The Supremacy and Defence of The Constitution
Part I relates to the “supremacy and defence of the constitution”. For our purposes we focus on Article 2:
(1) Every person has the right and duty to defend and protect this Constitution.(2) A person who suffers a punishment or loss arising from the defence of this Constitution as provided for under clause (1) is entitled to compensation, which shall be determined by the Constitutional Court.
We shall comment more on the “Constitutional Court” in future posts. Here the focus is on the “compensation” element.
This provision is understood to mean that anyone seeking to defend this Constitution e.g. by seeking legal redress against Government policies that do not align with it (e.g. failure to conform with Part VII, Article 144), would be compensated. However, at present this is unclear.
For example, does that mean that if I, as a citizen, challenge government policies and bring forward proceedings to the Constitutional Court then I will not bear the financial costs if successful? What does it mean to those who in their daily jobs who are “defending and protecting this Constitution”? The nature of the “defence” needs to be clarified upfront for certainty. It is right that the Constitution Court determines the level of compensation, but at present this wording is not too clear for a common person to understand what this entails in practice.
It also seems to me that in the spirit of ensuring the Constitution focuses on principles, additional provision should be inserted to allow Parliament to give greater clarity on the form of “defence” and the limits of compensation within which the Constitutional Court may dispense.
In particular, the extent of the costs are important. If compensation is only for those who are successful then it will disencentivise many because it will lead to only cases with a high probability of successful being taken forward. This may well be efficient but it could lead to only claims coming from organisations rather than individuals, turning the constitution into a constitution of the rich and powerful. Is that what we want? The efficiency and equity arguments need to be balanced.
Next Stop : Part 2
All posts in this ongoing review can be found at the Constitution of Zambia page.