Continued: Review of the Draft Constitution of Zambia

Continued: Review of the Draft Constitution of Zambia

By Muna Ndulo

Professor Muna Ndulo

Republic of Zambia and Sovereign Authority of the People

National Values, Principles and Basis of State Policy

12. Article 9 specifies Christian values. This again is something you would not expect to see in a state that respects religious freedom.

13. Article 10 (4) states that the state shall not compulsorily acquire any investment unless under international customary law and subject to article 44, except that where the investment was made from proceeds of crime or was corruptly acquired no compensation shall be paid by the state. It is not clear whether this means that a court must first have determined that the property was acquired through crime. There has to be a judicial process for determining how property was acquired. Does “corruptly acquired” or “through crime” apply to local investment or to foreign direct investment? If it applies to foreign direct investment, does it apply to corrupt proceeds acquired in Zambia or to proceeds acquired outside of Zambia?

Citizenship

  1. In article 12 (3) it is not clear why 1 April 1986 is a defining date.
  2. Article 12 (3) is attempting to legislate citizenship in relation to situations where the place of birth is on a ship, but the purpose of this legislation is not clear. The only thing necessary to legislate here is the nationality of a person born on a Zambian registered ship. The nationality of ships is determined by the Law of the Sea, and States have jurisdiction on ships bearing their nationality. There is no dispute on this in international law.
  3. Article 15 as currently phrased deals only with a situation where one of the parents is a citizen by descent. What about a citizen by registration? What is the point of discriminating after people have already become citizens? Does article 15 mean that children of a person who acquired citizenship through registration or adoption cannot claim citizenship because they were born outside Zambia?
  4. Article 16 (4) is not clear. Does the article mean that once you have been a refugee in Zambia you can never become a citizen? This sounds extremely restrictive.

 Bill of Rights

  1. Article 26 (3) needs clarification. Is it granting license for the courts to develop new rights not expressed in the constitution or in human rights conventions? One might wish to mandate the courts to develop rights jurisprudence in accordance with human rights jurisprudence developed by international courts. Why only the constitutional court? Constitutional issues are going to arise at all levels, for example the right to bail, prohibition of confessions, etc.
  2. In Article 28 on protection of life, defining life as beginning at conception by implication prohibits abortion. In terms of issues dealt with in Article 28 (5) (c), these are typically left to the criminal code rather than the constitution. Does the article mean that constitutional challenges would be entertained on the question of extenuating circumstances? Is that a constitutional issue or a factual issue to be determined by any court in the course of hearing charges involving abortion? The same applies to article 28 (6) (a) (b) (c) and (d).
  3. Article 35 deals with the right to freedom of religion and grants the right to manifest one’s religion in private and in public. It then severely restricts that right by stating that the right does not extend to anti-Christian teachings. This is contradictory and a violation of international law. By definition non- Christian religions are going to teach and engage in anti-Christian practice. Some, like Islam, do not for example recognize Jesus as a savior. The same can be said of Hinduism. Freedom of religion includes the right not to believe and the freedom to teach that God does not exist. It is sufficient to punish conduct which infringes the enjoyment of religious freedoms by others. In any event, what amounts to anti-Christian teaching and practice, and who is the target?
  4. Article 35 (5) seems to restrict the freedom to establish education by religious groups to situations where they are providing education only to members of their own community. There is absolutely no reason for this restriction. It flies in the face of current world-wide practice.
  5. In article 47, which deals with access to justice, it is provided that a judgment against the state may not be enforced until one year after the delivery of the judgment. No rationale is provided for such a provision, yet there is no precedent for it in any existing constitution in the world. The provision is likely to pose injustice to citizens. Is this effective justice? Would this provision not work against speedy and effective justice? What happens to a judgment of the constitutional court?
  6. Article 48 (c) (f) (v) grants the right to be tried within 90 days. This would be good if it were achievable. What happens if there is no trial within 90 days? Does the provision mean that a trial must be concluded within 90 days? It might make more sense to simply provide for a speedy trial.
  7. Article 52 grants women the right to reproductive health. By defining life (in the right-to-life provision, article 28) as beginning at conception, the right to reproductive health as understood in human rights jurisprudence might be limited. In the interest of minimizing contradictions, it is best not to have this provision if article 28 is maintained as it is.
  8. In article 55 (5) (d) genital mutilation is specifically mentioned, but it would seem that “cultural practices” is inclusive and sufficient. There would appear to be no need to mention genital mutilation. Is this a particular problem in Zambia? The Convention on the Elimination of All Forms of Discrimination uses the term “cultural practices that are harmful to women or undermine the dignity of women.”

26. Article 56 deals with youth. This is an unusual category. Children are defined by the Child’s Convention as anyone under the age of eighteen. In the context of the draft constitution, who are the youth? What category of people is envisaged? It appears to be an unnecessary category.

27. Article 63 (4) and (5) goes into too much detail. All one is talking about is protection of traditional knowledge. The term is wide enough to encompass many of the things that are detailed in article 63 (4) and (5).

Limitations on Rights and Freedoms

28. Constitutional matters are going to arise at various levels in the court system. All courts must be allowed to hear such cases. The constitutional court should have the last say; it cannot operate as a court of first instance. The South African constitutional court sits as the final arbiter in constitutional matters. It is contrasted with the court of appeal, which sits as final court in all other matters. In both the Kenyan and South African judicial systems and indeed in most countries in the world you can raise constitutional matters in all the courts.

Enforcement of Bill of Rights

29. The scheme of the constitution is that any allegation of a violation of human rights goes straight to the constitutional court. This means that there will be no appeal system in human rights violations. Allegations are going to arise in the context of other judicial proceedings. The best practice is to allow the other courts to hear those cases and provide for the constitutional court to be the final court.

Human Rights Commission and Gender Equality Commissions

  1. Article 73 talks of the Human Rights Commission being subject to “the constitution and any other law.” It is not clear what “any other law” means. The observation applies to article 74 establishing the Gender Commission as well.
  2. South Africa in its 1996 constitution was the first country to establish a Gender Commission; however, the South African approach has not been very successful. Thinking on this matter has evolved and the practice now is to establish one Commission which is both a Human Rights and a Gender Commission. Kenya in its 2010 constitution combines the two commissions and establishes the Human Rights and Equality Commission. One of its responsibilities is “to promote gender equality and equality generally and to coordinate and facilitate gender mainstreaming in national development.”

Representation of the People: Electoral Systems and Process

  1. Article 78(k) (iv) requires Parliament to pass legislation creating special arrangements to enable citizens living outside Zambia to vote. Facilitating the voting of citizens living abroad can be extremely expensive and requires extensive logistics. Most countries do not attempt to do this because of the costs involved. The question for Zambia is whether it can manage and afford financing these logistics. Countries such as South Africa with greater resources than Zambia have found this is not practical and do not guarantee it.
  2. Article 75 states that members of Parliament shall be elected by proportional representation based on party lists. And yet article 80 (1) talks about persons standing as independents for election to Parliament. How are independents going to stand in a proportional representation system? A proportional system is based on voting for political parties, who then put up party lists that are used to

Zambia allocate seats after the counting of votes, which determines the proportion of votes each party gets.

Independent candidates are associated with constituency-based elections.

Electoral Commission

  1. One of the keys to guaranteeing an independent Electoral commission is a transparent appointment system. The present draft as structured does not guarantee that. Under article83 (6), the President shall appoint the members of the electoral commission on the recommendation of a committee established under an Act of Parliament, subject to ratification by the National Assembly. Where the committee referred to in article 83 is appointed by the President, the committee will be composed of people who will implement the President’s wishes. It is better to have in place a clear appointment process as well for the purposes of granting tenure and specifying a fixed term for commissioners to serve on the Electoral Commission. It appears that article 83 (6) contradicts article 83 (8).
  2. In articles 83 through 85, the Electoral Commission composition should be well spelt out, with the number of appointees to make up the electoral commission clearly stated. The make-up of the members of civil society who are qualified to be appointed to the electoral commission should be clearly stipulated.

Political Parties and other Candidates

  1. It is not clear why in article 86 (2) (b) political parties are not allowed to sponsor candidates for provincial assemblies or district councils.
  2. Article 88 (b) provides that Parliament shall pass legislation to provide for the registration and de- registration of political parties. This provision must also spell out grounds for de-registration; otherwise the provision could be abused to harass opposition parties.

The Author Muna Ndulo a is Professor of Law, Cornell University Law School
Director, Cornell Institute for African Development Honorary Professor of Law, Cape Town University
, Extra Ordinary Professor of Law, Free State University, South Africa.

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