In his maiden speech to Parliament, President Hichilema stated, “With respect to constitutional reforms, government will complete the constitutional reform agenda anchored on a broad-based consensus among all Zambians.” More than 675 days since then, Zambians still await the broad-based consensus that is supposed to characterise constitutional reform under the UPND administration. Information about constitutional reforms have largely been anecdotal and not provided the necessary information for stakeholders to effectively participate and engage in the process. Most of the information available to the public about constitutional reforms has come from the statements that Zambian officials have made to different UN Treaty Bodies in Geneva (by the Minister of Justice and most recently the Permanent Secretary at the Ministry of Justice).
According to the latest statement, the Ministry of Justice states that the Zambian government will implement constitutional reforms in three phases. The first phase will involve attending to non-contentious issues; in the second phase the government will hold a referendum on the bill of rights; and finally, the government will undertake a holistic review of the constitution. Given the scant information available, the approach proposed by government raises several questions. Who did the government engage to agree on the process? Who decides what is contentious and non-contentious? What is the roadmap for the constitutional reforms? How are citizens being engaged in readiness for the referendum? How will the holistic review of the constitution be different from the other steps in the process?
The need for constitutional reforms is well documented. Before 2016 and since the 2016 amendments, numerous stakeholders, including the current President when in opposition, called for constitutional reforms. The debacle and subsequent failure of Constitutional Amendment Bill 10 and the reports of human rights violations over the years have highlighted the urgent need for reforms to consolidate Zambia’s democracy and provide better legal protection for citizens. The need for constitutional reforms is perhaps one of the few areas that nearly all stakeholders can agree on.
Why should Zambians be worried about the approach taken by the UPND administration? Quite simply, the discussions that have informed the decisions taken by the government have not been transparent or participatory. The UPND administration, unlike the PF, has not even pretended to involve a broad section of the public in coming up with the design and approach. Like in previous processes, the government is ignoring the importance of constitutional amendment procedures which may impact the legitimacy of the Constitution. Given the limited information, one might argue that no constitutional reform process is underway. The statements by government officials and sentiments expressed by the public calling for amendments are at the very least, a small step towards the start of a constitutional reform process. The galvanising of different voices into a single process is important and is missing in the current discourse.
It is somewhat surprising that the UPND administration have approached constitutional reform in this way. There are precedents on the dangers of a non-inclusive processes. The failure of the Constitutional Amendment Bill No. 10 of 2019 or “Bill 10”, is one such example. Why the approach is not entirely surprising is that the technocrats that are behind the process are largely the same as the ones that worked on the failed Bill. 10. Further, the power interests beyond the goodwill expressed by the Head of State remain the same. While the President has said very little publicly except his views on Zambia’s democratic trajectory; there are valid reasons to question the interests of party functionaries and officials appointed to the public service. George Orwell wrote in the book ‘1984’, “The Party seeks power entirely for its own sake.” Writing about Political Parties and power in Economic and Political Weekly, Bhabani Gupta describes power as the holy grail that power provides the instruments for influence, patronage, might, domination, and accumulation of wealth and resources. The recent arrests of party and senior government officials over the illegal mining of sugilite, in a small way, supports the argument about the drive to accumulate resources and wealth.
In the Bill 10 case, one of the central arguments made by the Petitioners was that, because the process and the procedure used to develop the Bill were not inclusive, National Assembly did not have the requisite jurisdiction to consider the Bill. Another approach to understand the argument is to consider the fact that the National Values and Principles should be applied to the enactment of legislation. The enactment of legislation is a process that begins with consideration of and drafting of proposed legislation. If the process of enactment commences and said process violates the National Values and Principles, the process and outcome will be unconstitutional. Article 61 of the Constitution provides that Parliament can only exercise its legislative authority to protect the Constitution and enhance democratic governance. A constitutional amendment, or proposals to amend the Constitution, that do not comply with the processes set out in the Constitution undermine constitutionalism and weaken the Constitution.
The government of Zambia needs to reconsider its approach to constitutional reforms. The people of Zambia deserve more than just soundbites about important reforms from speeches made in Geneva. The UPND administration has the benefit of global and national constitution making to inform the process of its constitutional reform agenda. The failure of Bill 10 and failure of the last referendum in 2016 are all examples that the UPND can learn from – if they are willing to learn. Given the approach taken so far, one would be inclined to think the government is not willing to learn and that the people of Zambia need to be concerned about the current constitution making process. Even democratic governments do undemocratic things. Constitutional reform is a high stakes game; often the people with the most to lose are the majority that do not get to have a seat at the table. To paraphrase an adage, the UPND needs to build longer tables so that more people can sit at the decision-making table. This will ensure greater ownership of the Constitution we so desperately need.
Chapter One Foundation is a civil society organization that promotes and protects human rights, constitutionalism, the rule of law and social justice in Zambia. Please follow us on Facebook under the page ‘Chapter One Foundation’ and on Twitter and Instagram @CofZambia. You may also email us at [email protected]