People Driven Constitution

I like keeping political opinions to myself, but as a free citizen and a political observer, I tend to express my opinions every now and then. For this reason, my very last blog touched on the state of affairs regarding the leadership crisis in the MMD and today I discuss the constitution making process that has kept the nation talking for months (a couple of years it has been). 

The Constitution of Zambia is the supreme law of the country. It provides the legal foundation for the existence of the republic, sets out the rights and duties of its citizens, and defines the structure of the government. In the period since independence, Zambia has undergone four constitutional reviews. The first review in 1972 was the Chona constitutional review commission which brought forth a one party state while the Mvunga review commission in 1991 steered the republic of Zambia to a multi-party democratic state. There were to be two further reviews, the Mwanakatwe review commission in 1996 and the Mun’gomba review commission in 2005. 

The constitution being an important document, this time around most Zambians are entranced in the review and the entire constitution making process and will not want this opportunity wasted once again, considering the amounts of tax payers’ money so far spent. Should the People feel cheated and deprived of another opportunity for an inclusive constitution, they will not hesitate to use the only tool which they know that they can wield to register disappointment -the power of the ballot. 

I can candidly say that failure to deliver on the constitution is giving live ammunition to the opposition and all PF critics come 2016. 

When Levy Patrick Mwanawasa set up the Willa Mungomba constitutional review commission, most people knew it would be a long, costly and at times controversial undertaking. What many did not envisage was that the process would be so long and turned to comedy (animal constitution remarks) at some points. Above all, no one ever thought both men, Levy and Willa would not live to see the end of this process.

As a matter of fact, nine years after the Mungomba constitutional review commission handed the draft constitution to a body called the National Constitution Commission (NCC), the process seems as if it is yet to get started. No one knows the exact route to the enactment of this constitution. Along the way, there has been talk of a constituent assembly and a constitutional referendum, instead we have seen bodies in the name of National Constitutional Commission (NCC) and most recently the Technical Committee on drafting the new constitution but the majority of Zambians do not know what lies ahead of this process.

It was envisaged that this time around, there would be more transparency in the constitution making process with all groups of stakeholders constantly kept abreast of all the developments of the process. Many people had faulted the Chona review as having only had the mandate to introduce a one party state thus in many ways serving the wishes of very few individuals. The Mwanakatwe review commission was also accused by many of serving to advantage the MMD and disadvantage UNIP and Kenneth Kaunda in particular. It was for this reason that the general consensus in the country was that the Mungomba review commission needed to reflect the expectations, aspiration and hopes of as many Zambians as possible. The expectation was that in order to capture the wishes of most groups of people, the people themselves needed to be involved more in the whole process. The term coined was ‘people driven constitution’.

The end of a people driven constitution was expected to  have ideals espoused therein representative of the majority Zambians or at the very least representative of most demographic, religious, social, cultural and economic groupings in the country.

Alas the aspirations of the Zambians when the commission was set up are yet to be realized. In fact it seems our aspirations were buried with the visionaries who set this constitutional review process in motion. 

The Technical Committee on Drafting the Zambian Constitution was appointed on 16th November, 2011, by the President of the Republic of Zambia, Mr. Michael Chilufya Sata, using his executive powers vested in him by the current Republican Constitution. The Committee headed by judge Silungwe recognised that the constitution-making process is an important national issue thus involved diverse groups of people going as far as having sittings at district assembly level.

The committee has concluded the report which they handed to the government but there has been silence since. It is reported that they handed the report to the minister of justice who has now told the nation that the report is yet to go to cabinet before a draft constitution bill is tabled in parliament or whichever way forward cabinet will deem fit. However some stakeholders believe the lack of transparency shown by availing the draft report to cabinet only, jeopardizes the integrity of the whole process. In a country where the distinction between the party in power and the government is often a blurred line, many stakeholders do not believe the draft constitution will be released to the public in the exact form it was handed to the minister of justice. 

The draft constitution bill is yet to go to parliament

My view… my thoughts…

When the resplendent words of the Constitution and the Declaration of Independence were written by the architects of our republic, the people that fought against British colonization, they were signing a promissory note to which every Zambian was to fall heir. This note was the promise that all Zambians would be guaranteed the unalienable rights of life, liberty, and the pursuit of prosperity. In our constitutional democracy, the constitution is supreme, as such must not serve or be seen as serving the interests of a few people or certain groups of people to the exclusion of others. This has been the cry of many citizens and groups of citizens since 1991.

The route of coming up with an acceptable or people-driven Constitution has been a long one. I can safely say that Zambia started making attempts, some of them very costly, at developing a democratic Constitution, which meets the aspirations of her people as far back as 1991. 

In introspecting the country’s democratic experience since 1991, it seems a multi-party democratic system has brought forth intra-party and inter-party political intolerance and lack of inclusiveness that is threatening to overshadow the good aspects that a democratic dispensation brings. This can even give credence to the notion that a one party state gives a nation more unity, arguably the main reason that the Chona commission submitted in favour of a one party state. The truth is that the most liberal and tolerant nations are all democracies.

However, Zambia’s democratic journey must just keep on growing and perfected along the way and by having constitutional reviews that involve and are seen to involve as many people as possible we will be going on the right path. Through such processes we can get rid of bad laws and even precisely define such ambiguous pieces of legislation as the public order act. Institutions of government serving the ruling elite only (or are seen to) such as the Police, Drug Enforcement Commission and others must be truly reformed to give such bodies real constitutional power. Instead of functioning like one party democracy institutions, such bodies can be re-aligned and depoliticized to function effectively and provide the necessary checks and balances. The civil service and public media is included as some of the institutions affiliated to government but must be reformed to serve all Zambians regardless of political or ideological affiliation. 

In having a clear democratic constitution that outlines political and institutional boundaries, government and politicians will be made to adhere to the fundamental principles of democracy, respect for human rights, and in particular the right to choice (personal liberty) and, freedoms of expression, movement, assembly and association. Politicians cannot just use the police to stop people from assembling and in the process fire live ammunition at such people killing some, not only denying them a right to assembly and free expression but also the right to life without being answerable.

As many representative groups of people as possible must be involved in constitutional reviews resulting in constitutional amendment acts to see to it that we move away from a situation where everyone has rights on paper but not everyone has the actual rights in practice. 

The Constitution in its current form therefore fools the majority of people with a mirage of equality and lets them feed on a feel good euphoria far removed from the reality of their daily lives. We must be mindful of the cliché that the constitution is only a piece of paper. It only gains force when the people rise up in defense when it comes under attack. This defense of the constitution includes participating in review processes that enhance the unalienable rights of all.

Personally I do not believe that the 50+1 clause is the most important that we need to fix immediately and thus must be included at all costs. The primal issue in Zambia’s democratic dispensation today is the divide between the written rules and enforced rules. The division need not amount to an unbridgeable gulf. Even though enshrined in the constitution, the basic tenets of any democratic dispensation are not enforced but exist only on paper. In practice many people do not enjoy personal rights and liberties like freedoms of expression, assembly, movement, association and even privacy. If life can easily be taken away by another because one chose to attend a meeting that the other did not approve, then our democracy is a farce. This we must fix urgently.

Those who wield mastery over the country’s political power and in most cases economic power, need to learn to protect the rights of all. One man one vote, the rule of law, equality and a free press must not only exist in writing on one page and conveniently being outlawed by other pieces of legislation where in practice it is only the former which is enforced.  

I have discussed the death penalty and duo citizenship before and I believe these were progressive clauses in the Mung’omba draft constitution. Like many Zambians, I am in the dark as to the actual contents included or excluded in the final draft report presented to government no wonder the inertia I have exhibited towards discussing the constitution process even though it has crossed my mind a couple of times.