By Prof. Michelo Hansungule
Minister of Justice Given Lubinda has unveiled government proposals to amend the 2016 Constitution. On 27 March 2018, the Minister read a ministerial Statement on the review of the constitution on the floor of the House in the National Assembly. In the Statement, the Minister updated the Honourable Members of Parliament and through them the nation at large on the process of the changes to the Constitution government was mooting to introduce.
On the National Assembly website (http://www.parliament.gov.zm/node/293), Minister Lubinda’s lists his qualifications as:
Certificate Strategic Planning
Certificate in Natural Resources Management
Diploma in Agricultural Business Management
Probably due to his diploma and certificates in agriculture, he served as minister of agriculture prior to his current appointment.
His counterpart at Home Affairs Stephen Kapyongoon the same National Assembly website listed his profession and qualifications as:
Certificate in Business Administration
GCE OZimco Institute of Management – Higher Diploma IMIS
Before he became Minister of Home Affairs, Kapyongo served as Minister of Local Government and prior to that deputy Minister in the Office of the Vice President.
Given the enormity of their responsibilities i.e. overseeing the country’s justice, law and order portfolios, the two are by any stretch of imaginationincredibly unqualified to even pretend to run such key departments. Someone with the huge task to administer and control justice in the whole country lacks even the most modesty qualification in justice.
Minister Lubinda took over the justice portfolio from highly qualified professor of law and former Dean of the School of Law Dr. Ngosa Simbyakula who has since been ‘exiled’ to Washington as Zambia’s permanent representative. Such strange things only happen in politics.
Like Vice President Inonge Wina, Minister Lubinda is a ‘migrant’ in the ruling PF party. He migrated from the main opposition UPND where by his own admission he held high positions the last one being national director of information and publicity(https://www.zambiawatchdog.com/law-to-block-hh-from-running-for-president-coming-lubinda/). Before settling in his current political home, Minister Lubinda, with Vice President Wina, had a short de tour in another opposition party United Liberal Party (ULP). Both were anti PF at the time it was born.
During the Tuesday, 27 March 2018 Session of Parliament(www.parliament.gov.zm/node/7504) Minister Lubinda presented his Ministerial Statement informing the House on the progress towards the review of the 2016 Constitution. Significantly, the Minister informed the House, chaired by Madam deputy Speaker, that ‘….the ministry is currently preparing the Draft Constitution Amendment Bill, 2018, taking into account the stakeholders’ comments and submissions. It is expected to finalise the drafting of the Bill by 13th April, 2018. The draft copy of the Bill will, thereafter, be subjected to scrutiny by a team of independent draftspersons and eminent scholars between 16th and 20th April, 2018. On 23rd April, 2018, the ministry will proceed with the process of obtaining Cabinet approval, in principal, to present the Bill to introduce in Parliament. The Bill will, then, be published for thirty days, as is required by law, between 10th May and 10th June, 2018.
Madam Speaker, in order to continue with the practice of broad consultation, the ministry will hold a consultative caucus for hon. Members of Parliament on 12th June, 2018. That will be followed by a consultative meeting of Secretaries-General of political parties on 13th June, 2018. The outcomes of the caucus of Parliamentarians and the consultative meeting of Secretaries-General will, then, be presented to a summit of political party presidents to be held on 15th and 16th June, 2018…………..’
As per practice, members raised questions following the Minister’s Statement. Among them, KabompoMember of Parliament, Mr. Lufuna posed:
Madam Speaker, I thank the hon. Minister for this very important report to the august House.
Madam Speaker, as the hon. Minister rightly said, the Constitution is a national issue, and it is very important that consultations will be made in order to build consensus. It is also very important that when the Constitution is presented to the House, at least, a two-thirds majority vote for it. Otherwise, the Constitution will fail, as the hon. Minister knows. We have many issues with the Constitution and I would like to zero in on the technical aspect. We need expert constitutional lawyers to guide. I heard the hon. Minister talk about experts coming in. Has he considered inviting constitutional law experts like Prof. Muna Ndulo, Prof. Hansungule and Dr Chalokwa Beyani? Prof. Muna Ndulo and Dr Chalokwa Beyani participated actively in the making of the Kenyan Constitution, which is one of the best. When is the hon. Minister considering bringing in the people mentioned to provide the necessary expertise?
Below is Minister Lubinda’s response together with interjections by Minister Stephen Kapyongo, Mazabuka Member of Parliament and UPND Chief Whip Nkombo, followed by interruptions purportedly by members:
Mr Lubinda: Madam Speaker, I thank the hon. Member for Kabompo for that question.
Madam Speaker, in coming up with a law, especially the Constitution, you should do it without particular individuals in mind. The names my hon. Colleague mentioned are only three among many constitutional lawyers in this country. For reasons best known to him, however, he chose only those three. Why not the others? If he wants to give names of constitutional lawyers we can ask to participate, he should give us the whole list.
Hon. PF Members: Hear, hear!
Mr Kampyongo: Your cadres.
Mr Lubinda: Madam Speaker, who says that those three are the repository…
Mr Nkombo: It was just an example of competent people.
Mr Lubinda: … of the skill of constitution-making in the country? The process, like I said, will engage independent experts. Experts who are inclined to particular political parties and whose names are being proposed, I am afraid, will not be considered independent…….’
Besides Minister Kapyongo calling the three of us ‘cadres’ presumably UPND cadres, Minister Lubinda suggested that we were not independent and that we are inclined to particular political parties. I will come back to this point but now let me say this.
I have never met the two ministers before and until now, I had no need to meet them in life or death. It is not in my DNA to kowtow before so-called leaders. And I am quite sure that just like me, they too do not need me. Given this, I don’t understand why thisanger; this venom by the two ministers against ordinary citizens whose paths have never crossed with yours?
Second, we were not in the House when we were so harshly attacked. I was not in the House and am sure professors Ndulo and Beyani too were not in the House. We had no opportunity to defend ourselves when negative aspersions were made against us. Shockingly, the Minister of Justice, an executive most senior official who is supposed to ensure justice for all happens to be the very one denying ordinary citizens that justice. Minister Lubinda took advantage of the fact obvious to him the citizens he was going to attack were not in the House and hence would not challenge or just respond to him.
Third, the Minister’s logic defies me. Simultaneously as accusing us of being not being independent and of being ‘inclined to particular political parties’, Minister Lubinda discloses that he was going to consult Secretaries Generals and Presidents of all political parties? If indeed as the Minister says we are inclined to particular political parties hence we are not independent, does it make any logical sense that the Minister will go ahead and consult those parties including parties we are inclined to? Such a shame to imagine people with this kind of capacity to think sit in cabinet?
Constitution amendment process
What the Minister fails to understand is the elementary fact that a constitution is a big issue, bigger than government. The constitution is the first law of the country. It cannot be equated to legislation which derives from it. The constitution gives birth to government; to the three arms of government including parliament and certainly the executive. The constitution is people themselves in their collective. The constitution is certainly not about the PF or other nonsense. It is definitely not about Given Lubinda or his boss Edgar Lungu. It is people, people, people.
That you are trying to sneak in amendments now just two years into its life vindicates the fact that you did the first document so badly even you realize you were wrong. The process leading to the preparation of the constitution was illegal. If the constitution is about people, it is illegal to take it to State House and discuss it as a party matter. We need a president and government who will say ‘let the people bestow a constitution unto themselves’. We need a president who will say I will implement any constitution people impose on me.
As demonstrated in this process, Minister of Justice is of course not independent but politically interested and so is his president. Just for this reason, they are disqualified to preside over the constitution making process and its amendment. If he understood even a tenth of the theory of constitutionalism, Minister Lubinda would resign his position once his government insisted he drives the process, but of course he would not. Just look at the provisions of the main democracies on constitutional amendments the USA and India, power to initiate an amendment was deliberately taken to the legislature by passing the executive. Just imagine if power to initiate amendments to the US constitution was deposited in the executive; I don’t want to imagine what Donald Trump would have done to that sacred document already?
Theory of constitution making/amendment
According to Hannah Arendt (Hannah Arendt, On Revolution (New York: Viking Press, 1963; Faber & Faber, 1964; 2nd ed., rev., 1965; Pelican Books, 1973; 1977; re-print, Penguin Books, 1990)) there are three principal ways constitutions tend to emerge historically. She posits that constitutions “can be products of a long process of organic evolution, acts of an already established government, or created byrevolutionary assemblies in the process of constituting a government.”
Although most constitutions in modern times are drafted by lawyers, they are by no means the authors having only been hired to give legal forms and expressions to the decisions of the legal, quasi-legal and or political forces behind the Constitution in focus.
On his part, Andrew Arato (by The Pennsylvania Convention, 1776; The Constituent Assembly, 1789-1791; The National Convention, 1793-1795; The Weimar Assembly, 1918; The French Constituent Assemblies, 1945; Bulgaria and Romania, 1990) alluringly speaks of five different mechanisms of constitution making in modern times.
The making of constitutions in this way may be through the constitutional convention, (Nine American State Legislatures, 1776-1777; Spanish (“Constituent”) Parliament of 1977; Czech and Slovak Republics, 1992) the sovereign constituent assembly, normal legislature, the executive and evolutionary process.
How valid is Arato’s position that the autonomy of the first three assemblies is presupposed? While the autonomy of the first two typologies may indeed be presupposed, that of the existing legislative assembly may be doubtful as such a body may not really come up with any revolutionary provisions or ones independent of dominant ideologies, alliances and interests.
Concerning constitution making by assembly, important questions bordering on the validity and legitimacy of the resultant Constitution rest on the determination of: the assembly’s convener; whether the assembly operates independent or otherwise of the convener; the nature (democratic or otherwise) of internal rules adopted by the assembly; whether its deliberations are public; and the adopted process of ratification (John Elster, “Constitution Making in Eastern Europe: Rebuilding the Boat in the Open Sea” (1993) 71 (1-2) Public Administration 169-217)
These questions are somehow related to the pouvoir constituent (constituent power) as espoused initially by Sieyès (“The Concept of Constituent Power” (Critical Analysis of Law Workshop, University of Toronto 2013); Martin Loughlin, “On Constituent Power” in Michael W. Dowdle, and Michael A. Wilkinson, (eds.) Constitutionalism beyond Liberalism (Cambridge, UK: Cambridge University Press, 2017)) and consequently by Schmitt (Carl Schmitt, Constitutional Theory (Jeffrey Seitzer trans., Durham: Duke University Press, 2008) 125-135.) the theory that places sovereignty (all powers) on the people. While sovereignty (constituent power) in this model inheres in the people, power to make (consult, negotiate, argue, discuss and draft) constitutions is however vested in an autonomous constituent assembly which exercises this power as deemed fit. In this wise, the constituent assembly after successful deliberations and drafting submits the constitution to its principal (the people) for ratification in a “national, majoritarian referendum.”
The efficacy of the Constitution in the legal order is predicated upon its recognition as the primordial rule of conduct in that legal system. No matter the ingenuity in the experts or people tasked with the responsibility to write or draft amendments to the constitution, and even if we assign Angels from Heaven as consultants or we hire the best medicineman in the village, in the end, as long as it is the constitution to govern human affairs, the process must concede to the power of the people.
Duty to protect the constitution
As demonstrated above, the process thus far governing proposals to amend the constitution is illegal and unconstitutional. Members of Parliament have a duty not only to vote against the proposalsregardless of the content but to take a clear stand and protect the constitution by denouncing the Minister’s discriminatory in fact racist remarks against ordinary citizens whom he knew were not present to defend themselves. The illegal and unconstitutional process renders the whole exercise nugatory.
Government cannot adopt a process for amending the constitution which discriminates in terms of participation against some of its citizens. In his Ministerial Statement to the House, Justice Minister Lubinda openly and callously discriminated against three named ordinary citizens which act openly infringes against article 23 of the Constitution and applicable international law. Consequently, the process dismally fails to meet minimum constitutional muster.
Since I became aware of the Ministers’ adverse comments against the three of us, I write the Speaker of Parliament Dr. Patrick Matibini to arrange an opportunity for me to confront the two ministers in the same space? I also demanded to know from the Speaker why the deputy Speaker allowed the two ministers to make the adverse comments? I look forward to a confrontation with the two ministers so that they assist me understand where they are coming from.