3 February 2016

Zambia: Understanding the Bill of Rights

analysis

From January 5, 2016 when President Edgar Lungu signed the amended Constitution, people have been digesting this important piece of legislation, which is the 'Bible' of the land.

While the amended Constitution, which has won accolades from a cross-section of society for its magnanimous inclusion of clauses such as the presidential running mate, the 50 per cent-plus-one vote and the dual citizenship, other contentious issues such as the Bill of Rights were not included as they are to be decided upon in a referendum before they become part of the Constitution.

President Lungu has already indicated that funds permitting, the referendum will be held side-by-side with the August 11 general elections.

A referendum is a direct popular vote on an issue of public policy such as a proposed amendment to a State Constitution or a proposed law.

In other words, a referendum is a process that allows citizens to approve or reject a law passed by the Legislature.

This entails that during a referendum, citizens are accorded a chance to vote for or against a law that deals with specific issues.

But a number of people might not know exactly what the Bill of Rights is and where the concept originated from?

A Bill of Rights is a declaration of individual rights and freedoms, usually issued by a national government.

The Bill of Rights sets forth and guarantees certain fundamental rights and privileges of individuals, including freedom of religion, speech, Press and assembly; guarantees of a speedy jury trial in criminal cases; and protection against excessive bail, cruel and unusual punishment.

The Public Order Act (POA), which states that anyone intending to hold a rally or any public gathering should notify the police a week earlier, is also contained in the Bill of Rights.

The Bill of Rights also incorporates other specific rights which are traditional in English Law, including the Writ of Habeas Corpus which protects against unlawful imprisonment.

Scholars have described the Bill of Rights as protecting three different types of human rights: Rights of conscience, including the freedom of speech and religion; rights of those accused of crimes such as the protection against excessive bail and fines; and rights of property such as the provision that no one may be deprived of property without the due process of the law.

As a fundamental guarantee of individual liberty, the Bill of Rights forms a vital aspect of law and Government. It establishes many legal principles that have had a decisive effect upon law and society, including the functioning of the criminal justice system, separation of Church and State and the exercise of freedom of speech.

According to the Jesuit Centre for Theological Reflection (JCTR) director Leonard Chiti, the Bill of Rights is very cardinal as it incorporates the Public Order Act and other fundamental rights such as the right to education, good health and the right to life.

Similarly, Foundation for Democratic Process (FODEP) executive director McDonald Chipenzi feels the Bill of Rights is an important piece of legislation which should be included in the Republican Constitution.

"The Bill of Rights is fundamental to Zambia's democracy and guarantees the human respect and dignity of all citizens," Mr Chipenzi said.

Historically, the concept of a Bill of Rights as a statement of basic individual freedoms derives in part from the English Bill of Rights, passed in 1689. This document, which was created after the Glorious Revolution of 1688, established the terms by which William and Mary were accepted as king and queen of England.

It forbade the monarchy to suspend laws, raise taxes, or maintain an army without consent of Parliament. It also declared that freedom of speech in Parliament could not be challenged, protected those accused of crimes from "excessive bail" and "cruel and unusual punishments," and provided a number of other privileges and freedoms.

Nearly a century later, seven of the 13 states of the newly independent United States of America (USA) also adopted a Bill of

Rights as part of their state constitutions, and the remaining six included elements of the English Bill of Rights in the bodies of their constitutions.

Virginia was the first state to adopt a Bill of Rights when it adopted the Virginia Declaration of Rights in 1776.

Drafted largely by George Mason, Virginia's declaration became a model for later state bills of rights and ultimately for the federal Bill of Rights and it remains a part of that state's constitution.

At the Constitutional Convention of 1787, the Framers of the US Constitution used the English Bill of Rights and state bills of rights as resources, as they sought to define the fundamental principles and institutions of the US government.

However, they declined to add a Bill of Rights to the Constitution, on the grounds that the Constitution itself provided adequate protection from intrusive government as it contained some English Bill of Rights, including Congress's exclusive power to maintain armed forces and, on the federal level, to pass laws and impose taxes.

During the Constitution's ratification process, from 1787 to 1789, state ratifying conventions pointed out the lack of such fundamental guarantees in the Constitution and submitted lists of proposed constitutional amendments.

The federalists, who supported ratification of the Constitution, eventually conceded and promised to attach a Bill of rights to the document.

Leading contributors to the creation of these amendments which came collectively to be called the' Bill of Rights' were George Mason, Thomas Jefferson and James Madison.

On September 25, 1789, 12 amendments to the Constitution were submitted to the states by the required two-thirds majority of Congress.

Two of the amendments which dealt with congressional pay and the appointment, or assignment, of congressional seats to the states were voted down by the states. The other ten amendments were ratified by December 15, 1791, thereby making USA one of the countries with the oldest constitution in the world.

With President Lungu assuring the nation that contentious issues will be put to a referendum during this year's polls, stakeholders are rest assured that the Bill of Rights will be part of the amended Constitution soon.

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