Why the Constitution Impasse?

THE Patriotic Front Government is not committed to protecting and upholding the popular will of the Zambian people with regards to the enactment of a new republican constitution. The current constitution impasse has exposed them for who they truly are.

Zambians have held a consistent position on the key governance issues they want changed in the constitution that are now referred to as contentious issues. They have consistently demanded for the introduction of social-economic rights in the bill of rights, the election of a vice president as a running mate to the president, overhaul of the electoral system to provide for a popularly elected president by a threshold of at least 50+1 of total votes cast and a system of representation that also caters for disadvantaged groups. The other issues are the appointment of cabinet from outside parliament, reduction in the powers of the president and of the executive arm of government, greater parliamentary oversight in the contraction of foreign debt among other issues. 

The statements coming from the President and his ministers on the constitution making process are uninspiring and inconsistent with what the Patriotic Front promised prior to the 2011 general elections. They have also lowered the quality of debate on the matter. In their party manifesto the PF committed to establish in consultation with stakeholders a Committee of Experts to review the recommendations of all previous Constitutional Review Commissions in order to draft and present a constitution which will reflect the will and aspirations of the people for submission to a referendum and subsequent enactment only, by the National Assembly. They have backtracked on fully fulfilling this promise and resorted to criticising the final draft which they have refused to make public leaving many Zambians disappointed, disillusioned and confused. 

The decision by the PF Government not to provide a legal framework for the current review process was the first indicator of their unwillingness to protect the aspirations of Zambians. Since 1964 and in subsequent constitutional review phases, Zambia’s governments have all used the Inquiries Act to appoint constitutional review commissions.

While the Inquiries Act can be used to establish commissions of inquiry on key and various matters that warrant investigation, it is a contentious piece of legislation when used to establish constitution review committees. The Act empowers the president to determine the terms of reference of review commissions and have exclusive right of access to and control of commission reports.

Under the Inquiries Act, the government reserves the power to accept or reject any or all recommendations from a constitutional review commission and make any other modifications. The accepted recommendations are published in a Government White Paper.

Critically, the method of review and adoption of the constitution under this Act allows the government to override the wishes of the people. The approach of mandating constitutional reviews using the Inquiries Act has historically been criticised by review commissions themselves and by civil society at large for giving the sitting president a monopoly on the work of these commissions. This approach has therefore been a major source of contestation for all constitutional reviews in Zambia, including the ongoing impasse with President Sata whereby he will not release the final draft constitution for public scrutiny and later on provide a road map for enactment.

For a long time now Justice Minister Wynter Kabimba has openly criticised the view of a majority of Zambians on the need to have a popularly elected president with a threshold of atleast 50+1 of total votes cast and that of a vice president who would be elected together with the president as a running mate. In his debates on the matter he has referred to a vice president as merely a ‘cholaboy’ (colloquial expression for a personal support person with no decision making function) for the President. Recently in Livingstone, Vice President Guy Scott remarked that there was nothing wrong with the current system of government where cabinet ministers were drawn from among the members of parliament arguing that Zambia would be copying from the United States of America by attempting to draw ministers from outside parliament without any justification.

President Sata has rubbished calls for the release of the draft final constitution which he has seen and whose copies are with his justice minister arguing that the country already has a constitution.  The statements from these senior government officials indicate clearly the issues that they are uncomfortable with in the final draft the technical committee produced out of a highly inclusive and consultative process with Zambians at all levels. It is clear that the PF government is opposed to the new draft constitution because it contains progressive clauses which may not allow them to hold on to power that easily. But what is power without legitimacy?

It is not up to President Sata or any of his ministers and party supporters to determine what is good for the Zambian people. In his own words, President Sata said during campaigns that only an inefficient President would take pleasure in governing the country using the current constitution. The two critical issues that will determine the stay of PF in power will be their performance with the economy and their success in enacting a new constitution consistent with the aspirations and popular will of the people. 

It is clear that the government is running out of excuses for stalling the constitution making process. They have pointed to huge costs implications and have criticised donors who has expressed willingness to fund the process of enacting a new constitution through a referendum. They have also claimed to have been unaware of the high poverty levels that a majority of Zambians lived under which relegated the need for a new constitution to much lower position in terms of government’s priorities.

Because the constitution making process has no clear roadmap, it is almost impossible to cost and the government have themselves issued conflicting statements on the costs and the road map in general some statements made at very platforms like church meetings by the justice minister.

The failure to have a progressive constitution has rendered our system of three legs of government very ineffective at rendering checks and balances in the governance process. The excessive powers of the president are evident in many instances such as the failure to have a substantive Chief Justice since the PF cane into power as the current acting office holder is in office in a manner many have described as unconstitutional.

The altercations with traditional leaders and the President also points to the need to have the president powers curtailed, including the appointment of people into diplomatic service without parliamentary oversight. Many former diplomats and Zambians who have travelled abroad have complained of the poor calibre of persons serving Zambia in the diplomatic service with recent remarks by Zambian career diplomat Vernon Mwaanga that the Foreign Service had become a dumping ground for political cadres.

Zambia’s six constitutional reform phases are as follows:

Phase one is the 1953 Federation of Rhodesia and Nyasaland (Constitution) Order that ushered in a Federation for ten years and gave impetus to the independence movements and Cha-cha-cha civil disobedience campaigns staged during the run-up to independence in Northern Rhodesia (1961).

Phase two is the 1962 Constitution, whose promulgation was engineered and concluded by an unrepresentative executive.

Phase three is the 1964 Independence Constitution, which provided for multi-party democracy with an executive president. It was designed to address the impending handover of the reins by the colonial administration but enshrined a rigid procedure for amendment, having been negotiated at the highest level with limited stakeholder involvement.

Phase four is the 1972 Constitution, which ushered in the one-party state whose process was perniciously executive-driven. The executive-led reforms essentially removed so-called entrenched clauses in the constitution in particular, and expunged the referendum clause required for constitutional amendments that impinge on the Bill of Rights and major provision requiring parliamentary majority.

Phase five is the 1991 Constitution, which re-introduced pluralism. The rushed process was mainly driven by the executive as a knee-jerk reaction to heavy civic demand for multi-partism.

Phase six is the 1996 Constitution, which consolidated the country’s embryonic multi-party system. This phase is acknowledged as the first genuinely broad-based consultative process, even though the executive through the cabinet intervened at the adoption of the constitution.

The seventh phase, which is on -going, started in 2005 under the administration of the then ruling Movement for Multiparty Democracy (MMD). The MMD initially presented a 14-step roadmap for constitutional reform spreading over 258 weeks, which was challenged by a CSO called the Oasis Forum, which in turn presented an alternative roadmap that spread over 71 weeks.

This later created a deadlock in the process and the MMD failed to get majority support in parliament to pass amendments. The process was legally thwarted in March 2010 and revived by the newly ruling PF in November 2011.