Explaining Zambia’s checkered attempts at constitutional reform
Since the controversies following the leaking of Zambia’s draft Constitution to the public in January, the process appears to have come to a tense standstill. Amidst public prayer meetings by civil society and other political organizations for the release of the draft constitution, President Sata has requested that public officials desist from commenting on the process, arguing that Zambia has no needfor a new Constitution. Could this process now be staring at the same fate as others before it? Should this happen, it will be the third unsuccessful attempt at comprehensive constitutional reform since Zambia’s independence.The first two attempts—in 2004 and 2006, under the leadership of the the John Mwanankatwe and Wila Mungomba Commissions, respectively—resulted in two draft Constitutions, neither of which became law. In all three processes, the sequence of events is strikingly similar: politicians come to power on, amongst others, promises of broad inclusive constitutional reforms, Commissions are appointed and nationwide consultations conducted, with extensive public participation in each case. Commission reports with recommendations and a draft charter are produced but simply ignored by the politicians who commissioned it in the first place. Why has constitutional reform processes in Zambia had such a checkered history? What are some of the key factors undermining the current process from moving forward? Is there any hope of revival?
Electoral system design and political fortunes
The electoral system design, particularly with respect to presidential elections remains, perhaps, one of the thorniest obstacles to the process. Under the current rules, a candidate for president only has to poll the highest number of votes cast to be elected. However, while this system worked well during in the one party state, the system, some argued has proved untenable for most of the period following the introduction of multi-party politics in 1991. One explanation is that elections since then have become increasingly competitive with the result that few candidates won a clear majority. In fact, no Zambian leader since Frederick Chiluba has won the popular vote outright. This includes President Sata who polled less than 50% of the vote in 2011. Without being able to rely on a solid majority and popular mandate from Zambians, these Presidents have struggled to maintain their authority vis-à-vis parliament, especially in times when opposing parties control the legislature, as is currently the case.
The ‘fifty-percent plus one’, or ‘absolute majority’ rule, which was proposed in the 2004 and 2006 draft Constitutions, as well as the current draft, is designed to address this issue. Proponents contend that the fifty-percent plus one system ensures Zambians will at least be ruled by someone who has broad mandate by virtue of having polled the popular vote. It should also encourage coalitions –either at the outset or during the second round—among candidates who by themselves may not get the popular vote. Put otherwise, it enhances legitimacy to rule, and by so doing, may curb regionalism and integrate Zambians through a popularly elected President. Opponents argue that a 50+1 vote does not necessarily confer legitimacy as less than half of the country’s population is registered voters. They argue, further, that it is a costly system to run as it automatically triggers expensive election re-runs where no candidate passes the threshold. This, they contend, is money that could be better spent elsewhere.
To a certain extent, these are legitimate arguments but are they being made in good faith? Sata—who feels threatened by an absolute majority rule today—was its greatest advocate when in the opposition. Likewise, the rule’s greatest supporters today, in particular, the Movement for Multi-Party Democracy (MMD), rejected it when it was in power. Positions on this issue appear to be informed more by the political circumstances of leaders, and by their perception of how such a rule constrains or increases their political fortunes, than by any genuine interest in long term reform.
Divergent stakeholder interests
The political opposition also seems to lack a coherent strategy. Opposition parties, for instance have formed a broad coalition consisting of the Forum for Democracy and Development (FDD), United National Development Party (UPND), Alliance for Democracy and Development (ADD), Alliance for a Better Zambia (ABZ), Heritage Party, National Restoration Party (NAREP), the People’s Party (PP) and the MMD. Yet the only thing that seems to unite them is their disdain for the regime. Beyond that, each political party seems to want to leverage the situation to build political capital for itself or advance some other agenda. The MMD, for instance, sees this as payback time against the PF for jeopardizing its own past efforts at constitutional reforms, resulting in its loss of political hegemony. For other smaller parties with no representation in Parliament, such as the ADD, FDD, ABZ, Heritage Party, People’s Party and NAREP, membership in the coalition allows them to build some legacy for themselves as key actors in forcing the government to finalize the constitutional process. With the next election less than two years away, a collapse of the constitutional process will deal a serious blow to a PF which has already lost credibility with most Zambians, including civil society organizations who were its key allies. Surely, many of the parties in the coalition will not hesitate to capitalize on such an outcome.
With political parties more interested in electioneering than constitution-making, the only other actors capable of aggressively pressurizing the government are civil society organizations. Unfortunately, these have been slow in developing solid strategies to pressure the government, choosing, mostly, to be reactive at best and passive at worst. For instance, one would have expected more civil society pressure on Sata when he failed to institutionalize the constitutional reform process through an Act of Parliament. The President’s choice to make it a unilateral executive decision left the door open for his subsequent interference and influence on the process. The fact that some key civil society activists were subsequently appointed to lucrative government positions has also weakened the CSO in the eyes of many. One example is the erstwhile vocal President of Transparency International (Zambia), Rueben Lifuka, who became conspicuously silent after his appointment as Commissioner to the Technical Committee on the Constitution.
With a seriously weakened civil society, scheming political parties and an intransigent president – who is resolved, apparently, to sabotage the very constitutional process he launched to strengthen his political position - is this process doomed? What, if any, is the hope for revival?
If President Sata’s actions and statements lately are anything to go by, Zambians would need to manage their hopes. The revival (or not) of this process is hard to predict as it depends on a number of unknown factors. One such factor is the extent to which the political opposition in Parliament will be able to put pressure on the Government. There seem to have been some progress on this lately with MPs boycotting proceedings and forcing the Speaker to urge government to coordinate with parliament to resolve the standoff, but how far can they go? Will the government cooperate?
Sata’s Justice Minister claims the government is open to dialogue, while the President himself has recently told diplomats in Lusaka he remains committed to the process. Whether any of this is believable is an open question. The reality however is that, absent any serious challenge from all other stakeholders, President Sata’s commitment to this process, is perhaps, the most important single element to determine how the constitutional pendulum will swing.
 Hope Mubanga is a Programmes Manager at the Foundation for Democratic Process (FODEP), in Lusaka. Views expressed in this piece are personal and represent neither the positions of FODEP nor International IDEA