Find us on Google+

Sunday, 30 October 2011

Delivering A New Constitution (Guest Blog)

Over the years, the people’s call for a Republican Constitution that is expected to stand the test of time has been loud and clear. Unfortunately, we have wasted a good portion of our country’s meager resources on financing the Chona Constitution Commission, the Mvunga Constitution Review Commission, the Mwanakatwe Constitution Review Commission, the Mung’omba Constitutional Review Commission, and the National Constitutional Conference without coming up with such a Constitution.

It is shameful that after 47 years of political independence, we have failed to give ourselves an acceptable Constitution—a Constitution for all Zambians, today and forever! The Patriotic Front (PF) should, therefore, be commended for promising to deliver a new Republican Constitution that will stand the test of time in 90 days.

However, the ad hoc Task Force to be constituted to work on the Constitution should be given one year to complete its work rather than 90 days if it is to do a thorough job in addressing the many contentious issues, errors and inconsistencies in previous constitutional review efforts.

The Task Force should preferably consist of at most 30 citizens who do not currently hold leadership positions in non-governmental organizations (NGOs), political parties which have MPs in Parliament, religious institutions, the labor movement, the legislature, the executive, the judiciary, the civil service, and the House of Chiefs.

The terms of reference for the Task Force should, among other things, be to identify and examine contentious issues, errors and inconsistencies in: (a) the 1996 Republican constitution; and (b) the draft constitutions of the Chona Constitution Commission, the Mvunga Constitution Review Commission, the Mwanakatwe Constitution Review Commission, the Mung’omba Constitutional Review Commission, and the National Constitutional Conference.

Moreover, the Task Force should be required to prepare a provisional Draft Constitution based on its findings. And citizens should, thereafter, be given at least 90 days in which they can present their comments on the content of the provisional Draft Constitution, followed by the preparation of a final Draft Constitution based on refinements made upon consideration of the people’s comments. A nationwide referendum can, thereafter, be organized to gauge whether or not the final Draft Constitution reflects the will and the desires and aspirations of the Zambian people.

The role of Parliament and the Republican president in this endeavor should be limited to the provision of financial and material resources to the constitution-making process, and to assent to the final output of the process after the referendum.

Of necessity, the output of the constitution-making process should be widely acceptable to the citizenry. In this regard, one may wish to share the following wise words of Father Joe Komakoma excerpted from an article entitled “Government Must Respect the People’s Wishes,” which appeared in The Post Newspaper of October 13, 1995: “As the supreme law of the land, the Constitution must be recognized and respected as embodying the sovereign will of the majority of our people.”

Preferably, the new Republican constitution should include the following:

(a) Provision for the appointment of ministers by the Republican President from among persons qualified to be elected as members of parliament, but who are not members of parliament;

(b) Provision for the election of the Republican President under a system where the winning candidate should receive not less than 50 percent plus one vote of the valid votes cast;

(c) Provision for the Republican Vice President to be elected as a running mate to any citizen seeking to be elected as Republican President;

(d) Provision for a consultative, transparent and accountable debt contraction law designed to give power to Parliament to oversee and approve all loans to be contracted by the government on behalf of Zambians; and

(e) Clear guarantees relating to the social, economic and other rights and freedoms of citizens.

Authorship

Henry Kyambalesa is Adjunct Professor in the School for Professional Studies at Regis University, Denver, USA, as well as an Independent Business and Management Researcher and Consultant. He is also President of the Agenda for Change party.

Zambian Economist encourages special contributions from leading thinkers on matters relevant to Zambia's national development. The purpose of these notes is to stimulate discussion and ensure logic and impartial critique plays a leading role in shaping public debate. Special contributions for publications should be submitted via email - cho@zambian-economist.com

2 comments:

  1. I totally agree that a 90 day constitution would not be able to stand a test of time. I think that using the existing institution framework already in place would reduce the size cost. I think a referendum is usually a more progressive and democratization process and one way of making the people's will be enshrined in the constitution. The current 1996 constitution should not be completely wiped out we admit that there certain flaws and inclusion and amendments and inclusion that is needed to be done. NCC and its failed passage in parliament last year was indeed a drop in an ocean and all people who sat on the NCC should be made to pay back the money they used without producing any results for it.

    Kunda KM

    ReplyDelete
  2. Prof. Kyambalesa,

    I think that you have hit on the heart of the matter here, the strain is between requiring a well constructed Constitution which can stand the test of time as well as receive the approval of the current population as a whole, and the frustration over decades of delay by self-serving committees interested only in the politics of the day. I agree wholeheartedly with your five lettered requirements for an acceptable Constitution. I would venture to offer a sixth:

    (f) Provision for a high super-majority standard to both pass and/or amend the Constitution, starting with this proposed reform and including all future reforms.

    A legally binding document that can be changed by a simple majority act of Parliament is not a Constitution. Under no circumstances should elected officials be able to change the document which grants them authority and restrains their power without a firm and specific mandate directly from the governed. I think that your proposal to exclude all persons with leadership roles in existing organizations is excellent, though difficult to enforce due to gray areas in definition of terms like "leadership," "religious institution," and "NGO".

    One possible check prior to an actual referendum could be to require a voting (or vetoing) majority (or adjunct advisory body) of any new Constitutional commission to be composed of persons selected via an ancient Athenian Senate model. Simply reverse the voter rolls, conduct a lottery by registration number, and invite those selected to act as direct participants (or as jury) in the process. The direct method may require some extra time due to the need to educate and explain Constitutional matters to lay-persons, however if a referendum is to follow then this can only help to streamline that process and avoid costly rejections unnecessarily.

    Another possibility (not mutually exclusive), would be to create separate Commissions for relatively distinct portions of the Constitution. In other words, one group works on the provisions governing relations between the branches of government, another attempts to determine when and how to conduct representative elections, a third seeks to define the limits of government power to spend or borrow against collective wealth, while a fourth addresses issues of individual rights and responsibilities. While not necessarily faster or better, I think that there is potential for both given communication between and commitment by members of various sub-commissions to achieve a document capable of winning a nationwide referendum by super-majority.

    Given the result of the last referendum, there is not currently a document which can pass. It is not unfair to demand that a well constructed process be initiated within 90 days, nor is it unreasonable to assume that previous commissions have uncovered most of the relevant issues and demands of various stakeholders. What is unreasonable is to expect any group to be able to sift all that, take in new or updated comments from the public, and agree on a draft that can last for generations within a couple of months.

    Set the bar high, and get the process right this time, so that future Zambians can grow up knowing that their government is not built on sand.

    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.