Friday, 4 May 2012

Analysis Of The First Draft Constitution

By Paul Shalala
Reading through the 227 pages of the Michael Sata-appointed Technical Committee’s first draft constitution, am reminded of the struggles, pickets, war of words and insults that the people of Zambia have gone through over the past years on this seemingly unending constitution making process.
This draft constitution has come at a time when most Zambians seem to be tired with the words “a constitution which will stand the taste of time.” They want a constitution that appeals to their views and aspirations, a constitution which will empower them to take part in public affairs and demand accountability like in any other democracy.
Recently, the Technical Committee released its first draft constitution which is soon to be debated and adopted in provinces before a final constitution is prepared and presented to the President as scheduled in September.
Below is my analysis, observations and recommendations of this document which seeks to be approved or rejected by the Zambian people.

Contentious issues
In the previous Constitution Review Commissions (CRCs), Zambians had been submitting a number of items which they felt were dear to their hearts and they hoped those clauses would add value to the country’s wellbeing if added in the republican constitution. Most of these items were added in the respective CRCs’ draft constitutions but were unilaterally deleted from the final documents by those in the seats of authority.
It is however, interesting to note that almost all those contentious issues are included in the first draft constitution released by the Technical Committee in April 2012. These are the 50 plus one presidential election threshold or the majoritarian electoral system, the Vice Presidential running mate, proportional representation, the appointment of ministers from outside parliament and others.
The other contentious issue is the Christian nation clause. During last year’s campaigns, it was a big issue. In the draft, the declaration has been maintained in the preamble as follows:

“We the people of Zambia in exercise of our constituent power, acknowledge the supremacy of God Almighty, declare the republic a Christian nation but uphold the right of every person to enjoy that person’s freedom of conscience or religion.”

This is an article that many Christian groups had fought to maintain since its inception in the republican constitution in 1996.

In Part IV, the draft constitution has provided the opportunity of dual citizenship, an issue which most of our Zambian brothers and sisters in the diaspora have been crying for. The provision clearly states that if a Zambian citizen acquires another nationality, their Zambian citizenship will stil be maintained and cannot be revoked unless the concerned person does so.
Another provision is the Citizenship Board of Zambia which will determine issues to do with nationality. I guess this is the right body which will be determining aspiring candidates’ eligibility to office as happened last year when President Rupiah Banda’s candidature for presidency was questioned on allegations that his father was a foreigner.
Part V of the draft broadens the Bill of Rights and gives various sectors of society rights they need to enjoy such as education, health, sanitation and housing. Of particular interest to me is the inclusion of Economic, Social and Cultural rights. Those who follow Zambian politics will recall that during the existence of the ill fated PF-UPND Pact, the UPND had argued with the PF on these rights and UPND had put them as a benchmark for negotiations towards a single presidential candidate.
Of all the provisions in the draft constitution, those contained in Part VI are dear to my heart. These are articles to do with the electoral system. This part includes some of the most progressive articles which most Zambians have been yearning to have for decades. These include the 50 plus one provision for election of a President, Vice President running mate provision, last Thursday of September as date for General Elections every after five years and proportional representation in parliament. Further, the draft proposes a special vote during general elections for Zambians abroad, defence and security personell and other special people in society like journalists and monitors who are deployed in other areas other than their constituencies were they are registered as voters.
In this same part of the draft, those who lost as MPs in the immediate past elections are not allowed to take office as Ministers or Permanent Secretaries. On the installation of the president elect, more flexibility is given in light of petitions or other problems as opposed to the “within 24 hours” system employed at the moment.
On the executive, Part VII has brought in a tradition that is practiced in countries such as the USA which I see to be very progressive: the appointment of Ministers from outside Parliament. For me this will help the country to have well trained and specialised technocrats to run ministries as opposed to the current system were ministers are deployed irrespective of their credentials and lack of it. In this draft constitution, the Grade 12 requirement for a presidential candidate has been maintained a s well as the provision to remove the immunity of a president if suspected of having abused his/her office.
On electoral petitions, the Constitutional Court has been proposed so that it can hear and judge the submissions. This will help reduce conflict of interest in that the Chief Justice, who used to be the Returning Officer of the general elections, used to receive these electoral petitions when they were filed in the Supreme Court.
Article 88 provides a new concept in Zambian politics: the Political Parties Fund. This is a fund which, in my thinking, will pay a special amount of money to all political parties represented in parliament. However, all parties will be subject to audits on an annual basis on the utilization of party funds. This regulation will also help reduce excess expenditure and mortgaging of the country by those sourcing funds from outside the country.
According to the draft constitution, Ministers will be appointed from outside parliament from among people who are eligible to be elected as MPs and these will number not more than 21. Permanent Secretaries will be appointed from among ruling party MPs and these will only be 11. This will mean that as controlling officers, Permanent Secretaries (MPs) will be under non politicians in the Ministries as Ministers will be chosen from outside Manda Hill.
Parliament itself will have 200 elected MPs plus the Speaker and Deputy Speaker. This will be an increase from the current 150 elected MPs which will mean creation of new constituencies and more expenditure at Manda Hill (the other name for the Zambian Parliament).

This first draft constitution contains very good articles but it also has deficiencies. For example, it does not allow an independent candidate to run for President. This is an infringement of rights as many like minded Zambians who would want to aspire for Plot One are not aligned to political parties will not be able to exercise their democratic right. During last year’s General Elections, the European Union and the Electoral Institute of Southern Africa both recommended separately that Zambia should allow independent minded Zambians to aspire for the highest office in the land. 
Secondly, the President will still has excessive powers. These include the appointment of members of the Electoral Commission of Zambia, an issue which many have been describing as unfair. The Technical Committee should have found an independent way of choosing commissioners.
Thirdly, Part VII provides for the President’s immunity and its removal incase of suspected misconduct during the head of state’s tenure of office. However, it does not give a provision for the re-instatement of that immunity after one is tried and the legal process is concluded.

In its current form, the first draft constitution is progressive, it appeals to most people’s aspiration despite a few shortcomings. Therefore, stakeholders who will take part in conventions, should ensure that all progressive clauses are maintained so that a constitution we all want can be enacted into law and will “stand a test of time.


  1. liked your analysis, it has really simplified the whole draft to those who are lasy to read. equally, i have understood it more than i did when i read the whole draft. interesting bo paul, keep it burning. shaloom, shaloom

  2. Reading through the draft constitution.

    Article 90. 2 The Presiednt should not appoint Consuls in foreing missions let the Ministry of Foreign affairs appoint suitable candidates for these Positions
    ... ...
    Age of judges increased to 75 yrs why?????? article 185 (1)

    Article 120. (1) The Appointment of Cabinet Ministers outside parliament will be 21 cabinet ministers plus 10 Provincial Ministers article 121. (1) totalling 31 all appointed by the President meaning a reduction of the 31 from the 250 gives actually a total 219 to be contested among the members of parliament and gives a head start to the ruling party . Currently the 2/3rd majority requires 105 member which is 66% of the total MPs in parliament aganist 54% being proposed.

    There is the issue of Provincial Assemblies and Speakers and Deputy Speakers in provinces and the provincial Ministers and the elected MPs in those provinces will 2gther councils have deliberations i dont know exactly what they be doing.

    All Ps now callled Parliamentary Secretaries shall be appointed by the President , i propose we move away from this . These are civil servants who need to be appointed oon merit from the civil service by a commision .