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Zambia:
Who Should Draft Its New Constitution?
Prof. Muna
Ndulo
January
03, 2005
http://www.africafiles.org/article.asp?ID=7606&ThisURL=./index.asp&URLName=HOME
George Kunda
is wrong: Article 79 (3) of the constitution does not pose any hurdle
to the adoption of the constitution by the Constituent Assembly.
One must always
tread carefully if one is to disagree with the country’s Attorney
General on the interpretation of a constitutional provision as one
assumes that the state’s top law officer gives very careful thought
to any legal pronouncements he makes, especially on such an important
topic as the constitution of the country. The statement attributed
to the Attorney General in the Daily Mail of December 7, 2004, in
which he is quoted as saying that Article 79 (3) of the constitution
poses a hurdle to the adoption of the constitution by a Constituent
Assembly, so troubled me that I felt duty bound to offer my comments
on the interpretation of Article 79 (3).
The Attorney General’s statement is incorrect and without any basis
in law.
Article 79(3)
in no way poses any hurdle to the adoption of a constitution through
a Constituent Assembly. Article 79 (3) provides for amendments to
Chapter 3 and in no way speaks to the adoption of a constitution.
The question of how a constitution should be adopted is a political
decision and not a legal one. Its characterization as a legal issue
is designed to mislead the public. The country could, through the
process of a Constituent Assembly, adopt a constitution that includes
amendments to Chapter 3. Adoption of a constitution is not the same
thing as enacting a constitution into law. While adoption describes
a political process of developing a constitution, enacting describes
a legislative process that only parliament can accomplish. In order
to abide by Article 79 (3) of the constitution, the constitutional
text developed and adopted by the Constituent Assembly should be
voted on and approved in a national referendum. Following the referendum,
Parliament would then enact the constitution into law and, by the
same measure, thereby amend Chapter 3. This approach would in no
way violate Article 79 (3) of the constitution. It is also possible
to combine this approach with amendments to provisions of the constitution
relating to the majority required for election of a President. This
part of the exercise can be done before the next elections, as it
does not require a referendum to amend. The constitution simply
stipulates a two-thirds majority in Parliament for such amendments.
There is sufficient
time to bring in a new constitution. South Africa, with all its
complexities, managed to develop both its 1993 and 1996 Constitutions
in less time than the Mwanawansa government is asking for. I worked
as political adviser to the United Nations Mission in South Africa
during the transition. It took roughly one year to agree on the
1993 South African constitution which was used for the 1994 elections
and slightly less than two years to develop the 1996 constitution.
Kenya is not an example of how long it takes to develop a constitution
or problems associated with the constituent assembly route but a
clear example of what happens when a government abandons inclusiveness
and decides to manipulate the process to achieve its own short-term
interests. The argument over the budget is neither here nor there.
When a state says that there is no money for one project over another,
it is making choices. The real question to discuss is whether the
state is making the right choices or not. In any case, the savings
that will accrue from having a durable constitution will be enormous.
This is what some would call the peace dividend. Having put constitutional
development of a constitution behind it, the country would begin
to concentrate on development and the building of effective institutions
of governance. In any case, in order to cut the costs of a referendum,
one could hold the referendum in conjunction with the 2006 general
elections. In several developed countries, voters are asked to vote
for propositions of one kind or another in conjunction with general
elections. It works very well.
I would strongly
urge President Mwanawasa and his government to put the interests
of the country above their short-term interests in the development
of a new constitution for Zambia. What is at issue here is the appropriate
organ for elaborating a constitution if it is to stand the test
of time. Once a constitution has been elaborated by the Constituent
Assembly, it of course will have to be tabled in Parliament to be
enacted into law. That is the process that was followed in South
Africa and Namibia. In both countries, after the Constituent Assembly
adopted the constitution, it was passed on to Parliament for enactment
into law. The development of a constitution is not about individuals,
nor is it about political parties. It is also not a matter for the
government in power alone to determine. It is a national issue that
should transcend all other interests and involve all stakeholders
at every level of the process. Zambia should not miss this golden
opportunity to develop a truly national and democratic constitution.
The country has had four constitutions in its 40 years of existence.
All four have proved seriously flawed from a good governance standpoint,
and have failed to advance democratic governance in the country.
Many in the country, especially civil society and the opposition
parties, have urged the government to go for a broad-based process
through a constituent assembly. Unfortunately, the President seems
bent on using the Constitution Review Commission and dictating every
stage of the process. In an inclusive process, the forum chosen
as the vehicle through which the constitution should be developed
makes all the decisions. When government makes the decisions, the
process is not inclusive. Government should realize that it is only
one of the stakeholders.
Zambians must
realize that economic recovery and political stability must begin
with a recovery of those values which are acknowledged to be the
true foundation of every human society. These values are, in turn,
the foundation of social creativity and democratic governance. Zambia
must establish a stable political and constitutional order that
promotes development and aids the eradication of poverty, hunger,
disease, and ignorance, while also guaranteeing citizens the rule
of law, as opposed to rule by law, and equal protection of the law
regardless of the citizen’s sex, colour, or ethnic origin. If Zambia
is to respond successfully to the needs of its people and realize
its dreams of rapid economic development and political stability,
it will have to apply careful thought to the proper organization
of political, economic, and administrative institutions to ensure
the proper governance of the nation state. The aim should be to
achieve a constitutional order that is legitimate, credible and
enduring, and which is structurally accessible to the people, without
compromising the integrity and effectiveness of the process of governance.
The Mwanawasa
government must realize that the process of adopting a constitution
is as important as its substance. The process must be legitimate
in order for it to produce a constitution that is acceptable to
all stakeholders, and represents the dreams and aspirations of all
Zambians. In order for the process to be legitimate it must be inclusive.
No party, including the government, should control it. It should
represent the interests of all the people in the country, and the
people must be made to feel that they own both the process and the
end product. A constitution should be the product of the integration
of ideas of all stakeholders in a country, including all political
parties both within and outside Parliament, organized civil society,
and individuals in the society.
Since independence,
the practice in Zambia has been to adopt new constitutions through
the used of "constitutional commissions." This is the
process, which Mr. Mwanawasa and his colleagues in government wish
to push down the throats of Zambians. This process has been tried
over and over, and it has not served Zambians well. The use of commissions
is susceptible to manipulation by the party in power, and always
results in the imposition of the government’s preferred constitutional
model. Matters are made worse by the common perception that such
commissions are often staffed by people sympathetic to the ruling
party. Moreover, with thousands of submissions, an average lawyer
could easily write, and find justification for, any submission made
to the commission. South Africa and Namibia stand out as countries
that have stable constitutions. Yet, both countries used the constituent
assembly model. The constituent assembly model ensures that, before
a country’s constitution is adopted, there are extensive consultations
with all the principal stakeholders in the country.
After a draft
constitution is elaborated, the next issue is how to approve and
enact it into law so as to give it maximum legitimacy. The procedures
adopted should not be the same as those that are available for ordinary
legislation. The supreme law of the land should have sanctity, and
should not lightly be subjected to amendment. It should be approved
in a referendum before its enactment as law by parliament. It has
been argued that the adoption of the constitution through a constituent
assembly or referendum is unnecessary, as the enactment of a constitution
is the preserve of the legislature.
Whether or not
the legislature has power to enact a constitution is not the issue.
The real question is: how do you ensure that the sovereign will
of the people, on which the edifice of democracy rests, is included
in the process of producing a legitimate, credible, and enduring
constitution. If anything, the process of consulting the people
strengthens Parliament, as it implies an unequivocal acceptance
of the fact that the people delegate Parliament’s powers to it.
The relationship between Parliament and the people can only endure
where it is recognized and accepted that the people are supreme.
Therefore, in matters of great national importance, such as the
adoption of a national constitution, Parliament must defer to the
wishes of the people who, after all, are the source of popular sovereignty.
I urge the Mwanawasa
government to rethink its position on the development of the constitution.
It should take a back seat and let the people decide on how they
want to develop their constitution. The people always know what
is best for them. It is a sign of underdevelopment that, forty years,
after independence Zambia is still grappling with the development
of a constitution. The country needs to put the question of a national
constitution behind it once and for all, so that it can get on with
the urgent business of eradicating hunger, disease and grinding
poverty that afflicts the majority of its people.
*Professor
Muna Ndulo is a graduate of the University of Zambia and of Oxford,
where he took his doctorate. On his return, he taught Law at UNZA,
finally serving as Dean of Law. An authority on African constitutional
development and human rights, he has held senior appointments in
South Africa, East Timor, Kosovo and Afghanistan. Currently, he
is Professor of Law at Cornell, and Director of its Institute for
African Development.
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