THE HISTORY OF MAKING A CONSTITUTION IN ZAMBIA TILL 2016

Before taking you through the History of Making a Constitution in Zambia, let us first recall what’s the meaning of the constitution. A constitution is a system of law, customs and principles usually written down, according to which a country or organization is governed. It is a document that contains the most fundamental law of a country.

The constitution of Zambia is modeled along the Nigeria constitution of 1963 which was based on the 1950 European convention for the protection of human rights and freedoms. These rights, which were known as Neo-Nigerian rights, were incorporated into most African common wealthy countries such as sierra Leone, Malawi, Botswana, Kenya and Uganda.

A Brief History of Making a Constitution

On 24^th October, 1964, Zambia inherited the northern Rhodesia self-government constitution of 1963. The provisions in that constitution were meant to safeguard the interests of white settlers. since 1964, Zambia has had several constitutional review commissions (CRCs) to improve its constitution. The first one was the Chona constitution review commission in 1972 which recommended the establishment of a one party participatory democracy. It outlawed or banned the formation and existence of any other political party apart from the united national independent party (UNIP). That was the beginning of the second republic.

A constitution that outlaws the formation of other political parties does not encourage free electoral activity. For example, during the second republic, elections were more of a plebiscite in nature where Zambians voted yes or no for a single president candidate. A plebiscite is a decision made upon a political question by a vote of all eligible citizens. A plebiscite can also be referred to as a referendum. The second constitutional review was the Mvunga constitutional review commission of 1991 which indorsed that Zambia should revert to multi-party democracy. This marked the beginning of the third republic.

The third constitutional review was the Mwanakatwe constitutional review commission of the 1995. The main amendment that the review made was the percentage of the person contesting the presidency of Zambia. The review recommended that only persons whose parents were Zambians by birth would qualify to be candidates of presidency. This recommendation was adopted by parliament. Thus the 1991 constitution remained intact apart from few amendments made by the Mwanakatwe constitutional review commission.

In 2003, president Mwanawasa appointed a constitution review commission to collect views of the public within Zambia and from Zambians living outside Zambia, on what kind of a constitution that should exalt and effectively entrench and promote legal and institutional protection of fundamental human rights and freedoms would stand the test time.

The commission was chaired by Willa Mungomba and hence the commission is popularly referred to as The Mungomba Constitution Review Commission. The commission received a total of 12,569 submissions. It (the commission) recommended some progressive constitution provisions swell as the adoption of its draft constitution by a constituent assembly, constitutional conference or a body with a broad representation . the reasons advanced for a constituent assembly were inter alia:

1. Parliament was not representative enough of all the various social interests in the country
2. The adoption of the constitution through parliament undermined the will of the people in constitution making.
3. The formulation of a new constitution should be more inclusive, broad based, gender representative and it should encourage the participation of citizens in order to give the constitution –making process legitimacy. It even went ahead to recommend the composition of the constituent assembly as shown below:
4. 2 representatives from each district, (one woman and one man) making a total of 148
5. All members of parliament 150
6. One representative from each of the registered political parties represented in the national assembly
7. 3 representatives of the law association of Zambia.
8. 2 representatives from the economic association of Zambia
9. 4 representatives of from local government association of Zambia
10. 3 representatives of the Zambia congress of trade unions
11. \2 representatives of the Zambia federation of three trade unions
12. 2 representatives of the Zambia federation of employers
13. 2 representatives of the Zambia association of chambers of commerce and industry.
14. 3 representatives elected from women’s organization.
15. 10 representatives from eminent persons appointed by the president, including past presidents and chairpersons of the previous constitutional review commission.
16. 8 representatives from religious organizations (2 from the council of churches of Zambia, 2 from the Zambia Episcopal conference, 2 from evangelical fellowship of Zambia, 2 from the independent churches of Zambia)
17. 4 representatives from the media association of Zambia
18. 6 representatives from students unions
19. 2 representatives from youth organizations
20. 4 representatives from organizations representing people with disabilities
21. 1 representative of the Islamic association of Zambia
22. 4 representatives from NGOs not provided for
23. 1 representative of the Hindu association of Zambia
24. 10 representatives from defense and security services and public service commission
25. 2 representatives of the Zambia institute of charted accounts
26. 2 representatives of the medical council of Zambia

The government of president Mwanawasa however created a national constitutional conference to develop a new constitution in July 2007 following a meeting of political parties represented in parliament under the umbrella of the Zambia centre for inter-party dialogue (ZCID). During this meeting it was resolved that instead of the constituent assembly; a national constitutional conference act, 19 of 2007 was enacted/ asserted to on 31 august 2007. Section 3 of the act describes the national constitutional conference as a forum for the examination, debate, and adoption of proposal to alter the constitution.

The members of the conference (national constitution conference) were more than 500. In 2011, shortly after coming into power, again using the inquiries act, president Michael Chilufya Sata of the patriotic front (PF) government appointed a technical committee on drafting the Zambian constitution whose main terms of reference was to look at all the reports of past constitution review commissions and come up with a draft report that would be acceptable to all Zambians.

As usual the technical committee on drafting the Zambian constitution visited all parts of the country. The citizens who met as a district and provincial constitutional conference made their submissions. This culminated into another national constitutional conference whose report raised a heated debate as to whether it should be submitted to the president alone or simultaneously to the public. The main demand from stake holders was that this time around the draft constitution be adopted through a referendum preferably before the 2016 general elections.

However, it appeared that both the stake holders and the government reached a compromise agreement of allowing the Parliament to adopt the draft constitution after a thorough debate. The only part of the constitution which was to be subjected to a referendum was part III which contain bill of rights. There was also an agreement by both the stake holders and the government that after the debate in parliament the draft constitution was to be sent back to the public for scrutiny. The public scrutiny or input appeared not have yield significant fruits on the draft for obvious reasons such as lack of publicity on the document by the government and other stake holders especially civil society organizations.

Due to limited time, the draft was taken back to parliament after the public input and had to re-consider some few feedbacks from the general public. However, it should be noted that the majority citizens appeared to be satisfied with the contents of the draft hence did not strongly oppose the entire document apart from few provisions such as appointing cabinet ministers outside parliament. Some stake holders argued that cabinet ministers needed to be appointed outside parliament as this would bring efficiency in the implementation of government policies which have been highly politicized in the past by ministers who are appointed from within parliament.

When the parliament was satisfied with the draft, the date for assent by the President was set to make the document become official supreme law of the land. On 5^th January 2016, the then President of the republic of Zambia, Edgar Chagwa Lungu, assented to the document which made the document became the official binding supreme law of the land.

CHARACTERISTICS OF A GOOD CONSTITUTION

• It should always cater for the interests of various groups in society.
• It should protect the rights of all Citizens
• The language used in the document must be clear in order for ordinary citizens other than the lawyers to understand. It must not be too technical.
• It should stand for a test of time.
• It should protect and respond to the Social, Economic and Political needs of Citizens
• It shouldn’t be too rigid nor too flexible

THE IMPORTANCE OF A CONSTITUTION

• It is owned and guarded by citizens
• Promotes and Protects the rule of law
• Sets out the functions and composition of the wings of government
• Ensures democratic governance
• Gives equal opportunities for individual development