A Constitution that truly expresses the aspirations, the vision, the beliefs and the values of the people cannot be a document dependent on the good will of the ruling party or a few privileged citizens who have a monopoly over national affairs. It simply must be a popular document.
This is the conviction of many advocates for a Constituent Assembly who strongly hold that this mode of adoption assures a people-driven and a people-oriented Constitution. The primary significance of a broad-based representative body debating and adopting the Constitution is to instil public confidence, inclusiveness and ownership by the people, those who are the ultimate custodians of the Constitution.
Therefore, as noted by the Wila Mung’omba Constitution Review Commission (hereinafter referred to as “the Mung’omba Commission”) in its Final Report dated 29 December 2005, the success or failure of the present constitution-making process hinges on the mode of its adoption.
COMPETING “MODES OF ADOPTION”
As part of its terms of reference, the Mung’omba Commission was directed to recommend whether the Constitution should be adopted, altered or re-enacted by the National Assembly, by a Constituent Assembly, by national Referendum, or by other method, including review of existing constitutional provisions.
In its Final Report, the Mung’omba Commission observes that an overwhelming majority of petitioners submitted that the Constitution should be adopted by the Constituent Assembly. A relatively large number preferred the Constitution to be adopted by the National Assembly, whilst a small number preferred the Constitution to be adopted by a national referendum.
Only two petitioners called for the Constitution to be adopted by the President, while one petitioner wanted the Mung’omba Commission to adopt the Constitution and another called for the House of Chiefs to adopt the Constitution. Interestingly, another view favoured adoption of the Constitution by the people in their constituencies.
After evaluating all the seven competing views (adoption by a Constituent Assembly, Parliament, a Referendum, the President, the Mung’omba Commission, the people in their constituencies and the House of Chiefs), the Mungo’mba Commission unanimously recommended adoption by the Constituent Assembly as the most practical and assuring method.
Moreover, the Mung’omba Commission further observes that because there will be need to broaden the scope of fundamental rights and freedoms of an individual guaranteed in the Bill of Rights (Part III), a referendum will be mandatory. Article 79 requires that whenever Part III of the Constitution and Article 79 itself, are to be affected by any constitutional changes they must be subjected to a national referendum.
COMPOSITION OF THE CONSTITUENT ASSEMBLY
With regard to the composition of the Constituent Assembly, the Mung’omba Commission is of the view that membership should be drawn democratically from all Districts so as to eliminate eliticism and also from specific stakeholders as well as other interest groups able to articulate issues of constitutionalism. Based on these considerations, the Mung’omba Commission has recommended that the Constituent Assembly should be composed of the following stakeholders.
All Members of Parliament; two (2) representatives elected from each district to consist of one man and a woman (148); one (1) representative each elected from registered political parties represented in Parliament; three (3) representatives from the Law Association of Zambia; two (2) representatives from the Economics Association of Zambia; four (4) representatives from the Local Government Association of Zambia; three (3) representatives from the Zambia Congress of Trade Unions; two (2) representatives from the Federation of Free Trade Unions of Zambia; two (2) representatives from the Zambia Federation of Employers.
Others are: two (2) representatives from the Zambia Association of Chambers of Commerce and Industry; four (4) representatives from farmers’ organisations; eighteen (18) representatives from the Chieftaincy, that is, two (2) representatives elected from each province by the Chiefs’ Council; three (3) representatives elected from women’s organisations; ten (10) representatives of eminent persons appointed by the President, including past Republican Presidents and Chairpersons of previous Commissions.
Others would be: eight (8) representatives from religious organisations (two from the Council of Churches of Zambia, two from the Zambia Episcopal Conference, two from the Evangelical Fellowship of Zambia and two from the Independent Churches of Zambia); four (4) representatives elected from the Media Associations; six (6) representatives elected from universities, that is, two (2) from each of the two (2) public universities and two (2) from private universities, if any; two (2) representatives elected from the Students Union at the University of Zambia and two (2) representatives from the Copperbelt University Students’ Union and four (4) other representatives elected from the Zambia National Students’ Union.
The Constituent Assembly would also include: two (2) representatives elected from the youth organisations; four (4) representatives elected from organisations representing persons with disabilities; one (1) representative from the Islamic Association; one (1) representative from the Hindu Association; four (4) representatives from the Non-Governmental Organisations not provided for; ten (10) representatives from the Defence and Security Service and Public Service Commissions; two (2) representatives from the Zambia Institute of Certified Accountants; two (2) representatives from the Medical Council of Zambia; two (2) representatives from the Human Rights Commission; two (2) representatives from the Judiciary; all the members of the Constitution Review Commission attending and participating in the Constituent Assembly as ex-officio delegates; and eighteen (18) randomly selected petitioners to the Constitution Review Commission.
In addition, the Mun’gomba Commission notes that since this exercise will be an important national duty certain participants (from respective interest groups) should be sponsored by their own organisations in order to reduce on the cost of conducting the Constituent Assembly.
LEGAL AND PROCEDURAL MODALITIES
In order to bring the Constituent Assembly and the adoption process into operation, the Mung’omba Commission has made nineteen recommendations, including the recommendation that all members of the Constituent Assembly should be citizens of Zambia.
That the Constituent Assembly should be given legal effect by an Act of Parliament laying down the processes/procedures and allocating the necessary resources, and stating the composition and functions of the Constituent Assembly which should, inter alia, includes:
- Deliberating on the report of the Constitution Review Commission and draft constitution;
- Adopting the constitution subject to national referendum;
- Referring the adopted constitution to a national referendum.
That the outcome of the Constituent Assembly should be final and legally binding, subject to the outcome of the national Referendum, and implemented by the resolution of the Constituent Assembly.
That the Republican President should hand over to the Chairperson of the Constituent Assembly the instruments of the Constituent Assembly, which should include the Report of the Constitution Review Commission and the Draft Constitution, as well as the Act establishing the Constituent Assembly.
That the Constituent Assembly should determine its timeframe according to its workload before it, and those delegates to the Constituent Assembly who shall be nominated by institutions shall be sponsored by their respective organisations.
WAY FORWARD
These legal and procedural recommendations by the Mung’omba Commission provide the basis for further reflections and discussions on the best way forward. Therefore, if consensus were to be reached on any of these recommended issues (or all) this would require an active involvement and participation of all stakeholders.
The way that government will handle the process leading to the establishment of a Constituent Assembly has a major influence on the operations and final product that is the Constitution. This is the greater reason why the current constitutional review process needs to be constantly shaped by some basic guidelines, in order to achieve the desired goal of a Constitution by the people themselves!
Notwithstanding, the actual period when the new Constitution will be adopted and enacted, it must be re-emphasised that constitution-making process is not a partisan affair but a national affair. It should be an all-inclusive process that embraces wide consultation, civic education, and competency of the citizens. These three basics must be primary.
Consultation: Firstly, wide consultation on the constitutional review process (e.g., roadmap) is necessary.
Government recently constituted an eight-member “non-partisan” committee, which among others will be considering the recommendations of the Mung’omba Commission in view of the mode of adoption of the Republican Constitution and draw up the roadmap for the implementation of the programme.
Sadly, the committee to undertake this important national task is made up of government officials only. One would hope that in this committee there could also have been representation of other stakeholders. This would have enhanced impartiality and to some extent allayed fears expressed by some quarters of the society that the roadmap will become unnecessarily long or favourable to the current government. Surely, political stability depends upon constitutional dialogue aimed at reaching consensus over the roadmap with all stakeholders.
It is regrettable that not many Zambians have seen and/or have access to the Mung’omba Commission Final Report and the Draft Constitution. Right now, these reports are a preserve and monopoly of a few elites and government officials and rarely accessed by the general public. Under the current conditions, many Zambians are left behind in the process. How, then, can the public for example, contribute intelligently to the discussions around the roadmap in the absence of these important documents?
Civic education: Secondly, civic education on all matters of constitutional review (for example, as it relates to the implementation process of the Constituent Assembly and the Referendum) is necessary.
In order to have a durable Constitution understood by the majority of Zambian citizens, there is need for effective popular mobilisation. This increases wide participation at grass-root levels, and ensures that the people pledge to support the content of the Constitution as committed stakeholders.
The success of the current constitutional review process largely depends on collaborative efforts of all stakeholders’ engagement in civic education of the public, in urban and rural areas, among the young and the old, with all classes of people.
It is easier to make the following observation: most citizens of Zambia do not know what is contained in the current Constitution, either in full text or abbreviated summary, in official English or in simplified vernacular translation (which are non-existent!). Worse still, it is even more difficulty to get a copy of the full text from a book store, from the Government Printing Office (for those within the Capital City), or wherever…. Is there any deliberate programme to inform the public on this important subject?
Competency: Thirdly, it is essential that representatives of various interest groups give input to the Constituent Assembly with great competency.
Certainly, there is need for real technical expertise in crafting the details of a Constitution. A Constitution must be concise and unambiguous so that its interpretation does not generate conflict based on biases, prejudices and selfish interests.
Moreover, a Constitution is much more than merely a legal document or a set of technical arrangements. It is an incarnation of the spirit, the hopes, the aspirations, the beliefs and the desires of the people. It explicitly expresses the highest values of the citizens in a simplified style and form. This is a great challenge indeed!
CONCLUSION
Undoubtedly, a good Constitution is key to the promotion of democracy, good governance, the rule of law and the development of the country.
As reflected in the Mung’omba Commission, “The challenge facing Zambia, following the new democracy, is building a country that is fair to all of its citizens; a country in which all individuals feel and know that they are valued members of society and that they have rights in respect of human dignity, development, equality and freedom. As the supreme law of the land, the Constitution needs to reflect these democratic principles” (Final Report, at page 111).
And truly, adoption of a Constitution by the Constituent Assembly is best placed to achieve people’s desired end. A Constituent Assembly, which is more inclusive, broad based and gender representative, enhances national consensus and allows people to draft a Constitution that secures individuals’ liberties and freedoms.
If the Constituent Assembly operates in line with wide consultation, civic education, and competency, there is great hope that the new Constitution will indeed be a popular document!
Simson Mwale
JCTR Staff
Lusaka
