A responsible Zambian citizen has asked Simon Kalolo Kabanda, Constitutional Making Process; ‘Would we conclude that the 2016 Amended Constitution was signed prematuely? If Yes, for what reasons?
WOULD WE CONCLUDE THAT THE 2016 AMENDED CONSTITUTION WAS SIGNED PREMATURELY? IF YES, FOR WHAT REASONS?
The draft Constitution that was produced by the Technical Committee on Drafting the Zambian Constitution (TCDZC) was supposed to be subjected to a National Referendum for the people of Zambia to approve it before the presidential assent. But because there was no Referendum, some important portions of what was produced by the TCDZC was left out of the equation of constitution making. For this reason some of the provisions in the 2016 amended Constitution, which are supposed to be supported by the portions that were left out have created problems in the interpretation and application of the Constitution.
Here are 2 examples:
1) In the final draft Constitution of the TCDZC, the provision was that Ministers should be appointed from outside Parliament. This provision went together with the provision that Ministers continue to stay in office even after Parliament is dissolved. This is because they are not MPs. The 2016 Amended Constitution left out the provision of appointing Ministers from outside Parliament but retained the provision of Ministers continuing in office even after Parliament is dissolved. This has created confusion, and this was why the former Ministers were taken to court for drawing a salary when they were not supposed to be in office because Parliament had been dissolved.
2) Because there was no Referendum before the Constitution was assented to, the Bill of Rights could not be amended. According to the draft Constitution of the TCDZC, new provisions in the Bill of Rights were supporting the existence of the Constitutional
Court. The 2016 Amended Constitution has provided for the existence of Constitutional Court, and yet some provisions in the Bill of Rights which were supporting the existence of the Constitutional Court were left out because there was no Referendum. This has created a conflict between the High Court and the Constitutional Court. The High Court has taken assumed the power of the Constitutional Court to deal with human rights issues.
Without the amendments to the Bill of Rights, what we have now is an incomplete Constitution. In order for us to have a complete constitution we need to go for a Referendum to Amend the Bill of Rights.
A responsible citizen in Solwezi has asked this:
WHAT THEN IS BILL 10’s PURPOSE IN THIS AMENDED CONSTITUTION IN RELATION TO WHAT YOU’VE SAID ABOVE?
Bill # 10 is a misplaced exercise. What the country is doing now regarding the Constitution making process is not what is supposed to be done at this time. We have not yet concluded the Constitution making process, and therefore we should not start amending something that is incomplete. What should happen now is to conclude the constitution making process, have a complete Constitution in place, let it be in operation for a reasonable number of years, and then if need be, begin to amend some provisions.
A responsible Zambian citizen in Ndola has asked this:
IN THIS CASE DO WE NEED ANOTHER TECHNICAL COMMITTEE FOR DRAFTING THE CONSTITUTION? WHICH WAY DO WE TAKE?
To conclude the constitution making process, all we need is to hold a referendum to amend the Bill of Rights.
There is no need for another technical committee because all the work was conclusively done by the last Technical Committee on Drafting the Zambian Constitution (TCDZC).
What is needed now is just to begin to prepare for a Referendum to Amend the Bill of Rights.
We should take advantage of the presidential and general elections next year (2020) so that we are not told that there is no money to hold the Referendum to amend the Bill of Rights.
(Simon Kalolo Kabanda, 18 January 2020)