Find us on Google+

Friday, 25 June 2010

Draft Zambia Constitution - NCC 2010

The National Constitution Conference is consulting on the Draft Constitution can now be accessed here. You have about 37 days to email your responses to info@parliament.gov.zm or gs@governance.gov.zm or secretariat@ncczambia.org .

At present we have no intention for a Zambian Economist response to the NCC. This is out of the principle that the NCC is a flawed process and a complete waste of tax payers money. It is highly unlikely that this Draft Constitution will see the light of day. Frankly there are better things to do than draft responses which wont be taken on board. We would say responding fails the value for money test.

10 comments:

  1. Chola, I am a little fuzzy on the details even after reading the NCC Act. After the 40 day period, responses/comments are to be incorporated (if merited) and then the draft gets presented to Parliament. I'm assuming that's where they need to act as checks and balance for constitutionality of issues (in theory). After this, is the constitution then to brought before voters in a referendum before it can be adopted as our constitution?

    ReplyDelete
  2. I fear this is indeed a mess.

    My understanding is that this will be tabled to Parliament for debates and in parallel a Referendum would be held.

    No enactment of this will certainly happen without the Referendum. That we can be confident of.

    See the the latest statement from the CSOs on the same.

    ReplyDelete
  3. Here is my preliminary reading of the NCC Draft 'Constitution'.

    My Opinion

    The problem with the NCC Draft Constitution is that it is a dog's breakfast of special interests, is drawn up in an unorthodox manner that will give lawyers headaches for decades to come, and as such only adds to the intransparancy of the law.

    Now there is some good stuff in there, but it is knocked down by the unwillingness of the Central Government (VP Kunda?) to cede rights to Zambia's citizens (and non-citizens).

    Usually a Constitution sets out a principle, and then lists everyone or every situation in which that principle applies. Here however, the language used here is very specific, and open to many exceptions and therefore varying interpretation. Also, for instance the US constitution is a constitution of negative rights - rights the state cannot take away from the individual. By contrast, the NCC seems very phobic about giving citizens rights, and instead insists on giving them obligations (like being patriotic).

    Also, this draft contains several typos/spelling errors/odd uses of language. Which is not acceptable for a law, let alone the highest law in the land.

    Lastly, it is a constitution pandering to very temporary interests. The degree requirement for President is intended to exclude Michael Sata from being President. The residency clause is intended to stop Prof. Clive Chirwa from contesting both the MMD and national Presidential positions. The insistence that marriage is between a man and a woman seems pandering to certain evangelical Christian types, and does not seem at home in a constitution.


    NCC DRAFT CONSTITUTION


    1) Typos/spelling errors in articles:

    49. Equality Of Both *Gender*
    54. Protection of *[the]* Right To Personal Liberty
    55. Protection *form* slavery, servitude, and forced labour
    60. Freedom Of Media (?)

    ReplyDelete
  4. 2) Problematic Articles

    CIVIL AND POLITICAL RIGHTS

    16. Christian Values And Principles

    "The State shall direct the policies and laws towards securing and promoting Christian values, beliefs, ethics, and morals constent with this Constitution, and shall prohibit any religious practices that de-humanise or are injurious to the physical and mental well-being of a human being. "

    Now that may be well intentioned, but it is highly problematic.

    First of all, there is no single Christian value, belief, ethic or moral. Catholicism, Protestantism, their various different sects and versions, Gnostic Christians, the Eastern Orthodox Christians, Liberation Theology, look at things very differently. So which version of Christianity is going to prevail?

    Secondly, this is a clear violation of the separation of church and state, and it encroaches on the principle of freedom of religion.

    (On Citizenship...)

    33. A citizen shall -
    a) be patriotic and loyal to Zambia and promote it's well-being;


    Does this mean that all the neoliberals are going to lose their citizenship? How about any corrupt politician? Is any office holder who has been found guilty of corruption going to lose their citizenship? What exactly is the penalty for not being patriotic, or not being patriotic enough? Article 33 continues with a lot of sub-clauses that have to do with actions you must undertake or knowledge you must have to be a responsible citizen.

    Again, this garbage should be in the Boy Scout manual, along with always tying your shoelaces and learning how to make knots, or a highschool civics class. It should not be in the Constitution. Also, doesn't this 'obligation' to 'be patriotic and loyal to Zambia and promote it's well-being' infringe on freedom of speech and freedom of opinion?

    Also legally, constitutions should be about protecting people's rights, usually spell out the rights the state cannot take away, not about spelling out obligations on behalf of anything other than the government. The obligation to be patriotic has a whiff of North Korea about it.

    ReplyDelete
  5. 40. Right To Life

    (1) Every person has, subject to clauses (2) and (3), the right to life, which begins at conception.


    This is a beauty. It means that the morning after pill and abortion are against the constitution. This is not a constitutional matter, it is a criminal law matter. And of course, because it is pandering, and highly unpractical (it would put both mothers and doctors in jail for murder), it is contradicted by Subsection (3), but not before legitimating the execution prisoners in Subsection (2) - would Jezus be for the death penalty, I wonder.

    (2) A person shall not be deprived of life intentionally, except in the execution of a sentence of a court in respect of a criminal offense under the law in force of which that person has been convicted.

    So it's ok to kill adults - under certain circumstances, just not single cell entities.

    (3) 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.

    So an act of parliament would nullify (and exceed in law) Subsection (1) of Article 40 of the Zambian Constitution? In other words, an act of parliament would supercede the Constitution, which is supposed to be the highest law of the land?

    This is legal garbage. The problem is that this is pandering of the highest order, and the result is terrible law.

    ReplyDelete
  6. Freedom Of Media

    60. [1] There shall be freedom of the press and other media

    That is a meaningless phrase. How about: "parliament shall issue no law, curtailing freedom of the press"? Especially in the light of...

    (2) A journalist shall not be compelled to disclose a source of information EXCEPT AS MAY BE DETERMINED BY A COURT.

    So a journalist CAN be compelled disclose a source of information. And court can compel a journalist to reveal his or her sources of information, on the grounds off...

    (3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that it is shown that the law in question makes provision that is reasonably required for the purpose of -
    a) in the interest of defense, public safety, public order, public morality or public health;
    b) protecting the reputations, rights and freedoms of other persons concerned in legal proceedings;
    c) preventing the disclosure of information received in confidence;
    d) maintaining the authority and independence of the courts;
    e) regulating educational institutions ni the interests of persons receiving instruction therein; or
    f) the registration of, or regulating the technical administration or the society; and
    g) specify the role of Government in securing and protecting the public interest in broadcasting


    The constitution has nothing to say about the rights or obligations or provincial governments, and relegates their rights to an Act of Parliament, which is of course the Central Government.


    With Article 48, as soon as they even hint at giving people constitutional rights (protection from discrimination), they start to bend over backwards to put exceptions into subsequent clauses, some of which make no sense. They exempt from protection against discrimination: anyone in public service or business (2b), non-Zambians (2c), all matters of personal law (2d), all matters of customary law (2d). The exemption listed in clause 2d directly contradicts the protections given in article clause 1. The right not to be discriminated against on the grounds of marital status given in clause 1 is contradicted by the exemption listed in clause 2d, which lists marriage and divorce as exempted from clause 1.

    ReplyDelete
  7. 48. Protection From Discrimination

    (1) Every person has the right not to be discriminated against, directly or indirectly, on the grounds of race, tribe, sex, pregnancy, origin, colour, age,disability, religion, conscience, belief, political opinion, culture, language, birth or health, marital, ethnic, social or economic status.

    (2) Clause (1) shall not apply to any law so far as that law makes provision -

    (a) for the appropriation of the general revenues of the republic;
    (b) for qualifications for service as a public officer or as a member of a disciplined force or for the service of a district council or body corporate established directly by any law;
    (c) with respect to persons who are not citizens of Zambia;
    (d) with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law;
    (e) for the application in the case of members of a particular race or tribe, of customary law with respect to any matter to the exclusion of any law with no respect to that matter which is applicable in the case of other persons; or
    (f) whereby persons of any such description as is mentioned in clause (3), may be subjected to any disadvantage or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons fo any other such description, isreasonably justified in a democratic society.

    (3) For the purpose of this article, "discrimination" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions, race, tribe, sex, origin, political opinion, colour, pregancy, culture, conscience, belief, birth or health, marital, ethnic, social or economic status whereby persons of one such description are subjected to disadvantages or restrictions to which persons of another such description are not made subject, or are accorded privileges or advantages which are not accorded to persons of another such description.


    So discrimination - and with it cronyism and nepotism - lives. Phew. We almost had a few rights there. Close call.

    ReplyDelete
  8. Article 52 specifically prohibits same sex marriage:

    (3) ... older has the right to freely choose a spouse of the opposite sex and marry.
    (5) Marriage between persons of the same sex is prohibited


    And since when is it up to the constitution to spell out who can or can't get married? As people know who have followed similar issues in Malawi and Uganda, constitutional protection clauses pretty much give a very good protection of homosexuality, and being part of the Constitution, supersede the Penal Code of the specific contries. And here we have the Christian brigade trying to put this stuff into the constitution. This is almost turning Zambia into the Christian equivalent of Iran:

    52. (1) The State recognises the family ass the natural and fundamental unit of society and as the necessary basis of the social order.

    (2) The family is entitled to the respect and protection of the State.

    (3) A person who is eighteen years of age or older has the right to freely choose as spouse of the opposite sex and marry.

    (4) Clause (3) shall apply to statutory and customary law marriages.

    (5) Marriage between persons of the same sex is prohibited.


    I would say Article 52 (3) and (5) are directly contradictory of the spirit of the already gutted Article 48.

    Irrespective of whether you agree or not with gay marriage, this Constitution is a mess.

    Also see this Februari article in The Post:
    NCC to adopt clause that forbids same sex marriage
    By Ernest Chanda

    ReplyDelete
  9. Now, on decentralization:

    PART XII LOCAL GOVERNMENT (articles 212 - 222)

    212. [1] There is hereby established a system of local government that shall be based on decentralizsation.

    [2] The objectives of local government are to -

    a) Promote the people's participation in democratic governance at the local level;
    b) enhance the capacity of district councils to plan, control, co-operate, manage and execute policies in respect of matters that affect the people within their respective localities;
    c) promote social and economic development at the district level;
    d) promote a safe and healthy environment;
    e) establish for each district council a sound financial base with reliable and predictable sources of revenue; and
    f) ensure accountability of district councils.


    213. (1) Parliament shall enact legislation applicable to provinces, districts and local authorities.

    (2) The Government shall ensure the decentralisation of functions, powers, responsibilities and resources to the province, district and local authorities as may be provided by or under an act of parliament.

    Districts and District Councils

    214. [1] The Republic of Zambia shall be divided into districts as may be specified by or under an Act of Parliament.

    [2] The district shall be the principal unit for the decentralisation of functions to the local level.

    [3] Ther shall be such a number of wards in each district as may be specified under an Act of Parliament.

    [4] There shall be established for each district a district council.

    [5] Every district council shall be a body corporate with a perpetual succession and a common seal and may sue and be sued in it's corporate name.

    [6] Parliament shall enact legislation to determine the different types of district councils and their corporate names.


    Ok. Now I distinctly remember listening to a female minister who was a member of the NCC on Zambia Blogtalk Radio, saying about decentralization 'Oh, we've taken care of that'.

    Now I don't think putting decentralization in the hands of Parliament amounts to 'taking care of decentralization' in the constitution. And I don't like members of the government telling lies to fob off the public.

    Again, at every turn is decentralization of government put into the hands of the very central government that is intent on gathering more powers for itself. In other words, decentralization has NOT been dealt with.

    ReplyDelete
  10. PS, all the spelling errors in the articles listed are mine. I had to type them out by hand, the .PDF file didn't allow for highlighting and copying text.

    ReplyDelete

All contributors should follow the basic principles of a productive dialogue: communicate their perspective, ask, comment, respond,and share information and knowledge, but do all this with a positive approach.

This is a friendly website. However, if you feel compelled to comment 'anonymously', you are strongly encouraged to state your location / adopt a unique nick name so that other commentators/readers do not confuse your comments with other individuals also commenting anonymously.