PROFESSOR Michelo Hansungule has proposed that the Coat of Arms and National Anthem be changed because they were outdated and gender insensitive respectively.
"It (Coat of Arms) is outdated. The man in short trousers and woman in apron represent the colonial era man and woman which is clearly antiquated.
Similarly, in the national flag, the Coat of Arms needs change particularly in view of the cosmopolitan nature of the emerging Zambian population," stated Prof Hansungule in a paper he submitted to the Technical Committee drafting a new constitution.
"The colour 'black' on the flag could collide with the principle of equal, non-racial and non-discriminatory society the country is building. These features were relevant at the time of independence. Reference to 'free men' in the National Anthem even if read to include women may be interpreted to be patriarchal and gender insensitive.
Second and most important, the Zambian National Anthem is the same as the South African National Anthem which raises serious questions of sovereignty and related intellectual property issues."
Hansungule, who is a South African-based Professor of law, submitted that though not specifically mentioned in the draft constitution, the Coat of Arms needed to be changed.
He observed that there was also no civic education on critical issues before the constitution-making process was started and no clear information on the role of the Executive and the legislature in the process.
"I strongly feel the procedure being used is wrong, totally wrong. You don't go to the people who are not in a constitutional law classroom without prior civic education on key issues like separation of powers, why a judiciary should be independent and from whom," he stated.
"They should have made summaries in local languages of Mung'omba, Mwanakatwe, current constitution, and other instruments as part of civic education. Second, there is no procedure on what happens next, the role (s) of key players like the President, Cabinet, Parliament, and the time frame, etc."
He stated that since the terms of reference reflected the wishes of the people, they should not have been drawn by the government.
Prof Hansungule stated that government should have just facilitated the process by mobilising resources.
"Given this, it is a great pity that the terms of reference and the Technical Team were appointed, in fact 'singlehandedly' picked by the Executive," Prof Hansungule stated.
"Normally, government should merely have facilitated the process by mobilising the resources and stakeholders to meet, draw the terms and appoint the team. This is what would have given legitimacy to the process, a pre-condition for a successful outcome.
Unfortunately, both the process of setting the terms of reference and the selection of members of the technical team, including their chairperson and vice chairperson was a matter for State House or for the Executive which echoes past steps under which constitutional reviews were a matter of the Executive through the colonially-instituted Inquiries Act."
On the technical team, Prof Hansungule said some of the people included did not deserve to be there.
"Though the word 'technical' was used, most of those selected had no visible technical expertise to bring in the team. What technical expertise did the headman or chief bring? It was utterly wrong to include chairpersons of past constitutional reviews in the team instead of independent professionals and the past chairpersons to supply information when relevant," he stated.
He stated that the worst part was the appointment of the minister of justice as a member of the team.
"This created the perception that the Executive would like to control the process and would not stand a fiercely independent process. The team should have been free of the Executive members.
Similarly, the chairperson and his vice should either have been chosen by stakeholders in a sovereign conference or by the team selected by stakeholders. As it is, the impression is that the technical team had the support of the government that appointed it but not of the public to whom the Constitution belongs."
He stated that it was a gross mistake for the government not to have legislated the process.
Prof Hansungule said legislation should have determined issues at large concerning adoption, role of the National Assembly, role of the President and Cabinet, and many others.
"Given our past where 'White Papers' frustrated what people wanted, it would have been important to set the record straight on these key issues.
For example, the law would provide that the government and Parliament cannot change the draft constitution even though 'draft' and that the National Assembly would merely enact it into law once adopted by the sovereign conference," Prof Hansungule stated.
On the referendum, Prof Hansungule stated that it was necessary to hold it because, according to him, the current bill of rights had failed the citizenry.
He emphasised the inclusion of a 50 per cent plus one threshold for a winning presidential candidate to enhance legitimacy.
"The present President is a minority winner and so were the previous presidents. This explains why once in office, the President due to insecurity, spends most of his time 'stealing' the opposition to his side rather than delivering on his mandate. Having experienced the negative effect of a minority president the past 50 years, Zambia has no option but to adopt the 50 + 1 per cent massively recommended by the broad masses of citizens," he stated.
"This, unlike the bill of rights, has no technical problems requiring referendum as it falls outside the entrenched clauses. The Patriotic Front government has a duty to respect this in order to show its good faith."
On the size of the draft constitution, Prof Hansungule said it was too long.
He stated that the constitution should be reasonably short and user-friendly.
" What the draftspersons did was simply to include everything and in some cases repetitively. It is clumsy. It should be possible to 'carry it around 'in a pocket which is not possible given the current oversized length. A 'huge forest of wood of legal jargon' is most certainly not what the Zambian public expect," stated Prof Hansungule.
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