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Monday, 1 June 2015

Where next on the constitution?

Justice Minister Ngosa Simbyakula recently appointed a Referendum Commission to oversee the holding of the constitution referendum in 2016. The government has decided, as we have previously argued, that holding the general election and the referendum simultaneously is a good way to manage costs given Zambia’s very difficult fiscal position.

In the meantime, PF plans to bring forward to Parliament “non-contentious clauses” in the existing Draft Constitution for immediate enactment, with the remainder subjected to the 2016 referendum. The nature of the "non-contentious clauses" is yet to be defined but it is thought to include such things as an "elected Vice President".

The reaction to the government general proposal has been mixed. The UPND and FDD opposes the idea suggesting that the referendum should happen this year. The position of NAREP and MMD is less clear. One suspects that the real reason UPND fears the government proposal is that it may give PF an electoral advantage.

The June amendments will signal some progress after 20 years of constitutional paralysis. President Lungu will only be too eager to remind voters that he has done what others before him failed to do. More pointedly, Lungu may sell the 2016 referendum vote and PF as a “package”.

Some civil society groups have also opposed the PF proposal. The Non-Government Coordinating Council (NGOCC) does not want any elements of the constitution to be adopted next month. It believes the constitution needs to be delivered as an entire package. In other words it wants to stick to a strategy that has failed for 20 years.

Indeed, their position appears to miss the point that many of clauses in the draft constitution are merely points of detail that should not be there in the first place. The document should NOT be put to the people in its entirety because it is poorly written and will only create a large and expensive government. Cherry picking is inevitable because the process was not done properly from the beginning.

There’s also the important point raised by the Evangelical Fellowship of Zambia (EFZ) that we need to “bear in mind that the tripartite elections are due 15 months away and that conducting a referendum will require to be preceded by a voter registration exercise specifically aimed at meeting the referendum”.

The EFZ believes that it “impractical at the moment considering the limited time available for all the processes”. In short the proposed piecemeal approach to enacting the Constitution may well lead to Zambians to get the fruits of the prolonged process sooner rather than later. Especially since there is no guarantee that a referendum will deliver a constitution. Zambians may still vote no.

The big problem is that people are not focusing on the the important issues. A key issue relates to non contentious issues. What are these issues that will be put forward for legislation in June, and who will decide these?

The government has appointed a referendum committee for 2016 but there does not appear to be a similar committee scrutinising and clearing the suggested non contentious issues before they are subjected to a parliamentary process. There is simply not enough consultation on this issue.

Unfortunately by civil society adopting an adversarial position they are not shaping the June process for the public good. What has been even more puzzling is that the smaller parties like NAREP and FDD have not been more proactive in seeking to shape the June amendments.

For example, NAREP can definitely benefit in pushing for the change to the electoral system and dual citizenship (with possible diaspora voting) to be part of the change. Those changes would serve them well come 2016. But so far they have been silent and allowed UPND and some elements of the civil society to shape the debate.

Coming back to the issue of consultation. As we have already noted there are certain things that politicians are likely to conclude as “non contentious” but in fact are very unwelcome and should not be removed altogether from the Draft Constitution.

For example, Article 87 (clause 4) “The following shall be prescribed with regard to political parties: (a) the establishment and management of a Political Parties’ Fund to provide financial support to political parties with seats in the National Assembly”.

This clause is basically  stratight of the  PF party manifesto promise which many right thinking Zambians oppose. This clause was added by selfish politicians who want to reward their parties with money. As economists we argue that it is wrong and misguided to subsidise political parties because they not public goods.

We also contend that the value for money for such a subsidy in face of our fiscal problems is negative. We would addthat funding those already in parliament simply raises the barriers of entry to Parliament leading to further political inequality. These parties have MPs with gratuities so why give them more money?

That is just one example. There many such clauses (e.g. increasing number of MPs) that some politicians think are “non-contentious” but clearly for a poor country have important economic consequences.

This leads us to the second question in relation to the existing thorny questions in the draft constitution. Just as not everything in the “non contentious” bracket should be taken to parliament, not everything classed as “contentious” should be subjected to a referendum because some of those things will result in things people do not want.

A good example is the NGOCC holy grail - the so-called “Bill of Rights”. The NGOCC believe any constitution without the Bill of Rights is not worth having. Their leader Sarah Longwe recently said “our interest…lies in the Bill of Rights to outlaw all forms of discrimination against women, girls and children. Therefore, any constitutional amendment devoid of the expansion of the Bill of Rights is meaningless…The Bill of Rights is simply the core reason as to why a Constitution is needed – to safeguard the rights of all citizens and ensure that they are adequately guaranteed in the Constitution”.

No one has paused to consider whether this argument makes any sense at all! A simple reading of the Bill of Rights section shows that many of them are just impractical and should not be in the Constitution.

For example, Article 48 (g) says, “…an accused person or a detainee has the right: to be brought before a court - (iv) for trial within ninety days of being arrested; or (v) to be released on bail, as prescribed..” We may as well let the jails open! The government does not have the capacity to implement such clauses.

It is sad that many people are languishing in prisons without trial. Unfortunately, the costs to Zambia of complying with this provision are huge. We simply cannot afford this! Indeed, there is a legitimate question whether the constitution is a right place to have these rights.

What the above discussion suggest is that there is a substantial need to be very clear on what exactly we want from the constitution and which bits do we need to subject to a referendum. A big problem we have had with the constitution making process is that we have wrongly thought that only one draft constitution should be put to the public vote.

What should have actually happened is that we should have had choices. The Constitution Draft Committee should have produced two constitution proposals for the public reflecting diversity of opinions. The government would then also produce their own version. These three could then be put to the public with the winning option adopted. This approach would have saved us money.

As many legal minds have noted the approach to drafting the constitution appears to be devoid on any overarching principles guiding the constitution. It has not consistency or principles to check against it. It seems to be a cut and paste job borrowing from the American constitution and others with things that do not fit together. One of longtime readers who is lawyer put it to us recently:
"It is is shocking in some places, too vague or ambiguous or contradictory. It is way too long and detailed, completely unattainable. Complete waste of time. Because it has been plagued with politicisation from the start and we have never paid attention to what is importatnt - who drafts it and how it will be enacted? We have allowed national pride prevent us using constitutional expertise from around the world to assist us, we have not insisted from the start that the roadmap be determined before the drafting begins".
As one reflects on the constitution drafting mess, it seems very consistent with Zambia's general approach to many issues. Home grown expertise should add value to the stock of knowledge not subtract from it. The whole idea of "catch up" theory is that nations at the bottom should develop quicker because they can learn lessons from others who have gone before them. In Zambia's case this appears not to be the case in so many areas. 

Be as it may, we are where we are. The best we can do now is to ask the Lungu government to be clear on the criteria for prioritising the June amendments and to ensure that only "reasonable contentious" clauses are put to a vote in 2016. It would be a tragedy if the draft constitution as currently drafted is adopted without further revisions. Another option is to scrap the thing altogether until we get it right. If the constitution is really important we should keep going until we get right rather than put a wrong document before the people.

Chola Mukanga
Copyright © Zambian Economist 2015

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1 comment:

  1. Hi, when are you going to write an analysis piece about Zambia's downgrade to negative status by Moody's?


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