultations with the technical committee on drafting the Constitution.

Debating the article, one of the youngest delegates at the convention representing Kabulonga Boys High School, Tyson Mwanza supported the retention of the article as provided for in the current draft Constitution, because according to him, the article was explicit in the definition of State land.

Rising on a counter argument, Senior Chieftainess Nkomeshya Mukamambo II argued that there was nothing wrong with this article.

"This article is distinct on which land is under State and customary jurisdictions. Arguments tend to arise when there are minerals in land which is customary, in which case these minerals should belong to the inhabitants of that piece of land and, therefore, this land as well as the minerals should be retained under customary ownership.

"Therefore, this article should be retained as contained in the first draft Constitution, because it clearly separates what belongs to the people, and people's interests as regards land ownership should be protected," she argued.

But Resident Doctors Association of Zambia representative Dr Wyson Munga argued that any national resource should benefit all citizens of a country, and the only organ which can equitably distribute these resources is the State.

"If only one chiefdom is permitted to manage these resources because it is under customary land, what guarantee is there that these resources will benefit other citizens? We may end up with a situation where there will be some extremely wealthy chiefdoms at the expense of other citizens," he argued.

Other delegates proposed the complete deletion of the article, while others maintained that the article should be retained as contained in the first draft Constitution.

However, the retention of the death penalty generated massive debates, with delegates expressing divergent views.

One of the delegates, Father Gabriel Mwanamwele argued that the Bible was precise on the subject, making it clear that no human being has the rights to terminate another's life.

He said the fact that the country had resolved to retain the Christian nation clause meant that all tenets of Christianity such as the right to life should be upheld.

Fr Mwanamwele said retaining the article would be abrogating the teachings of the Bible and the declaration of Zambia as a Christian nation.

But a representative of the Islamic Supreme Council of Zambia Huzaifa Jada strongly felt that retaining the article to allow the death penalty would act as a deterrent to would-be offenders.

Mr Jada noted that the article poses no opposition to the declaration of the country as a Christian nation as it secures life for innocent citizens.

After intense debates on the matter, the convention resolved to retain the death penalty as provided for in the current draft Constitution.

The convention came to an end on Saturday night shortly after elections of four members in addition to the five nominated members to represent the province at the National Convention.

The elected members include a representative of the Islamic Supreme Council of Zambia Huzaifa Jada who got 28 votes, legal counsel Abraham Mwansa who scored 50 and two female delegates Deborah Taulo, a political science student, and another a legal practitioner Nelly Mutti, who scored 22 and 55 votes, respectively.

Others whose nomination to the National Convention was guaranteed by virtue of their positions include the chairperson for the Jesuit Centre for Theological Reflection, executive director Father Leonard Chiti and his vice Women for Change executive director Emily Sikazwe, and the provincial facilitator Mercy Miti.

Speaking during the closure of the convention, Lusaka Province Permanent Secretary Emelda Chola appealed to those elected to represent the province at the National Convention to diligently represent the aspirations of the Zambian people.

"This will demand that the representatives endeavour to extensively study the draft Constitution and accompanying report provided by the technical committee and be familiar with the resolutions made at this convention," she said.

Brigadier General Chola expressed confidence that the resultant deliberations of the provincial convention would go a long way in ensuring that the country attains a Constitution that would stand the test of time.

She said the level and extent of consultations that the Zambian Government accorded the public during the constitution-making process was clearly unprecedented.

"This, therefore, assures the people of Zambia that the final draft Constitution will embrace the many wishes and aspirations that the Zambians have for a long time desired,' she said.

Gen Chola said the assurance to have a people-driven Constitution should compel all well-meaning Zambians to commend the Government for adopting a bottom-up approach and committing financial resources to the constitution-making process.

However, it should be noted that not all resolutions arising from the provincial conventions will be captured in the final draft Constitution, as this process is entirely dependent on what other provinces have resolved on the various articles, and the eventual outcome of the National Convention.

But, whichever direction it takes, the aspirations of the Zambian people is clear - they want a durable Constitution, one that will stand the test of time.

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