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Monday, 14 November 2011

Constitution and Media Reform

An interesting and balanced Op'ed in the Post on constitutional and media reform by Sichuwa Sichuwa :

Last week, a wall of silence over the constitution-making process and public media reforms was broken by two major official pronouncements from senior government officials. One was from Minister of Justice Sebastian Zulu who proffered that the constitution-making process will take more than ninety days, contrary to the PF slogan of completing the process within that period of coming to power.

Zulu also said that President Michael Sata is in the process of appointing a Committee of Experts to oversee the entire process. Later during the same week, Vice-President Guy Scott told parliament that the government is in the process of partially privatising the public but state-controlled media.

Although there is a dispute over the actual figure to be floated to the public for purchase - The Post suggested that it was 35 per cent while the Zambia Daily Mail put the figure at 45 per cent - there is consensus on the fact that the government will still retain over 50 per cent control. What do we make out of these two major pronouncements on constitutional and media reforms?

First, the pronouncements put to rest the anxieties that had been raised by both the public and opposition political parties over the past few weeks with regards to the government's commitment to initiating and completing both set of significant reforms.

While many expected President Sata to prolong and pervert the constitutional reform process for exactly the same reason as did his predecessors, the fact that the policy positions of the new government on these two important issues have just come out within the first two months in office is comforting.

The Patriotic Front (PF) manifesto which captured the imagination of many people during the campaigns for the landmark September 20 elections gave priority to the remaking of the constitution within ninety days and the freeing of the public media from the control of government, the ruling party and State House. That the government has now moved to reaffirm its commitment to implementing its progressive manifesto is most encouraging.

On the issue of the public media, we have already witnessed a positive change from what existed in the previous administration of Rupiah Banda. For instance, the opening up of Zambia National Broadcasting Corporation (ZNBC) airwaves and the two public newspapers to the political lips of opposition leaders like United Party for National Development (UPND)'s Hakainde Hichilema and Heritage Party's Godfrey Miyanda, platforms which they previously lacked or were denied, may threaten President Sata and the PF's hold on to power.

But they are progressive moves over which the ruling party is likely to reap electoral rewards, in the long term, and must be commended, though full commendation should only be given after the enactment of the necessary reforms that will entirely free the public media.

Second, the pronouncements reveal the complex terrain of transitions and reforms. Zulu's statement that more time is to be devoted to the making of a new constitution outside the ninety days mantra is a reality check and suggests that it is one thing to promise something while you are still in the opposition and another to implement it when you are in government.

In other words, there is a difference in attitude between a party in government and one in opposition. Those who had followed the constitutional debate would not have been surprised at this rather expected change. It was known that if the experts say a constitution cannot be completed within ninety days, that had to be respected, and then it ceases to be a problem of Sata and the ruling party. For in as much as they would have probably liked to complete the process within the original time frame, they have to take into account the professional views of the experts.

The opposition UPND and Movement for Multiparty Democracy (MMD) have criticised the decision by the government to prolong the constitution-making process to more than ninety days, arguing that its extension violates the ruling party's pledge to the voters in the run-up to the last elections, and questioned the government's commitment to delivering a good constitution.

PF secretary general Wynter Kabimba has since then moved to assure Zambians that the ruling party remains committed to delivering a people driven constitution to the nation. While it is the role of opposition political parties to offer checks and balances to the government of the day, it is equally their role to support progressive initiatives and moves of the government as opposed to being wedded to criticism even where unnecessary. The more they talk even where silence is golden, the more they might actually diminish their appeal in the eyes of the electorate and the court of public opinion.

The announcement that the constitution-making process will take more than ninety days is a welcome and progressive move. There is no need to rush the process if we are to produce a lasting document that will reflect the will of the people as submitted to various constitutional review commissions over the years.

There is the question of carefully appointing the Committee of Experts that will be tasked with studying, synthesising, analysing and coming up with a draft document for presentation to the public via a referendum. This will certainly require time. Then there is a question of whether or not the whole constitution deserves to be replaced or simply amended. Is the present constitution entirely bad or are there some progressive clauses that can be maintained? What have been the experiences in the past? What are the most pressing issues? What is there that needs to be removed? What additions ought to be made?

Controversial ones like the running mate (which goes with the parentage clause), the 50 per cent + 1, coalition building, the question of appointing MPs from outside parliament, the dual citizenship clause, reduction of presidential powers, the issue of transition (handover of power from one president to the other) after an election, and the funding of political parties in parliament deserve time.

Another crucial topic is one of proportional representation. We should be mindful of the fact that ordinarily proportional representation and the presidential system do not go together though we may wish to craft our own system or pattern. Not least important is the fact that a referendum will also require a fully-fledged election, if the present constitution is to be followed, though we may easily get around this issue without an election since we are coming from one.

Yes, it is possible to have a new constitution within ninety days if all we seek is to have a few additions, though again this should be subject of discussion. However, if we require a whole ‘new' constitution, then more time is not an option but an obligation. The extension is necessary if we are to produce a constitution that will result from a robust scrutiny, intelligent debate, wide consensus and sober reflections.

Unless of course the ninety days will be effective the day that the Committee of Experts to be instituted begins sitting, as constitutional lawyer John Sangwa suggested recently, though his is certainly not the calculation deployed by many. It is for this reason that government must be commended for extending the process. To give full marks to the government for its departure from the original time frame is neither an attempt to heap praise on the establishment before the process has even taken off nor a desire to silence the opposition parties and civil society groups that have criticised the extension.

While the move is welcome, there is need for the government to ensure that the extension is not abused or unlimited. Apart from guaranteeing or issuing a clearer roadmap with strict deadlines for the commencement and completion of the constitutional making project, the team around Sata should avoid the mistakes of the MMD that left the process open-ended without a clear time frame, wasting a lot of public resources in the process, if it is to be more credible.

The final point of discussion here is the issue of the partial privatisation of the public media. Though in principle warmly welcomed, the move require both the government and the public to act very cautiously with regards to how they proceed. The government must not dance to the tune of the public and the public must not be quick to criticise or praise the government without a deep reflection and analysis of the implications of the move.

Unless the idea was inserted towards the end, the issue of partial privatisation of the public media was neither in the manifesto of the PF nor in the ninety days mantra. The government should therefore feel no urge to quicken the process and move in this direction due to pressure from the public when so many variables remain absent. Instead, the government should locate the issue of the public media within the broader context of improving and implementing the Freedom of Information Bill, Independent Broadcasting Authority (IBA) and the ZNBC amendment Acts.

The latter two pieces of legislation were actually passed by the MMD administration in 2010 in what appears to have been a non-transparent manner. Clearly at the time, there was no public outcry, at least the kind we would have expected, given the fact that the Acts reverse the very legislative reforms many people including the new Speaker of the National Assembly, Patrick Matibini, so arduously fought for.

A careful reading and analysis of the Acts reveal that they place the power to regulate broadcasting back into the hands of the Ministry of Information, Broadcasting & Tourism, resulting in the regulatory monotheism that the original Acts of 2002 sought to abolish. Worse is the fact that watchdog institutions like Media Institute of Southern Africa (MISA) Zambia and Press Association of Zambia (PAZA) are suddenly very inactive, perhaps still caught up in the long queue of those who wish to convey their congratulations to the new government or who are reluctant to offer criticism, no matter how constructive, because it is deemed too early.

The general civil society movement may not be alive to this legislative 'ambush' by the MMD government. So, clearly, there is need for thee PF government to relook at these pieces of legislation and address their shortcomings.

Lessons ought to be learnt from the past. According to the original MMD manifesto, the state media, which had previously been abused by the then ruling party and the Kenneth Kaunda government, should have been privatised as a priority after 1991.

Instead, the opposite was done, with increased government and ruling party control, so that the media became far much unprofessional, unbelievable and derided. There are lessons inherent in this and the government would do well to conduct thorough research before making any further hasty pronouncements and moves. While the idea by the PF government of returning to the original objective of an independent press is welcome, the approach must be treated with caution.

The proposed 35 per cent (or is it 45 per cent?) private investment means that government control of the public media would continue, and is simply a formula for continuation of the status quo. Where is the incentive for investors to put in ‘more money' into the pockets of medium whose editorial policy is controlled by the government and which, when the government becomes unpopular, as governments inevitably do, might become increasingly repellent to the average citizen?

What does the government aim to do with the remaining majority percentage? What is the government putting in? How are they going to make the shares attractive to be bought? How much work was done by the government to come up with what they announced? How did they deal with practical issues? What research was carried out? What challenges are the public media facing? Is partial privatisation the best way of dealing with those challenges? These and many other questions have to be answered.

As things stand, and however sincere and good the move might be, I am sceptical to imagine that many people would take the risk of investing in an entity in which they don't have control and are not aware of the sharing formula, especially if that the 35/45 per cent is likely to go to go different individuals. If the government still wishes to go ahead with the idea, I would propose two options. First, it should sell all or majority of the shares (at least 51 per cent) to the public and retain nothing or less control of the public media. This won't' be unique to Zambia.

The South Africa government, for instance, does not have any control in or of the print media industry. Second, the government should shelve the idea and instead recapitalise the public media until it begins to make profits and is widely seen to be independent, backed by a healthy legal machinery. Only then should the government consider the idea of bringing the public on board, if they cannot sell the entire public media for now.

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