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Zambia: Who Should Draft Its New Constitution?
Prof. Muna Ndulo
January 03, 2005

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 countryís Attorney General on the interpretation of a constitutional provision as one assumes that the stateís 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 Generalís 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 citizenís 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 governmentís 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 countryís 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 Parliamentís 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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