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.
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?
- In article 12 (3) it is not clear why 1 April 1986 is a defining date.
- 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.
- 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?
- 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
- 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.
- 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).
- 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?
- 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.
- 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?
- 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.
- 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.
- 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).