THE “HOW” OF A REFERENDUM IN ZAMBIA Simon Kalolo Kabanda 28 October 2018

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THE “HOW” OF A REFERENDUM IN ZAMBIA Simon Kalolo Kabanda
28 October 2018

1.0. Introduction

1.1. The “How” of a Referendum in Zambia looks at factors that may hinder the success of a Referendum to amend the Bill of Rights, and proposes strategies that should lead to having a successful National Referendum in Zambia.

1.2. One impediment to holding the National Referendum to amend the Bill of Rights is the cost. In order to address this impediment, and pave way for a successful Referendum, the following should be considered:

– That the Referendum should take place during the 2021 presidential and general elections;
– That preparations for the referendum should commence in January 2019, taking a time-frame of eighteen (18) months;
– That a Referendum Preparations Committee (RPC) be constituted to this effect.

1.3. The above proposals are critical ingredients to having a successful Referendum to amend the Bill of Rights.

1.4. The Presidential Assent to the 2016 Constitution Amendment Act, on 5 January 2016, left out of the equation of constitution making, an important Part of the Constitution. That Part was the Bill of Rights.

2.0. Referendum During 2021 Elections

2.1. Amending the Bill of Rights to include the economic, social, cultural and other rights, is an outstanding issue in Zambia. As a result, the constitution making process, as envisaged from the product of the Technical Committee on Drafting the Zambian Constitution (TCDZC), has not been concluded.

2.2. During the 2016 presidential and general elections, there was an attempt to hold a Referendum to amend the Bill of Rights. However, that referendum was not successful. It failed not because of timing it together with the presidential and general elections. It was due to other factors.

2.3. Factors that contributed to an unsuccessful Referendum during the 2016 presidential and general elections included, among others, the following:
– inadequate preparations;
– lack of stakeholder participation in the preparations; – campaigns against the Referendum.

2.4. 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.

2.5. A question is: How do we address the issue of possible campaigns against the Referendum, to avoid a repeat of the 2016 Referendum experience?

2.5.1. The modus of constituting the Referendum Preparations Committee (RPC) would be one answer to those who may begin to campaign against the Referendum saying the formation of “another committee” is a waste of resources. Therefore, the RPC should comprise people who are already on government payroll. To this effect three Permanent Secretaries should form the RPC, with the Ministry of Justice PS as the Chairperson.

2.6. Another question is: how do we address the issue of campaigns for a NO Vote, so that the electorate overwhelmingly vote YES?

2.6.1. Adequate preparation of the people is cardinal in this regard. There could be some sections of society who may begin to campaign for a NO Vote on the basis of not agreeing with one issue in the text of the Referendum Question. For example, the Pro-Choice Movement does not agree with the provision that “life begins at conception”. Another large section of society does not agree with the Death Penalty. There is also another large section of society that does not want to entrench in the Bill of Rights the provision of Ministers being appointed from amongst Members of Parliament. There is therefore need for vigorous engagement of such sections of society, to convince them using the principle of “the lesser evil”. This point alone underscores the importance of the RPC being constituted by the beginning of 2019 to ensure adequate preparations.

3.0. Significance of Referendum Preparations Committee

3.1. A Referendum Preparations Committee (RPC) is one critical ingredient to ensuring that the 2021 Referendum to amend the
Bill of Rights is successful.

3.2. The RPC will be responsible for drawing up a Roadmap of “everything” required to prepare for the Referendum, including preparation of the electorate and various stakeholders.

3.3. In order to ensure the success of the Referendum to amend the Bill of Rights, “all” stakeholders will have to be involved in the preparations. The RPC will have to work out mechanisms of stakeholder involvement in the preparations.

3.4. Stakeholders involvement will have to include, among other strategies, the following:

3.4.1. Political parties should actively be involved in preparing their members for the National Referendum. The RPC will have to work with the Zambia Centre for Inter-party Dialogue (ZCID), so that the ZCID coordinates a process of political parties coming up with sensitization programmes for their members;

3.4.2. Non-governmental Organizations (NGOs) and Community Based Organizations (CSOs) should mainstream the issue of the National Referendum in their plans and activities. And in their budgets they should include a percentage that should go towards preparing people for the Referendum. The RPC will have to take a double-thronged approach to achieve this:

3.4.2.1. Hold meetings with NGOs and CSOs to impress on them the significance of mainstreaming the issue of the Referendum in their plans and activities;

3.4.2.2. Engage the donor community and lobby that a percentage of their funding to organizations goes towards preparations for a Referendum.

4.0. Referenda at General Elections

4.1. The rationale behind holding the Referendum at election time is not only addressing the cost implications, but other considerations as well.

4.2. Both the Mwanakatwe Constitution Review Commission (CRC) of 1993-1995, and the Mung’omba CRC (2003-2005) had recommended holding a Referendum before coming up with a new Constitution. However, cost implications were one of the reasons why the recommended Referenda were not held.

4.3. Holding the Referendum to amend the Bill of Rights during the 2021 presidential and general elections is not going to be the only and last Referendum the country is going to have, and may not be a guarantee that we are going to have a “perfect” Constitution. There could be other issues that would require to hold various Referenda in future, and 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 the issue of holding any referendum.

4.4. 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 perfect” Constitution.

4.5. Adopting the practice of holding a Referendum during the presidential and general elections will also help to assure those who may want to campaign for a “NO Vote” in 2021 that the issue they do not agree with in the text of the referendum question would have an opportunity to be considered later, and addressed in the next Referendum to be held at general election time.

5.0. CONCLUSION

5.1. It is important that Government prompts soon the process of holding the Referendum during the 2021 presidential and general elections. An announcement to this effect is required.

5.2. It is also important that the preparations of the people for the Referendum to take place at the time of the 2021 presidential and general elections are completed long before the campaigns for the 2021 elections begin.

Simon Kalolo Kabanda is a Zambian Expert in Constitution Making and was a
Member of the Technical Committee on Drafting the Zambian Constitution (2011-2013)