CONSTITUTIONAL Lawyer John Sangwa says it will be crazy and irresponsible for government to lead the constitution making process again.
And Sangwa has insisted that drafting a new constitution is a matter of priority which needs to be concluded within a year.
Commenting on America based Zambian Law Professor Muna Ndulo’s remarks that government should not be in the driving seat of the constitution making process, Sangwa agreed with that position, saying there was evidence to show that constitution making processes which were led by government did not have viable outcomes.
“He is very right and I totally agree with him. There is evidence to back up the statement that government should not be involved in the process because we have not had a viable constitution order since 1964. Now, why? It is very simple; we have had three constitutions and we have had two commissions and when you look at all those exercises, they were driven by government. They were not driven by the people. If we start with the 1964 constitution, the people of Northern Rhodesia were not involved. The parties were the British government, the Northern Rhodesia Government and the political parties in Northern Rhodesia. So, it was again a government driven exercise,” Sangwa said.
“The 1973 Constitution, again, it was a government driven exercise. That is the constitution which introduced one party rule, which supported the one-party system. The decision to introduce a one-party system was not a decision for the people but in fact you can even go to the extent to say it was Kaunda’s decision. Even though they had a commission which was chaired by the vice president Mainza Chona, that should form the basis of the constitution, the final texts of the constitution was based on the recommendations that were accepted by the government.”
He said politicians had a tendency of slipping political interests into the process.
“Clearly, the politicians in framing the constitution, and that is one of the reasons why they should not be involved because they have vested interest in the process, there is always temptation to try and guarantee or protect their interests in the making of the constitution. The next exercise we have was the 1991 Constitution, again it was driven by government, that is the UNIP government. Again, that was another failure where government was responsible for the exercise. In 1993, president Chiluba appointed a Mwanakatwe Commission to revisit the Constitution of 1991, again this was a government driven exercise. That was a government driven process which resulted in the amendment of the constitution,” Sangwa said.
“When president Mwanawasa came to power in 2001, he initiated his own process, again that process was government driven. This was the Mung’omba Constitution Commission, in the end they submitted a report and draft constitution but this draft constitution was still subject to approval by government. The recommendation was to submit the draft constitution to referendum and president Mwanawasa rejected the idea of a referendum and went for a constitution conference that turned out to be a huge waste of money. When president Sata came into power, he also created his own although it was said to be driven, he took together a small committee [that] should have been a technical committee of experts but it moved and became something else.”
Sangwa said government should only provide the legal framework to drive the process but should be detached from it.
“It is necessary to revisit this issue and to try a different mechanism that is why we do not need government to drive this process. Government should simply provide the legal framework to drive this process but government should be detached from the process. It should be left in the hands of the experts which can be done. In the last 56 years, the culprits in undermining the constitution exercise has always been government. So given the track record that we have, it would be crazy to insist that the constitutional exercise be driven by government, it would be totally irresponsible. It is important that this particular exercise is driven independently of government,” Sangwa said.
And Sangwa insisted that a new constitution should be a priority and that it needed to be concluded within a year.
“I would go further beyond what Prof Ndulo has said that this exercise, contrary to the statement given by President HH, the exercise must be given priority. My position is that the exercise can be completed within the first one year of the President’s term. What I would like to see is that 12th August 2022, we could have completed the exercise. All what you need is a small team of experts to be able to drive the process. We do not need to have a commission and these experts don’t need to go in all the provinces to get people’s views, because when you look at all the reports, there has been no radical change in people’s views in terms of what they would like to see in the constitution,” Sangwa said.
“We already have a lot of background information which should form the basis of a viable constitution. So, we already have a lot of background information, all what we need to do is to choose a proper process. I fully agree with Professor Ndulo when he says that the process determines the content. If the process is sound, it will result in the content that will also inform the content of the constitution. We have seen that whenever government has driven the process, the content has suffered because the content has tended to reflect the interests of the government and not the interests of the people. When you put a team of experts together, they have no political interest, their interest is to give the country a constitution which will be acceptable by all Zambians.”
Sangwa insisted that now was the best time to enact a new constitution while people’s interest in governance issues was still heightened.
“The second reason why I would like the constitution making exercise to be concluded before 2022, because the next election is in 2026, if we delay, hear my reason why we should do it immediately: first, there is the necessary political excitement in the people right now, which we must take advantage of. The people are keenly following the activities of government. This is the time to put together a viable constitution because of the timing. The experts are likely to reflect on the mood of the people because the people would be engaged in the process,” he said.
“I would recommend that once the draft constitution is ready, it should be submitted to a referendum so that the people can give it the approval. That is important for the legitimacy of the constitution and it is the legitimacy of the constitution that determines its durability. Now once it has been approved through a referendum, it will be very difficult for subsequent governments to justify its amendments. So, because previous constitution making exercises have been driven by government, then the subsequent government has had to justify why they also need to change the constitution, because it was changed by the previous government, they also have a legitimate [reason] to change it. But if you go through a referendum then you address that argument.”
Sangwa said it was also vital to conclude the process early so that it was not linked to the 2026 election
“The other reason why it is important to have it done promptly is that we don’t want the exercise to be linked to the election of 2026. Because if you delay it, there is always a temptation, you undermine its credibility because people will look at it as having been initiated so that it can assist the government in power to win the election of 2026. So once you complete it in the first one year, you have four years, so there is no way you can link the exercise that has been completed in 2022 to the elections that are scheduled in 2026. So, you will give it legitimacy,” said Sangwa.
“The other point that people have talked about is the issue of cost. If you put together a committee of experts, it is cheaper than to have a 20 or 30 man commission, each one of them being paid an allowance monthly. The tendency with most commissions, they make it long so that they continue to get paid.”