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Lubinda says Constitution is a mess, as CSOs demand abolition of ConCourtBy Zondiwe Mbewe on 24 Feb 2018
Civil Society Organisations (CSOs) have submitted that the Constitutional Court in it’s current form must be abolished and established as a last Court of Appeal for Constitutional matters.
And the the CSO want the Immunity Clause stripped off from the Constitution in order to promote transparency and accountability among public officer bearers at all levels of governance.
Meanwhile, Minister of Justice Given Lubinda says the submissions by CSOs will contribute positively to the refining process, admitting that the current Constitution was extremely talkative and inconsistent such that even lawyers sometimes misinterpreted it.
Yesterday CSOs which included CiSCA, ZCID, Zambia Land Alliance, Caritus Zambia, among others met the minister to present a submission to refine the current Constitution.
CARITAS Zambia Excective Dierector Eugen Kabilika who read the submission on behalf of CSOs said with the refinement of the Constitution, they hoped that ambiguities, lacuna, contradictions and provisions that maybe unworkable would be removed.
“Honourable minister as you may be aware; the current Zambian Constitution was extensively amended in 2016 through the enactment of the Constitution of Zambia (amendment) Act No.2 of 2016 and assented to on 5th January, 2016. The implementation of this Constitution has brought to light, several shortcomings, some of which were already foreseen before the amended Constitution was even assented to,” he said.
“Hon minister, there is convergence of views and opinions among stakeholders including your government that, indeed, this Constitution is riddled with lacunae, ambiguities, contradictions and clauses that are difficult to actualize. That is why your government has commenced a process of refining the current constitution. This, it is hoped will remove some of the ambiguities, lacunas, contradictions and provisions that maybe unworkable.”
Kabilika said a refined Constitution should adopt a mixed member proportional electoral system.
“It is our considered recommendation that the refined Constitution should adopt a mixed member proportional electoral system in order to increase presentation of marginalized interest groups such as women, youths and persons with disability in councils and in Parliament. We recommend that, following the Constitutional Court judgment on the electoral rights of prisoners and other people under lawful custody, the Electoral Commission of Zambia (ECZ) and government should quickly devise clear mechanisms on how prisoners would exercise their franchise as demanded by the constitution,” he said.
“We also propose that all ministers should not be appointed from the Legislature but from outside Parliament, and should be accountable to the Legislature. It is also our proposal that Presidential appointments and decisions rejected by the national assembly should immediately lapse.”
He recommended that the framework for resolving Presidential election disputes be amended.
“We further recommend that the framework for resolving presidential election disputes be amended. It should be arranged in a chronological and coherent manner with clear time frames. The Constitution should be clear that once the presidential election is petitioned, the Speaker of the National Assembly should automatically assume the executive office until the new President is sworn in. On the Judiciary, we recommend that the Constitutional Court, in its current form as a stand-alone court equivalent to the Supreme court and court of appeal, should be abolished. And instead the Constitution should be amended to adopt the South African model where the Constitutional Court is the highest court to hear all Constitutional matters,” he said.
“It is also our proposal that any court that will have jurisdiction to hear and determine a presidential election petition, should not be constituted by a single judge when hearing and determining interlocutory matter relating to such a presidential election petition but by the whole bench. We further recommend that the appointment of judges should be done transparently with vacancies openly advertised, and candidates interviewed in public and criteria for selection of these judges be made clearer as opposed to the current opaque system,” he said.
Kabilika recommended that another referendum be held prior to the 2021 general elections.
“On public finance and public debt, we recommend that the Constitution should provide broad framework for inclusion of the recommendations into subordinate legislation as reflected, for example, under the Kenyan and South African constitutions. With regards the bill of rights, we recommend that another referendum be held prior to the 2021 general elections. We here by recommend that the immunity clause currently existing in our constitution should be removed to promote the principle of equality before the law for all citizens regardless of their status in society,” he said.
“It is also our considered recommendation that with the dawn of elected mayors or council chairpersons in our districts who are also full-time council employees, the position of district commission be abolished to avoid conflict among office-bearers, duplication of work and replication of resources at district level.”
And Lubinda said the current Constitution had so many inconsistencies because it was not subjected to expert eyes.
“The time that I have spent at the ministry of justice, I have been asking the team [that] ‘how come we have this Constitution? Walk me through the process’. After they walked me through the process, I realized there was a gap and the gap is exactly what you (CSOs) identified. Unfortunately we need to subject our Constitution to expert eyes, we were in such a hurry. CSOs, some of which are represented here, and political players created so much anxiety and so much fear in us politicians, that we realized that damned if you do it and damned if you don’t. Had we allowed experts to look at it, surely some of these inconsistencies they wouldn’t have rushed them,” he said.
“We took it straight from the convergence of different people whose role was only to come up with the ideas, the principles to drive the Constitution. We took and said ‘this is the Constitution’. We got a document that was drafted by laypeople like myself. But in January, 2017, one year after the Act got Presidential assent, having listened very carefully to the comments from CSOs, academia, legal experts, from my fellow politicians, Judiciary, I came to a conclusion that there is something that ought to be done. I discussed with my colleagues in cabinet and the President agreed that indeed everyone in cabinet had listened to the views of people that there are inconsistencies in our Constitution.”
Lubinda said the current Constitution was extremely talkative.
“When the PF came into government in 2011, President Sata, representing his Cabinet stated that ‘we had sufficient material from the people of Zambia through the various previous Constitution reform processes. We didn’t require another commission’. That was the reason he was determined that within 90 days, we would have the Constitution to present to Parliament. Unfortunately as things turned out, the technical committee that was set up also decided ‘lets go back to the people and get more views’. That is what elongated the process. What we ended up with is a highly verbacious Constitution; extremely talkative Constitution. You know, people who are very talkative tend to bite their tongue a few times. So even our Constitution, because its so talkative, its inconsistent in some parts,” he said.
“I would like to make a few things clear. What is it that we are aiming at doing with this process? We are not for instance, going to look at the fundamental principles of the Constitution. We will not use this process to temper with the fundamental principles of governance. We will not temper with the separation of power between the Executive, the Judiciary and Legislature. We have no power to do that.”
Lubinda however expressed displeasure with the CSOs for making their submission late.
“To come end of February, to come and make a submission whose door was closed on October 31, 2017, I have asked my team that they must not be as upset as I am but instead must accept these submissions. PS [Andrew] Nkunika has already received boxes of submissions. We will do it because we don’t want to leave any one behind. But this is the last submission that will be received by government,” said Lubinda.
About Zondiwe Mbewe
Zondiwe is a vibrant young Zambian journalist who has interest in writing political and current affairs on issues which affect every Zambians. She draws inspiration from journalists who stand for what is right and are not afraid to tell and show the truth to the people.
Email: zondiwe [at] diggers [dot] news
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