The 2016 Constitution of Zambia: elusive search for a people driven process
On 5 January 2016 President Edgar Lungu signed Zambia’s new Constitution with much fanfare and pomp. The ceremony passed the provisions whose amendment does not require referendum, leaving the Bill of Rights and the Amendment clause to undergo the mandatory referendum expected to bring to an end the 40-year struggle to enact a people driven constitution that enjoys both legitimacy and longevity. Even as the President signed the document, both the process leading up to the enactment of the document and its final content was questioned, jeopardising any hope of finality. Is the discontent mere politicking and a refusal to compromise on personal agendas, or are the concerns real, founded on a process lacking integrity and therefore illegitimate and unsound?
Presidents and their Constitutional Commissions – lost decades of constitution drafting
Zambia became an independent state under the Independence Act of 1964, which created a liberal democratic (multi-party) system of government with excessive presidential powers. The system was changed by the move to a One Party State in 1973, which served to deepen the presidential powers. During this period, the lack of opposition political parties within which to canvass dissent and opposition to the harsh economic conditions prevailing in the country led to the politicisation of civil society including the church and the labour unions instilling in the people deep seated suspicion about the integrity of politicians in office; more so as the politicians have repeatedly shifted positions once they go from the opposition into Government.
From 1990 to 2011, Zambia underwent four constitution building processes as each President in office initiated his own process in response to popular demands for good governance. The ordinary masses themselves were so eager to see a change in the political and economic climate that they were ready to embrace military rule and openly supported various coup attempts. Such popular and indomitable dissent engendered a more independent judiciary and press whose vigilance over the need to attain democratic governance has stood the test of time. Buoyed by the winds of change that had swept through Eastern Europe, the Movement for Multi-Party Democracy (MMD), a then unregistered alliance of dissident groups and trade unions, was in 1990 able to force the United National Independence Party (UNIP) Government to amend Article 4 of the Constitution, which created UNIP’s monopoly on political power, and allowed a return to multi-party politics. In 1991, the UNIP government lost to the MMD with the latter’s Presidential candidate attaining 76% of the votes cast.
Even before the elections, incumbent President Kaunda had appointed the Mvunga Commission of Inquiry to chart a new constitution that would protect civil liberties and ensure a functional separation of powers. The Commission duly gathered the views of the people through written submissions and public hearings held at provincial centres and presented its report to the government, which proceeded to produce its own white paper accepting many of the Commission’s recommendations and rejecting only a few. The entrenchment of the Bill of Rights and the amendment clause were accepted. So was the election of a majoritarian president. Whereas others such as justiciable socio-economic rights were not. The presidential powers also remained excessive. This process resulted in the enactment of the Constitution Act no. 1 of 1991, which is the subject of the 2016 amendments.
Once the MMD came into power under President Frederick Chiluba, it turned its dissatisfaction with the 1991 Constitution, both in terms of its source and its content, into a new attempt to pass a more legitimate constitution. In fact the disagreement between UNIP and the MMD over the method of adopting the document and over its content had been so polarised that a new process was inevitable. The Mwanakatwe Constitution Review Commission was appointed to develop a constitution to promote good governance and popular participation in political processes so as to ensure the document’s durability. The broad nature of the terms of reference provided leeway for the Commission to carve a progressive document. Once again the views of the public were solicited and a green paper presented to the government. Shockingly, the government responded by producing its own White Paper no. 1 of 1995, rejecting 70 % of the recommendations particularly those substantially reducing presidential powers whilst elevating watchdog institutions and human rights principles. The proposal of using a constituent assembly to adopt the document was also rejected.
Through Act 18 of 1996, the Constitution was substantially amended by Parliament as every part, including the preamble (other than Part III - the Bill of Rights and Article 79 - the amendment clause) were repealed and replaced by new provisions, and the last four Parts (VI, VII, VIII and IX) were replaced by Parts VI to XIV. The inclusion of a provision in the Preamble declaring Zambia a Christian nation raised the spectre of a shift from a secular state to a religious one. The election of a majoritarian President was replaced by a simple majority. By merely passing an amended document through Parliament, the government fell short of matching the expectations of the people, who would have seen a constitution adopted by referendum as more legitimate. Clearly the rejection of so many popular aspirations meant the amendments would not have passed a referendum test and the government was able to legally - but not legitimately - push its own agenda through the 1996 amendments. Popular demand for a new constitution therefore continued.
In 2001, the new President (MMD) Levy Mwanawasa came into power. The Mungomba Constitution Review Commission was set up and submitted its report together with a draft constitution in 2005. The draft was well received and seemed to have captured the essence of the people’s aspirations. The mode of its adoption however remained problematic as there was reluctance on the part of Government to accede to the Mungomba recommendation for a constituent assembly to adopt the constitution as it would be a usurpation of Parliament’s authority. In order to break the impasse, the Zambia Centre for Inter-Party Dialogue (ZCID) proposed the establishment of a conference. By virtue of Act No. 19 of 2007, the National Constitutional Conference (NCC), which was 500 members strong and represented a cross-section of society as well as all the members of parliament was set to deliberate on and adopt the Mungomba draft constitution and then submit it to Parliament for enactment or if the Bill of Rights was changed, to a national referendum prior to enactment by Parliament.
Many members of civil society, including opposition political parties, boycotted the NCC process, which they felt was a betrayal of the Mungomba recommendation to adopt the document through a constituent assembly. The process was therefore once again marred by deep divisions. The NCC made amendments to most articles in the Mungomba draft before adoption and recommended a two track enactment process under which Parliament would pass all the provisions, except for various contentious issues, the Bill of Rights and the Amendment clause that would subsequently be subjected to a referendum. On 29 March 2011, after heated Parliamentary Debates, the Constitution of Zambia Amendment Bill of 2010 failed to garner the requisite two-thirds majority vote in Parliament since the majority of opposition members belonging to the Patriotic Front (PF) and United Party for National Development (UPND) either abstained, boycotted the vote or voted against the draft. The 1991 Constitution, as amended by Act 18 of 1996, therefore remained in place leaving a general sense of dissatisfaction not only on the part of government but also on the part of civil society, the general public and the opposition political parties, who increasingly called for a fully people driven process as the only route to a legitimate and durable constitution.
In 2013, the Patriotic Front Party (PF) and its President Michael Sata came into power and immediately announced a new constitution building process as a continuation of their campaign promise to deliver a people driven constitution within 90 days of assuming office. The Technical Committee on Drafting the Zambian Constitution (TCDZC) was set up with the mandate to use past constitution documentation to draft a new constitution. In order to realise a people-driven process, the TCDZC prepared a first draft based on previous documentation, which they then subjected to a consultative process involving international experts and nation- wide conventions at three levels: district, province and national/sector group. Although the TCDZC enjoyed a lot of latitude in the drafting of the constitution, there was no clear autonomy with regard to the adoption and enactment process. TCDZC’s second and Final Draft Constitution prepared with input from the consultative process was ideally supposed to be presented to the President and simultaneously released to the public in preparation for a national referendum and subsequent enactment by Parliament; yet this did not happen. After the Draft was prepared, the process stalled for over a year.
The Lungu “Compromise”
The Document was retained by the Ministry of Justice until late 2014, when then Minister of Justice/Minister of Defence, Edgar Lungu released it to the general public. When he took office as President in January 2015, Lungu resumed the constitution making process in earnest. Arguing that a referendum in 2015 following the presidential by-election would be too expensive and did not guarantee a successful result, he proposed a political compromise within the terms of Article 79 (3) of the Constitution’s Amendment clause. He put forward a sequential adoption process, where holding the required referendum on the Bill of Rights and Amendment clauses would take place later than the adoption of the rest of the draft constitution, i.e. the compromise pertained to the timing rather than to the substance of the enactment of the new Constitution. The bulk of the document, termed non-contentious provisions, would be enacted by Parliament and become effective immediately; whereas the entrenched Amendment clause and the Bill of Rights would be the subject of a referendum to be held simultaneously with the tripartite general elections in August 2016. The opposition and civil society were unhappy with this proposal fearing that the plan would provide Parliament with an opportunity to debate and alter the document against the wishes of the people.
The TCDZC Final Draft Constitution now renamed the Constitution Amendment Bill of 2015 was presented to Parliament in late 2015 unchanged, other than to exclude entrenched provisions subject to a referendum. What transpired in Parliament during the second reading of the Bill, which took place on 10 December 2015 however brought major changes. Whereas some provisions such as the 50% + 1, presidential running mate and dual citizenship went through, other provisions were altered at the behest of the government working with some members of the opposition to attain the required two-thirds majority. The remaining opposition members (UPND and some MMD) though steadfast in their resolve to oppose any changes (and perhaps sensing an opportunity to gain political mileage with the general public) were defeated.
Major Changes in passing the Constitution Bill
Major changes were as follows: Firstly, a devolved system of governance through provincial assemblies was rejected on the grounds of cost and the ongoing decentralisation process. Effectively, this undermines popular participation in governance and possible resolution of the Barotseland (a contested region in Western Zambia) demand for self-determination, a source of simmering tension since Zambia’s Independence.
Secondly, the mixed member representation electoral system proposal, which combined proportional representation (PR) as well as first-past-the-post (FPTP) electoral systems in order to guarantee women and other under-represented groups increased number of seats in the house was rejected and replaced with a purely FPTP system. Admittedly, the TCDZC is partly to blame. When the TCDZC’s First Draft Constitution was presented to the public, it replaced the FPTP with a proportional representation system, a proposal which was overwhelmingly endorsed by the general public and participants at the various conventions as a way of ending floor crossing and repeated by-elections. In a rare show of bipartisanship, Members of Parliament opposed the PR but were outvoted by other participants. In preparing the Final Draft Constitution, however, the TCDZC decided to compromise by offering the mixed member system, which had 150 FPTP seats and added another 100 seats under a closed party list. This created a bloated Parliament of 250 elected members prompting government to raise concerns about unsustainable costs. In Parliament, opposition members of parliament distanced themselves from their previous stance arguing that they did not wish to undermine the people’s wishes as expressed during the various conventions, which adopted the TCDZC First Draft Constitution.
The third significant change related to the Cabinet. Under the previous Constitution the President was required to appoint all ministers from the National Assembly. During the current process, it was suggested that Ministers should be appointed from outside Parliament to strengthen the separation of powers but this change was rejected. The reason given for rejecting this change was to maintain accountability to Parliament; since Ministers drawn from Parliament retain their seats in Parliament and are accountable to the President and Parliament. Maintaining the requirement to select Ministers from within Parliament strengthens the President’s control over MPs with a desire to become Minister or to retain their ministerial positions.
The final and only uncontested change relates to the deletion of the Article on the vestment of land in the President, which was removed to allow for more consultation with traditional leaders and secure an amicable solution.
Once the Bill had passed the second and third reading it was ready for presidential assent. Once again there were calls for the President to withhold his signature, but he signed the Bill into law on 5 January in what was widely seen by Zambians as a milestone with unprecedented gains in the constitution building process.
Since the signing, many constitutional law experts, members of the opposition and NGOs have maintained a running commentary on the inadequacy of both process and final content and the procedural difficulties created by the 2016 Amendment. However further constitutional changes now being mooted must be particularly compelling in order to be justifiable given that the document is no longer a work in progress but a fait accompli, not only as the fundamental law of the land but also as the culmination of the most elaborate and protracted consultation process in Zambia’s constitutional history.
While the Amendment Act gained the necessary support in the Parliament, major reservations have remained primarily due to the perceived failure to achieve a fully people driven process and consequently a new constitution that is not seen as reflecting all the aspirations of the people. While such concerns are certainly valid given the events in Parliament on 10 December 2015, in this highly politicised environment one cannot rule out the possibility that at least some of the criticism is motivated by partisan agendas. It is hoped that the proposed referendum in August 2016 will pass the proposed and very comprehensive Bill of Rights in the TCDZC Final Draft Constitution and thereby ease some of the concerns about the enactment process and the final product. However, there is no conclusive end in sight. Calls for future amendments to achieve many desires such as devolution of power to the grassroots in order to achieve a good constitution will continue for the foreseeable future.
Mulela Margaret Munalula is associate professor of human rights at the University of Zambia, School of Law. She was a member of the Technical Committee set up to draft the 2016 Constitution and has written extensively on women’s rights under Zambian law.