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Saturday, 26 June 2010

Constitution 2010 : Consultation Response (Henry Kyambalesa)

Our resident contributor - Prof Henry Kyambalesa has responsed directly to the National Constitutional Conference on the new Draft Constitution. I would ask that those responding to the NCC Commissioners to follow HK's example and please copy us in to help you keep a public record of your response ( :

Dear NCC Commissioners:

Comments on the NCC Draft Constitution

I wish to join other Zambians in acknowledging your extraordinary effort, determination and commitment to review the Republican constitution and give our beloved country a new constitution that is expected to stand the test of time.

In this connection, I wish to make a few comments and suggestions designed to make the new constitution more acceptable to the majority of Zambians, and more credible in the eyes of the international community.

1.  The Preamble: The first three paragraphs of the Preamble should read as follows:

We, the people of Zambia, by our representatives assembled in our Parliament,

Acknowledge the supremacy of God Almighty;

Uphold the right of every person to enjoy that person’s freedom of conscience or religion; …

The Republican constitution should be a neutral document that should not appear to discriminate against atheists or pagans, or those who believe in Islam, Judaism, Buddhism, Hinduism, or Jainism. All these segments of Zambian society have a genuine stake in the Republican constitution and, therefore, deserve to be respected in spite of the fact that they are not currently as large as their Christian counterparts.

2.  Christian Values and Principles (Article 16): This Article should be removed because “directing the policies and laws towards securing and promoting Christian values” or beliefs would be inconsistent with “upholding the right of every person to enjoy that person’s freedom of conscience or religion” that is enshrined in the Preamble. It is also not consistent with what is enshrined in Article 96(2)(a) of the Bill which states that a political party shall not be founded on a religious basis, among other things.

If it were permissible for the national government to generate “policies and laws towards securing and promoting Christian values …,” why would it be wrong for a political party to fashion its existence and contemplated policies and laws that would have a religious bearing?

If there is a compelling and absolute need for this Article to be retained, however, the “Christian Values and Principles” will need to be specifically defined in the same manner as Article 10 (Political Values, Principles and Objectives), Article 13 (Socio-Economic Values, Principles and Objectives) and Article 15 (Cultural Values, Principles and Objectives) are defined.

3.  Promotion of Sport (Article 19): This Article states that “The Government shall promote recreation and sports for the citizens.” It could more appropriately and logically be incorporated into Article 13 (Socio-Economic Values, Principles and Objectives).

4.  Qualifications of Presidential Candidates (Article 108): The requirements that presidential candidates should have a bachelor’s degree as a minimum academic qualification, and to have been resident in Zambia for 10 consecutive years preceding any given presidential election are clearly designed to exclude certain individuals from contesting the Republican presidency.

It is obvious that these two clauses could not have been recommended by the NCC if the MMD presidential candidate in the 2011 general elections -- that is, Rupiah Banda -- did not have a degree and had been working or studying in a foreign country over the last 5 or so years.

The degree requirement, for example, is undesirable and outrageous for the following reasons:

(a) It is not based on evidence from Zambia or anywhere else in the world suggesting that a president’s competence is directly related to his or her academic qualifications. In other words, it is mainly based on hunches rather than on facts!

(b) There is no academic degree offered anywhere in the world which can equip an individual with the qualities that are needed in political leadership, such as emotional stability, patriotism, selflessness, fair-mindedness, patience, compassion, tolerance, respect for the rule of law, and the ability to make compromises with people who have dissenting views.

(c) Most academic degrees are not designed to equip students with the requisite knowledge and skills relating to political or national leadership.

(d) The number of years which have passed from the year someone obtained a degree to the present reflects on the relevance of the degree involved. A degree obtained during the 1980s, for example, is generally useless if the holder is not engaged in teaching or other professions which require the application of the knowledge and skills acquired during the pursuit of the degree.

(e) The Republican president appoints qualified advisors to provide him or her with decision inputs in dealing with legal, economic, political, and other matters.

(f) The Republican president is expected to appoint competent government ministers and charge them with the responsibility of advising him or her on matters relating to national projects and programs, and spearheading the implementation of such projects and programs.

(g) The clause, if it is eventually included in the new Republican constitution, will inevitably require all office bearers (including the vice president) who are constitutionally expected to take over the presidency under special circumstances to be holders of academic degrees. And

(h) The kinds of national policies, projects and programs a presidential candidate promises to pursue are more important than his or her educational attainments.

There is, therefore, a need to retain Article 123 (1) (e) of the Willa Mung’omba draft constitution, which states that a person would only be qualified to be a presidential candidate if he or she had obtained the minimum academic qualification of a Grade 12 certificate.

With respect to the 10-year residence requirement, what is really the rationale for such a Clause?  What is it supposed to achieve?

There are many reasons why Zambians temporarily reside in foreign countries, such as to pursue studies, to work for the Zambian government in foreign missions, to work at foreign-based branches of companies registered in Zambia, to pursue investment opportunities, or to seek employment due to the widespread unemployment currently obtaining in the country.

These are all good reasons why some Zambian citizens have, now and again, found themselves temporarily residing in foreign countries. Why, then, should their native country’s constitution deny them the opportunity to vie for the Republican presidency?

There is a need to remove this requirement because it discriminates against citizens who temporarily live in foreign countries for good reasons.

Over the years, the people’s call for a non-discriminatory Republican constitution that is expected to stand the test of time has been loud and clear. Unfortunately, those who are entrusted with the noble task of delivering such a constitution to the people seem to have personal and/or partisan stakes in the constitution-making process.

I, therefore, wish to urge each and every member of the NCC to heed the people’s call for a Republican constitution that will meet their needs and expectations in order to save financial and material resources that are likely to be devoted to another constitutional review commission in future.

Thus far, Zambia has wasted a good portion of its meager resources on financing the Chona Constitution Commission, the Mvunga Constitution Review Commission, the Mwanakatwe Constitution Review Commission, and the Mung’omba Constitutional Review Commission. There is, therefore, a need for the NCC to put personal and partisan interests aside and give the people a more acceptable constitution this time around.

5.  Appointment of MPs to Executive Positions: The Bill requires that the Vice President, Provincial Ministers and Deputy Ministers should be appointed from Members of Parliament (Articles 128, 130, 131 and 132). This is an outdated and backward requirement for a burgeoning democratic system like ours.

We, therefore, need Articles and/or Clauses which would provide for the appointment of the Vice President, Provincial Ministers and Deputy Ministers from Zambians who are qualified to be elected as MPs, but who are not MPs. Such Articles and/or Clauses are important for the following reasons:

(a)  They can afford a Republican president or President-elect a larger pool of competent people from which he or she can constitute a Cabinet.

(b)  They can provide for greater separation of powers between the legislative and executive branches of government.

(c)  They can afford presidential aspirants enough time to identify potential ministerial appointees well before tripartite elections rather than waiting for parliamentary elections to be concluded. And

(d)  They can reduce the apparent work overload on government officials who have to handle both ministerial and parliamentary functions.

6.  Defence and National Security (Part XVI): There is a need to create an additional Article in this Part of the Bill relating to the Zambia National Service (ZNS).

Henry Kyambalesa

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