On January 5, 2016 Zambia’s sixth President Edgar Chagwa Lungu appended his signature to the most comprehensive and far reaching amendments of the country’s constitution since the country’s independence in 1964 in what he described as a watershed moment for the country.
The development which is a defining moment in the country’s history has left Zambians divided with some expressing happiness and many more expressing disappointment given that the constitution they developed had been altered by a clique in parliament.
The latest constitution amendments drew from the final report of the technical committee appointed by late President Michael Sata immediately after assuming office in 2011. The Patriotic Front, Zambia’s ruling party promised to enact a new constitution immediately after assuming power through a national referendum. However the Patriotic Front had been dragging its feet on the constitution and somewhere along the way the final draft constitution produced by the technical committee went missing. It was only retrieved and released by then acting Justice Minister Ngosa Simbyakula on 24th October, 2014 as part of Zambia’s golden jubilee independence celebrations.
“As we celebrate 50 years of our country’s independence, we have to take a bold step to shape the destiny of our country. We have decided to release the final draft Constitution to the public as a Jubilee gift to Zambians.” Simbyakula said.
Government ignored its promise to enact the entire constitution through a referendum as well as the voice of reason of civil society and the church and opted to pick out what the ruling party considered as non-contentious issues and opened debates on content that citizens had already debated and voted on in district, provincial and national conferences on the constitution. In justifying this path that saw the dropping of some critical aspects of the constitution that Zambians wanted such as the appointment of cabinet from outside parliament and the introduction of provincial assemblies, President Lungu alleged that the outcome of a referendum was not predictable.
“I know that we are all in agreement over the single goal of giving ourselves a new constitution. We are however divided on the means. Nevertheless, the nation has to move forward. The choice made to have the constitution adopted in this manner and allow only the bill of rights to be subjected to the referendum avoids the risk of complete failure to enact a new constitution due to the stringent voter threshold requirement that the referendum demands.” President Lungu said.
The constitution amendment provides for the election of a president with over 50 per cent of the valid votes cast and the provision of a running mate to a presidential candidate.
It also provides for the establishment of the constitutional court and the court of appeal, dual citizenship and deals with the uncertainty that was previously associated with the date of elections.
The constitutional amendment also provides that the general elections shall be held on the second Thursday of August in an election year.
With the introduction of the running-mate clause, Zambians would know in advance who the successor would be, should the office of the republican President fall vacant for one reason or another.
In 1996 the constitution was amended to introduce the parentage clause, which entailed that for one to be eligible to stand as President they needed to have both parents born in Zambia. This clause has been deleted through this amendment as it was considered to be discriminatory to some citizens when it came to aspiring to the highest office in the land.
Another new development was the introduction of a secondary school certificate as a minimum requirement for one to aspire for political office at all levels.
Civil society through the Grand Coalition on the Constitution led Zambians in protests against the enactment of the constitution through parliament and refused to appear before parliament to make their submissions for fear of endorsing a flawed process.
“The tabling of the Constitution (Amendment) Bill 2015 before the National Assembly of Zambia for debate and consequent amendments was a clear violation of the democratic practice in the constitution making process and also the PF own manifesto. Parliament has no power to give Zambians a new constitution which the PF government consistently promised them whilst in opposition and after being ushered into office.” Fr Leonard Chiti, Grand Colaition Chairperson said.
Members of civil society were of the view that the Minister of Justice had already a predetermined position of usurping the powers of the people to adopt their own constitution through a referendum.
Of fundamental concern to many Zambians was the fact that the route taken by government treated the Bill of Rights as a secondary matter.
The grand coalition of civil society organisations which includes the church and the trade movement have vowed to de-campaign members of parliament who debated and voted for amendments to a constitution in a manner that was deemed as treacherous to the will and aspirations of Zambians.
Zambia’s main opposition party United Party for National Development (UPND) described the amendments as a sham and betrayal of Zambian people. Party President Hakainde Hichilema indicated that his party remained committed to the social contract it signed with Zambians in January 2015 to deliver the whole constitution through a referendum without tempering with its contents.
Speaking at a press briefing Rainbow Party national youth chairperson McDonald Mulongoti observed that the new constitutional provision that requires those aspiring for political office to possess a minimum of a grade 12 certificate was discriminatory in the absence of free education in Zambia. Mulongoti argued that inasmuch as such the requirement sought to raise the bar in terms of quality of political representatives, possessing a grade 12 certificate could not be equated to exceptional leadership as true leadership was based on wisdom, an inborn trait and that it had nothing to do with education or wealth.
The Post Newspaper Editorial of 10th January, 2016 observed as follows:
“The requirement of a grade 12 certificate for one to be a councillor or member of parliament doesn’t make sense. And as such, it wouldn’t have come from the people, let alone the majority of the people. The great majority of the Zambian people do not have grade seven certificates and there is no way they could have chosen to exclude themselves from political participation and governance of their country. We also have some members of parliament who do not have grade 12 certificates but opted to obey their party and support the constitution amendment bill that disadvantaged them. Clearly, this grade 12 certificate requirement for one to context local government or parliamentary elections is bad law that should be legally, politically and otherwise challenged. We should not allow our people’s rights to be usurped in such a selfish way by a trifling minority.”
The opposition Movement for Multi Party Democracy MMD President Nevers Mumba whose party members of parliament made it possible for the constitution amendments to pass by voting with the ruling party argued that his party resolved to set their emotions aside and undertake this route in national interest.
Government in responding to the cries of Zambians for their expanded bill of rights has indicated that subject to the availability of resources a national referendum on the bill of rights would be undertaken alongside the 2016 general elections.