TWO Zambian constitutional lawyers have observed that the current constitution-making process is deeply flawed and may not produce good results.
In a joint statement, US-based law Professor, Muna Ndulo and his UK-based counterpart Dr Chaloka Beyani stated that the option taken by the government does not ensure transparency.
The duo stated that the process had numerous flaws that made it difficult to come up with a people's constitution.
"It is our considered view that the current constitution making process is deeply flawed and is unlikely to deliver a constitution that is legitimate and provides a framework for the democratic governance of Zambia. The primary flaws in the process are the following: (1) the process itself is inherently unrepresentative and suffers from a crisis of legitimacy; (2) it is ill designed to build consensus and produce a constitution the country can be proud of," the two lawyers stated on Thursday.
"The terms of reference of the committee do not say a word about its philosophical approach to the constitution but instead reflect its phobia about values, transparency, institutionalisation of accountability and policy in the manner of its appointment; (4) the process is not guided by any agreed constitutional principles or national vision; the impression given is that it is simply about a Technical Committee on Drafting a new constitutions."
Prof Ndulo and Dr Beyani stated that the government gave the impression that it had little understanding of the functions of a constitution as a foundational document for society.
The two lawyers stated that the government further appeared to have even less understanding of the dynamics and relationships between people, institutions and procedures.
"The Government does not seem to fully comprehend the meaning and significance of devolution. Successive constitution-making processes in Zambia have confused devolution of central government administrative functions from the center, for example, provincial ministers appointed from the center) with devolution of actual governmental power to local communities, in other words, devolution of constitutional authority and governmental power to democratic sub-national entities within a state, a structure which involves the creation and sustenance of such entities as semi-autonomous entities with respect to their authority, responsibility, finance and human resources and accountability arrangements)," they said.
"Strangely, the current process is not guided by an understanding of the abundant best practices in Africa and the rest of the world which have informed recent successful constitution-making processes elsewhere, such as in Kenya, South Africa, Uganda, and Namibia to name just a few countries that have recently concluded successful constitution-making processes; further, the process has no timeline for its work, thereby making it open to abuse by those who want to exploit the process to advance their accumulation agendas. As past Zambian processes have demonstrated time and time again, in constitution making, it is unwise to have an open-ended process."
And the two experts noted that the process government had taken in enacting a new constitution showed that it had not learnt anything from past mistakes.
They argued that the government had failed to show a clear and unwavering commitment to the promotion of transparency and democratic practices because it failed to embark on an open, democratic, and independently established process.
"In setting up the process, there was no consultation with all the stakeholders and civil society. However, in a people-driven process, there should be consultation and participation by all stakeholders in all important steps and avenues for the participation of the people. In a people-driven process the government should not be the deliverer of the process but a participant that builds consensus on the establishment, regulatory framework, composition, modality, and time frame of the process," they said.
The two lawyers observed that in a contested process, the tension that ensued on ownership of the process usually prolonged the constitution-making process and created a void that was dangerous for the security of the country.
The duo stated that President Michael Sata should have consulted before announcing the technical committee and the process it would take.
"The Zambian government has clearly decided to control the process, probably by using the Inquiries Act which is an unacceptable post-colonial legacy. Without consulting anyone outside his government, in November 2011 President Sata announced a new process," they noted.
"The President appointed all the members of the Committee without consulting Parliament or other stakeholders, and set the terms of reference for the team, again without consultation. The government is the one to receive the final document and presumably propose the final changes to the constitution. All these are decisions that need the full participation of all stakeholders and yet were taken without the participation of the other stakeholders."
The duo observed that in constitution-making it was crucial that the constitution making body, the terms of reference and the time frames were agreed upon by all the stakeholders.
"The success or failure of a constitution making process largely depends on its legitimacy built by consensus, representation, diversity, gender balance, nature of the legal framework under which it is set, its composition particularly the personal integrity, expertise, and independence of its members, checks and balances, accountability, safeguards against failure, and endorsement by referendum," the duo observed.
"The latter is critical where a process like ours in Zambia has been long drawn and politically divisive so that a new constitution is a rebirth of the country. It is also noticeable that most successful constitution making processes have had a technical committee composed of recognised constitutional experts to advise the constitution-making body why certain provisions are required in a constitution. Experts play an important role in constitution making. In Kenya for example, the process was led by a Committee of Experts. It is not enough that there are lawyers among members of the constitutional making body just as it would not be enough to have General Practitioners where a patient requires heart surgery."
The duo has since suggested that the government build on past constitution-making processes with a well-managed process.
They noted that with that the country would avoid political confusion and manipulation of the constitution-making process.
"There are also important lessons to learn from the failure of the immediate past National Constitutional Conference in Zambia. It is suggested that there should be no more review commissions to collect views of the public. The views of Zambians on the future constitution for Zambia have been adequately canvassed through several previous commissions indicated above. There is no need to go into this again," advised the two lawyers.
"In light of several previous Commissions already referred to above, what is required now is a Committee of Experts of no more than nine persons to review the previous constitutional proposals and lead the process of making a new constitution for Zambia. Members of the Committee of Experts should be persons known for their expertise in constitution making. It is desirable that the committee includes two non-lawyers preferably political scientists. The committee must be representative in terms of gender and diversity. It would be useful to include two non-Zambians on the committee."
The duo noted that it was always useful to have the expertise of external experts to bring in comparative experience.
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