AMERICA based Zambian Law Professor Muna Ndulo says government should not be in the driving seat of the constitution making process.
And University of Zambia lecturer in the School of Law Dr O’Brien Kaaba says when you have an incompetent Judiciary, or when you have a Judiciary that is not committed to the rule of law, it becomes a spoiler.
Meanwhile, Council of Churches in Zambia (CCZ) general secretary Fr Emmanuel Chikoya has called for transparency in the constitution making process.
Speaking during a webinar organised by SAIPAR on “Constitution Making in Zambia”, Prof Ndulo said Zambia did not need a commission in order to come up with a good constitution.
“Some countries have succeeded like Kenya. Zambia, Tanzania and others continue to struggle in terms of arriving at a doable constitution. One of the things we should realise is that it is not unique to Zambia. One point I would like to make is that in constitutional development, the process is as important as the substance. If you don’t get the process right, it doesn’t matter what is in the substance. I think that must be the guiding principle all the time. I think this should be a guiding principle all the time to remember that when you are dealing with this, you have to look at the perspective that this is a national project and not a party project,” he said.
“All the processes we have had have been so of commissionary. Government should not be in the driving seat when developing a constitution. If you look at Kenya for example, the driving seat was the experts’ group and not the government. So, it is very important that government should not be the ones in the driving seat, this is a process which should be seen as inclusive and independent. Going forward, in terms of whether we use commissions, we don’t need commissions anymore, I think Zambia has had so many commissions. There is so much material to actually make a good constitution. What we need now is to proceed using the background that we have and then of course develop the constitution.”
Prof Ndulo said there was need to a set up a constitution making committee led by experts.
“I think there has also been a lack of properly constituted technical committees. All the processes that I am familiar with have been supported by a parallel process of real constitution experts with specific committees drawn in terms of presence, elections and all that. It is not sufficient that you are a lawyer, lawyers come in different forms. A fact that you are a doctor doesn’t mean you are a surgeon,” he said.
“So, I think we have to realise that there is need for that kind of expert input in the process. It is a collective process of experts because you have to brainstorm on provisions. This cannot be done by one person sitting in an office and coming up with a draft. Another problem which I see in the processes is that they have not been guided by constitutional processes. If you look at the constitution as an instrument of power, then of course you will not achieve the consensus that you want to achieve.”
Prof Ndulo stressed the need for the Judiciary to be independent in order to uphold constitutionalism.
He also said a constitution needed to be summarised.
“The Constitution should deal with constitutional issues; it is not a place for detailed legislation. If you look at the 2016 Constitution, there are many provisions that should not be in the constitution. My favourite is the section regulating foreign investment, I mean how do you have that kind of provision in the constitution? All that you need in the constitution are provisions relating to the right to property and all that. That is why I think the emphasis that I placed earlier on drafting is critical. A constitution should not be too detailed to the extent that it begins to deal with matters that should be dealt with in legislation,” said Prof Ndulo.
And Dr Kaaba said the Judiciary had failed to play a meaningful role in helping the country push towards rule of law and constitutionalism.
“The risk is that when you have an incompetent Judiciary or when you have a Judiciary that is not committed to the rule of law, the Judiciary then becomes a spoiler in that case. So, when you look at the 2016 Constitutional Amendment, there are a few provisions that seem to be progressive, but when you look at how the constitutional court has interpreted those provisions, it is a total disaster. When you look at provisions to do with contraction of public debt, the role of the DPP, the issue of the third term, so basically the Constitutional Court has reversed the gains of even the little progressive staff we put in the 2016 Constitution Amendment,” said Dr Kaaba.
“So, from this perspective, considering that the courts have not played a meaningful role in helping the country push towards rule of law and constitutionalism, I think in my view the courts inevitably become an object of reform. There are many things that can be said about the Judiciary in Zambia and where I think there is need for reflection as a country. We hear allegations of corruption; those are things that shouldn’t be associated with the Judiciary. We have issues to do with low public confidence. Also I think that in the last few years we have seen the allocation of cases, especially sensitive political cases in the Judiciary allocated in a manner that suggests that there is some sought of a cartel.”
Meanwhile, Fr Chikoya called for transparency in the constitution-making process.
“So the big lesson learnt from the previous constitution-making process is that we need to allow the citizens to guide the content of the constitution. People should not come with that agenda with preconceived things they want in terms of content. I also affirm the fact that we need to be very clear in terms of what kind of Zambia we want. Depoliticize the process, ensure that there is consensus building instead of voting, because if you have civil servants in that technical constitutional making committee, they will always vote with their interests in terms of job security. So, we need to make sure that the process is transparent and accountable. In the past they have not been accountable, how can you have an interested party appointing the chair and everything is so controlled by the Executive,” said Fr Chikoya.