A BRIEF ANALYSIS OF ZAMBIA’S CONSTITUTION-MAKING PROCESS AND THE ‘LEAKED’ FINAL DRAFT CONSTITUTION

Salc : Anneke Meerkotter

On the 15th of January 2014 the Zambian Watchdog and Lusaka Times released a ‘leaked’ copy of the final draft constitution which was reportedly handed to President Sata.

One of President Sata’s promises in the run-up to his election in 2011 was the adoption of a new Constitution. Keeping to this promise, President Sata appointed a Technical Committee to draft a new Constitution on 16 November 2011. A first draft of the Constitution was released by the Technical Committee in April 2012 reflecting one of the most progressive constitutional documents in the world. Since then, much has changed.

In 2012, the Technical Committee released Guidelines on the Constitution Consultative Process. To understand the subsequent concerns expressed by civil society regarding the constitution-making process, it is useful to keep in mind section 41 of these Guidelines, which provides that –

  1. The Secretariat of the Technical Committee shall, after receiving the recommendations from the National and Sector Groups Convention, submit them to the Technical Committee.
  2. The Technical Committee shall, within nine days of receipt of the recommendations under paragraph (1), consider the recommendations and submissions from the experts on the draft Constitution and draft the final draft Constitution.
  3. The final draft Constitution shall be subjected to a Referendum for adoption by the people of Zambia.

A year later, in April 2013, the National Constitution Convention heralded the final stage of the constitution-making process. Debates at the Convention were heated and it is perhaps not surprising that the Technical Committee took longer than nine days to finalise the final draft Constitution. Delegates at the Convention emphasised that the next step in the constitution-making process should be a referendum.

The Technical Committee’s work was due to end on 30 June 2013. After much anticipation, on 31 October 2013, the Technical Committee issued a statement saying that the draft Constitution had been finalised and would be printed on 1 November. However, a week later, the Technical Committee issued a strongly worded press release in which it broke ranks with the government. The Technical Committee used its statement to inform the public that it had been instructed by the Ministry of Justice to print only ten copies of the Constitution and to hand these over to the President.  The Committee claimed that it was tasked by its Terms of Reference to hand over a copy of the final draft Constitution simultaneously to the President and the public.

Making matters worse, on 30 November 2013, President Sata was reported as saying that the constitutional process is not needed and that the current Constitution simply requires amendment. Since then, there has been widespread condemnation of the government’s failure to release the draft Constitution. President Sata has shown a remarkable lack of interest in the constitution-making process after the final draft Constitution was leaked.

The President’s apparent ambivalence towards the constitution-making process should be seen within the broader political context in Zambia. Since 2012, there have been increased incidents of police repression in Zambia targeting individual activists, journalists and opposition leaders who have been critical of President Sata, the ruling party or government policy.  In this context, it is not surprising that the President would want to defensively scrutinise a constitutional document which has had broad public input, including from civil society. The President would do well however to release the final draft Constitution and defer its adoption to a public referendum. To do otherwise exposes him to criticism. The reality is that the final draft Constitution, or at least the version that has been leaked, does not challenge the political status quo much.

The final draft Constitution, as leaked, has taken a position on some of the debates which raged during the constitution-making process.

Not surprisingly, the document proclaims Zambia a Christian Nation, but qualifies this by upholding a person’s right to freedom of conscience, belief or religion. Unfortunately the document is replete with references to ‘morality’, a vague term which has often been manipulated in southern Africa. These references are however always contextualised by principles of human dignity, equity, social justice, equality and non-discrimination.

Despite widespread advocacy during the consultative process, the final draft Constitution retains the death penalty. The death penalty is excluded in the case of pregnant women, children and where extenuating circumstances are present.

Of concern is that the final draft Constitution has removed provisions on the right to dignity and the rights of marginalised groups which were included in the first draft Constitution. This was no doubt as a result of the misguided submissions of the Human Rights Commission.

Some provisions in the draft Constitution bodes well for civil society groups that have been struggling to uphold freedom of expression in Zambia. The final draft Constitution requires State recognition of the role of civil society in promoting the Bill of Rights. Freedom of expression is protected and explicitly does not extend to hate speech or the incitement of violence. Freedom of the media is protected and the State is ostensibly excluded from control of the media, except where necessary to regulate signals and signal distribution.

The final draft Constitution frames the right to privacy in a broader manner than elsewhere in the region and includes the right not to have information relating to a person’s family, health status or private affairs unlawfully revealed.

The draft document is particularly significant for its emphasis on economic, social, cultural, environmental and consumer rights. However, these entitlements are subject to progressive realisation and the Constitutional Court is prohibited from interfering with the State’s decisions on resource allocation. Children are entitled to a range of socio-economic rights including the right to free primary and secondary education. Significantly, the draft Constitution specifically states that the State shall protect a child who is homeless or spends time on the streets.

The final draft Constitution extends rights relating to the family to include maternity and paternity leave, maternal and child health care, and the right to a non-custodial sentence for a pregnant or nursing woman. Predictably, the document limits marriages to opposite sex couples.

As with the existing Constitution, rights can be limited if reasonably required in the interest of public defence, public safety, public order, public morality, public health etc. However, the draft Constitution emphasises that any limitation of rights may not negate the core or essential content of the right and must be reasonable and justifiable in a democratic society.

The draft Constitution allows individuals to challenge an infringement of constitutional rights which affects them or another person. Unlike other constitutions in the region, the final draft Constitution is silent on the application of international law in Zambia and the extent to which courts must take cognisance of foreign and international law.

The final draft Constitution limits the Presidential tenure to two terms.  Perhaps given Zambia’s political history, there is an unusually long section on the protection of the President from legal proceedings in the draft Constitution.

The final draft Constitution provides for a range of commissions including the Gender Equality Commission, Human Rights Commission and Police Public Complaints Commission. A major shortcoming, however, is the lack of powers provided to these commissions to enforce their mandate. The Public Protector is able to summons persons to give evidence and compel the production of documents, but the same power is not afforded to other commissions.

What is most interesting, is that the draft Constitution provides that any Bill to amend the Bill of Rights must be approved by a referendum. This is in line with the current public discourse on the Constitution being a people-driven document. Whether that is in fact the case will depend on whether the adoption of the final draft Constitution is subject to a referendum.