By Clive Siachiyako
The con
stitution making process in Zambia has become rather messy and characterised by acrimony. Not that acrimony per se is bad, but it may be a healthy sign if it is both an affirmation and expression of a mature society that accommodates divergence and diversity of views.Unfortunately, in today’s Zambia with exceedingly low levels of tolerance and accommodation, continued acrimony characterized by high handed attitudes, precipitate and confrontational behavior, incessant bickering over issues of such profound concern of our country could lead to polarization, which may be the best prescription for social disorder and wasteful mechanisms that have led to the condemnation of many African countries as agents of perpetual regression and consequential poverty.The constitution of a country is per force the fundamental law of a country. It cannot be neutral on forms of governance and other issues auxiliary and incidental there to including the direction of socio-economic development and social equity.
stitution making process in Zambia has become rather messy and characterised by acrimony. Not that acrimony per se is bad, but it may be a healthy sign if it is both an affirmation and expression of a mature society that accommodates divergence and diversity of views.Unfortunately, in today’s Zambia with exceedingly low levels of tolerance and accommodation, continued acrimony characterized by high handed attitudes, precipitate and confrontational behavior, incessant bickering over issues of such profound concern of our country could lead to polarization, which may be the best prescription for social disorder and wasteful mechanisms that have led to the condemnation of many African countries as agents of perpetual regression and consequential poverty.The constitution of a country is per force the fundamental law of a country. It cannot be neutral on forms of governance and other issues auxiliary and incidental there to including the direction of socio-economic development and social equity. All citizens are stakeholders in any desired constitutional process and a meaningful and sustainable constitution at the end of the day is only accomplished if it is a product of consensus by an unquestionably broad spectrum of society.In tracing the process of writing a constitution and the consequent noise in the under taking, it is important to give a brief background of the much controversial constitutional process.According to the interim report of the constitution review commission dated 20th June 2007, the Republican President Dr. Levy Patrick Mwanawasa appointed the Constitutional Review Commission on 17th April 2003. This was two years after the coming into office of President Mwanawasa¢s regime and eight years after the enactment under controversial circumstances of the 1996 Mwanakatwe constitution. Many people however, had expected the president to push through the constitution much earlier in his term instead of waiting for two years to do so, because constitutional review was the most prioritized issue the public expected, given the controversy surrounding the Chiluba exercise on the same, as Alexander Chikwanda puts it ‘before the 2006 parliamentary and Presidential elections, there was an outcry for expedition in ordaining a new constitution So that the presidential election results would have reflected a 50 percent plus one to ensure the president was given an indisputable electoral mandate’.By statutory instrument number 40 of 2003 cap 41, the President appointed the commission headed by Mr. Willa. D. Mungomba. It will be recalled that this was the fourth commission to have been appointed to review the country’s constitution since independence in 1964 which alone suggests that previous exercises had simply not been successful according to Professor Michelo Hansungule.'Government granted the commission a whooping 31 terms of reference literary asking it to look at every aspect that previously deferred solution in effective constitution making.’ Among the important terms of reference stated by government include: a recommendation of a system of government that will promote democratic governance and against the emergence of a dictatorial form of government and to suitable methods of amending and adopting the constitution.The commission duly discharged its functions, which it was ins
tituted to carry out. It must be noted that petitioners where called upon to address themselves on the mode adoption were some recommendations suggested that the process be adopted by the president, house of chiefs, and by the commission itself. However the two most preferred modes were adoption by the constituent assembly and by the national assembly. The latter however, is the current mode the country has used since independence.Of the two most preferred methods, the commission after a marathon review of previous Mvunga and Mwanakatwe review processes in which petitioners similarly recommended adoption by the constituent assembly decided to settle for the latter against adoption by the national assembly. Convincing reasons however were advanced by this decision including previous mistrust over the use of the current mode of adoption in which the government abused its inherent power to prejudge the outcome of the review process and reject some of the recommendations made substituting them for its own.However, despite the CRC having recommended that a constituent assembly, or any popular body that would represent the views of the people adopt the new constitution, government however went ahead to settle for the mode of adoption by the NCC. This came to light through the Chief government spokesperson, Mike Mulongoti who announced on July the 15, 2007 that government was departing from what the majority of people agreed to on the constitution making process and apparently the noise was initiated.The noise in the process of writing the constitution as stated by the Times of Zambia News Paper dated 27th July, 2007, could further be stated that it started when president Levy Mwanawasa gave his assert to the National Constitutional Conference (NCC) Act early in September 2007. A number of stakeholders have however, rejected the NCC act, saying it cannot deliver a people driven constitution that could stand the test of time.The Catholic Church is among the stakeholders that have rejected the NCC act. According to the President of Zambia Episcopal conference Fr. Telephore Mpundu, the church would only sit in the NCC if the Act were revised.The church also rejected calls by Government that those who are aggrieved should take their grievances to the conference, however, fears are that when the sittings begin the NCC act will not be on the menu at the conference, alleging that by the time the deliberations start the members of the NCC will have made a solemn oath to abide by the act. It is however, not logical to consider the act later but the time to re-look at the act is now rather than later Mpundu said.However, the bishops have raised five objections to the act, first they alledged that the law departs from the clear recommendation by the people that a new constitution be written. It suggests that it will be up to the conference to determine the need for a new constitution.Secondly, there is Noise as the bishops argue that the expected 502 delegates, of the conference 337 are politicians and government related participants. It is also argued that many other stakeholders will be shut from the deliberations and the mere fact that the law provides for wide classes of participants without specifying how they will be chosen is an issue to consider in the transparency of the process.The third objection the bishops have put forth is that the act gives sweeping powers to the conference that, in the light of the same skewed composition, the delegates can undo the demands and wishes of the people for over 20 years of a need for a totally new constitution.The fourth decision the bishops have put fourth in their reject of the act is that the church has expressed fears that the role of parliament as provided for in the NCC act, could lead to mere amendment to the current constitution, instead of writing a new one. It is argued that the NCC brings back parliament to play a role even before the referendum. The question raised is that ‘will parliament deliver this, given the number of times it has failed the people’?
tituted to carry out. It must be noted that petitioners where called upon to address themselves on the mode adoption were some recommendations suggested that the process be adopted by the president, house of chiefs, and by the commission itself. However the two most preferred modes were adoption by the constituent assembly and by the national assembly. The latter however, is the current mode the country has used since independence.Of the two most preferred methods, the commission after a marathon review of previous Mvunga and Mwanakatwe review processes in which petitioners similarly recommended adoption by the constituent assembly decided to settle for the latter against adoption by the national assembly. Convincing reasons however were advanced by this decision including previous mistrust over the use of the current mode of adoption in which the government abused its inherent power to prejudge the outcome of the review process and reject some of the recommendations made substituting them for its own.However, despite the CRC having recommended that a constituent assembly, or any popular body that would represent the views of the people adopt the new constitution, government however went ahead to settle for the mode of adoption by the NCC. This came to light through the Chief government spokesperson, Mike Mulongoti who announced on July the 15, 2007 that government was departing from what the majority of people agreed to on the constitution making process and apparently the noise was initiated.The noise in the process of writing the constitution as stated by the Times of Zambia News Paper dated 27th July, 2007, could further be stated that it started when president Levy Mwanawasa gave his assert to the National Constitutional Conference (NCC) Act early in September 2007. A number of stakeholders have however, rejected the NCC act, saying it cannot deliver a people driven constitution that could stand the test of time.The Catholic Church is among the stakeholders that have rejected the NCC act. According to the President of Zambia Episcopal conference Fr. Telephore Mpundu, the church would only sit in the NCC if the Act were revised.The church also rejected calls by Government that those who are aggrieved should take their grievances to the conference, however, fears are that when the sittings begin the NCC act will not be on the menu at the conference, alleging that by the time the deliberations start the members of the NCC will have made a solemn oath to abide by the act. It is however, not logical to consider the act later but the time to re-look at the act is now rather than later Mpundu said.However, the bishops have raised five objections to the act, first they alledged that the law departs from the clear recommendation by the people that a new constitution be written. It suggests that it will be up to the conference to determine the need for a new constitution.Secondly, there is Noise as the bishops argue that the expected 502 delegates, of the conference 337 are politicians and government related participants. It is also argued that many other stakeholders will be shut from the deliberations and the mere fact that the law provides for wide classes of participants without specifying how they will be chosen is an issue to consider in the transparency of the process.The third objection the bishops have put forth is that the act gives sweeping powers to the conference that, in the light of the same skewed composition, the delegates can undo the demands and wishes of the people for over 20 years of a need for a totally new constitution.The fourth decision the bishops have put fourth in their reject of the act is that the church has expressed fears that the role of parliament as provided for in the NCC act, could lead to mere amendment to the current constitution, instead of writing a new one. It is argued that the NCC brings back parliament to play a role even before the referendum. The question raised is that ‘will parliament deliver this, given the number of times it has failed the people’?Finally, the church argues that the act gives the president a blank cheque to dissolve the conference if he/she deems it necessary, or extend its life span for as long as he/she wishes.The church however, express a concern that if these issues are thoroughly dealt with, they shall be willing to attend and participate fully in the conference. If however, this fails then the church reserves the right to stay away from the conference, as they do not want to give legitimacy to a process that lacks proper consensus. The church is not the only institution that has contested to the Act; various political parties and other associations have alleged that the act cannot represent the views of the people.It is clear that the CRC recommended that a constituent assembly or any popular body that would represent the views of the people adopt the new constitution. It can be assumed in this matter that the people of Zambia through the CRC want a totally new constitution and not amendments to the current constitution and this should be through a body which would represent their views or at least be seen to be representing the people’s views.Patriotic front (PF) secretary General, Edward K. Mumbi has said that the position of the PF is that the NCC in its current form and composition cannot and will not represent the views of the people. The party alleges that the act has not taken on board the key recommendations of the stake holders through the parliamentary committee on legal affairs, governance, human rights and gender on the national constitutional conference bill (No 26 of 2007). For instance, where as the committee recommended that there should be proportional representation of the conference by having the number of members representing political parties equal to the number of representatives from church mother bodies, the act provides for only three (3) from each church mother body and provides for six (6) from each political party. This brings nominees of political parties in the act to a total of (48) while the church mother bodies have only a paltry twelve (12).The committee also recommended a reduction of representatives from each security wing from three (3) to one but the amended Act came up with only two (2).The other contentious issue raised by stakeholders is that despite the committee having recommended a reduction in the number of civil servants to four the number of those civil servants participating has been maintained hence adding flesh to the fears held by a number of stake holders.The committee went further to suggest that for any church mother body to be qualified to send three (3) representatives pursuant to section 4 (1)(C) it should have been in existence for at least ten (10 years) at the appointment, surprisingly, the Act ignored all this and is now providing for five years of existence only.Section (7) of the act is clear in that, whoever has numerical superiority in the NCC will carry the day. All decisions of the NCC will be by consensus, adding that all issues will be resolved by secret ballot.However, as if the above inadequacies are not enough in the act, there is a situation where nominations have been given to non-existing institutions and unnamed organizations. For instance, section 4 (1) (5) stipulate that:The NCC must comprise one eminent Zambian, from each province who has distinguished oneself in any business field or profession.Section 4 (1) (j) also provides:That the NCC must comprise of three (3) representations of women’s organizations that are not members of the non-governmental organizations coordinating council (NGOCC).
Section 4 (1) (z) provides:Ten (10) representatives of non-governmental organizations registered under the societies act or any other written law.It is however interesting to note subsections 2 of section 4 provides that: their representative institutions shall nominate the representatives referred to in section 4(1). The question at this point is, which institution will nominate members to the NCC under the above sub section in section 4 considering that there are no known institution in existence at the moment which cater for section 4 (1) (5), (V) and (z) categories nor is there a description of the process by which those at section 4 (1) (5), (V) and (z) shall be identified and nominated.Patriotic front (PF) president Michael Sata further alleges that the other contentious issue however, is that the powers given to the president under the act in a well analyzed view can be a danger to the process itself as the incumbent can use these powers arbitrary to abort the process if in his sole judgment he believes the process is not going the way he wants.Government on the other hand, despite the above allegations alleges that the NCC is significant in that it is the first of its kind since independence was attained. This view though can be supported due to the fact that three constitutions have been passed by parliament before but a popular body of the people’s representatives adopted none of those. It is stated that passed constitution recommendations were submitted to the government of the day that decided what to implement and what to leave out. For the first time in Zambia’s history the recommendations of a review commission will be debated and adopted by a body comprising politicians’, traditional leaders, leaders of professional bodies and trade unions, women and youths.It is interesting to note that not all the civil society organizations have shunned participation in the NCC, one such body is to ZCTU which has confirmed its participation and pledged to advocate for workers rights at the conference, but one may be interested to know which rights will be advocated for, are they the same rights of the civil servants that were rejected in the act or is the ZCTU just going to represent its self interest?.Lawyers have not be left out in his whole controversy, a pronounced constitutional lawyers is for the view that the NCC is a Golden opportunity for the country to put in a constitution that is legitimate and popular. Mr. John sangwa has however, urged all citizens to participate in order to ensure that a popular and legitimate constitution is put in place that will stand the taste of time.However, it is important to note that some people who speak for the government quite often more with unconstrained zeal than sense have entertained the country to monologues. These individuals, some, palpably intelligent have their credibility seriously dented by addressing obvious galleries and by giving the impression that they hold the public offices because of their sycophantic propensities and not their cerebral functions and performance.However, if government intentions are good and its acts appropriately, the national constitutional conference can offer a solution provided government brings on board those political parties and organizations (especially the church) that have expressed genuine reservations not necessarily about the NCC but the way everybody would have be encouraged into submission. The constitution as stated earlier is something in which everyone has a vested interest. Therefore it is important in this instance that all Zambians feel they own the process for this is the only way to pre-empt possible future strife and spare the country the agony and anguish of conflict and civil strife.Consequently, consensus will be essential in arising at an agreement on the final draft constitution. As a result the only way to give our beloved motherland a constitution to stand the test of time is by entrenching consensus and not circumventing it by some verbal acrobatics and semantic kites. Of course, it is possible that a constitution can be put together by the mode of adoption suggested by the CRC.As Michael Sata puts it ‘a constitution shrouded in acrimony and bitterness by any sections of our community will be a poisoned chalice and a gross disservice to posterity.’ Therefore in order to bring about oneness in the process, the president’s constituency goes for beyond the zealous MMD cadres, he must embrace all the Zambians and everyone has an inescapable moral responsibility and civic duty not only to support him but also to admonish him with unfilled condor to ensure progress.Finally in order to ensure transparency and consequently progress in the constitutional making process government must bend back wards if there should be a compelling need to do so to accommodate the church and other stakeholders. It is inappropriate and in expedient for the government to trade obscenities with the church, as chikwanda puts it the church has always been the country’s staunchest and remorseless ally in development endeavours.The government must recognize that the bishops do not have a private agenda nor are they partisan. It must be noted that when the church speaks on an issues, it is because in their daily interaction within society they see the devastating poverty of the people and widening gap between the few privileged and the majority that are lacking.It is hoped that every stakeholder in the acrimony over the constitution making process can spare a consideration for the less privileged in society as all their dreams of a prosperous and peaceful Zambia are in their hands. Zambia, as the President (Dr. Mwanawasa) has hinted is bigger than all our individual and collective egos. The overriding interests of posterity should always enjoy unquestioned and unmitigated significance over our petty interests.
eresting to note subsections 2 of section 4 provides that: their representative institutions shall nominate the representatives referred to in section 4(1). The question at this point is, which institution will nominate members to the NCC under the above sub section in section 4 considering that there are no known institution in existence at the moment which cater for section 4 (1) (5), (V) and (z) categories nor is there a description of the process by which those at section 4 (1) (5), (V) and (z) shall be identified and nominated.Patriotic front (PF) president Michael Sata further alleges that the other contentious issue however, is that the powers given to the president under the act in a well analyzed view can be a danger to the process itself as the incumbent can use these powers arbitrary to abort the process if in his sole judgment he believes the process is not going the way he wants.Government on the other hand, despite the above allegations alleges that the NCC is significant in that it is the first of its kind since independence was attained. This view though can be supported due to the fact that three constitutions have been passed by parliament before but a popular body of the people’s representatives adopted none of those. It is stated that passed constitution recommendations were submitted to the government of the day that decided what to implement and what to leave out. For the first time in Zambia’s history the recommendations of a review commission will be debated and adopted by a body comprising politicians’, traditional leaders, leaders of professional bodies and trade unions, women and youths.It is interesting to note that not all the civil society organizations have shunned participation in the NCC, one such body is to ZCTU which has confirmed its participation and pledged to advocate for workers rights at the conference, but one may be interested to know which rights will be advocated for, are they the same rights of the civil servants that were rejected in the act or is the ZCTU just going to represent its self interest?.Lawyers have not be left out in his whole controversy, a pronounced constitutional lawyers is for the view that the NCC is a Golden opportunity for the country to put in a constitution that is legitimate and popular. Mr. John sangwa has however, urged all citizens to participate in order to ensure that a popular and legitimate constitution is put in place that will stand the taste of time.However, it is important to note that some people who speak for the government quite often more with unconstrained zeal than sense have entertained the country to monologues. These individuals, some, palpably intelligent have their credibility seriously dented by addressing obvious galleries and by giving the impression that they hold the public offices because of their sycophantic propensities and not their cerebral functions and performance.However, if government intentions are good and its acts appropriately, the national constitutional conference can offer a solution provided government brings on board those political parties and organizations (especially the church) that have expressed genuine reservations not necessarily about the NCC but the way everybody would have be encouraged into submission. The constitution as stated earlier is something in which everyone has a vested interest. Therefore it is important in this instance that all Zambians feel they own the process for this is the only way to pre-empt possible future strife and spare the country the agony and anguish of conflict and civil strife.Consequently, consensus will be essential in arising at an agreement on the final draft constitution. As a result the only way to give our beloved motherland a constitution to stand the test of time is by entrenching consensus and not circumventing it by some verbal acrobatics and semantic kites. Of course, it is possible that a constitution can be put together by the mode of adoption suggested by the CRC.As Michael Sata puts it ‘a constitution shrouded in acrimony and bitterness by any sections of our community will be a poisoned chalice and a gross disservice to posterity.’ Therefore in order to bring about oneness in the process, the president’s constituency goes for beyond the zealous MMD cadres, he must embrace all the Zambians and everyone has an inescapable moral responsibility and civic duty not only to support him but also to admonish him with unfilled condor to ensure progress.Finally in order to ensure transparency and consequently progress in the constitutional making process government must bend back wards if there should be a compelling need to do so to accommodate the church and other stakeholders. It is inappropriate and in expedient for the government to trade obscenities with the church, as chikwanda puts it the church has always been the country’s staunchest and remorseless ally in development endeavours.The government must recognize that the bishops do not have a private agenda nor are they partisan. It must be noted that when the church speaks on an issues, it is because in their daily interaction within society they see the devastating poverty of the people and widening gap between the few privileged and the majority that are lacking.It is hoped that every stakeholder in the acrimony over the constitution making process can spare a consideration for the less privileged in society as all their dreams of a prosperous and peaceful Zambia are in their hands. Zambia, as the President (Dr. Mwanawasa) has hinted is bigger than all our individual and collective egos. The overriding interests of posterity should always enjoy unquestioned and unmitigated significance over our petty interests. 
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