Building vibrant and tolerant democracies
For even the most intrepid reader, Zambia’s latest draft Constitution – at a whopping 273 pages – is quite daunting. And while it is not exactly a thrill-a-minute page-turner, its redeeming quality is that it integrates many of the recommendations that were removed by the authorities during previous reviews because they threatened government hegemony.
And for those who ploughed through all the earlier versions, they must be hoping that these are the last 273 first draft pages they ever have to read – because this will be Zambia’s fifth attempt at trying to draft a constitution that will be popularly accepted and ‘stand the test of time’. The previous attempts failed mainly because there was opposition to government vetting the recommendations and not allowing a national referendum on the final document.
President Michael Sata’s Patriotic Front (PF) party along with civil society organisations and opposition parties boycotted the last constitutional review set up by former president, Levy Mwanawasa. This time around, Sata says the process will be ‘people driven’.
The Technical Committee of Experts on the Constitution set up last November came up with this first draft based largely on recommendations from the 2005 Mungomba review, which is deemed to have been the closest reflection of the aspirations of Zambians.
According to the official road map, the current draft will be discussed at community, district, sector and provincial levels before the committee reconvenes to consider all the comments that have been made. The second and final draft will be validated by a national convention and then – by September – handed over to the National Assembly for enactment without amendments and without going through any edits by cabinet.
The draft Constitution addresses some of the most contentious subjects regarding governance, like the 50% plus 1 vote for the election of the president, which has been a sore point in almost every Zambian election. Indeed, there has not been a majority president since the 2001 elections – with Sata taking office last year with just 43 percent of the vote.
There is also a provision for an elected vice-president with the president and VP being elected on a single ticket.
The issue of citizenship, which has been used by politicians to ‘fix’ opponents, has been clearly dealt with: any person born outside Zambia is a citizen by descent if, at the time of birth, at least one parent is a citizen. Interestingly, presidential candidates can now be citizens by birth or descent – hopefully preventing any repetition of previous attempts to impeach former presidents Kenneth Kaunda, Frederick Chiluba and Rupiah Banda for allegedly being ‘foreigners’ because one of their parents was not from Zambia (or Northern Rhodesia as it was called back then).
Dual citizenship will also be allowed but holders will not be eligible for election as president. Zambians who in the past lost their citizenship by taking up another will be free to apply to regain it. This recommendation was strongly lobbied for by people in the Diaspora and has been welcomed by Vice President Guy Scott, although not by everyone in government.
To enhance the separation of powers, the draft proposes that Cabinet ministers be appointed from outside the National Assembly, while political parties with representation in the National Assembly will be funded from the public purse. There is also a provision for the setting up of a Constitutional Court.
The draft broadens the Bill of Rights to introduce more rights for women, children, youths, people with disabilities and older members of society. There is also a wider provision for people’s participation in governance, constitutionalism and the rule of law.
However, while the document is popular, there will be much debate around some of the clauses.
Take for example the preamble which re affirms Zambia as a Christian nation with a tolerance for other religions as long as they abide by the tenants of Christianity, which other religions clearly cannot do. This promises to be a particularly emotive issue – and not just for non-Christians. The Catholic church has historically fought for the clear separation of church and State and is opposed to the preamble. But its complaints have been drowned out by the increasingly strong Pentecostal movement, which has strengthened its influence ever since the born-again Christian, Frederick Chiluba, became president. Needless to say there will be a spirited attempt from civil society and ‘non-state’ religions to remove or amend this clause.
The inclusion of economic and social rights is another bone of contention. It places a legal obligation on the government to provide services such as roads, schools and economically empowering policies such as the Citizen's Economic Empowerment Fund. Successive governments have thrown this clause out because they have no confidence in their resource-poor ability to fulfill this obligation. And they have feared that the expectations raised by this clause would lead to a repetition of the public protests that have become a popular – and very effective – way of demanding the enforcement of these rights in South Africa.
However, civil society is adamant that the government should be forced to prioritise schools, roads and other socio-economic rights, while HIV and AIDS activists are advocating for the right to access to treatment be enshrined in the constitution. While there will be a tough fight, this clause is likely to be toned by government to make it more of a progression to social and economic rights, rather than an all-out establishment of those rights.
Another clause that has reappeared is the provision for independent and free electronic, print and other types of media. This recommendation dovetails with the Information and Broadcasting Authority Act, which is awaiting implementation, and the Access to Information Bill, which is going to be enacted by parliament this year. Together these pieces of legislation will fulfill the desire for a free media, but like economic and social rights, this one might not go down well with the authorities. Already the PF government has warned that it will clamp down on some private and online media because of their perceived anti-establishment stance – so the media will have to fight hard to ensure that this clause survives in the Constitution and is probably adhered to in practice.
There are other clauses that appear out of kilter with the progressive character of the draft. The major one is the excessive powers vested in the president.
The draft recommends that the president appoints members of the Local Government Service Commission, the Judicial Service Commission, the Emoluments Commission, the Electoral Commission of Zambia, permanent secretaries and heads of parastatals (including the state owned media). In addition, the president has the power to appoint the Attorney General, the Director of Public Prosecutions (DPP), the Solicitor General and all the ten Parliamentary Secretaries as well as the President of the Constitutional Court. This provision raises serious questions about the separation of powers and the need to provide independence and autonomy for these organs of government.
A clause that is also likely to be redrawn is the proposal to have a proportional representation system of election for Parliament. Already submissions coming in suggest that people would much prefer a mixed system where a percentage of the seats are determined through the proportional system while the majority are still elected directly.
One other issue of interest is the draft Constitution’s silence over the Barotseland Agreement of 1964, a matter which boiled over last month and is yet to be resolved. The draft merely states that Zambia is a unitary state and will remain so – a clause that is not going to sit well with people demanding a federal state, particularly those in ‘Barotseland’ who feel they Sata promised them a new deal during the elections.
There are other critical questions which have not been clearly stated in the draft like how government will manage public finances and decentralization, but as chairperson of the commission Annel Silungwe said, this is just the first draft whose recommendations can be accepted, rejected or amended. He urged people “not to feel bound, constrained or ordered to think and react in any particular manner.”
But the real question is whether the PF government will stick to its word and let the people of Zambia decide. Previous governments have been unable to stop themselves from intervening. But if the PF does remain true to its word then Zambia could finally end up with a new people-driven constitution to be proud of.ShareThis