Sunday, 29 December 2013

All hope is not lost for new constitution in Zambia, but...



With signs so far, the Zambian government has tricks to stop the content of the draft constitution that unseats their interests from being included. However, the Technical Committee seems to know this so well and its members are not ready to be duped by those tricks


By Nyalubinge Ngwende

All hope is not lost for Zambia to finally have a constitution that reflects the desires of the people after 49 years of Independence, but threats abound as the technical committee constituted to write the document fights back government tricks to hijack the process and obliterate what for once could be Zambia’s best constitution.

Not long ago, Justice Minister Wynter Kabimba instructed the TC (Technical Committee) writing the constitution to print and sign 10 copies of the constitution for handing over to President Michael Sata.

The spokesperson of the committee Enerst Mwansa later issued a statement that the TC had refused to heed the instruction because it would be going against the terms of reference given to the committee. Mwansa asked the Justice Minister to arrange a meeting between the TC members and the appointing authority. 

One of the terms of reference President Sata gave the TC is that it is supposed to release the final draft of the constitution simultaneously to him and the general public.

However, Kabimba told the nation that Sata had directed that the committee signs and releases 10 copies of the document for purposes of handover.


Wynter Kabimba: Unclear motives rejected
The civil society is wary about the unclear motives behind Kabimba’s demands to have the TC only print the 10 copies of the constitution. There has been talk of concern among several church and rights activists who fear government may want to manipulate the 10 copies, sneak a white paper in which they might reject some new content in the constitution that PF leadership is not comfortable with. Based on the current constitution government still has power to do that and to take an obliterated document that suits its desires to parliament for adoption.  

What is more worrying are clear insinuations by the justice minister that the constitution is the programme of the Patriotic Front government and not every Jim and Jack, especially some few educated individuals who want to marshal their ideas, which are not the interest of many Zambians, into the new constitutions.

Kabimba has also appeared on national television Sunday Interview programme, saying that the constitution may not be adopted by a referendum as promised by the Patriotic Front during campaigns in  the run to September 20, 2011 elections. 

Instead he has insisted that the roadmap may determine how the constitution will be adopted, strongly hinting recently “if all Zambians will say they are happy with the constitution, then there will be no need for a referendum and parliament will adopt the document. Referendum for what if all the people say the constitution is okay”.

With this backdrop, the stance of the TC must be hailed to refuse to depart from the terms of reference, which is in this respect basis of law on which they were constituted. They are the learned lawyers and members of the civil society who have yearned together with common Zambians over the waste of resources on constitution making processes that have ended up being aborted or delivered a still-born document. 

On previous attempts to write a constitution, recommendations made by the commissions set up to review the existing one based on submissions made by the general public have ended up being thrown away by government.

It is for the fifth time since 1964 that Zambia is attempting to draft a new constitution, with four presidents of the five the country has had so far all committing huge resources to give the nation a constitution that would be widely accepted as reflecting the desires of the people. 

Just before the September 2011 elections, parliament refused to adopt a new constitution that was formulated under the National Constitution Conference (NCC), which the Patriotic Front then in opposition, the Catholic Church and a number of civil society groups refused to endorse. 

Sata as an opposition leader joined the Catholic bishops and several stakeholders condemning the NCC as a waste of money because it was not going to produce a good constitution that would stand the test of time. 

Among the major inclusions in the constitution that the opposition, the church civil society wanted to be part of the constitution were the majority electoral system of 50 +1 threshold vote for the presidency, election of vice president as running mate, dual citizenship, human rights bill as judiciable and a wide range of new laws to curtail the excessive powers of the president.  There was also a demand to remove the controversial clause that bars Zambians born to one foreign parent from seeking presidency and for the country to change the mode of adopting the constitution from the current provision of the National Assembly to constituency assembly or referendum.

Just coming into government after wrestling power from Rupiah Banda of the MMD, President Sata declared that he was going to give Zambia a constitution that would stand the test of time in 90 days, and went to constitute the TC.

By refusing to depart from its terms of reference to release the constitution simultaneously to the President and the Public, the TC shows that its allegiance is not to President Sata and Justice Minister Wynter Kabimba but to the people of Zambia. 

They know that the document they have authored is a product of reason collected from many Zambians and that cannot be compromised by narrow interests of particular leaders in the Patriotic Front. 

They know that at stake in the constitution, if Wynter Kabimba and President Sata, were allowed to have their way and by any blink of the eye among citizens change things, is the issue of 50 +1 electoral vote, proportional representation, dual citizenship and vice president running mate. 

President Sata has been personally heard refusing to support dual citizenship, sounding xenophobic in most instances when accosted by Zambians in the Diaspora to comment on the matter. 

Wynter Kabimba has not been so receptive on dual citizenship, 50 +1 vote and vice president running mate among other new clauses that were widely submitted during constitution consultative meetings held at district, provincial and national levels. If by mistake Zambians blink, there has been some unconfirmed reports that Wynter Kabimba is keen to see the Presidential term of office changed from five years to eight each, so that an incumbent has 16 years mandate instead of 10 of five years each. 

It is for this that Zambians must impress upon the TC not to accept to betray the 13 million people for the narrow interests of a few. Law, it is said, must be a product of reason of many than that of particular leaders.

NOTES
Peter Mpande writes:  the National Constitutional Conference Act is still in force and is the only process by which a new Constitution can be written lawfully. The Technical Committee is not appointed under that or any other law, nor are its Terms of Reference grounded in any statute. Therefore the terms of reference can be varied at will by the authority that created them, as there is nothing in those TOR that protects either the TOR themselves, or the Technical Committee, which is a creature of the President and government, not the law. That being the case, it is fraudulent for the Technical Committee, appointed by the PF government, to suggest that they now represent the will of the people of Zambia. They do not. The President could change the composition of the TC at any time and bring in people who will comply with his wishes. It is an illusion for the Technical Committee to pretend that they are somehow protecting the interests of the people at large. They owe their allegiance to the President who appointed them.