ZAMBIA: Constitutional Baby Out With the Bathwater

  • by Ephraim Nsingo (lusaka)
  • Saturday, April 09, 2011
  • Inter Press Service

'The people who are ultimate losers in this game are Zambians,' said Dickson Jere, a spokesperson for President Rupiah Banda told the press after the Constitution Bill failed.

But Willa Mung'omba, who oversaw preparation of the initial draft which formed the basis of National Constitutional Conference’s review, welcomed the collapse of the process.

'It’s a positive thing and an opportunity for everybody to stand back and say what do people want?' said Mung’omba.

'People wanted economic, social and cultural rights written in the constitution. If you leave that out; you will have left out a great deal of what the people were looking forward to. It should talk about clean water, shelter, employment, education, health and all that.'

What's in the draft

When the MMD-dominated constitutional conference completed its work in August 2010, it pleasantly surprised civil society groups by including concessions to demands from women and other disadvantaged groups in the new constitution.

The new constitution provide for a Gender Equality Commission to be established by government, to support equality between men and women. The new constitution would also guarantee that women can - for the first time - inherit, own and administer land in Zambia.

The right of children born outside of marriage to care and inheritance from both parents has also been recognised. And a new concept has been introduced to Zambian labour law: paternity leave.

But among the contentious provisions proposed by the MMD and retained in the final document is the '50 plus one' clause, which requires the winner of presidential elections to not just win the most votes, but to secure a simple majority.

Drawn-out process

Mung’omba chaired the Constitutional Review Commission (CRC) appointed in 2003. The CRC carried out consultations with communities across the country’s 150 constituencies and produced a draft constitution.

The National Constitutional Conference was appointed in 2007 by then-President Levy Mwanawasa to review the CRC's draft. The NCC’s make-up was challenged from the onset as failing to be representative of all Zambians. Along with important segments of civil society, the opposition Patriotic Front (PF) led by Michael Sata, boycotted the Conference, leaving the ruling Movement for Multiparty Democracy party as the dominant voice.

The general consensus is that the draft constitution emerging from the NCC contained many positive elements that would have empowered groups including women, youth and the disabled. But critics noted the removal of important clauses drawn from the CRC's draft, such as the inclusion of social and economic rights in the Bill of Rights. The NCC's document also notably dropped a requirement that the president be elected by 50 percent plus one of votes cast.

But the PF had the last laugh when its MPs abstained from a vote for the Constitution Bill on Mar. 29. With the United Party for National Development (UPND) joining the boycott, the it became impossible for the MMD to get the two thirds majority required to move ahead with the new constitution.

The vice chair of the Press Association of Zambia, Amos Chanda, believes the failure of the bill is a sound lesson to the ruling party that it cannot ignore the will of the people as expressed through the Mung’omba draft.

'A constitution is a national document that should draw compromises and concessions from all stakeholders, not being presented as something belonging to one political establishment,' said Chanda. 'When making a constitution, we should always be prepared to reach consensus, even on issues that may not be in our political party interests.'

Left on the margins

But if the opposition is content with having prevented the adoption of a constitution they felt was flawed, some of its supporters are not.

Mercy Chibwe, who lives in the high density suburb of Kalingalinga in Lusaka, said she has voted for the PF in previous elections.

'These people [politicians] are a disappointment, they want to enrich themselves at our expense,' she told IPS. 'We are told they have refused to amend the constitution so that we, as women, can also be empowered and contribute to the development of our nation. They think they are the only ones who have a right to speak for us. What is the use of voting for them?' Chanda said the failure of the Constitution Bill was regrettable but necessary. '[There were] some progressive clauses in the draft, some remarkable amendments that would certainly give power to different groups of people, but these should not be looked at in isolation.'

The executive director of the Non-Governmental Organisations Coordinating Council (NGOCC), Engwase Mwale said the millions of dollars that have been spent in drawn-out constitutional drafting could have been put into better use.

'First and foremost, the constitution making process has been very protracted in Zambia, I think for eight years now. And we are talking about the resources that have been expended that should have been well re-directed to critical issues that affect women directly,' said Mwale.

'We feel that the failed constitution process has actually robbed the country of resources that could have been better directed to those areas that have got a multiplier effect on development.'

Which way forward

The Oasis Forum — a grouping of civil society organisations that include Zambia Episcopal Conference, Law Association of Zambia, Council of Churches, Evangelical Fellowship of Zambia, and NGOCC — said there was still room for the constitution to be reviewed this year.

'The Oasis Forum is of the considered view that it is possible to have a new constitution before this year’s elections if there is political will,' the grouping said on Apr. 6.

'We are saying that there is simply no justification for not concluding the constitution review process eight years after its commencement.'

The forum proposed the creation of a technical committee of experts to reconsider the Mung’omba Draft Constitution and report, validate it and take it through a referendum. This would then be followed by the enactment of the adopted constitution by parliament. They believe the Mung’omba had only a few weaknesses which could be readily addressed.

© Inter Press Service (2011) — All Rights ReservedOriginal source: Inter Press Service

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