CONSTITUTIONAL Lawyer Dr O’Brien Kaaba says there is need for fundamental reforms to rebuild the judiciary’s image, noting that there can be little hope of good governance without an independent, credible and competent judiciary.
In a response to a press query, Dr Kaaba, who is also a lecturer of law at the University of Zambia, said the proposed constitution making process should address the many constitutional issues that were currently inadequately or poorly dealt with.
“There are many constitutional issues that are currently inadequately or poorly dealt with, the proposed constitution making process should redress them. The constitution is a problem-solving tool. It must mirror the kind of governance challenges the country faces and provide or attempt to provide redress mechanisms. In my view, the current constitution inadequately deals with many fundamental constitutional issues. These include under-representation of women and youths in government; pays a blind eye to ethnic diversity and inclusion and still largely perceives ethnicity as a problem and not a blessing. Hardly deals with fundamentals of administrative justice leaving citizens at the mercy of outdated common law doctrines; institutions that support democracy such as the office of the Public Protector are poorly designed and wrongly clustered with institutions such as the prison commission which serve fundamentally different purposes,” he said.
“The Judiciary and Legislature continue to be marginalized and dominated by the Executive; and the electoral process is not inclusive but designed to enhance polarization by entrenching a winner-take-all outcome. Perhaps a little more can be said about the judiciary as it is the bulwark of democracy. There can be little hope of good government without an independent, credible, competent and courageous judiciary. The new Chief Justice has inspired hope that there could be some improvements in the delivery of justice and already some measures are beginning to bear fruit. That, however, is not enough as we need fundamental reforms to rebuild the image of the judiciary. The constitution reform process can help do this.”
Dr Kaaba said a new constitution was needed in order to redesign the state and make it responsive to the needs of the people.
He said the current constitution, as seen in the last few years, was incapable of disciplining and limiting government and serving as the country’s moral sail.
“How important do we need a constitution? Do we need a new constitution or just amendments? The question [of] whether we need a new constitution or an amendment should be settled at the beginning as that would inform the process design. An amendment would need to comply with requirements for amending or altering the current constitution. Crafting a new constitution is an exercise of original and unlimited constituent power of the people. The people are sovereign and can at any time redesign the state and map out power structures anew. This collective sovereignty of the people is not encumbered by the provisions of the current constitution,” Dr Kaaba said.
“In my view we need a new constitution in order to redesign the state in order to make it responsive to the needs of the people. The current constitution, as we saw in the last few years, is incapable of disciplining and limiting government and serving as the moral sail of the country for various reasons. The quality of a constitution is not dependent on the merit of individual provisions considered in isolation, but the culture of constitutionalism and national ideology it generates in practice. It is not a decorative document.”
Dr Kaaba said there was need for goodwill from the Executive in the constitution making process for progress to be made.
“What role should government play in constitution making process? The role to be played by arms of government would depend on how the constitutional reform question is framed. If it is a mere amendment of the constitution, it means the reforms have to be done within the confines of the current constitutional provisions and the legislature and executive will play their traditional or established roles of enactment and assent. But if it is decided, as I hope it will be, that the country needs a new constitution, then design of the process will inform what role these may play, if any,” Dr Kaaba said.
“Since constitution making is an exercise of original constituent power, and since the current arms of government only exercise constituted power, they would be at the mercy of the people to determine what role they should play, if at all. The role the government organs will play, in my view, will depend on whether we need a clean break or we just [need] an amendment of the current constitution. However, whichever way we go, it must be acknowledged that the government plays a key facilitative role. Without [the] goodwill of the executive, it is unlikely that progress can be made.”
Meanwhile, Dr Kaaba said the constitutional making process should be insulated from political vicissitudes through the enactment of specific legislation governing the entire process.
“Our constitution-making history demonstrates that previous governments have considered the constitution-making process as a liability, hence the efforts to try to control the outcome and get a document that assures the ruling party of short-term benefits. To avoid having the process being overtaken by narrow political interests, it is necessary to have the design of the constitution-making process insulated from political vicissitudes through the enactment of specific legislation governing the entire process. The design should be carefully thought through and every possible eventuality anticipated and provided for. It is important that the persons who lead the process are experts in constitutional law and are chosen for their competence rather than party affiliation or social stature,” said Dr Kaaba.