The constitution-making
process is on the horizon again. Although the new government has not given any
detailed plans or set the process in motion, it has at several occasions
indicated that it is committed to undertaking constitutional reforms. What
exactly this entails is not clear. Will the process lead to a new constitution
or simply superficial amendments to clarify language and eliminate
contradictions?
This article is intended
to motivate against superficial amendments, in favour of substantive structural
reforms, leading to a new constitution with a restructured power map. Although
it is important to reform the constitution in order to clarify language,
eradicate gaps and remove contradictions, such reforms would do little to
resolve our major structural constitutional challenges as a country. The
structural constitutional problems go to the heart of the state and its design
and cannot be cured by superficial amendments.
To accurately diagnose the constitutional problem, it is important to understand the formation of the current Zambian state, modelled on the African state in general. Zambia, like almost all African states, is a construct of colonialism. The colonial legacy continues to shape and define the system of governance in a profound way, predisposing it to anti-democratic tendencies. In trying to answer why the African state has become authoritarian, Nic Cheeseman and Jonathan Fisher identified at least two elements of the colonial state that have predisposed the postcolonial African state to authoritarianism.
The first is that the colonial state was designed to systematically deny Africans their political and economic rights. This saw the development and implementation of a cocktail of repressive laws and policies, under an extremely centralized government.
The second is that, in order to govern huge swaths of territory, colonial administrators co-opted local leaders and communities to cooperate with them in managing the territories. This led to the evolution of the culture of “big men” who were not accountable to the people within the communities.
These two characteristics led to the exercise of
power without accountability to the people. As can be seen, overall this led to
a state sustained by the construction of a legal framework that was primarily
based on abuse of power, with ineffective checks and balances.
This design of the state
remained intact at independence. Instead of reforming, the new governments soon
after independence sought to consolidate and further centralize power. In the
case of Zambia, this can be seen more readily through the 1973 constitution
that established a one-party state. Subsequent reforms have been superficial
and largely focusing on liberalizing politics and allowing for competition, but
without rethinking the design of the state and its power-map infrastructure. As
a result, the reforms have left intact the highly centralized, hegemonic
unitary state where the executive dominates all institutions and is largely not
accountable to anyone. As Professor Kwasi Prempeh has argued, even after
reforms, “Africa’s new constitutions have generally failed to address or reform
the structure and distribution of power within the postcolonial state. Instead,
the current constitutions have preserved the centralizing tendencies- and other
original sins- of the founding generation
that have defined the structure and organization of power within the African
state since the early 1960s.”
These are still the
defining features of the Zambian state, as the 2013 APRM country report noted: “There
is no real separation of powers between the principal branches of government
and the executive is overly dominant, relatively unchecked and lacking in
accountability. The legislature is too weak and dominated by the executive for
it to exercise effective oversight…the system of political patronage that
permeates the entire organization of government institutions renders all state
institutions virtually beholden to the President.”
It must be acknowledged
that previous constitutional reforms have yielded some benefits, such as
reinstatement of multiparty electoral competition; presidential term limits;
broadening of the franchise and the setting of a clear election date. These,
however, do not shift the power structure of the constitution in any way. Even
recently established institutions, such as the office of the Public Protector
and the Constitutional Court are of little use as they have been swallowed in
the pre-existing constitutional culture. Simply establishing new institutions
without attending to the underlying power base only creates new avenues for
undermining democracy, as the ‘jurisprudence’ from our enfeebled Constitutional
Court demonstrates.
Major constitutional
issues are yet to be attended to. There is need to look at the design and interrelationship
of the arms of government to re-affirm their co-equal status; to genuinely
devolve power from the centre and not simply pay lip service to devolution as is
currently the case; to end the systematic exclusion of women from elective
public office; to redesign the electoral system in order to tamper with
cut-throat politics and winner-take-all outcomes; to constitutionalize
administrative justice and broaden its scope beyond the common law remedies of
judicial review which are inaccessible and least effective for many ordinary
people; to provide for an insulated and professional civil service; to cure the
Bill of Rights that considers human rights as residual; to bring the integrity
of the environment to the centre of sustainable development; to bring the security,
military and intelligence wings under the governance of democratic norms; to
write the constitution in plain and accessible language; and to re-affirm a
value driven constitutional project.
I believe this is what
should be the focus of the constitutional reforms. The state should be
dissected and reformed. Superficial amendments to clarify language, although
important, will not lead to effective constitutionalism. There is need to
rearrange the state power-map. The goal
should not be to weaken the government and create a lame-duck executive, but to
find a reasonable balance to have a government strong enough to be able to
govern effectively but trammeled by reasonable restraints to avoid abuse of
power. In the words of Professor Charles Fombad, “the ultimate goal is to
prevent the twin evils of tyranny and anarchy.” Without opening up the state
for redesign and re-mapping of power, the constitutional reform projects will
continue to treat the symptoms and not the root cause of constitutional
illegitimacy in Zambia. In order to have a successful constitution making
process, there is need to carefully design the process so as to avoid the
pitfalls of the past. The constitution-making process should have a forecast of
implementation mechanisms to ensure that the product does not end up being an
ornamental document.
[The author is a lecturer in the School of Law at the
University of Zambia]