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Monday, 30 April 2012

First Draft Constitution of Zambia

The First Draft Constitution of Zambia has been released for a 40 day consultation. First impression is that there are certainly some interesting additions, but overall this looks to be a popular but not well thought through draft. It aims to please everyone rather than offer an intellectually sound position. But that is only after a scan. Do please read it and write your responses. We would be happy to coordinate a single response, but clearly that is not possible because we all have different opinions. So feed back directly. We will try and flag up things that you may wish to look out for. A special page has been be created to pull this together. The document is embedded below. Further information can be found at 
First Draft Constitution of Zambia - April 2012


  1. How do you interpret the draft constitution on Provincial Assemblies?

    Article 203 lists the various organisations that should be represented. Organisations of chiefs, farmers, religion and industry are to be represented by 3 persons.

    [I don't know why these particular interest groups have been identified, rather than any other, e.g. teachers/health workers/market traders etc]

    Anyway, Clause H then specifies that there should be ‘a representative each from organisations operating in the Province representing (i) women, (ii) youth, and (iii) persons with disabilities’.

    [I assume this was a typo and should read, 'a representative from each organisation operating in the Province...]

    Typos aside, does this mean every that every organisation must send 3 representatives, one of which must be a woman, another young and another disabled? Or is it expected that for every organisation represented one of the 3 representatives will be a young disabled woman? Or maybe it just means that within every Provincial Assembly there should be one woman?

    I think some form of affirmative action seems on the cards, since Article 87 states that (1) A political party shall ensure that in nominations for elections there is equitable representation of each gender, persons with disabilities and the youth. (2) Parliament shall enact legislation to give effect to this Article.

    Any insights about the intended meaning would be much appreciated.


  2. Intellectual Property and Traditional Knowledge are key areas of interest for me. I do not believe we go far enough. Case in point at the time I left Zambia there was no copyright society as intellectual property, pharmaceutical and mining rights had been locked in a statute inherited from British 1911 law. This was devastating to any creator within the borders as royalty payments were only made to non 'natives'.

    We've come forward from there but unless it becomes a constitutional right to own what one creates, the current draft only appears to state the government will support, promote and protect 'an owner' or the Zambian people. A little too open ended and could result in the 'owner' that is thoroughly protected being a foreign one. Back to scratch.

    I do believe the team are listening though as they have tapped in to traditional knowledge protection under the protection of cultural heritage. However bearing in mind that museum items 'have walked' into oblivion it seems that we need to understand that the potential to generate revenue from IP and traditional knowledge should make this protection 'absolute'. It has served the USA well and we need to use that as an example of how important IP is as opposed to only consuming. My two cents as a random passerby who wants to give back in this arena but needs to know that I will be protected by the constitution :)

    1. R. P.,

      I am of a view that such issues would better be enshrined in an Act of Parliament. In fact it has already been catered for in CAP 400 of the Patents Act. The Act may not have adequately addressed such issues as access and benefit sharing but I guess there is room for repeal to include whatever you would like to see addressed.

  3. In 137 under qualification and disqualifications, we could do better if we added a clause providing for resignation or death of a member of parlimanet.

    In this case we should provide for a clause to allow the Party to which such a member belonged to choose a replacement from within its ranks.

    Elections should only be called to be held if the vacancy has been created by death or resignation of an independent MP. This way we would reduce on unnecessary elections.

  4. Thank you for the feedback. Cap400 I think relates specifically to patents and have read through other sections and also looked at the police IP unit.

    My suggestion still holds that the right to create and own IP should go in as the position of the state to promote, support and protect has been outlined. Similarly the right to hold traditional knowledge is what leads to the position of the state to protect cultural heritage and in fact ensure royalties are collected/paid.

  5. am not happy on the issue of official language

  6. My apologies i know this is a Wrong forum, Can someone please advise why Zambia does not have an E2 treaty with USA, i think it would be beneficial since Zambia seems to be very open to Investors , the E2 category is reciprocal and is a two way treaty meaning Zambians living in Zambia and anywhere else can also invest in the USA and obtain E2 visa’s. There are a number of African countries who have this treaty with USA such as Ethiopia, Egypt, Cameron, Congo,Liberia, Morocco,Senegal, Tunisia etc

    The E2 Investor Visa allows an individual to enter and work inside of the United States based on an investment he or she will be controlling, while inside the United States. This visa must be renewed every other year, but there is no limit to how many times one can renew. Investment must be substantial. An investor must contribute to the US economy. (Setting up a small shop alone is not enough.) Investor visas are available only to treaty nations.[1]
    The dollar amount of cash investment normally should exceed $50,000 depending on the type of business (new or existing), although cases have been made for less amounts.
    This is an approximated amount and applicants should consult an immigration lawyer prior to making any offers for existing business. The dollar amount should only be money spent on the business. Any expenses not directly spent on the actual business itself will not count toward the required amount.
    For new start ups, the investment must be large enough to start and operate the business. The amount of investment varies on the type of business. The $50,000 dollar amount would not be a substantial investment for a business such as the construction and management of a shopping center or office complex. The investment will not be considered substantial if it is not large enough to capitalize the venture. The USCIS will use an ‘Inverted Sliding Scale’ to determine whether the investment is substantial in proportion to the overall cost of the enterprise.
    Upon conclusion of the business, investors must return to their countries of origin, or change their status. The holder of an E-2 visa may leave the United States at any time.Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E-2 visas in order to accompany the principal alien.Spouses and unmarried children under 21 years of age, regardless of nationality, may receive derivative E-2 visas in order to accompany the principal alien.
    Dependents may seek employment in the US by applying for Employment Authorization using Form I-765, Application for Employment Authorization. Children under 21 cannot apply for work , only the spouse of the E2 holder.Wikipedia E2 visa

  7. I'm a little confused about how the National Assembly would be constituted.

    It appears there would be 200 MPs elected through an open list system but there is nothing I can see to indicate how many constituencies there would be, presumably significantly less than the 150 as of now thus requiring a redrawn electoral map of Zambia.

    Surely this would cause significant upheaval, and is it even helpful to have >1 MP for larger constituencies rather than just one person accountable to a smaller area and electorate?

    I'm struggling to see that this is neccessary or that it is going to be in any way straightforwards.

  8. my name is Henry Lukwamuna Kabondo from Lusaka.
    my main concern is on the issue of housing policy. i strongly feel that it is a mandatory for our Govt to provide adequate housing to its populacy. after reading through the first draft constitution, there is one clause that is not included " RIGHTS TO ADEQUATE HOUSING, CLEAN WATER AND SANITATION" it is not a luxury but a naccessity for a healthy country.

    1. Hi Henry,
      Since when is it the government's responsibility to provide 11 million Zambians with adequate housing, clean water and sanitation? Don't you think government is already swamped with work/responsibilities as it is?

  9. 48 years after indepence, we are still living in the past. visit the high density areas of Lusaka, we have no decent shelters,no running water,no decent toilets hence wa resort to using pit latrines covered with plastics, we get water from shallow well.i am asking the professinals on the NCC panel to look in this matter thoroughly. for zambia to develop first thing look at the health of the populacy. it is our right to be served with decent homes clean water and decent sanitation. the clause RIGHTS TO ADEQUATE HOUSING CLEAN WATER AND SANITATION must be implemented
    HENRY L KABONDO, 0979 170393

  10. I am disappointed by the continued focus on land as lease-hold instead of private property. When will we as Zambians be entitled to land that is not the property of the state but actually belongs to us? Property should be our inviolable right, not some lease that the government can revoke as it pleases.

  11. It is great news that the people are more interested in the constitution of the particular country, and a great day in the history of Zambia. They will be more aware of the first draft constitution and after reading this I would think it might need some few changes which are likely to take place in the constitution of the Zambia.


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