ALFRED A. K. NDHLOVU
Plot No. 594, Gardenia Avenue, Avondale
E-mail Address: [email protected]
July 08, 2012
Technical Committee on Drafting the Zambian Constitution
Government Complex Conference Centre
P. O. Box 50106
OBSERVATIONS AND COMMENTS ON THE FIRST DRAFT OF THE REPUBLICAN CONSTITUTION OF ZAMBIA
- 1. ARE WE SERIOUS WITH THE CONSTITUTION MAKING PROCESS?
I am writing to put my mind and words on record on the first draft Republican Constitution of Zambia which you released on April 23, 2012, and publicized in three daily newspapers. I am using one copy printed in the Times of Zambia.
Our constitution making process has been impeded by uncertainty since the Mung’omba Commission made its report which went to the Chifumu Banda Conference which you have conveniently replaced. It is difficult to assess whether the two previous efforts were useful or indeed just gobbled tax payers’ resources! You are and will be seeking opinions and views from the same Zambian people like those your predecessors listened to.
It takes a long time for the same people to change and think differently on the same matter. Additionally, Zambia neither has a Freedom Charter nor a Magna Carter where general principles of governance are embodied as a reference point on matters of governance and administration. How many attempts on the constitution have we had from 1990? Too many for comfort!
- 2. THE TEAM OF EXPERTS AMAZES!
Your Technical Committee has widely been hailed as a team of experts, but unfortunately the draft which you have given us to read and comment on appears to be amateurish, to say the least. I was expecting you to give us a document that you were expected to defend for it to pass the scrutiny of the Zambian people. You have instead elected to write from our mouths. This is very strange indeed. To add salt to injury, it is also unedited! Why should you be paid if you cannot do a good job?
Not all Zambian people are ignorant today to be spun around in the manner the situation appears to be in the constitution making process at hand! One, two or three well trained constitutional experts could, perhaps, have done a better job. Zambia has trained a number of constitutional lawyers and the time to use them is now. It will not be surprising if you take longer to finish the job which may not be even different from what we already have.
- 3. BE CAREFUL WITH THE USE OF OUR ENGLISH LANGUAGE
Use of language in a document which is supposed to be interpreted by ordinary people and the courts of law is very crucial. Words must have precise, and in most cases, one meaning only. The word, “parliament,” for instance, is used interchangeably with the phrase “national assembly”. This is wrong and must be avoided in the next constitution. The two do not mean one and the same thing. They are just synonyms. If you substitute each at a time in the places where you have used them, you will see and understand what I mean here. If you use words and phrases carelessly, the document cannot stand the proverbial “test of time”.
It is language that makes any piece of writing classical to survive the “test of time”. I implore you to pay a lot more attention to this observation in many places of the draft. English is our official language and is a second one to many Zambians.
This being the case, we have a duty to use it wisely. We cannot distance English from the British and Americans, except in very few cases where it mat be localized.
- 4. DECLARATION OF ZAMBIA AS A CHRISTIAN NATION
I do not understand what you mean by a “Christian nation that tolerates and accommodates other religions”! I have not heard of an Islamic nation that tolerates and accommodates other religions. Can Zambia apply Sharia to suit a religion (Islam) that you accommodate and tolerate?
Declaring Zambia as a Christian nation is not a legal cosmetic designed to please small sections of this nation. Being a Christian nation is actually a PRINCIPLE. Christianity is a civilization, a way of life and a source of good governance. It is nearly six thousand years old. It has a history in all areas of human endeavour.
It is undoubted that every follower of any religion judges his or her own religion to be the best and regards others as heretic. Declaring Zambia as a Christian nation is a principled stand against the influence of Islam, Budhism, Hinduism, etc. The teachings of these religions are largely what Christianity teaches against.
I know that the Catholic Church advocates secularism. This implies that if the Technical Committee is dominated by Catholics, the declaration will be watered down. Of course, Zambia is for all; believers and non-believers alike. However, the code of moral behaviour can only be interpreted in Christian teachings and beliefs. This is why the declaration of Zambia as a Christian nation must be strengthened and consolidated.
Do Moslems, for example, look at capital punishment like Christians do? What about on issues of the women folk?
The foundation of the Zambian nation is firmly on Christian terms and conditions. That is what we mean by “Zambia is a Christian nation” just like some Western nations are today. Do the needful on this aspect of the constitution.
- 5. THE EMERGING TIDE OF VARIOUS HUMAN RIGHTS
Emerging Human Rights are sickening to say the least. Some countries in this civilization have accepted same sex marriages. Gays want to be legally tolerated to live their way of life. Is Zambia ready and willing for same sex marriages? Will bestiality (sex between human beings and animals) also be claimed as a human right and tolerated in the same way Gays will be tolerated? Are rape and paedophile, for instance, also human rights?
The duty of law is either to permit or stop in order to create good order and harmony.
Zambia cannot afford to legislate nor put in the Republican Constitution matters on which the nation is not unanimous, such as these emerging so called human rights.
- 6. PRODUCTIVE HUMAN RIGHTS
Democracy per se is also a human right which must be protected in order to ensure that a dictator does not emerge nor facilitated to emerge in future.
Political parties as institutions of democracy must be entrenched, strengthened and protected as such. Economic rights to prosperity and happiness must be enshrined in the Constitution, particularly the mode of production: liberalism, private enterprise, free and open market performance should be the order of running the economy in order to create wealth.
Democratic capitalism is the better ideology for Zambia.
Nationalization should not be an easy alternative to privatization. A big and strong economy can only be built in a democratic and capitalist system.
- 7. THE DEATH PENALTY
I cannot imagine that Zambia will be unanimous on capital punishment, especially in respect of murder convicts. There are so many people who have killed on purpose and malice in our country especially in armed robberies. It is not a question or matter of tooth for tooth. The death penalty must exist to underline the sacred nature of human life. Those who kill must know that they, too, will be punished by being a victim of the law and a hang-person’s candidate.
Doubts on conviction cannot be a reason to abolish the death penalty. Most murderers are easy to identify because of their history. The Republican Constitution must uphold the death penalty for murder only.
- 8. POWERS OF THE PRESIDENT
There is talk that the president in Zambia has too much power. This observation started with the first Republican president Dr. Kenneth D. Kaunda. It continued with Dr. Frederick J. T. Chiluba, Dr. Levy P. Mwanawasa and Mr. Rupiah Bwezani Banda.
I am sure that the “too much power” is now with Mr. Michael C. Sata. The Republican Constitution which is being processed should address this issue now. Such presidential power relates to appointments, dismissals (sacking), pardons, detentions. There is need to counterbalance when exercising such powers. In other words, the president must be checked and major decisions that he/she makes must be ratified by Parliament.
There is also need to strengthen the three arms of government, Executive, Legislature and Judiciary for them to be able to check one another the best way they can. Opposition political parties provide “checks and balances” but fall short of everything that is required in a vibrant democracy.
The Fourth Estate, the Press, must be given all the freedom that it requires to perform professionally. Vibrant, free and professional news media are essential in a democracy and liberal economy. Leaders are tested by such news media.
- 9. FREEDOM OF THE NEWS MEDIA
The best way to cater for freedom of the press, also known as freedom of the news media, is for the Republican Constitution to provide that “no law shall be enacted against freedom of the news media or the press.” This is so because in most cases it is individual statutes that constrain freedoms. I can argue further that if the Republican Constitution provides like that, there is no need for Freedom of Information Act. Statutes are easily manipulated by the Executive through Statutory Instruments. This is why they are not watertight to safeguard freedom of the news media.
A free news media must be elaborate enough to provide for extensive diversity of ideas and thought essential for development. The idea and practice of being pro-government must be on the way out! Good journalism does not favour anybody (including those who own media houses) in as far as news coverage is concerned. Journalism must be guided by factors, or principles, such as truth, news worthiness, analysis, critique, exposure, etc. There is always a way how everything can be told to the people of Zambia. Hiding what happens, especially bad and wrong things, is bad journalism.
A local newspaper, for instance, recently undertook not to criticize the current administration on, perhaps, tribal lines or seeking ulterior favours. This was wrong and unprofessional! The onerous duty of journalists is to build the nation with the universal truth regardless of who is covered. A good press differentiates boys/girls and men/women in leadership.
- 10. ZAMBIA IS A LAND MASS OF 755,000 SQUARE KILOMETRES
Why should you provide for a Zambia which is “unitary, indivisible, multicultural, multiethnic, multi-religious, multiracial and multi-party”? This is superfluous and unnecessary.
Cessation is not treason. Israel, for instance, is a Jewish homeland state. It was created deliberately for Jews. However, Jews cannot live there alone. Other races and tribes live in that state.
Pakistan and Bangladesh were part of India some years back. They left the union to exist as they are today. It was not treason at all for them to leave India.
In 2011, South Sudan became a separate state. It is moving ahead as a nation on its own. This is acceptable and not treason as such.
Why should the Republican Constitution insinuate that seeking to secede in Zambia is treason? That is very far from the truth. National unity cannot be imposed and forced on the people. National unity is an ingredient of understanding and tolerating one another.
Any group or section of society which is marginalized has the right to secede even from countries like the United States of America, China, Russia or indeed any European country.
All components of society in its ethnic makeup are important and much more, leadership at the highest levels must alternate democratically. No one group of nationals should monopolize leadership roles even on account of being the majority.
It is the way of governance which makes citizens to feel they are part of the nation. Threats never breed unity. They instead strengthen and harden the resolve of the marginalized to seek relief elsewhere.
How can a Christian nation be multi-religious? Why should we be multiracial? We, the Black race, have no record of enslaving, colonizing and subjugating any race in the world. Is there any European country which is multiracial? Let us do our homework.
- 11. POLITICAL PARTIES AS INSTITUTIONS OF GOVERNANCE AND DEMOCRACY
I have always wondered why political parties should be treated as clubs or small associations of special interest groups of people. My view is that it has now come to pass that political parties must graduate to be called and regarded as institutions of governance and democracy and earn a higher status through the Republican Constitution.
Running a country is not similar to playing golf, football, etc. It is higher than running a Rotary, Lions, etc club. I am, therefore, suggesting that political parties as institutions of governance should form an estate of public service and be so recognized by the Republican Constitution.
The statutory provisions of the Societies Act in respect of political parties should be transferred to the Republican Constitution. This measure will put value and respect on political parties to conduct their affairs diligently and much more so to be respected by the people of Zambia at large.
- 12. TRANSITION AT CHANGE OF GOVERNMENT ADMINISTRATION
Zambia has changed presidents on several occasions since independence when first president of the new Republic, Dr. Kenneth David Kaunda, took over from the colonial governor. That change was from an alien administration to a local and new one. Whereas Dr. Kaunda abhorred colonialism as an agent of plunder, he graciously accepted change without any consideration to investigate and prosecute his alien predecessors.
In 1991, the second change took place when Dr. Kaunda graciously handed over power to the newly elected Republican president, then Mr. Frederick Jacob Titus Chiluba, a compatriot. The Frederick Chiluba administration molested the former president including attempted assassination in Kabwe. He was also arrested on allegations of being an accomplice to an attempted coup d’etat!
The problem with fellow Zambians is that they largely take that sort of molestation as deserved and are least concerned. I personally talked to former and late president Chiluba to stop molesting Dr. Kaunda and compensate him over the injuries Dr. Kaunda sustained in the shooting incident in Kabwe. I was glad that he agreed to oblige.
In 2001, Dr. Chiluba worked very hard to campaign for his chosen successor, the late Dr. Levy Patrick Mwanawasa SC. In fact, Dr. Chiluba did many good things to late president Mwanawasa from the time he appointed him as vice president in 1991. Even after Mwanawasa resigned from being vice president, Dr. Chiluba treated him well as former vice president of the Republic. However, in a surprising turn of events, in 2002, president Mwanawasa started molesting his predecessor on suspected corruption. The Post newspaper with its “angels of doom” played a leading role in that scheme of harassment of a former Republican president. Dr. Chiluba may go down in the history of Zambia as the most harassed former Republican president. Thanks to Mr. Rupiah Bwezani Banda who saw decency in respecting a former head of state and legally authorized State Chambers not to appeal the High Court verdict. It was sickening and disgusting that a foreign judge from a former colonial master, which is still colonizing the Mavinas as Falklands Islands, was hired to try Dr. Chiluba!
The transition from Mwanawasa to Banda was smooth as it was predicated on the demise of a reigning president.
Mr. Banda did not dig the rot of his predecessor to fight the so called corruption in Zambia. Mr. Banda’s administration was demonized from the start by the Post newspaper with its “angels of doom” that saw nothing good with whatever president Banda did. Any way, suffice to allude to the fact that time will tell.
The change from Rupiah Bwezani Banda to Mr. Michael C. Sata was smooth except that there is a threat to molest and harass former president Banda and his children on the pretext of fighting corruption. Some compatriots have read a linkage with the now ZMK18+Billion Development Bank of Zambia loan scandal which RB had insisted that it should be paid in full by the debtors. Suffice to say that the Chachacha formula may be invoked to protect the former head of state. This is in addition to civil efforts of a foreign lawyer, Mr. Robert Amsterdam, who has shown rare courage to defend human civilization in Africa generally and Zambia in particular.
What is required to be done in this Republican Constitution is for the incoming Republican president to take oath that he/she will not harass nor molest his/her predecessor but to defend and respect him/her. The “brother’s” keeper of the former president is the reigning one. This principle must be preserved.
Let agreed articles be set aside and the contentious ones continue to be on the table for debate. I have in mind here the so called 50%+1 vote. My view is that more than 50% sounds more English and mathematical than the former! Simple majority or first passed the post is still workable in a democracy. High majority can be a breeding ground for the dreaded dictatorship.
It is my hope and prayer that a good and acceptable Republican Constitution will see the sun-shine of Zambia soon.
I wish you well.
Alfred A. K. Ndhlovu