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Law and Development: Flawed Constitutional Making-Process and Zambia’s Economic Malaise: Part II

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Charles Mwewa

Charles Mwewa

Injurious Insular Improvements

By Charles Mwewa

Last week, I discussed Zambia’s pre-independence constitutional events. Those events set in motion a constitutional review process that would have serious implications for the modern nation. The document so-created broke society into two camps; the settler community empowered to succeed economically and the African community struggling to emerge.

From the outset, I would disclaim that the past should not entirely be called to bear on the present. However, it is generally accepted that the pre-independent events surrounding the nation of Zambia (and many former colonies, for that matter) have come to bear on the present. In 1973, after almost ten years in power, the United National Independence Party (UNIP) under President Kenneth Kaunda decided to turn Zambia into a One-Party State. This was brought about by the recommendations of the Chona Commission. History is now a witness to the fact that the recommendations were doctored to purport to reflect the will of the people. The instrument used to accomplish this was, as expected, the constitution. Dr. Kaunda and UNIP had realized that the only way of sorting out internal conflicts in Zambia was the proscription of all political parties with the sole exception of UNIP.

Zambia was born a plural democratic society. There is a co-relationship between economic liberalization and political pluralism. There are generally two foundational principles underpinning that. First, in a plural political society, people actively share in the governance of their affairs by electing their own representatives to the, in the case of Zambia, unicameral Parliament. This step is important because it also guarantees freedom of thought and eliminates the monopolization of ideas. Where a people are free to think, act and rationally engage in economic debate, the result is a growing and sustainable economy.

Second, pluralism ensures that people are free to question ideas that may not work in the long run. A One-Party government may have the liberty to enact many legislations, but only because no-one actively questions or challenges the process. The result was that, in Zambia, the president had become immortal and infallible. While the president and his government were experimenting with legislative power, the people had begun to feel the sting of an under-performing economy. It may, however, be debatable whether Zambia would have fared better economically had the nation continued as a plural society. Evidence, for the most part, suggests that people are better empowered to succeed economically when there is a political pluralism. This happens because people are constitutionally free to elect representatives of their choice. What is not debatable in the case of Zambia is whether the nation would look different economically had Zambia remained a multiparty state. Within the 27 years that Dr. Kaunda ruled as a single leader, Zambia would have had, minimally, three presidents, and at maximum, at least five presidents!

As most successful democracies, such as the USA, UK, India, and so on, have shown, competition in terms of political contestation leads to improvements in various sectors of the economy. Zambia missed over 25 years of economic testing. In 1991, arising out of the public’s demand for a return to multiparty politics, Dr. Kaunda passed a resolution for constitutional amendment. This resulted in the Constitution Act of August 30th, 1991. In essence, it was this constitution, whose commission was chaired by Patrick Mvunga, which introduced multiparty politics back to Zambia. This was a giant step taken by the people of Zambia towards the creation of conditions necessary for a performing economy. However, the 1991 had one demerit; it was enacted as a transitional or emergent document. Its goal was the attainment of political pluralism. The 1991 constitution was, therefore, no long seen as a legitimate document. It had already outlived its mandate, which was the facilitation of the transition to multiparty politics.

Due to the emergent nature under which the Constitution Act, 1991, was enacted, the immediate concern of the newly installed MMD government was the re-enacting of a constitution it believed was comprehensive and broad-based enough to represent the general wishes of the people. In 1993, both as part of an election promise and as a search for a comprehensive constitution, late president Chiluba appointed a Constitution Review Commission, chaired by John Mwanakatwe. Upon the completion of making substantive recommendations the draft constitution was presented to president Chiluba in June 1995. Final amendments were made to the constitution in 1996. These amendments, however, met with two cardinal drawbacks.

First, the MMD government rejected the following recommendations of the Mwanakatwe Constitution Review Commission, namely (1) a Bill of Rights to include women, children, economic, social and cultural rights; (2) the introduction of a Constitutional Court; and (3) the adoption of the constitution through a Constituent Assembly.

Second, people were infuriated for government’s refusal to take into account most of the submissions they made.

In a nutshell, constitutional stability depends on the power prescriptions it guarantees to its governors; the strong structures it sets congruently assertive to the Separation of Powers; and the recognition and the protection of the liberties and rights of its people. The 1996 constitution loosened all except tightening the concentration of power in the MMD president. Article 34 of the 1996 Zambian Constitution provides that anyone who wishes to contest the office of President of Zambia has to prove that both parents were Zambian citizens by birth or descent. This amendment prohibited Dr. Kaunda, a Zambian citizen, from contesting the elections having been duly nominated by UNIP, a legitimate political party. It is generally believed that the 1996 amendment disenfranchised about 35 percent of the Zambian electorate from standing for the office of president.

Neither the UNIP nor the MMD governments had created a constitution that would stand the test of time. Both parties with their respective leaders were ardent at playing the politics of vengeance, using the highest law of the land as a weapon. Sustaining themselves in power for a little while they did, but sustaining the economy they both failed. In a country where the majority of the people live below the poverty datum-line, guaranteeing their rights and legally enforcing such through a Constitutional Court would have been a plus, rather than barring one presidential candidate in order to buy more time in power. The people’s wishes were not, and continue, not to be listened to in the Zambian constitutional amendment journey.

The year 2001 was a very interesting year in Zambia. It is not just interesting because President Chiluba attempted to amend the constitution to vie for a third term of office; it was in the pledge made by about eleven presidential contenders of that year. They all promised to review the constitution if elected into office. In 2003, the Wila Mung’omba Constitution Review, also known as the Dragged Constitutional Review Commission, was constituted. It was the initiative of late President Mwanawasa and it came about by Statutory Instrument Number 40 of April 17th, 2003. This constitution review promised the protection of human rights; the examination of the death penalty; the elimination of discriminatory provisions in the 1996 constitution (especially of the so-called “Parentage Clause”); and the promotion of good democratic governance. These were some of the major recommendations, but not the only ones.

The 2003 Mung’omba Commission considered two methods of amending the 1996 constitution: Constituent Assembly or a Constitutional Conference. The latter method was chosen. Consequent to this recommendation, under the National Constitutional Conference (NCC) Act, Number 19 of 2007, the National Constitutional Conference (NCC) was established. In this way, and for the first time since constitutional history, the will of the people of amending the constitution through a constitutional conference seemed to have been respected.

The NCC adoption process was designed as follows: after 14 months of debate, recommendations and comments, the final text of the new constitution would be decided either by submitting to the Minister the entire adopted constitution for submission to a National Referendum or by any one of the two options (1) presenting to the National Assembly for enactment if the Draft Bill did not contain any provisions to alter Part III or Article 79 of the Zambian Constitution or (2) submitting to a referendum, if the Draft Bill contained provisions to alter Part III or Article 79 of the Zambian Constitution or any provisions in the Mung’omba Draft Constitution on which there was no agreement either through consensus or secret ballot.

Sadly, the proponent of this hopeful constitutional review process, President Mwananwasa, died in July 2008 before completing his term. President Rupiah Banda who had served as vice-president to President Mwanawasa, upon the death of the later, acted as president until the presidential by-elections of October 2008 in which he emerged as the winner over the late Michael Sata. Consequently, in 2011, the NCC failed to pass a vote in the National Assembly. Mwanawasa’s vision of a people-driven constitution seemed to have died with him, too.

Meanwhile, for nearly 20 years, the people of Zambia have waited for a law that will liberate them economically and reduce the power of government. From the Chona Commission of 1970, to the Mvunga Commission of 1990, to the Mwanakatwe Commission of 1993, to the Mung’omba Commission of 2003, to the National Constitution Conference of 2007, and to the Technical Committee of 2011, the wish of the people of Zambia to a rights-based-economic empowerment constitution has been eluded.

There was so much hope in the lead up to the 2011 presidential elections. Majority of Zambians believed that Michael Sata would finally deliver on the promise of an authentic people-driven constitution. During his maiden speech to Parliament in 2011, President Sata said his government was committed to delivering a people-driven constitution within three months. This was one of his campaign pledges, and which drew widespread praise. Before his death, however, President Sata’s government sparked a furore over the draft constitution after instructing the 20-member committee working on it to print “only 10 copies” for the Executive. Subsequently, President Sata changed his mind on the new constitution, after millions of Kwachas had been spent on it. He back-flipped and “maintained that Zambia already has a constitution and there is no need for another one.” The draft constitution was finally released to Parliament by President Edgar Lungu (who, at the time, was the acting president) after a long time and demands from the public.

There were strong sentiments drawn from learned legal Zambian scholars, authors and commentators that the Patriot Front (PF) party under which the current government of President Lungu governs realized that the 1996 gave them a better chance to retaining power. Constitutional historians would immediately see the repetition of the old vindictive and electoral fraudulent nature of the insistence and reliance upon the 1996 constitution. Other than just the failure to create a constitution that transcends party shenanigans, the constitution review procedures themselves have contributed significantly to the enrichment of a tiny constituency of people who are appointed to these constitution review commissions. In the same breath, these fruitless constitution exercises have impoverished the nation as a whole. There is no difference between the K135 million and the over K115 million the MMD and PF, respectively, are allegedly to have spent on purely fruitless constitutional processes. This has been happening under the backdrop of a nation whose over-60-percent of its population wallow in abject poverty.

I have attempted to set into historic perspectives the impact of a flawed constitutional making process as it relates to Zambia. There is no denying that the genesis was motivated by anything other than a desire to create an economically strong and stable society. Subsequent governments have placed partisan ambitions above the will of the people. If President Sata had backpedalled on the constitution, it was not because he did not have good intentions before acquiring power. It was because he feared the 50-Plus-One system would have made it hard for the PF to sustain a 20-year in power vision originally articulated by former acting president, Guy Scott.

Parochialism in the Zambian political leaders has hindered the necessary opportunity to develop Zambia. Ideals like Dual Citizenship which have made countries like Canada the economic envy of the world are frowned upon by narrow-minded Zambian politicians. The parentage of a presidential candidate, the so-called Domicility Clause (Zambia should use the experience and knowledge of those who have led and worked in the West to its advantage; there will, definitely, be a difference between a Zambian president who has been exposed to the Western economy and to one domiciled exclusively in Zambia), and the sheer fear that a comprehensive, objective and non-discriminatory document could eliminate a party from power, have dictated the constitutional reviews at the expense of Zambia’s economic growth.

Part I can be read by clicking here.

Next week, I will look at “Intolerant Economic Institutionalization” in Part III, specifically, on how economic power is concentrated on a domineering central government which is practically in control of everything.

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Start: 2019-07-01 End: 2019-07-31