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PARAPHRASING THE ALTERNATIVE VIEWS ON THE NCC DRAFT CONSTITUTION Preamble

mulenga_kaelaLet’s begin by agreeing that – the whole purpose of having a Constitution is for it to act as bedrock on which a democratic, fair and progressive society can be built.

In our case [Zambia] –since such matters as: – tribalism, presidential elections, concentration of powers in the Executive, judicial and land reforms are still problematic – we are far away from fulfilling the yardstick.

Ours therefore, remains a work-in-progress because:

our elections are not yet completely free and fair; our judicial and electoral commission systems are not yet independent;

and that the acquisition of land and property rights continues to be fuzzy. 

Unless we sort all these things out, we cannot consider ourselves to have produced a constitutional document which can stand the test of time. 

My small input in this process therefore, is nothing but to complement to what has already been presented by other, more eminent people and/or to endorse popular views circulated in our local media, blogs, Talk Radios, discussion groups and the like.

 To come up with this story, I glossed through a lot of this material. But I take full responsibility to the interpretation, opinion or anything that is contained herein. The conclusions I have made on the National Constitutional Conference (NCC) Draft Constitution are mine.

I must however, recognize that I relied on comments and feedbacks I got through Zambian Economist and UKZAMBIANS – the later for which I am one of the Columnists. 

The Process Our neighbors in Kenya are beaming with glow that their Draft Constitution has been voted on by people and passed the referendum test. By all means we have to emulate them. Our process has been, to say the least, bumpy. Even though we have had many attempts among them – Chona, Mvunga, and Mwanakatwe Constitutional Review Commissions (CRCs), we are not there yet.

These CRCs have culminated in the latest Mung’omba Constitutional Review Commission, which the NCC has been dissecting to come up with theirs, the one being debated now. When National Constitutional Conference (NCC) was being set up – engineered by the late President Levy Mwanawasa, some quarters in the civil society, Churches and notably Patriotic Front (PF) – were opposed to the move. The rejection was based on two reasons.

They felt that not only that the Mung’omba CRC was drawn from peoples’ views, which it had gathered by going around the country (therefore reflecting the public opinions) – NCC sittings would not in any way be representative. This is especially so, because some of the important stake holders had boycotted the process.

PF for example, was staunchly opposed to NCC, for in their view, NCC was regarded as a tool for the ruling party MMD for rigging the upcoming 2011 elections. They also argued that – NCC would be an unnecessary expensive exercise. And it may just prove to be so, if the adoption of the constitution ends up going through a referendum. In spite of all these complaints and reservations, the work of NCC proceeded as envisaged by Mwanawasa, which has ended up with a final product – the Draft Constitution to be tabled to the Parliament by NCC as soon as public debates are over. One had hoped that some of these flaws would be addressed first. Where we are now is that – the forty days (40) allotted to the gathering of peoples’ views is over. Several corners among them – the Catholic Church, General Godfrey Miyanda and many others, have complained that it has been impossible to collect all peoples’ opinions. Hence, they argue, one cannot come up with a progressive, people-driven document.

This implies that the process itself has been intentionally designed to short change public views. For sure rushing through is not helpful. Besides, copies of the NCC Draft Constitution have not been readily available to the ordinary people. There have also been no translations into the local languages. Thus, any adoption of a constitution which is not grounded on the majoritarian principle could render the whole thing illegitimate and therefore, a recipe for total rejection by the people. One other drawback pointed out, has been that somehow – NCC Secretariat has deliberately ignored to define the process of deliberations itself and how those submissions would be considered by them. Since NCC is silent on this one, no one knows for sure where their submissions would end up. Should many of those submissions fail to reach NCC corridors – since Mr. Chifumo Banda is perceived to be pro-MMD, then the whole process would in fact be deemed to be MMD orchestrated and therefore partisan.  And because MMD has a majority in Parliament, passage of any Clause which is not in the interest of MMD, would fail. This would be shameful, because it would render the whole process a failure – necessitating going back to the drawing table again. Although the 40-days period is gone, I suspect that the input from the public has not been as overwhelming as NCC imagined. I hope I am wrong here. But since NCC is still reconvening and discussing whatever little feedback they got from people – that is why I wrote this piece. I must admit that – my contribution has been motivated, as a Diasporan, by Article 29: [1] & [2] dealing with Dual Citizenship. This is a progressive insertion because it would make life a lot easier for those Zambians residing in the Diaspora.

These people (living abroad) would be able to partake in the development of their beloved country. But please do not count me as one of those who thinks that – the tinkering of the constitution involves a scheme to bar any Zambian in the Diaspora to compete for Plot No. 1, as Prof Clive Chirwa put it in his submission (June 30, 2010). Process Flaws According to the survey of views discussed and published on Zambian Economist (see www.zambianeconomist.com)  – while many people agree that the NCC Draft Constitution is not void of good Clauses, it however, also contains a lot of contradictions and could be a nightmare for future constitutional lawyers. They contend that, in some cases, its interpretation would be difficult if not impossible. This problem is compounded because we feel that NCC did not follow a constitutional-making set of principles.

One of those principles stipulates that: – a constitution outlines only major constitutional principles then explains different cases and situations in which those principles apply. Thus, once templates are set or designed, then subsequent future judgments based on it becomes an easy matter of simply trying to fit cases into those templates. That NCC did not follow this line of thinking, is explained first, by a constitutional legal expert – Prof Muna Ndulo. Ndulo is quoted as having said that: – “NCC gives an impression that it has little understanding of the functions of a constitution. Its slash and burn policy on the Mung’omba appears to be uninformed by an understanding of what must be in the constitution and what maybe relegated to legislation”. He went on to say that – apparently, “NCC had very little understanding of the dynamics and relationships between institutions and procedures”. [See Zambian Economist, July 16th, 2010]. Ndulo’s philosophy was echoed by the Catholics Bishops, who in their message of rejecting  the NCC Draft Constitution  among other things, said: – “…the issues that have been provided for in the Draft Constitution are in most instances matters which can easily be provided for in subsidiary legislation while retaining only the fundamental principles in the constitution”. [See The Post, July 21, 2010]. An example of this is – Article 212 [2] e) and f), which respectfully state that – ‘the objectives of local government are to: establish for each District Council a sound financial base with reliable and predictable sources of revenue; and ensure accountability of the District Councils’. Must a constitution involve itself with these micro details? Including all those purely legislative details, is the reason some argue that the Draft is too bulky. Article 33, also states that: – ‘A citizen shall; a) be patriotic and loyal to Zambia and promote its well-being’. This sounds like Stalin’s prescriptions for Russia. 

Contradictions/Major Concerns Apart from the NCC Draft Constitution having failed the – “principles test”, let me now provide examples of contradictions contained therein and touch on other cases of major concern. Article 40 talks about Right to Life. No. 40 [1] says – Every person has, subject to Clauses [2] and [3],the right to life – which begins at inception. Clause [3] states that – a person shall not deprive an unborn child of life by termination of pregnancy/except in accordance with the conditions laid down by an Act of Parliament for that purpose. This in essence is criminalizing birth control (the pill) and abortion. But then if at the same time an Act of Parliament has the power to nullify (exceeding constitutional law), as expressed in Article 40, Clause [1], this also poses a contradiction. In addition, Article 48 [1] talks about: Protection from Discrimination on grounds of race, tribe, sex, etc…Clauses [1], [2], and [3] put together, apart from its failure to satisfactorily define discrimination – they contain some contradictions. Contradictions element become clearer when you relate them to Article 52 Clause [5] – which prohibits same-sex marriage. You either constitutionally forbid discrimination or you don’t. There should be nothing in between. 

Although personally, I am not in favor of homosexuality and gay marriages (primarily because this is a road to human species extermination) however, in a constitution the spirit of one article should not be wrecked by another. When considering the protection of individual rights – we must also note that sometimes it is important to protect minority rights against the majority bashing. Article 55 [1], [2], and [3] tackles – slavery, servitude, or forced labour. Energy was spent on defining what is not forced labor, but silent on what it is. Yet ‘casualisation’ a common phenomenon in Zambia, remains as a huge loophole which foreign firms can use to exploit our cheap labor. Otherwise if this is not tightened, potentially our people can end up as indirect slaves in sweat shops, on farms and mines. A final illustration of contradictions is found in Articles 212, and 214. While Clause [1] of 212 says: – ‘There is hereby established a system of local government that should be based on decentralization’; Clause [1] of 214 on the other hand, states that – ‘The Republic of Zambia shall be divided into districts as may be specified by or under an Act of Parliament’. That is, the two in fact cancel out each other. Namely, decentralization the goal of Cause [1] of 212 is usurped by the determination of it by an Act of Parliament, since Parliaments usually remain under tight control of Central governments. Decentralization is killed if power remains at the centre. In addition to the above contradictions, there could be others – but these are the ones I thought were not trivial. 

Regarding other matters which I think are of major concern – top on the list should be the fifty-one percent plus one (50% + 1) as articulated by Guy Scott in his Post article of July 7, 2010.

Scott observes that – NCC recommendation on the 50 + 1 is toxic, because although the 50 + 1 Clause still appears in the NCC Draft Constitution precisely as laid out in the Mung’omba Draft [Articles 79 and 110] – he believes it is there only because NCC failed to garner the two thirds (2/3rd) votes, as stipulated by NCC Act to change it. That is, although the NCC voted in majority to try and soften the 50% + 1 as the wish is for MMD – the lack of 2/3rd implies a call for a national referendum, if we are to obey the law. That would be not only a monumental task, but is the only way to establish a democratic state. Guy Scot speculates that – the only way 50 + 1 appears intact, is because to a not so careful observer, this would give an impression as if in fact the 50 + 1 has been amended. One has to read between the lines.

The punch line here is that – I do agree with Scott that: i) the ambiguity on the 50 + 1 clause must be removed from the NCC Draft Constitution to enhance its credibility; and above all ii) we should not tamper with Mung’omba Clauses. If it is included, it must carry the full force expressed in Mung’omba CRC.  After all, the election of a President on a majoritarian principle has been our goal all along. Commenting on the same issue – Fr. Peter Henriot of JCTR (see The Post, July 13, 2010), went as far as reminding Pres Rupiah Banda (RB) of the advice he gave to Zambians during the visit of Brazilian President. At the time RB was encouraging Zambians to emulate Brazil by adopting a 50 + 1 principle as Pres Luiz Ignatio Lula da Silva did in 2006. Indeed, the fifty percent plus one would strengthen our democratic process. Whether Banda meant what he said is another matter. By accepting the 50 + 1 just as it happened in Brazil, means that potentially there could be a runoff, if nobody wins in the first round. This possibility was elaborated upon by the Mung’omba CRC. If one may ask – why should we be afraid of a strong democratic principle in our presidential elections? When it comes to Article 108 – a lot of discussions have taken place.

This article deals with the qualifications of Presidential candidates. Setting a bachelors degree as a minimum academic qualification for candidacy – apart from the clause appearing to target certain individuals, it violates the spirit of anti-discrimination objectives set up in some other clauses of the Draft Constitution. To be sure, it is elitist. We must try to be as democratic as possible. Because Michael Sata of PF, the strongest opposition party, does not have a degree – people would be sympathetic to him if he cries being discriminated against. The perception that the clause may be targeting him makes the Draft Constitution appear unnecessarily partisan and parochial. Indeed, other Zambians, who feel that they’ve leadership skills and competent enough to lead the country, would also feel discriminated against. Moreover, political history is littered with many non-degree holders who were successful in providing leadership for their countries. Sir Winston Churchill is one such example. We’ve to accept that sometimes, leaders ‘are born’ and not made. As one Chipata Chief burst out when commenting on the issue – “…there are a lot of degree holders who are at the same time idiots”. President Kenneth Kaunda (KK), founding father of Zambia Nation was not a degree holder before he stepped on the seat. He did well. 

Also the 10-year residence requirement {Article 108 [1] c)} – that, to qualify as presidential candidate one must have resided in the country for a continuous period of ten years, is discriminatory. Zambian diplomats, job holders in international organizations or corporations, and other Zambians who’ve legitimate reasons for being out of the country for considerable periods – should not be denied the chance to run. In the very least, the residence length must be reduced. Prof Clive Chirwa in UK feels that this clause was designed to block him from running for the Office of The President.

Related to this is the requirement that – nobody can be a presidential candidate unless they are sponsored by a political party. What about anyone who aspires to run as an independent candidate? This requirement is again another form of discrimination. We need an open society. 

Last but not least, concerns the poison pill – the introduction by Pres Fredrick Chiluba (FJT) Zambia as a Christian Nation. This is partly addressed in Article 16 – Christian Values and Principles. This is a source of confusion, tension, and also discriminatory. Where does the “promotion of Christian values or beliefs, ethics, and morals” leave an atheist, traditionist, or non-Christian Zambians? Conversely, are the non-Christian values, morals, etc., such as Jewish and Moslem ones unconstitutional?

Further more; what are those ‘religious practices’ the Draft Constitution seeks to prohibit? All these issues are unclear in the Draft Constitution. What might be helpful – would be to define a dividing line between Church and the State. As alluded to earlier, to avoid confusion – a template needs to be crafted for use whenever one wants to interpret religious, customary values and principles. In a global village, and due to modern communication and transportation modes – we’ve become closer to each other. In such a World, intermingling with those we currently consider strange will be unavoidable. Not to forget the possibility that we might make contact with the extra-terrestrial beings. Hence, we need a Draft Constitution that is accommodating and futuristic. 

Above, are the points I found contentious in the NCC Draft Constitution. I have nothing else specific to say on other parts of the document. I will go along with what others have said. Appeal In conclusion, assuming that the points I have expressed in this commentary reaches NCC or the powers that be – my aim is nether to persuade, because constitution making is a duty falling on all of our shoulders; nor to inform NCC members because they are more informed on these matters than I am. But rather, I just want to make an appeal to them. An appeal based on the premise that – IF we do not take this opportunity to seriously come up with a solid constitution, which can stand the test of time – then we would have failed our future generations. So I urge everyone in the NCC to put national interest ahead of everything else.

Let them be guided by patriotic passion they so much talk about in leading us through this constitution-making road map. And may God grant them wisdom and energy so that they can have courage and urgency to do what is best for our mother land.

Thank you! 

Toronto, August 7, 2010 

Kaela B Mulenga(Consultant/Writer) 

cc. Hon/Mr. Chifumo Banda, SC.     Chairman of the NCC      Lusaka

About Kaela B Mulenga

The Author is not part of PF government or on its pay roll. These are purely his personal views.
Category : Dr. Kaela Mulenga, Dual Citizenship, Etiam and tagged , , , , , , , , , , , , , , , , , , .
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