Last week, Minister of Justice Given Lubinda condemned Zambia’s current Constitution as ‘an extremely talkative’ document that was poorly ‘drafted by laypeople’ and contains several ‘inconsistent’ clauses that makes amending it inevitable. Welcoming ‘late’ submissions on the proposed constitutional amendments from a consortium of civil society organisations (CSOs), Lubinda blamed the flaws in the existing Constitution on the actions of CSOs who, he said, had pressurised politicians to pass the supreme national law before the 2016 general elections. He subsequently announced that the Patriotic Front (PF) would in June or July this year take a Constitutional Amendment Bill to Parliament to address the lacunas in the existing Constitution. What do we make of Lubinda’s remarks on the constitution-making process?
First is that it is cheap for Lubinda to blame CSOs for the limitations of the current Constitution when it is he and his colleagues in the PF who are responsible for getting us into the current constitutional mess. Those with better memories than the Minister of Justice will recall that President Edgar Lungu and the PF hurriedly introduced a Constitutional Amendment Bill in December 2015, not because of imagined pressure from civil society but because of their desire to use the delivery of a new Constitution in the 2016 general election campaign. To recap: delivering a new Constitution within the first three months of being in power had been one of Michael Sata’s and the PF’s key campaign promises prior to the September 2011 general elections. This message struck a positive chord with many CSOs let down by the unfulfilled promises of the Movement for Multiparty Democracy on that score. After two months in power, and keen to live up to his and the PF’s campaign promise, Sata appointed a not-so Technical Committee to oversee the making of a new national Constitution. The Committee completed its work in November 2013 and its unofficially released draft Constitution contained clauses that were popular with civil society, such as the requirement that a winning presidential candidate should secure a minimum of “50 per cent + 1” of the total vote.
On learning of this particular provision, and worried that it would undermine his re-election prospects in 2016, Sata dramatically u-turned, arguing that Zambia did not need a new Constitution after all, but only amendments to its existing one. This position, which Sata retained until his death in October 2014, drove a wedge between civil society groups and the PF. This was the prevailing context under which Lungu was elected as President in January 2015. In moving with rapid pace to enact the draft Constitution into law, albeit with significant alternations to the original draft report, Lungu sought to win over civil society groups and to prevent the opening of a political space for the opposition to intervene in the constitution-making process ahead of the 2016 elections. His swiftness left little room for wider public discussion on the issue. Many of the inconsistencies and flaws that Lubinda is now belatedly discovering in the Constitution existed prior to 5 January 2016 when Lungu assented to it and were highlighted by several Zambians such as Heritage Party leader Godfrey Miyanda and Cornell University Professor of Law Muna Ndulo. However, citizens’ views were either ignored or dismissed as coming from ignorant people who had not even read the proposed national law. Lungu even castigated Zambians for their apparent poor reading habits, claiming that he had read the draft Constitution and was so satisfied with it that he could sign it with his eyes closed. How is it possible then that such a fine document is, barely two year later, now defective? The blame game that Lubinda is playing is needless and, if anything, risks turning the spotlight on Lungu and all MPs who vociferously supported the current Constitution before its enactment. What he should do is acknowledge that the considerations from the PF in 2016 were political, not a disinterested effort to improve the supreme national law.
Second is that there is need to interrogate the PF’s renewed interest in the proposed constitutional amendments. It is worth noting that calls for the amendment of the Constitution started soon after the 2016 elections particularly in the wake of the opposition’s legal challenge to Lungu’s re-election and were primarily spearheaded by the PF. Initially, these calls were coated in the need to ‘straighten up’ ambiguous provisions, but they subsequently metamorphosed into demands for the removal of major inconsistences. Precisely what these ambiguities or inconsistences are remains undisclosed. It is also not known if the government will this time seek the expert assistance of Zambians with relevant skills and experience at constitution-making such as Ndulo and Chaloka Beyani, as Associate Professor of Law at London School of Economics and Political Science, to negotiate a new Constitution. Unlike Lubinda, who is extremely ignorant at constitution making, Ndulo and Beyani are constitutional experts whose positive contribution to the drafting of the Kenyan and South African constitutions is widely acknowledged. The idea that those responsible for messing up the 2016 constitution will now resolve these problems in 2018 is farcical. Details about how exactly the Constitution will be amended and about who will spearhead the exercise also remain unclear. A Bill, Lubinda announced, will be in Parliament by June, in three months’ time. Once again, the mistakes of 2016 are being repeated. There is no scheduled national election until 2021, so why the hurry?
I have a very disturbing feeling that the PF is seeking to use the proposed changes to the Constitution to achieve some short-term or sectarian objectives such as removing what they see as unfavourable clauses that place them in a weak position in relation to the forthcoming 2021 elections and matters that remain before the courts of law. This is evident from the way in which the proposed constitutional amendments are being processed. To date, we have not been told how many submissions were received before the exercise closed in October 2017 and the nature of these submissions. This lack of transparency and openness suggests a desire by the PF to control the constitution-making process and effectively means that it would be impossible in future to verify which suggested amendments were ignored or conveniently overlooked, which ones were genuine proposals from Zambian citizens and which ones were concocted by Ministry of Justice functionaries or PF officials. It is also very unlikely that the submissions recently made by CSOs to the Minister of Justice, such as the removal of the constitutional clause that provides immunity from prosecution for a serving President, the appointment of Cabinet ministers from outside Parliament and the abolition of the Constitutional Court, will find their way into the final Bill.
Scepticism about the PF’s true intentions over constitution-making is not prejudice: it is informed by the party’s total lack of goodwill towards civil society and the public more generally. Given its history on the subject, it would be naive to expect that the PF would be passionately pursuing constitutional reform for any reason other than self-interest.
As well as being extremely cautious of the PF’s renewed enthusiasm for this latest bout of constitution-making, civil society groups should be clear: the proposed constitutional changes do not present a real opportunity to fix the many problems with the rushed 2016 constitution; they are a PF project being run for the interests of Lungu and those around him aimed at entrenching their rule. The overall results are unlikely to resolve the problems with the current Constitution. In fact, they will likely introduce additional problems, as the proposed amendments are nothing but organised efforts by the PF to manipulate concern for rectifying constitutional discrepancies to their own advantage. Zambians should not be surprised if they are told that submissions overwhelmingly endorsed the removal or extension of presidential term limits, the removal of the “50 per cent + 1” clause, the removal of the provision that requires Cabinet ministers to vacate their offices following the dissolution of Parliament, or the one obliging an incumbent President to hand over executive power to the Speaker of the National Assembly once an election petition is filed against them.
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