Ndulo, Beyani say constitution-making process is deeply flawed

Ndulo, Beyani say constitution-making process is deeply flawed

Chaloka Beyani at the UN

Two Zambian constitutional lawyers based outside the country have observed that the current constitution-making process is deeply flawed and unlikely to produce good results.

Law Professor Muna Ndulo and Dr Chaloka Beyan are among the people that were last week included in the Committee of Exerts drafting the constitution but just as consultants.

In a joint statement, Ndulo and Beyani said:

“It is our considered view that the current constitution making process is deeply flawed and is unlikely to deliver a constitution that is legitimate and provides a framework for the democratic governance of Zambia. The primary flaws in the process are the following: (1) the process itself is inherently unrepresentative and suffers from a crisis of legitimacy; (2) it is ill designed to build consensus and produce a constitution the country can be proud of,” the two lawyers stated on Thursday.

“The terms of reference of the committee do not say a word about its philosophical approach to the constitution but instead reflect its phobia about values, transparency, institutionalisation of accountability and policy in the manner of its appointment; (4) the process is not guided by any agreed constitutional principles or national vision; the impression given is that it is simply about a Technical Committee on Drafting a new constitutions.”

“The Government does not seem to fully comprehend the meaning and significance of devolution. Successive constitution-making processes in Zambia have confused devolution of central government administrative functions from the center, for example, provincial ministers appointed from the center) with devolution of actual governmental power to local communities, in other words, devolution of constitutional authority and governmental power to democratic sub-national entities within a state, a structure which involves the creation and sustenance of such entities as semi-autonomous entities with respect to their authority, responsibility, finance and human resources and accountability arrangements).

“Strangely, the current process is not guided by an understanding of the abundant best practices in Africa and the rest of the world which have informed recent successful constitution-making processes elsewhere, such as in Kenya, South Africa, Uganda, and Namibia to name just a few countries that have recently concluded successful constitution-making processes; further, the process has no timeline for its work, thereby making it open to abuse by those who want to exploit the process to advance their accumulation agendas. As past Zambian processes have demonstrated time and time again, in constitution making, it is unwise to have an open-ended process.”

“In setting up the process, there was no consultation with all the stakeholders and civil society. However, in a people-driven process, there should be consultation and participation by all stakeholders in all important steps and avenues for the participation of the people. In a people-driven process the government should not be the deliverer of the process but a participant that builds consensus on the establishment, regulatory framework, composition, modality, and time frame of the process.

“The Zambian government has clearly decided to control the process, probably by using the Inquiries Act which is an unacceptable post-colonial legacy. Without consulting anyone outside his government, in November 2011 President Sata announced a new process,” they noted.

“The President appointed all the members of the Committee without consulting Parliament or other stakeholders, and set the terms of reference for the team, again without consultation. The government is the one to receive the final document and presumably propose the final changes to the constitution. All these are decisions that need the full participation of all stakeholders and yet were taken without the participation of the other stakeholders.

“The success or failure of a constitution making process largely depends on its legitimacy built by consensus, representation, diversity, gender balance, nature of the legal framework under which it is set, its composition particularly the personal integrity, expertise, and independence of its members, checks and balances, accountability, safeguards against failure, and endorsement by referendum,” the duo observed.

“The latter is critical where a process like ours in Zambia has been long drawn and politically divisive so that a new constitution is a rebirth of the country. It is also noticeable that most successful constitution making processes have had a technical committee composed of recognised constitutional experts to advise the constitution-making body why certain provisions are required in a constitution. Experts play an important role in constitution making. In Kenya for example, the process was led by a Committee of Experts. It is not enough that there are lawyers among members of the constitutional making body just as it would not be enough to have General Practitioners where a patient requires heart surgery.

“There are also important lessons to learn from the failure of the immediate past National Constitutional Conference in Zambia. It is suggested that there should be no more review commissions to collect views of the public. The views of Zambians on the future constitution for Zambia have been adequately canvassed through several previous commissions indicated above. There is no need to go into this again,” advised the two lawyers.

“In light of several previous Commissions already referred to above, what is required now is a Committee of Experts of no more than nine persons to review the previous constitutional proposals and lead the process of making a new constitution for Zambia. Members of the Committee of Experts should be persons known for their expertise in constitution making. It is desirable that the committee includes two non-lawyers preferably political scientists. The committee must be representative in terms of gender and diversity. It would be useful to include two non-Zambians on the committee.”



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