“By Edmond Lifwekelo”
A little over two years ago, when Michael Sata was campaigning for Zambia’s top office, he promised that, if elected, he would finally bring to an end a decade of abandoned legal reform and deliver the country a definitive new constitution. Not only that, but he would do it within 90 days of taking power.
Sata’s election campaign was successful, and soon after taking office in September 2011, the new president − along with his Patriotic Front (PF) government − tasked a committee of lawyers and academics with drafting the document.
Things seem to have taken a different twist, however. When swearing in the techinical committee drafting the new constitution, the PF Government told the nation that the committee has been given 90 days to complete the assignment and hand over the report to Government. Then later on the committee asked for an extension of time and Wynter Kabimba again told the nation the the period has been extended and the committee will have to hand in the report by 30th June 2014. When this date reached a row erupted between the committee and the Government as the committee said they were not ready and would only complete the task after a month. In December 2013, the government blocked the constitutional committee from releasing its reprt simulteneusly to the Public and the President. On top of that they were ordered to print only three copies of the draft constitution,, and the committee (under protest) handed the three documents to Sata through Kabimba. This event was widely published by the media and the nation was told the documents have been handed over to the Government. After much pressure from opposition parties and civil society that the public should know the contents of the draft constitution, the nation was treated to further drama and circus when Kabimba announced that Government was still waiting for both the report and the draft constitution from the committee! Now who is lying to who?
It is not difficult for one to see that the Government seem to be insencere by saying they never received the three copies. And it is also not difficult to see that this is just another trick by Sata and his PF to deny zambians a new constitution. This is so because Sata has dramatically changed his mind about zambia having a new constitution. Sata has of late persistently said that zambia does not need a new constitution because it already has one! Now the questions being asked are; didn’t sata knew, when he was campaignung for president and demanding for a new constitution, that zambia already has a constitution? Didn’t sata knew that zambia already has a constitution when he appointed the technical comiittee which sat for more than a year and Gobled up millions of kwacha in tax payers money? This is pure deceit and betrayal at its worst. And what made Sata change his mind about the new constitution? What is Sata fearing?
After the 2014 budget revealed a skew of alarming numbers and the global rating agency Fitch downgraded the country’s credit rating, the PF’s economic success story lost its celebrated momentum, leaving it with little more than a narrative of heavy-handed autocracy.
Many zambians have closed in on the constitution as a panacea for all that ails the country, a movement that culminated in a major demonstration at the Cathedral of the Holy Cross in Lusaka and which took a sensational twist on 15 January when the Zambian Watchdog published what said is a leak of the final draft.
A torrent of official statements followed as the drafting committee denied originating the leak, the police vowed to clamp down on what they termed a ‘cybercrime’, and the government vowed to track down and punish the perpetrators of the leak. Surprisingly, not one Government official ever denied that the leaked doc was fake of what could have been expected if the Government had never received the docs.
Talking the talk
While the authenticity of the leaked constitution is uncertain, it doesn’t stray far from the publicly available first draft, or even from previous drafts commissioned under past administrations. Zambia’s electoral system is addressed, requiring candidates to garner over 50% of the vote to hold presidential office, while parliament would be composed of members elected through a combination of first-past-the-post and proportional representation.
The draft Bill of Rights − which includes classical first generation rights as well as social, economic and cultural rights − is also more clearly articulated than it is in the existing constitution, and it seems to be these protections, more than technical changes to governance structure, that the opposition is longing for. The opposition complain that their protests have been menaced by police and PF party thugs, that critical media outlets have been persecuted by the government, and that the general population, especially in the rural areas, slogs through a life of poverty, illiteracy and environmental degradation.
WHY DO WE NEED THE CONSTITUTION?
That there’s more than enough substance in the existing constitution to transform human rights in the country is not the issue. The real problem is that successive administrations simply cast off their legal responsibilities when it suits them. What needs to be tackled is Zambia’s tradition of impunity, which dates all the way back to the era of its independence president, Kenneth Kaunda.
When Zambia was granted independence in 1964, it started its new life with a multiparty framework, led by Kaunda’s United National Independence Party (UNIP), which had won 55 of 75 seats in the pre-independence elections. But this wasn’t to last. In 1972, keen to outmanoeuvre political opponents both inside and outside the ruling party, Kaunda banned all political parties apart from UNIP. In 1973, he formalised one-party rule in a new constitution that also that consolidated state power in the president’s office.
It was only 18 years later when Zambia was choked by debt and was facing mounting pressure from the international community that Kaunda commissioned a hasty legal review. That move led to the establishment of the 1991 constitution and multiparty elections that brought MMD leader Fredrick Chiluba to power.
Not a lot has changed since then, despite the reform commissions that have been mandated, the reports that have been produced, and the many amendments proposed. One amendment that has been passed was a provision barring candidates with foreign parentage from running for the presidency. Chiluba, assisted by Sata, who was then a member of the MMD, managed to force through this provision in 1996, effectively blocking Kaunda, whose father was born in neighbouring Malawi, from returning. The amendment still exists today.
The problem is that despite these legal mandates, correctional facilities are overcrowded and access to justice fails many prisoners in remand; there’s a long track record of beating, arresting, and criminally charging journalists, civil society leaders, and political figures who criticise government; poverty is endemic in rural areas, where education and healthcare facilities are also inadequate and the means of pursuing a gainful livelihood are largely absent.
When it comes to social and economic rights, many developing countries explain their failures in terms of cost. How can a poor nation like Zambia be expected to improve the lot of its direly undeveloped rural areas? How can it extend its meagre health and educational resources that far? How can it afford what human rights theorists call ‘positive rights’, those measures that require government action to protect and maintain?
Part of the answer is to dam the ever-bubbling backwaters of corruption, which divert enormous sums from the country’s development agenda. While corruption charges and trials do occur – usually motivated by political reasons – leaders from Chiluba to Sata have done little to substantively affect the diversion of public money from development to private bank accounts.
In the short term, real change won’t emerge from the PF government. And it is clear that the PF will not give zambians the constitution they want. The real change will have to come from outside. Protesting Zambians have chalked up victories before, as when public demonstrations played a role in dissuading Chiluba from seeking an unconstitutional third term, which sata championed. And if NGOs, civil society, opposition political parties and student bodies were to focus their efforts on mobilising themselves and the masses. not just urban Zambians, but also those people in the rural areas, more tangible results could be achieved.
But it’s not just a case of focusing their efforts. It’s a case of refocusing them. The fight for a new and improved constitution is certainly a worthy one, but civil society organisations have made a holy grail of constitutional reform, as if delivery will automatically slacken the state’s grip on an array of levers it freely abuses, from stacking the judiciary with supporters to deploying waves of violent thugs in by-election campaigns.
The current opposition (Except the UPND), meanwhile, is only too pleased to ally itself with activists, but given the MMD’s own history of unjust governance, the teaming up is clearly for self-serving reasons. Rather than giving politicians such an elevated podium from which to reinvent themselves, civil society would do better to zero in on specific rights violations and protest those on the same scale as they do constitutional reform.
The other piece of this puzzle is the international community. That’s a difficult prescription for a continent whose leaders routinely play their populations against what they frame as foreign interference, but sustained pressure from multilateral organisations able to reference even the current set of constitutional guarantees would help consolidate demands made in the streets.
None of this is to say that robust laws can’t lay the groundwork for a future of mature, responsive governance. A strong legal framework, no matter its current irrelevance, will make for useful terms of reference in a more developed future, and human rights theorists habitually point to ambitious laws as key components to equitable progress.
Yes Zambia needs a new constitution that will stand a test of time. It is shameful to still be discussing constotution 50 years after independence.
(c) Edmond Lifwekelo 2014