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WHAT IS A CONSTITUTION AND WHY DO WE HAVE ONE?

In all of the heated debates today about the Constitutional review here in Zambia, three important questions are very prominent:  (1) why do we need a new Constitution, (2) what process should we follow in reviewing the Constitution, and (3) what should be the content of the new Constitution.

But one question that does not always get asked – and yet it is very important, indeed – is: what are the purposes of a Constitution?  How we in Zambia answer that one question will have major consequences for how we answer the other three questions. 

That is why I believe that in the current Constitutional review, we should look deeper into some very basic Constitutional principles.

We know that some countries do not have a written Constitution, such as Great Britain.  Yet they still can be said to have some sort of a Constitution, in the sense of a consensus position on the nature of government, its powers and responsibilities, and its various organisms.  I say a “consensus position” in the sense of a widely accepted view on what public governance is for and what it should and should not do.  Courts can base decisions on this consensus, as, for example, the body of developing Common Law shows.

Other countries, like the United States of America, France South Africa and Zambia, have written Constitutions, varying greatly in length and in detail.  These written documents spell out both the foundations of citizens in sections such as the Bill of Rights and delineate the authority of the government offices such as the executive.  Court decisions make explicit interpretations of the meaning of the Constitutional language found in these written documents.

 We can say that there are three major purposes of a Constitution, whether these Constitutions are written or unwritten.  These are purposes that point to the need for a good Zambian Constitution.  These purposes also provide some clear guidelines as to how that Constitution should be prepared.

SELF DETERMINATION

First, the Constitution expresses the self-determination of the citizens.

Resting upon a political theory of democracy that places authority in the hands of the people, the Constitution of Zambia makes explicit a set of commitments of the people.  This is expressed most clearly in the Preamble to the current Constitution, which begins with the hallowed phrase, “We, the People of Zambia,” acting by our representatives assembled in Parliament, “enact and give to ourselves this Constitution.” 

The commitments of the citizens expressed in the Preamble include the following:

·        Determined to uphold the right to govern ourselves

·        Recognising the equal rights of all to build a political, economic and social system of our own free choice

·        Pledge respect for rights and dignity of all and development of resources for this and future generations

·        Declare a Christian nation, upholding freedom of conscience

·        Resolve for a unitary, indivisible, multi-party and democratic sovereign state

One thing that is very obvious when we review this Preamble is the importance of the process that shapes the Constitution.  The Constitution that truly expresses the self-determination of the citizens cannot be a document of a former colonial power, nor of foreigners, nor of a Ruling Party, nor of a small minority of citizens.  It simply must be a popular document!

This principle, then, points out how meaningful and important a “Constituent Assembly” will  be for Zambia’s future.  It will assure that the phrase “We the People” really means exactly that!

CIVIL SPIRIT

Second, the Constitution embodies the civil spirit of the moment.

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 expectations and desires of the people. The highest values of the citizens are made explicit on the pages of a Constitution.

Thus, a Bill of Rights is central, because the people are stating what they believe in, evolving from their experience of the privileges and duties necessary to sustain community.  A Constitution sets forth the hope for a better way of life for future generations though guaranteeing good governance, that it, governance for the common good.

Governance is seen for a specific purpose and not simply for a set of formalities.  It is much more than a division of powers, it is an expression of how and why those powers should be exercised.

When we seen a Constitution in this way, as embodying a civil spirit, then we can appreciate that it is an instrument of pedagogy, that is, a mechanism for learning.  It truly is an effective tool for teaching citizens now and in the future what it means to belong to the body politic of Zambia.

 It is sad, therefore, to make a very obvious observation: most citizens of Zambia do not know the Constitution, in full text or in abbreviated summary, in official English or in simplified translation.  Indeed, it is even difficult to get a complete copy of the text, from the Government Printing Office, from Parliament, from a book store, from the Internet, or wherever….

It is for this reason that very wide consultation and in-depth discussion is necessary in the current formulation of a new Constitution, to capture the movements of the people who are being bound together.  Thus the Constitutional review process cannot be rushed.  It must be accompanied by strenuous efforts at civic education, in urban and rural areas, among young and old, with all classes of people. 

LEGAL FRAMEWORK

Third, the Constitution establishes the legal framework for democracy.

Laws make concretely operational the values of governance.  We say that democracy is people’s rule: 

·        Government of the people: inclusive of everyone

·        Government by the people: participative of everyone

·        Government for the people: beneficial for everyone

Therefore the Constitution must establish a rule of law wherein these democratic values are operative. For example, the definition of citizenship and its rights and responsibilities should not be exclusive, cutting off some persons for non-essential reasons.  The electoral process must be structured to result in free and fair elections so that participation is meaningful.  Instruments for the administration of justice must be independent and readily accessible to all citizens, rich and poor.  Expression of the rights of citizens must be extensive, not stingy.

We easily use the phrase that our government is a “rule of laws, not of humans.”  This means that there is clarity and simplicity in identifying the locus and boundaries of authority.  A Constitution must be uncluttered and unambiguous so that its interpretation does not generate conflict based on biases, prejudices and self-interests.

We can see, therefore, that there is need for real technical expertise in crafting the details of a Constitution.  This means, for example, that a requisite for a Constitutional Review Commission charged with drafting a Constitution should not be only (or even primarily) “representativness” but “competence.”

CONCLUSION

When we review these three purposes of a Constitution -- self-determination, civil spirit, legal framework – we can see how important is the process of reviewing the Constitution of Zambia and writing and adopting a new Constitution.  It is not a partisan affair but a principled affair: wide consultation, civic education, and competency must be primary.

With such an approach, we can truly put in place a “Constitution to stand the test of time”! 

Peter Henriot, director of the Jesuit Centre for Theological Reflection, holds a PhD in Political Science, with a specialty in constitutional law.