Analysis of the Bill of Rights’ Challenges in Zambia

Dr. Henry Kanyanta Sosala

PART I

Preamble

In the study of American history the name of James Madison quickly brings to one’s mind about the famous American Constitution of which he was one of the leading architects. And therefore to read and understand the mind of James Madison can sharpen one’s own mind and deepen the understanding the system of the American government.

The introduction of the Bill of Rights into the American Constitution faced a lot of opposition and in the book, The Study of American Government, the authors, Messrs. James Wilson and John Dilulio Jr., wrote on Need for a Bill of Rights: ‘’…… it quickly became clear that without at least the promise of a Bill of Rights, the Constitution would not be ratified. And the small states who were pleased by equal representation, quickly ratified. The battle in the large states was intense and the outcome uncertain. Alexander Hamilton argued the case for six weeks against the determined opposition, and eventually carried the day by only three votes..’’

And amazingly, the American democracy contrary to what most people believe is not the best after all. According to the 2019 Democracy Index compiled by the Economic Intelligence Unit, there are four ranks of democracies; Germany, France, the UK, Australia, New Zealand and the Nordic countries are all in the top category, along with one African country, Mauritius. America is in the second category of ‘‘flawed democracies’’ and is ranked as number three behind Japan and South Korea. The US joins five African countries, including South Africa, Ghana and Namibia in the category, which proves that those who said the US capital riots made America look like a third world country were right.

The Re-Introduction of the Bill of Rights.

It was reported that GEARS Initiative Zambia Executive Director, Macdonald Chipenzi was calling for serious advocacy for a referendum on the stalled Bill of Rights and a clean-up of the Zambian Constitution. And this is what brought me back to the 2004 Mung’omba Constitution Commission to which I had all along been one of the strongest opponents to what I believed to be an imperialist-driven Constitution. I had stated and re-stated over and over again that the foreign-engineered Mung’omba Draft Constitution could at best be described as ‘’the most deceitful document that has ever been produced in Zambia’s history of deceit.’’

It was only Professor Muna Ndulo, a US-based constitution lawyer who supported me and said that external actors should not impose their ideas on Zambians through the current draft Constitution. He said he was disturbed by the attitude of external actors that their ideas were always the best for Africa.

‘’Each country has its own problems which could best be handled by its citizens. I think the constitution-making process in any country should be owned by the people of that country. The Constitution is context-driven; you cannot take the American Constitution, the British Constitution and whatever and say it can work in Zambia. It is not like a fridge which you can take from here and say because it operates on electricity it can work in Afghanistan or wherever. No, it has to be context-driven. We are dealing with our specific problems and we have to address those. And I am also very troubled by the fact that often, external actors have this attitude that whatever they think of is good enough for Africa. So in my view external actors should focus on the process and not on the substance. They don’t understand the substance……’’

And he went on: ‘’In a recent article, Henry Kanyanta Sosala, the Chitimukulu of the Bemba-speaking people stated that foreign sponsors were pitting the rich minority against the poor majority through sponsorship of the constitution-making process. He further noted that the imperialist-driven constitution was tailored for the capitalist-exploiter to check and control the ambivalent movements by which the government would function, once their stooges would be in control.

‘’The Chitimukulu went on: ‘Daughters and sons of the soil, you can see that through this useless draft constitution; the foreign-sponsored groups are taking Zambians for a dangerous ride. It is a terrible sin to be robbing a people of their own livelihood as already stated in the Social Watch Report 2002 that Zambia’s poverty is a deliberate policy and then to begin to cheat them of their political birthrights to be a part of the process of choosing cabinet ministers. We are as it were, now fixed, frozen in an enormous block of ice. We are mentally immobile and at the mercy of any clique of exploiters that may appear on the horizon.’ Stated the Chitimukulu in his article that reviewed Zambia’s Constitution-making process. (The Post 25th August 2015).

Let me digress and refer to Social Watch Report 2002: ’’An international organization, the National Citizens’ Coalition reported: “When former President Chiluba took office from President Kaunda in 1991, the poverty rate was 56 per cent. When he left the government after ten years, poverty had risen to upward of 80 per cent. Large-scale corruption had diverted resources meant for the people of Zambia, while they watched in sorrow and desperation as their country headed towards becoming the poorest in the world. A characteristic feature of Zambia’s poverty is that the government and the international institutions bred it. Zambia’s poverty did not just happen; it was caused…..Former Chiluba’s government was the most corrupt in the history of this country. Resources that should have been used to improve the people’s quality of life were misappropriated in grand corruption episodes..” (ibid. p. 176)(emphasis mine)

And here is The Posts’ editorial comment on NGOs: “… the civil society, for more than four years remained largely silent on corruption. And when some members of the public spoke on this issue, it was often an attack on those who were making the most humble contribution to this fight and not against the thieves. In short, they were defending corruption.” (ibid., 20th September 2006).

And this is exactly in line with what a well-known mercenary, Simon Mann wrote in his book ‘’Cry Havoc:’’ ‘’In fact there are many powerful agencies and people or the world’s major governments who don’t want democracy in Africa. Political and stability are simply not in their interests. Democracy and stability would mean trade regulations and transparency. The G8 nations would find themselves dealing with an African version of OPEC. It is cheaper, more straightforward to deal with corrupt dictators or rebel groups desperate for money.’’

When I was Chief Mpepo, in Mpika District, Messrs. Mike Mulongoti, Mbita Chitala and Cleaver Sikasote visited me and during our discussion as we touched many issues, they got interested on my strong negative views on the Bill of Rights and promised that they would like President Mwanawasa to hear from me. And indeed I did travel to Lusaka and wrote a paper for the President.

On the Bill of Rights, President Mwanawasa wrote: ‘’The Mung’omba Constitution Review Commission held that we should amend Part 111 so as to provide for the rights to employment; the right to food; the right to education; the right to shelter; the right to good health and so forth as justifiable rights. I mentioned that nowhere in the world has any government provided 100% entitlement to these rights and when you make them justifiable in your Constitution, it means every law-abiding President must offer to resign as failing to defend and uphold a Constitution each time a citizen cried that he has no employment or that he has no education or that he has no shelter etc., this would result in government changing so frequently and the nation would be subjected to high expense of holding by-elections each time a government resigned.’’ (Zambia Daily Mail 4th June 2007).

It is quite clear from the above why there was opposition to the Bill of Rights even in the USA. However, the western countries have cushioned the unemployed by paying out what is called social security payments or dole money. On the other hand, in Libya under President Gadaffi regime they built houses for the poor citizens. And it is only the South African government that has through Reconstruction and Development Programme (RDP) built about 3.2 million houses for the poor as part of the government-funded social housing project.

Macdonald Chipenzi as a ‘’governance expert’’ must have known the implications involved in the Bill of Rights or at least could have read President Mwanawasa’s concerns. But it is really a terrible addiction to money that would really induce a person to deliberately subject his motherland to such strategy of confusion that could lead to bloodshed and loss of life? Anyway, according to former Finance Minister, Ng’andu Magande, the money given to NGOs was not properly accounted for and the donors don’t ask how and where it had been taken. (Zambia Daily Mail 21st June 2007). However, it was the former South African President, P.W. Botha who hit a nail on the head when he said that the white man would continue to use the African’s insatiable love of money to destroy himself. ‘’Here is a creature who lacks foresight.’’

It is said that the world is three days, i.e., yesterday, today and tomorrow. And if you do not know yesterday; you won’t know what day today is and certainly tomorrow will take you by surprise. And President Mwanawasa realized that in order to chart a new course for the nation, it was imperative to learn from the mistakes of the previous governments. The experiences we go through whether as individuals or as a nation and no matter how good or bad certainly add value to our lives or the nation. We had surely lost our assets through privatization, but should we just stay-put! President Mwanawasa wanted to chart a new and viable course for this nation.

In 2003, President Mwanawasa called the National indaba and invited the top-cream intellectuals of our society. And admittedly, we have within most NGOs people with the best brains, but unfortunately they are given programmes by their funders on strategies. And as a result, they are boxed in a coffin-like narrowness of vision and thereby suffocate their creative imaginations.

And according to Gazette No. 587 of 2003, the majority of the participants were drawn from NGOs. And unfortunately even at the Indaba they had been instructed to cause confusion so that it would end up in failure. And one of the lawyers in attendance reported: ‘’What we saw in the Indaba is that decisions were made through mob psychology. Those who shouted the loudest carried the day.’’ (Zambia Daily Mail 9th December 2003).

On the other hand, the civil society groups which had lamentably failed to come up with an ‘’economic road-map’’ at the Indaba, eventually received the ‘’Constitution road-map,’’ from their funders, with well blinding psychological slogans like, ‘’People driven Constitution’’; ‘’Constitution is Zambia’s backbone’’; ‘’People’s Constitution’’; ‘’People have spoken and Mwanawasa must respect the will of the people.’’ A Catholic priest, Father Joy Komakoma had even the audacity to declare that President Mwanawasa should be prepared to take responsibility for the consequences if the ongoing consensus efforts fail. He said that the current consensus building initiative was the last option or else, President Mwanawasa would have to deal with Zambians directly. (The Post 1st December 2004).

I have carefully studied the UPND manifesto in order to help me to identify how I can effectively assist the people in developing our areas. And I have also advised PF councilors of both Kasama and Mungwi to carefully look into the UPND manifesto so that they can deliver development to the people and not only continue to engage in cheap politics of unnecessary criticisms. My simple advice to the new administration is: you focus on your manifesto and then focus on your focus.

(TO BE CONTINUED)