Caritas concerned with confusion and lack of clarity in constitution making process

 

Caritas Zambia Press Release                                                                                                    13th June, 2012

 

THE DRAFT CONSTITUTION

WHERE WILL IT END? 

Since the Constitution Technical Committee launched the Draft Constitution in the public domain, there has been a lot of excitement generated by the content with, different interest groups and individuals jostling to have a final say as to what should go in the final draft as content. This is encouraging considering the fact that the launch of the draft was preceded by many negative factors which could have easily made a lot of people lose interest in the process, suspecting it to be yet again one of the wasteful Constitution making ventures we have gone through in the past. This scepticism could have been justified considering the fact that the initial performance by the PF government in moving the constitution making process forward was least inspiring given the many miscarriages the process had already experienced in the very initial stages. These included the failure by the PF government to deliver a new people driven Constitution within ninety days of ascendency to power as promised during 2011 elections campaigns; the President constituting a Technical Committee in a very controversial and un transparent manner; the refusal by government to anchor the process in a legal framework; the vaguely explained postponement in the delivery of the first Draft Constitution by the Technical Committee from the initially indicated end of February to end of April 2012.

Much as the benefit of doubt has been given to the process and now  even with the extension of the period for discussing the draft from the initial forty (40) days to ninety (90) days there are still questions that beg to be answered;

Clarity of the Road Map

It is still not crystal clear as to when this Constitution making process will end and Zambia is likely to have a new Constitution that has come out of a process which includes a referendum. There seems to be also confusion as to what happens after the ninety days discussion of the first draft. There is talk of conventions; the Technical Committee is yet to come out clearly as at what levels such conventions will be held, in what order and what time frame. It is surprising that nothing has been said so far as to how delegates to these conventions will be chosen because this is a critical issue that needs to be discussed and consensus reached to avoid what transpired when the Technical Committee itself was unilaterally appointed. People who will attend the conventions, especially the national Convention, will have a final say as to what goes in the final Draft Constitution and this gathering should not be skewed in favour of any one interest group.

Commitment to a process that includes a referendum by the PF government

This time around, the people have emphatically reiterated what they have said at all times that the final draft Constitution be subjected to a referendum before being enacted into law by parliament (if passed the referendum). The Technical Committee have promised that this will be the case but we all know that this is a wish from them; they are not the legitimisers. The Mung’omba Constitution Review Commission (CRC) proposed the same but they were overruled by the Executive who opted for a dubious National Constitution Conference (NCC) which they manipulated to circumvent the need for a referendum. In the absence of a legal framework that would have clarified this matter, we need an unequivocal statement from government and better still the President that a referendum shall indeed be part of the process. The reluctance by government on the issue of a Constitution Referendum as clearly demonstrated by the Presidents’ refusal to heed to the calls for the appointment of a Referendum Commission is a matter of grave concern. What is now in the public domain is that the PF government would want to use the popularly demanded referendum to elongate the Constitution making process beyond 2016 in order to create an opportunity for the next elections to be held on the current Constitution with its deficient electoral laws – avoid provisions like fifty percent plus one being proposed in the new Constitution. God forbid if this is the case and woe to those that will be associated with such a scheme. It will be a real political cost.

Comments by the PF top leadership on the draft Constitution

In the ensuing debate on the Draft Constitution, all are invited to express their views including political parties. There has been some disquiet on comments made by top ruling party officials when expressing their preferences on some specific issues in the draft constitution but they may be too harshly treated as the draft constitution is for all to discuss. But what the top party and government officials should be weary of though is not to insist that their individual views should be the way forward even when the majority of the Zambians are opposed to such views. They should not even shove their views on the throats of their party members as the party views. The likely danger is, holding such strong views by the executive and wanting such views to carry the day at all cost can lead to temptations of manipulating the process from an objective one to the one that will be very friendly to executive input. The fallen NCC is a good example.

Efficiency by the Technical Committee

Much as the Constitution Technical Committee is given the latitude to determine the pace of its work, it must be put under microscopic surveillance to ensure that its own inefficiency is not covertly used to motivate public outcry for more time. Though thorough consultations are needed, the process cannot go on forever.

It is regrettable that to date government is not able to tell the public the budget within which the review process is working despite numerous promises to that effect. The public needs to know.

Sam Mulafulafu

Director, Caritas Zambia

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