Constitution Making Beyond 2018, by Simon Kabanda 1
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Simon Kabanda
CONSTITUTION MAKING BEYOND 2018
Simon Kabanda
4 October 2018
1.0. Introduction
1.1. The journey towards completing the Constitution making process
in Zambia is still on. The current Constitution making process
started 25 years ago, with the appointment of the Mwanakatwe
Constitution Review Commission (CRC) in September 1993.
Unfortunately, it has been an unnecessarily very long process.
1.2. In the 20 years of the government of the Movement for MultiParty
Democracy (MMD), 1991-2011, Constitution making was a
failed project. The MMD had made two attempts at coming up
with a new Constitution. The first attempt was made in 1993 when
the Mwanakatwe CRC was appointed. This process closed in 1996,
with Government rejecting in excess of 70% of the
recommendations made by the CRC.
1.3. The second attempt was made 10 years later, in 2003, when the
Mung’omba CRC was appointed. This process was however
subverted in 2007, by the creation of the National Constitutional
Conference (NCC), whose Terms of Reference deviated from
repealing and replacing the Constitution, to merely making
amendments. Consequently, the Constitution Amendment Act
(2010), which was a product of the NCC, was blocked from
enactment in Parliament.
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2.0. Headways Made
2.1. Since coming into power in 2011, the government of the Patriotic
Front (PF) has made positive strides towards making Constitution
reforms a success project. One positive stride was made with the
creation of the Technical Committee on Drafting the Zambian
Constitution (TCDZC) in November 2011. The mandate of the
TCDZC was not to “re-invent the will”, but to use the report and
draft Constitution of the Mung’omba CRC as a basis for drafting a
new Constitution, while taking into account the works of the
previous constitution making processes, and making reference to
“best provisions” of other constitutional democracies in the world.
The product of the TCDZC was the basis of the 2016 Amended
Constitution, which was assented to on 5 January 2016.
2.2. The Presidential Assent to the 2016 Constitution Amendment Act
could have marked the conclusion of the constitution making
process that was started in September 1993. But it did not. This
was because an important Part of the Constitution was left out of
the equation of constitution making. And this Part was the Bill of
Rights. As a consequence, today there is a “constitutional conflict”
between the Constitutional Court and the High Court.
3.0. Quest for Referendum
3.1. The Bill of Rights in its current form does not sit well in a document
that provides for the Constitutional Court. Matters regarding
violations of human rights ought to be handled by the
Constitutional Court. But Article 28 refers them to the High Court.
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3.2. Going forward, there is need for government to embark on a
process that will eventually culminate into amending the Bill of
Rights to include the economic, social, cultural and other special
rights, in accordance with the draft Constitution that was
produced by the TCDZC. However, the Bill of Rights can only be
amended through holding a successful National Referendum.
4.0. 2021 Elections
4.1. One impediment to holding the National Referendum to amend
the Bill of Rights is the cost. However, holding it together with the
2021 Presidential and General Elections is a solution to this
impediment. A SUCCESSFUL National Referendum is what will
conclude the constitution making process and produce a
complete Constitution.
4.2. The Referendum can be held successfully if preparations begin
NOW. We know the various factors that contributed to the failure
of the 2016 Referendum. Those factors can easily be addressed if
we begin to prepare for the Referendum NOW.
5.0. Referendum Preparations Committee
5.1. The first step now is constituting a Referendum Preparations
Committee (RPC) which should be tasked to prepare the people
of Zambia for participation in the National Referendum to be held
alongside the 2021 Presidential and General Elections. There is
need for a minimum period of 18 months of preparations in order
for us to come out with a successful Referendum.
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5.2. My proposed roadmap towards holding a successful Referendum
to amend the Bill of rights is as follows:
January 2019 – June 2020: Preparations for Referendum;
July 2020 – August 2021: Preparations for Presidential and
General Elections;
August 2021: Referendum, and Presidential and General
Elections.
5.3. While the 2019 budget does not have provision for the work of a
Referendum Preparations Committee (RPC), the work can still
begin. There is a precedent where a process began when there
was no money. The TCDZC was constituted, and commenced
working on 1 December 2011, when there was no money allocated
to it. Financial resources were allocated to the process in June
2012, through a supplementary budget.
5.4. A cost-friendly way of constituting the Referendum Preparations
Committee (RPC) is not by engaging independent people. In order
to avoid personnel costs, the RPC should comprise three (3)
Permanent Secretaries, with the Ministry of Justice PS-Legal as
Chairperson and the other two (2) PSs from any Ministry and/or
Cabinet Office and/or State House.
5.5. In their preparations for the Referendum, the RPC will have to work
with the Central Statistics Office (CSO) and the Electoral
Commission of Zambia (ECZ). While the CSO will be the institution
that will inform the Referendum process the numbers of persons
entitled to be registered as voters, as of today, the ECZ will have
to carry out the registration of voters.
Constitution Making Beyond 2018, by Simon Kabanda 5
5.6. Members of the public will require voter education to prepare
them to participate in the National Referendum and to educate
them on all intricacies surrounding the holding of a National
Referendum. Holding of a Referendum should be mindful of the
fact that the Referendum may succeed or fail depending on
various factors, including how adequately and carefully it is
prepared.
5.7. It is important that by the time the Referendum is held, the ECZ
will have captured adequate numbers to ensure its success. The
target should be to capture at least 90% of persons entitled to be
registered as voters. The constitutional provision on the
Referendum (Article 79) is that “not less than fifty per cent of
persons entitled to be registered as voters” ought to participate in
the National Referendum for it to succeed.
6.0. Referendum at General Elections
6.1. During the 2016 presidential and general elections, there were
various factors that led to an unsuccessful referendum, including
the following:
– inadequate preparations;
– lack of stakeholder participation in the preparations;
– campaigns against the Referendum.
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6.2. If all the factors that led to the failure of the Referendum during
the 2016 general elections are addressed and redressed, we are
bound to have a very successful referendum during the 2021
general elections.
6.3. Holding the Referendum to amend the Bill of Rights is not going
to be the only and last Referendum the country is going to have.
Amending the Bill of Rights using the draft by the TCDZC (2011-
2013) does not mean we are going to have a “perfect”
Constitution. There could be other issues that would require to
hold Referenda from time to time. The issue of cost will always
come up as an impediment to holding any referendum. There is
therefore need to adopt a cost-effective way of addressing
referendum issues.
6.4. The country should adopt a practice whereby during every
presidential and general election, there is a referendum question
to fine-tune the Constitution. If we adopt such a practice, then 20
to 30 years from now Zambia is going to have a “relatively prefect”
Constitution.
Simon Kabanda is a Zambian Expert in Constitution Making and he was a
Member of the Technical Committee on Drafting the Zambian Constitution (2011-2013)
