Post Independence Era
This is the fifth and final part of the history of the Zambian Constitution. I would therefore like to refresh the minds of the readers of what has been written in the previous four parts. I wrote about the history of our constitution from 1924 when Northern Rhodesia became a colony under the Crown and the constitutional reforms of 1958, 1961 and 1964 as well as the dissolution of the federation of Rhodesia and Nyasaland.
Zambia’s independence constitution was negotiated after the dissolution of the Federation of Rhodesia and Nyasaland by the British government, United National Independence Party, UNIP, the African National Congress, ANC and the whites only National Progress Party.
Our independence constitution was based on the Westminster model and had adequate provisions to meet the interests of the majority blacks and the white settler community. It came into force through the Zambia Independence Act of 1964.
In today’s final part of our constitutional history, I will enumerate the events that have taken place regarding the Zambian Constitution since 1964.
The Zambia independence constitution was protected by a referendum clause. The law forbade the amendment of any part of the constitution without going through a referendum. The UNIP government therefore organised a referendum to remove all referenda on 17 June 1969.
The referendum removed the requirement for future amendments to go to a public referendum but instead require only two thirds majority in the National Assembly. The voter turnout was 69.5 per cent and the referendum was passed with 85 per cent of those who voted on that fateful day.
From that day, we have had four Constitutional Review Commissions. The first was the Mainza Chona Constitutional Review Commission of 1972. The Chona Commission opened the way for institutionalization of the One Party State.
Many of the public submissions which included the limitation of the presidential term of office were thrown out by the government. A new constitution which abolished multi-partism and declared UNIP as the only recognised party by law was passed in 1973.
The new constitution concentrated all executive and legislative powers in the president. The president became the key player in politics. All appointments in the public service and the parastatal companies were made by the president.
After 18 years of One Party rule, the UNIP government was forced by events form within and outside the country to return to multi party politics. Then Dr. Kaunda instituted second Constitutional Review Commission led by Professor Patrick Mphanza Mvunga.
The Mvunga Commission led to the promulgation of the 1991 Constitution which reintroduced multi party rule and included the limitation of the presidential term of office to two terms of 5 years each.
After assuming office in 1991, second republican President Frederick Titus Jacob Chiluba instituted the third Constitutional Review Commission led by Mr. John Mupanga Mwanakatwe, S.C. which started its work in 1995.
Public participation in the Mwanakatwe Constitution Review Commission was overwhelming. The draft constitution was praised by all stakeholders and Zambians hoped that they would at last get a constitution that would last the test of time.
I participated in the printing and distribution of the final document and we worked with the Foundation for Democratic Process to distribute the draft to all the districts in Zambia. We also placed inserts in all the newspapers to allow as many Zambians as possible to review the contents of the draft constitution.
Unfortunately, most of the Mwanakatwe Constitutional Review Commission’s recommendations were rejected by the government and the subsequent amendments in the 1996 Constitution were not supported by the public.
The most unpopular amendments in 1996 were the changes to the qualifications for a presidential candidate. The whole nation felt that the amendments were aimed at preventing first republican President Kenneth Kaunda from participating in the elections of 1996.
The fall out from this failed attempt at providing Zambia a people driven constitution was that UNIP boycotted the elections and Dr. Frederick Chiluba’s election as president was challenged in the Supreme Court of Zambia because some people determined that he was also caught up in the amended parentage close of the presidential candidate.
The fourth Constitutional Review Commission, The Willa Mung’omba CRC was appointed by President Patrick Levy Patrick Mwanawasa in 2003. The Mung’omba Commission produced what was termed to be a very progressive draft constitution and report .
Disagreements arose over the method of adopting the constitution. Many stakeholders wanted the constitution to be adopted and promulgated through a Constituent Assembly. The government refused arguing that under the current law, only parliament was empowered to adopt and enact a new constitution.
At this point I would like to pose and ask Zambians how and when parliament was empowered to adopt the constitution. Refer to history and you will see that it is the 1969 Referendum which took away the power to change the constitution from the people.
I have always belaboured at different forums to explain to my fellow countrymen that we Zambians lost our power over the constitution in 1969. The constitution was changed to empower parliament to amend and enact our constitution with a two thirds majority.
Back to the current process; President Mwanawasa came up with a proposal to first amend the constitution to establish the constituent assembly. To do so, Zambians would have to go to a referendum to mandate another institution to enact our constitution outside parliament and this would be a lengthy process which would require a census of the population and a new voters’ roll.
The government and the NGOs engaged in acrimonious arguments over the process until June 2007 when it was agreed to constitute the National Constitutional Conference. The NCC it was envisaged would be a popular body which would come up with a draft constitution that would be enacted by parliament.
The NCC did not have legislative powers and was boycotted by some key stakeholders who included the Catholic Church and the Patriotic Front. In the end, the whole thing became a circus.
The parties that participated included the Movement for Multiparty Democracy, MMD and the United Party for National Development, UPND. Many dubious associations and churches were formed to join the NCC just to rip off the handsome allowances that were paid to the participants. There was even a Reformed Catholic Church formed to participate in the NCC.
When the NCC concluded its work, the draft constitution was presented to parliament for enactment and in a grotesque turn of events, the UPND which fully participated in preparing the draft constitution short it down when the vote was called in the National Assembly.
When President Michael Sata came into office in 2011, he proceeded to appoint a Technical Committee to redraft a new constitution. Many people felt that the Justice Silungwe led Technical Committee was the sixth Constitutional Review Commission while Levy Mwanawasa’s road map was termed the fifth CRC.
We all know what happened to the constitution during President Sata’s illness. There were so many rumours with a lot of alleged leakages. Those that held the late president hostage and cheated the country about his illness for over two years hid the constitution.
On assuming power in January 2015, sixth republican President Edgar Chagwa Lungu promised to deliver the constitution in accordance with the wishes of the Zambian people. He assented to the new constitution on 5 January, 2016.
I have over the years been following the history of the Zambian Constitution and I consider the 2916 constitution to be very progressive. Many, if not all of the submissions that were made to the Mung’omba Constitutional Review Commission have been included.
The only noticeable item omitted are the provincial parliaments and this is for a very good reason. The provincial parliaments were going to be too costly for the nation. The level of economic activity in eight of the ten provinces would not support the proposed provincial assemblies; they would therefore have become dependant on the national treasury to support the additional 900 Members of Parliament, infrastructure and staff.
As usual, the opposition who oppose anything that comes out of the government is up in arms criticizing the 2016 Constitution. Interestingly enough, they are just complaining about one clause, that of the requirement of a minimum academic qualification of Grade 12 for one to become a Member of Parliament or Councilor.
The opposition’s suggestion that one only requires wisdom to be a leader without any education is to say the least a very shallow argument. This is a world of knowledge and for one to be a good leader; one must possess both wisdom and knowledge. The rest of the world continues to dominate Africa because they are busy seeking knowledge while we are busy pulling ourselves down.
Most importantly, the Grade 12 clause does not take the voting power from those that do not have that qualification. Zambians must understand that they still have the voting power to control whoever they will put in office. They must find joy in choosing qualified leaders who can initiate and implement development ideas.
The nation should, after fifty years of independence, aim to improve the quality of services provided by public institutions and this can only happen when we vote into office people with the requisite qualifications and experience. Some MPs have been sitting in parliament for years without participating in debates because they could not understand what was being debated.
Council services have almost ground to a halt because most councilors did not understand simple laws, regulations, and their role in local government administration. These poor quality councilors even went to the extent of illegally selling land.
I have gone through the 2016 Constitution; there are very good amendments which will push our country forward. These good provisions include the establishment of the Constitutional and Appeal Courts, Dual Citizenship and the Pension law.
I do not have the luxury of space to go into the details of the entire constitution, I would therefore like to invite or implore all Zambians to read this constitution before passing judgment. Do not base your judgments on the criticism of the opposition alone.
Lastly but not least, I would like all Zambians to bare in mind that only parliament has the power to enact the Zambian Constitution but all the critics have always failed to address this question: How do we reverse the effects of the 1969 Referundum?
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