The Constitutional (AMENDMENT) : Does it Settle The Constitutional Question?

By Wynter M Kabimba ODS, SC General Secretary, Rainbow Party

The Constitution (Amendment) Act No. 2 of 2016, came into effect on Tuesday 05th January, 2016, when His Excellency President Edgar Lungu assented to it at the Heroes Stadium in Lusaka. The day of assent was also declared a half working day by the government. This political gesture was intended to lend credence to the importance of the assenting process itself and also what the PF wanted to show to the public as a major historic achievement in the constitutional-making process which had polarised the country in recent years.

In order to put in context the Constitution (Amendment) Act No. 2 of 2016, it is necessary to delve into the history of the past constitutional review commissions since the Chona Commission of 1972, which ushered in the One-party state. Against the over-whelming submissions by the general public that they did not want a one-party state of government, UNIP went ahead to declare Zambia a one-party state through legislation (Article 4 in the constitution).

In 1990, President Kaunda appointed the Mvunga Constitutional Review Commission but the commission did not complete its work due to the wind of change sweeping across Eastern Europe and elsewhere demanding for multipartyism after the collapse of the Berlin Wall in 1989. Article 4 in the then Republican Constitution was removed and Zambia reverted to plural politics.

During the run up to the October, 1991 presidential and general elections which MMD won with a landslide, they promised to repeal the constitution and enact in its place a constitution which would sustain and advance democratic institutions of governance and human rights. This under-taking was followed by the appointment of the Mwanakatwe Constitutional Review Commission (1995).

Apart from the preamble which declared Zambia a Christian nation, MMD did not materially change or repeal the constitution. Instead, the constitution was only amended through the Constitution (Amendment) Act of 1996. The government white paper had rejected most of the submissions (demands by the general public).

In 2002, President Mwanawasa in another attempt to resolve the constitutional question appointed the Mung’omba Constitutional Review Commission. The government also enacted the National Constitutional Conference (NCC) Act which set out the road map for the constitutional review process. Failure by the MMD to marshal the two-thirds majority in parliament collapsed the whole process. It is important to make mention here that PF boycotted the NCC, arguing that the outcome was skewed to favour MMD which was represented by its MPs and civil servants in larger numbers than other groups of stakeholders. PF members of parliament who attended the NCC were subsequently expelled from the party.

During the 2011 presidential and general elections campaign and in line with its manifesto, PF promised the electorate a repeal of the constitution if elected into government. It also promised to have the constitution adopted through a national referendum without any White Paper while parliament’s role would be to enact the constitution only in accordance with the will of the people as represented in the national referendum. In order to show commitment to his promise, President Sata immediately after taking office in September, 2011, went ahead to appoint the Silungwe Technical Committee on Drafting the Zambian Constitution in October 2011.

The Silungwe Technical Committee was not supposed to under-take another constitutional review exercise at all. Its original policy mandate was to review the chronology of the recommendations of all previous constitutional review commissions and condense the common demands of the Zambian people since the Chona Commission and prepare a constitutional bill which captured the will and aspirations of the people. It was the view of PF that the people’s common constitutional demands were all already in the public domain.

Conscious about the growing culture of patronage on the part of the president and in order to save costs, the people had always demanded for a small cabinet with a strong parliament which would play an effective oversight role over the executive.

The voice of the Zambian people in all constitutional review commissions was loud and clear and, therefore, unequivocal. They demanded for active participation in governance matters and they abhorred the government practice of releasing a White Paper which substituted the views of those in power for their own. The demand for democracy was, therefore, a common thread.

From their experience under the one-party state, they wanted to see the president’s powers curtailed and hence control the abuse of power by one person. Conscious about the growing culture of patronage on the part of the president and in order to save costs, the people had always demanded for a small cabinet with a strong parliament which would play an effective oversight role over the executive. They also demanded for an accountable government with equality of rights of citizens to participate in its affairs without any form of discrimination. Overall, they wanted to be the source of political power and its legitimacy. PF had canvassed all these demands during election campaigns and promised to right all past wrongs when it assumes state power.

During his visit to Mansa in 2013 while featuring on a community radio programme, President Sata made a statement that the country did not need a new constitution because it had a functioning one already in place. This was Sata’s first public statement on the constitutional making process as president. However, after assuming office in January 2015, President Edgar Lungu made a public statement that the government was still committed to delivering a people driven constitution.

The statement brought great relief to the civil society movement and the general public. The civil society wanted to engage the new government on the roadmap which the remaining process would take after the release of the Technical Committee’s report. As a show of progress, the government produced the constitution (Amendment) Bill which was submitted to parliament for debate. The Amendment Bill was passed after a vote with amendments raised on the floor of the House.

On 06th January, 2016, one of the daily tabloids screamed a headline “Lungu makes history.” This was the day following the president’s assent to the Constitution (Amendment) Act No.2of 2016. Let me in the rest of this paper examine and outline the nature of President Lungu’s proclaimed history making. What has Edgar Lungu achieved which other presidents before him failed to achieve? Does his alleged achievement settle the constitutional question for Zambia?

In Article 8 of the Constitutional (Amendment) Act No.2 of 2016 (which I shall henceforth refer to as the “Amendment Act”), there is provided National Values and Principles which inter alia are: morality and ethics, patriotism and national unity, democracy and constitutionalism, human dignity, equity, social justice, equality and non- discrimination, good governance and integrity and sustainable development ( emphasis mine).

However, while as a citizen you are guaranteed equality and non-discrimination you are in the same Amendment Act disqualified to stand as president, MP or councillor unless you are in possession of a Grade 12 certificate of education or its equivalent (Articles 70 and 100). You also are disqualified to stand as president if you have dual citizenship (Article 100).For our traditional rulers (Chiefs), they are not qualified to stand as president or MP unless they abdicate the throne but they qualify to stand as councillors in a local authority (Article 168).

Democracy and constitutionalism have been imported into the Amendment Act as central to good governance. But they are immediately diluted and defeated by Article 81 which vests powers in the president to dissolve parliament which has a guaranteed term of five years if parliament does not objectively and reasonably carry out its functions. The president would easily do this with the support of the judges of the Constitutional Court whom he appoints. The principle of ratification of appointees by parliament in a democracy is intended to act as a screening process to protect public interest.

It is also one of the pillars of good governance. Under the Amendment Act, if the president’s nominee’s name submitted to parliament for ratification is rejected three times, the appointment shall nonetheless stand against the will of the people’s representatives (Article 95). Against the same values and principles of social justice and equity, opposition political parties can only access public media facilities during the time of elections (Article 50).

Whereas under the List System, the electorates vote for a party, candidates under the First-past the post system are elected directly. They derive their mandate directly from the people and such an MP is accountable to them. Under Article 72 of the Amendment Act, a member of parliament can after a successful action against his political party in the Constitutional Court regarding his membership decide to remain in the party as a member or resign but continue to sit in parliament as an independent MP.

Although the Amendment Act guarantees a citizen to exercise his /her political rights (Article 45), this is caveated by Article 51 which prevents such a citizen from standing in an election as an independent candidate unless one has not been a member of a political party for a period of at least two months preceding the date of the election. If one is a public officer he is disqualified from standing as MP if such officer had been removed from office for gross misconduct in the period of five years preceding the election. The removal from office may take the form of perceived political partisanship not favourable to the ruling party since it does not arise from a judgment of a competent tribunal or court of law (Article 70), and the president under Article 185 has powers to terminate the employment of a public officer.

Although the Speaker of the National Assembly is elected by MPs it is provided that a person shall not qualify to be elected as such if he carries dual citizenship (Article 82). But the Speaker may also be removed from office on a motion moved by one member of parliament and supported by only one third of the members. A subsequent resolution of two thirds of the members of parliament shall result in the suspension of the Speaker from office (Article 83). The Amendment Act does not provide for specific instances of gross misconduct. The ambiguity which goes with this provision greatly compromises the authority of the office of the Speaker in a democracy.

The battle-cry by all Zambians from the beginning of the constitutional making process which has culminated into the Amendment Act was that they wanted a people driven process and full ownership of the ultimate product. Public debates of this process took the form of district and provincial conventions and finally the national convention which was convened in Lusaka in April 2014. The Technical Committee accommodated the national convention although it was outside its terms of reference just to satisfy the public demand for a people driven constitutional making process.

It is, therefore, inconceivable that the people’s desire and good faith manifested through their active participation can be a product fraught with discriminatory and obnoxious clauses against the people themselves. That the people who have over the years decried excessive power held by the president can now decide to vest powers in the same individual to the extent that they can allow him to dissolve the National Assembly at will or appoint his cronys against their will to satisfy his personal ambition and interest for self-preservation.

If lessons could be drawn from history, we have seen how patronage both within the ruling party and more so in the opposition political parties can undermine democracy and the loyalty of individuals through appointments to government positions. A situation where most if not all opposition political party MPs evolve to become independent members of parliament in theory while in practice aligned to and voting with the ruling party in the House is a practical reality.

In this regard a one-party state flying through the back door of parliament with the ruling Party as its architect is not a bridge too far. Once again, like in all previous constitutional review commissions the PF approach confirms and highlights the class structure in our society between those who wield state power and have always used it for self interest and self-preservation against the poor and under privileged who in this case do not have the required minimum academic qualifications to participate in national affairs as citizens through no faulty of theirs but who constitute larger demographic figures of citizens than the ruling class. The Amendment Act in both letter and spirit is intended to entrench PF in power and ultimately undermine the tenets of democracy and the entire good governance polity.

No political party like the Rainbow Party which stands for the interest of the workers, peasants, students and other progressive intellectuals would herald the Amendment Act as a historic and progressive piece of legislation and render it its support.

In the words of the literary Nigerian writer “The Beautiful Ones are Not Yet Born”.