Mulusa on Demand for people driven constitution

By Lucky Mulusa

It is no longer strange in Zambia that when one becomes President, a false feeling of permanence takes possession. Yet, it is also true that almost all previous Zambia’s Presidents, except for Mwanawasa have or lived substantially long beyond their tenure of office. So then, why do they get fooled to adopt a position as if they will be Presidents forever?

What could be at the core of President Sata’s delay (or refusal) to give people the draft constitution as per the previous roadmap? Assuming the reason he is delaying (or refusing) is that the draft constitution is not a good one, is that not the reason for further deliberation on it? What does the word ‘draft’ mean anyway?

President Sata’s statement that before we talk about a people driven constitution, he needs to be shown an “animal driven constitution” was a terrible way to express ignorance on the meaning of “a people driven constitution” and on why constitutions exist. It cannot even pass as an expression of humour because even as such, the ignorance there-in is too conspicuous. A people driven constitution is a product of peoples’ deliberation and it means that the provisions of such a constitution is as per the desires of the people and that is why the preamble starts with, “WE, THE PEOPLE OF ZAMBIA” and ends with, “DO HEREBY SOLEMNLY ADOPT AND GIVE TO OURSELVES THIS CONSTITUTION”.

Hague & Harrop in the fully revised and updated 6th Edition of Comparative Government and Politics noted that law and politics are closely linked and that the development of liberal democracy has been an attempt to ensnare absolute rulers in the threads of legal restraint. A.V Dicey (1885 p27), the nineteenth century British jurist, said, “The object of a constitution is to substitute “a government of men” with “a government of laws”. Constitutional rule affords protection for individual rights and is a means to resolve disputes between citizens and the state. Constitutional rule is a major accomplishment of liberal politics.

In a radio programme called live wire on Mazabuka Radio, the presenter, Reuben Hambulo, trapped me with a tricky question for which he had a ready follow-up question. “What is the people’s priority now?” My answer was. “Jobs and food security!” I saw him come with a killer punch, “And not the constitution? So when the President says the constitution is not the priority for Zambians now, he is right?” I was ready to duck the killer punch, “No the constitution provides the conducive environment for the delivery of jobs and food security!” I survived the well thought out assault from the presenter.

The exchange with the presenter on Mazabuka Radio needs further unpacking. So how can the constitution provide the conducive environment? “Because it will ensure constitutional rule!” What is constitutional rule? “Constitutional rule is the combination of habits, practices and values which underpin government by law. Constitutions are not self-implementing but depend on the support of the political elite to provide an effective framework for the exercise of power. Hence the private member’s motion by Hon.Gary Nkombo to urge the government to implement a constitution enactment roadmap.

Hague & Harrop (2004), state that, “Constitutional rule is broader than the constitution itself. It refers to a political environment in which the equal rights of individuals are not just stated but also respected”. The authors state that the constitution can be looked at in two ways. The first reflects their historical role as a regulator of the state’s power over its citizens. The Austrian liberal Friedrich Hayek (1960) said that the constitution was nothing but a device for limiting the power of government. Friedrich (1937) defined a constitution as a “a system of effective, regularized restraints upon government action”. From this perspective, the key feature of a constitution is a statement of individual rights, particularly those held against the state.

Further the authors state that, “The second and somewhat neglected role of constitutions is as power maps, defining the structure of government. Constitutions articulate the pathways of power, describing the procedures for making laws and reaching decisions”. It is these decisions that reflect into human development for the people. “A constitution without a declaration of rights is still a constitution, whereas a document without a power map is not a constitution. A constitution is therefore a form of political engineering, to be judged like any other construction by how well it survives the test of time. From this perspective, the American version still standing firm after more than 200 years is a triumph”.

Our hope also is that through constitutional enactment, we would ameliorate the negative effects of how the nature of politics in Zambia today makes good governance difficult and broadly shared economic and human development less likely. Although there has been political transition in Zambia since 1990, it is important to work towards solving the puzzle why good governance and development has not been achieved in our country despite the political changes that have taken place. A good constitution is a step towards realization of our human development aspirations.

Chabal (2002) argues that African political systems today exhibit three intriguing characteristics which deserve careful analysis, if only because they go against prevailing expectations. The three characteristics are that, (i) Politics in Africa are increasingly informal; (ii) They appear to “retraditionalise”; and (iii) Politics have signally failed to spur sustained economic development.

Lastly, people are demanding for their constitution because a constitution sets out the formal structure of the state, specifying the powers and institutions of central government (to achieve human development), and its balance with other levels. In addition, constitutions express the rights of citizens and in so doing create limits on and duties of the government (to its citizens). The opposition made one mistake, it should not have urged the government to provide a roadmap, but rather should have urged the government to give the people their draft constitution; rejecting such a request would have been more suicidal morally and politically. When Hon. Kaingu took this line of debate (that it was not the roadmap but giving the draft constitution to the people), I hoped further debaters would see the wisdom, but further debaters, constantly guided by the Speaker about what the mover of the motion had ably presented (that he was requesting for a roadmap), stuck to the request for a roadmap thus providing an easy way out for the “political journey man”, the PF to reject the motion without as much political damage. The PF debaters did not miss the opportunity to remind the opposition that the roadmap already existed.

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