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By Pauline Mwakacheya and Mwaba Phiri
DEFINATION
AND IMPORTANCE
For
many years constitutional law has been a concept so broad and enigmatic only
comprehendible by the greatest of minds. The article before us attempts to
expound the process of modes of adopting a new constitution as well as
highlighting the pros and cons for each method to a country in this case
Zambia.
A constitution is the basic fundamental and organic law of a nation or state that allows for the existence of the institutions and apparatus of government, it defines the scope of governmental sovereign powers, and guarantees individual civil rights and civil liberties[1] . It is the basic building block of every society and the very wool from which garments of order, stability and patriotism are woven from. The design of a countries constitution could be the difference between long lasting sovereignty and potential anarchy hence the importance of its proper formulation. There are different methods of adopting a constitution however, Zambia being the focus of this article shall have our undivided attention and all modes of adoption shall revolve around it.
HISTORICAL
DEVELOPMENT OF ZAMBIA’S CONSTITUTION
The
republic of Zambia gained its independence in the year 1964, before this it was
called Northern Rhodesia and had followed the Northern Rhodesia Constitution of
1962 which was written solely by the British colonial administration[2].
Based off of the creators of this constitution it is clear to understand where
the redundancy hailed from. The laws created where not adequate nor in line
with what the people wanted thus did not properly encapsulate the rule of law.
Upon attaining independence, the republic of Zambia adopted a new constitution
which was done through the Zambian independence order in council of 1964, this
particular constitution established the multiparty system. However, despite all
the notable constitutions formed, attention shall be focused on the two main
constitutions that played a significant role in shaping the country.
The
1964 Constitution (first republic) was the first constitution of current day
Zambia which had been in place from a period of 1964 -1972. The said
constitution had laid out the road map for the future constitutions to come.
The said constitution was marked by serious religious and mainly political
cries such as the need for the formal deconstruction of the kingdom of
Barotseland. This however led to the marginalization of the Lozi people, being
endowed with a judicial process similar to that of the western. It also
provided that the first president of the new state would be Kenneth Kaunda
hence no formal elections were held. This constitution received a lot of
backlash because
“…like its colonial forbears it details the structure of government so minutely that it has about look of ordinary legislation. It adopted the Westminster model of peoples representation and previewed a political regime in which the president of the republic became the chief executive to whom the powers of the colonial government passed largely intact [3].”
The 1973 Constitution (Second Republic) was the second momentous constitution of Zambia where as the first constitution was rather rigid and stoic in its execution the second republic was more unified and looked at the direct interests of the people of the republic. The Zambian legislature was now given power to amend the constitution, with a two-thirds majority using the ordinary legislative process prescribed in the 1972 constitution [4]. It was through this simplified procedure that the independence Constitution was repealed and replaced by a one-party state Constitution in 1973. This new Constitution stated that the country would be a one-party system with the political party in question being the United Nations Independence Party.
The
purpose for this decision was to ensure that the country remains whole and united
by having a single central government. Many scholars however were against this
decision and passed it as an aim at dictatorship[5].
However, looking at the current day situation of Zambia one can finally realise
the necessity of this decision. As a country with 72 different ethnic groups it
would appear utterly ludicrous to have such a large number of people come to
such a narrow correct decision from such a vast number of options hence the
need for a single political party. In all our endeavours we must remember
tyranny is better than anarchy and the worst government is always better than none at all[6].
In order to adopt this Constitution the very first commission was established by the then president his excellency Kenneth Kaunda, this was done through statutory instrument 46 of 1972[7]. This commission was headed by the vice president Mainza Chona and was known as the Chona commission. It typically had a set of rules or guidelines by which they were expected to conduct themselves however their main aim was to receive evidence and examine the form of one-party state Zambia would adopt[8]. It is evident in the case of Nkumbula v. Attorney General[9], where the judiciary failed to uphold its duty to protect constitutionalism, it essentially gave the state unchecked power to alter the Constitution at will leading to a one-party state. Although the court's decision in the Nkumbula case may have been justified, it differs significantly from the current situation.
Notably, the
court should have provided a more competent interpretation of the Constitutions
provisions. The Chief Justice Mumba Malila in his 2020 book, criticised such
decisions and hopes that modern cases will be decided with fresh perspectives
and consideration. It is however worth noting that
in the year 1991 the Constitution was again amended to become a multi-party
system[10].
The significance of this brief history is to provide a
better understanding of where we came from constitution wise as a country so as
to predict the future. The republic of Zambia was colonised for a period of 76
years. It is not easy to recover from a trauma as intense as that colonisation.
However, it has been more than 59 years since it gained independence hence we
must realise the need for a shift in mentality and a strong core
basis(Constitution) that speaks to the very diverse nature and the needs of the
republic.
IMPORTANCE
OF USING THE APPROPRIATE METHOD IN CONSTITUTIONAL ADOPTION
When
adopting a Constitution, it is essential to acknowledge that this document has
the power to profoundly shape a county’s trajectory hence holds immense
significance. It is for this very reason that we are always encouraged to use a
method that most suits the jurisdiction in which we live. Whatever method
chosen is essential for ensuring legitimacy, inclusivity as well as durability
thus fostering stability and progress in the nation.
Legitimacy
refers to the extent of being legitimate which means to comply with the law[11].
The mode of adoption of a Constitution hence affects its legitimacy and
acceptance by the citizens. This further affects their trust in the law as if
it is not in line with what the people want, how different is it to a
dictatorship? The Arab spring is an excellent example of what society can be
reduced to due to having a Constitution that is not believed to be legitimate
or work for the people[12].
N Simutyani aptly stated that past experiences have left the people unconvinced
about the governments sincerity[13]. Derick
Chitala v the attorney general [14] is an excellent example of the
lengths a community will go to in order to ensure the right method is used and
a legitimate constitution is formed.
When
the right mode of constitutional adoption is chosen the people are ensured
proper representation of all groups including the minority groups. This is due
to the fact that the process is deemed to be inclusive by giving the people a
say in the important matters of the country. This in turn leads to a feeling of
ownership as well as patriotism.
One of the qualities of any good Constitution is stability. When an appropriate mode of constitutional adoption is chosen then the said Constitution is more likely to be stable. This means that it can survive multiple periods of time due to its ability to fully speak for the best interests of the people not just in that moment but in years to come. Zambia having seen 6 constitutional amendments in the course of 59 years shows a certain level of instability hence the need for a reformed method of adoption. A stable Constitution will have international recognition for its efficiency just like that of The United States of America and South Africa. The main feature of a good constitution is that it must enshrine the rule of law. When a constitution is adopted through a fair and transparent process it is more likely to protect human rights, exhibit the presence of the rule of law as well as promote justice. This is due to the fact that factors that may often be marginalized will all be properly represented due to the right method being used for the right group of people.
TYPES
OF CONSTITUTIONAL COMMISSIONS
A
constitutional commission is a body made up of experts known as commissioners
who are appointed by the government for the soul purpose of making or revising
a Constitution[15]. The President is given the veto powers to appoint
one or more commissioners to inquire on specific matters, the
President can exercise this power when they believe that the inquiry would be
for the welfare of the public[16].
The
President prefers setting up constitutional review commissions because under
the Inquiries Act:
*The
President can appoint people of his choice as commissioners and the chair person.
*The
President determines the term of reference for the commission.
*Commissioners
can make recommendations to the president, however he is not bound by them[17]
*The
commission presents a report on the recommendation to the President after
considering submissions from the public which can be oral or written. The
President and Cabinet then choose the recommendations they like and reject
those they do not like. The Government then presents a constitutional Bill
before the National Assembly.
During
the periods of 1973 to present day there have been over 4 constitutional review
commissions which were the Chona commission in 1972, the Mvunga commission in
1991, the Mwanakatwe commission in 1996 as well as the Mung’ombe Commission of
2003[18].
Many
of the suggestions proposed by the Mung’ombe commission were rejected and this
did not sit well with the people. In response president Levy Mwanawasa proposed
a lengthy 5-year plan to change Zambia’s constitution which would prove to be
the countries’ 5th attempt at such a review. Prior to this the Constitution only allowed parliament to be the only body with the ability to
amend the constitution hence the need to create a different process. However,
the civil society accused the government of lack of political will thus
established an alternative 71-week program. Much debate was had on the matter
and in 2007 a conclusion was reached , the plan was to establish a popular body
whose responsibility was to adopt a new Constitution or amend the existing one
with the exception that it would not have the legislative powers hence the
birth of the National Constitutional Conference (NCC).[19]
The
National Constitutional Conference had 14 committees which are tasked with
reviewing the relevant sections of the Mung’ombe commission as well as making
recommendations which become binding once adopted by plenary. The established
committees are:
a)
The general constitutional
principles committee
b)
The Citizenship committee
c)
The human right committee
d)
The Democratic governance
committee
e)
The Executive committee
f)
The Legislative committee
g)
The Judicial committee
h)
The Local government committee
i)
The Public service committee
j)
The Public finance committee
k)
The Land and environment
committee
l)
The Disciplinary committee
m)
The General purpose committee
n)
The Drafting committee [20]
Thus
far the committees have proved adequate in their execution however there is
still room for improvement.
CONSTITUTIONAL
ADOPTION METHODS
There
are many methods of adopting a Constitution all over there world. It is
essential for a state’s leaders to understand what methods work best with their
demography. In Zambia there are three main methods by which a Constitution may
be adopted. As seen over the course of this script, the methods had been
gradually introduced into the Constitution over a period of time but can be
deduced as through parliament in the form of a constitutional review
commission, constituent assembly and through referendum.[21]
The
constitutional review commissions were first introduced in 2007 by President
Levy Mwanawasa. They are still working today and have proven highly effective
as they act like a bridge between the people and parliament to adequately
represent the needs of all. The review commissions have no legislative
authority hence can only make suggestions which is at the discretion of the
president for acceptance or rejection.
A
constituent assembly is a body that is created in to explicitly adopt or create
a new Constitution, the members of this body are appointed with respect to
different fields and social standings, this is in order to ensure adequate
representation and promote diversity[22].
The idea of adoption of a Constitution through a constituent assembly in Zambia
was brought out as early as 1991 however due to the ‘top-down’ approach the
government has had, this has never happened. Over the course of Zambia’s history
in the years 1996, 2005 and 1991 there had been discussions of the use of a
constituent assembly however the said discussions never formally made it off
the table.
In
the year 2016 a constitutional referendum was held in order to determine
whether voters approved of amendments to be made to the bill of rights as well
as article 79 alongside the general elections. A referendum is a direct vote by
an electorate on which a decision may be concluded. In order for the Constitution to be amended using this method, not less than 50% of eligible
voters must agree to it [23].
It is a highly inclusive method however, where majority of the population is
illiterate or unable to understand what is going on, it proves to be redundant.
Despite
there being up to 3 different methods they all have their pros and cons however, in order to arrive at the best applicable method it is essential to weigh them
out and settle with the most favorable constitutional method. In the words
of Zambia’s former vice president Mainza Chona
“Zambia needs a constitution which is more suited to our own conditions and which is pertinent to the aspirations of our people”
These
aspirations include a longing for a responsive process as well as one that is
based on the principles of democracy, accountability and efficiency[24].The
road to achieving this desire is not an easy one as much thought and deliberate
intention must be made in order to start the movement.
CONSTITUTIONAL
REVIEW COMMISSION VS REFERENDUM
Adoption through a referendum may perhaps be the most beneficial method at first glance seeing as there is very high public participation, relatively short time consumption as well as low potential for compromise. By ensuring that all eligible voters have a say that is actually going to make a difference in the Constitution process, the Constitution gains an additional layer of legitimacy as it becomes for the people and by the people. By getting the message to all voters the adopted constitution becomes clear and simple. Issues are presented directly to voters avoiding the complexities of representative processes.
However, we must note that there is a potential for manipulation as not all
voters are learned, they may be subject to populist demagoguery. In addition to
this, complex constitutional matters might be challenging for voters to
understand hence defeating the entire purpose. Although there is a possibility that the review
commission is not effective removing the power parliament has to make decisions
on behalf of the people would lead to a total collapse of the very core nature
of parliament to ensure people are having their best interests kept.
When
we look at the constituent assembly we may note that there are expert
deliberation as different professionals from across the country are selected
hence an educated decision may be formed. This also provides for inclusivity as
members represent people from all over the country thus becoming voices of the
voiceless. Due to the quality of the members of the assembly there is
comprehensive consideration as there is an in-depth discussion and analysis of
constitutional provisions. Unfortunately, the entire process can be lengthy and
resource intensive due to the detail required. There also exists potential for
partisanship as if a large number of members belong to one party then it may
prioritize the interests of the party rather than that of the broader public.
The two methods do prove to be quite similar however where the referendum takes
the broader approach the constituent assembly concentrates the people hence are
similar in effect.
What
the referendum lacks in professionals the constitutional review commission
makes up for tenfold. Over the years we have seen this method being used
repeatedly in the adoption of a new Constitution and that for good reason as
well. This method leverages the knowledge of legal and constitutional experts
hence ensuring an expert analysis is conducted. The commission also focuses on
specific amendments rather than overhauling the entire Constitution which saves
time and resources as opposed to the constituent assembly. However, we must
remember that the reason for the supremacy of a Constitution is because it is
the laws directly chosen by the people yet, this method only provides for
limited public input as opposed to the other methods. In addition to this, there
is potential for government influence as the government has strong control over
the commissions composition hence can influence its recommendations and suggestions
made can be set aside with no required explanation as was seen in the case of Derick Chitala v the attorney general[25].
The
best method for adopting a Constitution depends on numerous factors including
but not limited to a country’s political culture, the complexity of the
proposed changes and the desire for public involvement. It is due to all these
factors acting at once that we can conclude that it would be illogical to pick a
single method and expect it to survive the test of time. In an ever changing society
it is cardinal to maximize strengths and minimize weakness, this can be done by
creating a hybrid method of adoption. By making the constitutional commission
partially independent from the government will prevent any influence it may have, this can be achieved by passing a law that makes it mandatory for the
government to accept not less than 30% of all suggestions passed by the commission. Draft Constitutions may go through an initial referendum in order for it to then be
passed. Ultimately, the goal is to create a Constitution that reflects the will
of the people and establishes a stable framework for governance.
As we scrutinize these modes of adopting a Constitution, there are
some future trends we believe may be adopted to increased citizen
participation, greater emphasis on ensuring gender participation, youth
representation as well as the inclusion of marginalized groups in the
constitutional adoption process. We also expect to see more
technology-enabled-constitution-making as well as more hybrid approaches.
CRITICISM OF
CONSTITUTIONAL ADOPTION METHODS
From
way back, National Assembly has been under the control of the President as a
result of being either no oppossing Members of Parliament, for instance during
the multi- party era or too few to make a difference as can be seen during the
Chiluba era. Constitutions that have been adopted reflect the interest of the
ruling party and not the people because in all past constitutional Reviews, the
government rejected progressive recommendations which would change the power
balanace. For instance in 1996, the Chiluba government rejected 70 percent of
the recommendations by the Mwanakatwe Commission including the recommendation
that the Constitution should be adopted by a constituent assembly followed by a
referendum[26]
According to Professor Anyangwe Constitutions made in this way do not endure, he contends that Constitutions are
“generally drafted by a political coteries, in a hurry upon calculation of exigencies without even consultation of other stake holders, many of these so-called constitutions are often a mere collection of rules of convenience administered by each ephemeral regime. They never really constitute the legal basis of the state themselves. Aware of the precarity of his own power and the fleeting nature of his own regime, each succeeding head of state never bothers to produce a durable constitution. Consequently, the basic law of many an African state has become a precarious document that inevitably perishes with the particular regime which introduces it.”
Parliament
which is the ultimate defence of people’s interests in adopting the Constitution has failed to fulfil its mandate. Instead of prioritizing the
people’s needs, lawmakers have voted along party lines on constitutional
matters. Due to their dependence on the president for ministerial appointments,
ruling members of parliament have surrendered their independence and voted in
ine with the President’s desires, rather than representing the views of their
constituents[27]
FUTURE
TRENDS IN CONSTITUTIONAL ADOPTION
Zambia stands at a pivotal moment in its history,
poised to shape the future through a comprehensive constitutional reform.
According to Professor Ndula and Beyani[28]
Zambia's history of constitutional development is marked by a continuous quest for a document that reflects democratic ideals, public accountability and responsiveness to the electorate.
THE NEED FOR A NEW CONSTITUTION AND PAST ATTEMPTS
Calls for a new Constitution stem from a desire to address distortions caused by political manipulation and strengthen democratic institutions. Past efforts have involved commissions tasked with reviewing existing Constitutions, such as the Chona Commission (1972), the Mvunga Commission (1991), the Mwanakatwe Commission (1991) and the Mungomba Commission (2003). However, these attempts have faced challenges, including the lack of consensus in that political parties and stakeholders often disagreed on the process and content of the new Constitution, the constitutional process faces manipulation whereby there have been attempts to control the process for political gain hampered progress, as exemplified by the Mwanawasa government's opposition to a constituent assembly in favor of a more manageable National Constitutional Conference. Similarly, in 2007 the National Constitutional Conference in 2007 failed to deliver a new Constitution due to boycotts and a poorly conceived design and therefore rendering it an unsuccessful process.
LEARNING FROM PAST
SHORTCOMING
The Mungomba Commission's draft Constitution stands
out as the most progressive and seemingly well supported proposal and future
efforts should learn from past shortcomings in order to embrace the following
principles:
1. Public participation and
inclusivity, in that the process must involve extensive consultations with
diverse voices from civil society, political parties and the general public.
2. Establishment of the committee
of experts which ought to be an independent committee with legal expertise
however, also including non lawyers and international advisors to lead the
process.
3. A clear legal framework with established
timelines enacted by Parliament, which can ensure transparency and hold the
process accountable.
4. A parliamentary select committee which can
offer feedback on the draft, however the responsibility for drafting should
remain with the committee of experts.
5. The public should have opportunities to comment on the draft Constitution before it is presented to Parliament for enactment. Ultimately, the new Constitution should be adopted through a national referendum.
PROPOSED METHODOLOGY
FOR FUTURE CONSTITUTIONAL MAKING
Building on these principles, the following
methodology was proposed by Ndulo and
Byeni[29];
1. Having a statutory framework which entails that
the new government should establish a clear legal framework within 90 days
outlining the process, principles, timelines and actors involved
2. Creation of a committee of experts of not more
than seven experts, established through a parliamentary vetting process which
will lead the drafting process.The Committee will also be tasked to review past
constitutional proposals. The Mung'omba draft will serve
as the working document.
3. A draft proposal will be released for public
comment, with simplified versions distributed nationwide. Public seminars and
workshops can be facilitated by the Committee.
4. The draft ought to be presented to a select
parliamentary committee for feedback, followed by finalization by the Committee
of Experts .
5. Parliamentary Enactment: Parliament will have a
limited time, for instance 28 days to consider and potentially amend the draft
with a high threshold 65% majority for
approval.
6.In case of parliamentary rejection, reasons will
be provided and the committee will meet with the select committee to revise the
draft before a second parliamentary presentation through a referendum.
It is worth noting that Article 79 (3)[30] of the current Constitution posses a problem in that in order for a Bill to be altered, the Constitution or
the article of the Constitution shall not be passed unless before the first
reading of the National Assembly it has been put to a National Referendum with
or without amendment by not less than 50% of persons entitled to vote for the
purpose of presidential and parliamentary elections. This renders the
provision unrealistic in that for instance given that Zambians are entitled to
vote at the age of 18, it requires the country to determine the number of
persons aged 18 and above[31].
[1] Bryan A. Garner,
Black’s Law dictionary (8th edition, 2004) 937.
[2] .
[3] Antonios
Maniatis, ‘Zambian Constitutional History’ (2019) 4th International
e-Conference on studied Humanities and Social Sciences 142.
[4] Melvin L M Mbao, ‘The politics of
constitution making in Zambia: Where does the constituent power lie’ (2007)
Draft
paper presented at African Network of Constitutional Law conference 5.
[5] Nkumbula v The
Attorney General Court of Appeal Judgment No. 6 of 1972; 1972 ZR. 204.
[6] Letters to a law
student Nicholas J McBride and Jason N E Varuhas, ‘Letters to A Law Student’ (3rd
ed, Pearson education limited 2013) 19.
[7] Statutory instrument
of 1972 of the laws of Zambia.
[8] Secretariat
Constitutional review commission, ‘Report of the Constitution review
commission’ (2005) Republic of Zambia 116.
[9] Ibid Nkumbula
v Attorney General.
[10] Secretariat
Constitutional review commission, ‘Report of the Constitution review
commission’ (2005) Republic of Zambia 61.
[11] Bryan
A. Garner, Black’s Law dictionary (8th edition, 2004) 2639.
[12]Arab spring
pro-democracy protest The Editors of Encyclopedia Britannica, ‘Arab
Spring’(2024) available at https://www.britanica.com/event/Arab-Spring
[13]Melvin L M Mbao, ‘The politics of constitution making in Zambia: Where
does the constituent power lie’ (2007) Draft paper presented at African
Network of Constitutional Law conference 2.
[14] Chitala
v Attorney General (S.C.Z Judgment 14 of 1995) [1995] ZMSC 32 (31 October 1995).
[16] Section 2(1) of the Inquiries Act
[17] Ibid Section 4.
[18] Constitution making in Zambia https://saipar.org
[20] ARTICLE 3(1)
of the NATIONAL CONSTITUTIONAL CONFERENCE ACT(COMMENCEMENT) ORDER 2007.
[21] Article 79 of the constitution
of Zambia 1996.
[22]Dr O’Brien
Kaaba, “Constitutional Law Class Notes (2024)” University of Zambia.
[23] Article
79 (3) of Constitution (1996)
[24]Admin, ‘Same script, Different Cast: A Tale of Zambia’s
Constitutional Making Process (2013) Oxford Human Rights Hub.
[25] Chitala v Attorney General (S.C.Z Judgment 14 of 1995) [1995] ZMSC
32 (31 October 1995).
[26] Dr O’Brien Kaaba,
“Constitutional Law Class Notes 2024” University of Zambia.
[27] Ibid Constitutional Law Class Notes 2024.
[28] Ndulo and Beyani “Approches to Developing a New Constitution for
Zambia”, (2013).
[29] https://saipar.org/wp-content/uploads/2013/09/Ndulo-and-Beyani_Approches-to-Developing-a-New-Constitution-for-Zambia.
[30] Art 79 (3) of the Constitution of Zambia (Amendment) Act No. 2 of
2016.
[31] Ibid, Ndulo and Beyani.
This Article is Brought to you by:
LEGAL AID INITIATIVE
(Access to Knowledge)
About the Author:
Pauline Mwakacheya is a Second year law student at the University of Lusaka and serving as a Legal Researcher at Legal Aid Initiative.
Mwaba Phiri is a second year Law student at the University of Zambia. She is also a Legal Researcher at Legal Aid Initiative.