Quest for good constitution in Zambia

By Lloyd Himaambo

On 22nd June 2004, then Media Institute of Southern Africa (MISA) representative Kellys Kaunda led a protracted but lonely battle.

The Electoral Reform Technical Committee (ERTC) was deliberating on the qualifications for a Republican President! And the proposal Kellys Kaunda was fighting was the degree clause!

There was unanimity by the members that a presidential candidate should possess a minimum qualification of an academic degree!

But Judge Sylvester Simachela supported the position of Kaunda informing the committee that the clause will be seen as a sinister motive to bar ‘’certain individuals’’ and that he would not be part to a process that was designing laws or fashioning such laws against persons and personalities.

However, the rule of the majority prevailed and the committee adopted the degree clause!

The following day on 23rd June 2004, daily newspapers carried the leaked resolution of the Committee on the degree clause.

There was immediate and broad condemnation by a cross section of people and stakeholders that felt that the resolution by the ERTC was designed to bar PF leader Michael Sata who had become a strong factor in politics.

From a small and unknown party in 2001, Sata had managed to grow the PF many folds and had recently won a parliamentary by-election. He was also holding huge mass rallies in Lusaka and Copperbelt during this period.

The Committee sat to discuss the leak of their resolution! And Kellys Kaunda, who had opposed the clause and who is a Journalist, was fingered as a suspect to the leak.

In the evenings, ERTC, Chairperson Frances Mwangala Zaloumis handed Kaunda a dismissal letter from convenor of the Committee, Minister of Justice, George Kunda.

However, in its final report released in August 2005, the ERTC recommended that a presidential candidate should have minimum qualification of a Grade 12 Certificate or its recognised equivalent.

The ERTC was appointed by President Levy Mwanawasa. Its composition and appointments of committee members were determined by Minister of Justice, George Kunda and the Secretary to Cabinet, Leslie Sainot Mbula appointed its members. The Committee had its inaugural and preparatory meeting on 16th September 2003.

Its terms of reference were to review the electoral process so that future elections inspired confidence. The Committee was also tasked to recommend amendments and repeal of various constitution provisions and other statutes to help democratise and foster the holding of free and fair elections.

The ERTC proceeded to make far reaching recommendations that if implemented could promote a democratic environment to hold free and fair elections.

The report among other things proposed; a mixed member system, the removal of the parentage clause, the amendment of Article 34, so that presidential elections are held under a majoritarian system where a winning candidate polls more than 50% votes in his/her favour.

The committee comprised among others, Dr. Mutumba Bull, Bernard Namachila, Judge Sylvester Simachela, Cosmo Mlongoti, Akashambatwa Mbikusita Lewanika, Samuel Mulafulafu, Lee Habasonda, Priscilla Isaac, Dr. John Mulwila and Bonnie Tembo.

The report proceeded to make ground breaking recommendations that could help democratise Zambia’s elections.

Although few members of from Civil Society such as SACCORD, AVAP and MISA sat on this committee, the main members of it such the OASIS Forum comprising Law Association of Zambia (LAZ), Non Governmental Organisation Coordinating Committee (NGOCC), and Zambia Episcopal Conference (ZEC), Christian Council of Zambia (CCZ) and Evangelical Fellowship of Zambia (EFZ) the umbrella church bodies shunned the Committee.

The work of the ERTC forms part of the many attempts Zambia has embarked on to reform the Constitution since 1964.

CONSTITUTION MAKING PROCESS IN ZAMBIA

In its young existence, Zambia has attempted four times to amend her Republican Constitution.

Zambia was founded on a constitution that was negotiated by a closed group of few stakeholders. The Independence Constitution was a document negotiated at Lancaster House in London to grant Zambia national independence.

Although it provided for multi-party democracy, it was faulty in many ways and merely lifted from the Nigerian Constitution. The Constitution was essentially modelled out a document that was designed for emerging independence states of former British colonies and protectorates with similar features of Westminster rule.

The Independence Constitution enacted in 1965, explicitly provided that ‘’Kenneth Kaunda shall be the Republican President’’!

The colonial authorities were aware of the immense difficulties Kaunda faced from within the party (Simon Mwansa Kapwepwe and others regarded the presidency too serious a matter to be given to a foreigner and a son of a settler), while the ANC led by veteran freedom fighter had their own concerns.

Colonial authorities ensured that Kaunda was protected enough from the many forces he faced since was deemed to be a moderate. Further his weakness that he was not born from any stock of Northern Rhodesia’s many tribes, proved invaluable as was likely to be a unifying and acceptable leader from all factions and tribes.

To remove Kaunda from the presidency and for Zambia to remain a constitutional democracy, it needed a formal constitutional amendment!

Kapwepwe was deemed too ‘’left and fundamental’’ while Nkumbula was deemed a conservative leader that had lost touch with the primary goal of liberation movement and the loss of national support as the elections of 1962 and 1963 showed.

Vice-President Reuben Chitandika Kamanga helped Kaunda to consolidate his political power and had led the ‘’kumodzi kumawa’’ program to adopt Kaunda (who clearly was alienated from the tradition and folks of the Bemba where his family had settled and adopted its heritage), and help Eastern Province form the strong base for UNIP.

In 1967, Kapwepwe led a strong democratic rebellion in the party and at the Convention beat Reuben Kamanga, who was Republican Vice-President, for the position of party vice-president.

Consequently, Kaunda was obliged to make Kapwepwe his Vice-President.

In the 1968 multi-party elections, the period was characterised by regional violence. The country was ravened by deep divisions with the ANC under Harry Mwaanga Nkumbula winning Southern and Western provinces.

In 1970, Kaunda replaced Kapwepwe with Mainza Mathius Chona. Chona a lawyer, freedom fighter and founder President of UNIP (Kaunda, Kapwepwe, Sikota Wina and other leaders were in Jail when UNIP was founded to replace the banned ZANC), was a formidable candidate to help Kaunda restore his waning influences from serious threats from Kapwepwe and Nkumbula.

In 1971, Kapwepwe broke away from UNIP and formed the United Progressive Party (UPP). This threatened the support UNIP enjoyed in the northern and copperbelt regions.

In the by-election that came up in December 1971, (Mufulira West), Kapwepwe won and returned to Parliament as the party’s sole parliamentary representative.

Kaunda’s presidency was threatened and his leadership was hanging by a thin thread. Despite the powers he drew from the state of emergency declared in 1964 that banned assemblies, allowed him to declare curfews and detain persons without trial, Kaunda still ruled with heightened insecurity and the state of emergency remained in place for 27 years until he was ousted in 1991.

Drawing inspiration from Tanzania where President Mwalimu Julius Nyerere fighting tribalism, regionalism, religious differences and factionalism, abolished chiefdoms, multiparty democracy and formed a one-party State.

Kaunda plotted to go the same way.

The Soviet Union, China and other communist states had eliminated competition by forming one party states and many socialist African countries copied the model.

But Nyerere was among other African leaders that were influenced by the writings of Franz Fanon.

Fanon was the leading thinker and philosopher on anti-colonisation and the demands for decolonisation of Africa. He is also famous for his advocacy of using military and guerrilla tactics to remove illegitimate oppressors, colonisers and illegitimate regimes. His views inspired many anti-colonial liberation movements and persons such as Ernesto Che Guevara and Malcolm X.

However it was his views on national liberation, national building and nationhood that ‘justified’ the big men of Africa to establish one party states (Black Skins, White Masks and The Wretched of the Earth – Franz Fanon 1961)

THE CHONA CONSTITUTION REVIEW COMMISSION

On 4th February 1972, Kaunda banned the UPP under the pretext that the party was an instrument of Rhodesia, South Africa and Portuguese governments!

On 3rd march 1972, Kaunda set up a Constitution Review Commission (CRC) using the Inquiries Act. He appointed his Vice-President, Mainza Chona to lead the commission as Chairman.

Kaunda also gave the terms of reference;’’ to establish the one-party participatory democracy’’!

ANC leader, Harry Mwaanga Nkumbula and his party fiercely opposed the CRC and its work fearing that Kaunda would ‘’kill’’ democracy with the dissolution of political parties. His challenge, including the legal one, all failed.

After four months of public hearings, Chona submitted his report to Kaunda in October 1972. Although the document was modelled on the Soviet Union’s one party state, it was regarded as a liberal one with its proposals that attempted to restrict presidential terms to two, and barring detentions of persons without trial.

Most progressive recommendations were however, thrown out and the Constitution arising from the Chona Commission promoted the supremacy of UNIP over government and created Kaunda as a cult figure.

On 1st January 1973, the one party state was inaugurated and the Constitution enacted into law later that year.

To neutralise Nkumbula who had led strong opposition to the work of the Chona CRC and the consequent establishment of the one-party state, Kaunda sought to win Nkumbula over, and privately gave him an emerald mine!

Kaunda also promoted reconciliation talks that resulted in the Choma Declaration in June 1973. The declaration helped abolish the African National Congress (ANC) and some of its senior members (except Nkumbula) joined Kaunda’s government.

The one-party-state Constitution is remembered for Article IV which outlawed all political parties except UNIP, and banned any formation or attempts to form of any other political party(s) and political organisations.

Proponents of Kaunda’s policies claim that these ‘’difficult’’ steps taken by to ban political parties, remove political competition, and create an autocratic government was ‘’necessary’’ to discourage tribalism, promote peace in the country and concentrate on ‘’fighting’’ the external and Africa’s enemy; South Africa, and Rhodesia.

But many fear and acknowledge that Kaunda’s rule, during this period, had degenerated to that of other African and despotic states that were notorious for summary executions, involuntary disappearances and detentions of political enemies without trial.

THE MVUNGA CONSTITUTION REVIEW COMMISSION

A global wind of change of the late 1980s did not spare Africa and Zambia.

In 1986, Mikhail Gorbachev was made leader of the Soviet Union. He was a reformer and democrat who wanted the Union to be governed in a transparent and accountable manner.

Gorbachev stopped financial and material support to fellow communist countries (eastern Europe and Africa) and withdrew interference in Eastern Europe which was a literally appendage of the USSR empire.

Lech Walesa, leader of the trade union movement in Poland, led an 80 day strike that resulted in elections where a first non-communist state in Eastern Europe was formed. This set a domino effect on the rest of Eastern Europe and the eventual collapse of the Soviet Union.

At its 1989 Congress, the Zambia Congress of Trade Union under its leader Frederick Chiluba passed a resolution for Zambia to revert to multi-party democracy!

The call for re-introduction of multiparty democracy gained momentum when Akashambatwa Mbikusita Lewanika and Derrick Mbita Chital convened a historical meeting at Garden Hotel that helped form the Movement for Multi-party Democracy (MMD).

An interim leadership emerged led by veteran politician Arthur Wina and the movement started mobilising support for the country to return to multi-party democracy.

Kaunda responded by calling for a referendum for the country to determine on that question.

While President Kenneth Kaunda was attending and officiating at a Trade Fair in Ndola on 30th June 1990, renegade soldiers led by an unknown officer, Lieutenant Mwamba Luchembe from the Zambia army Corps of Signals, announced on state radio, that the Army had taken over the country citing corruption, abuse of human rights and gross mismanagement as reason for the takeover.

Before the coup, Lusaka and copperbelt towns were engulfed in a three day food riots. The coup announcement that lasted for over three hours was celebrated on the streets with crowds chanting ‘’we have won’’!

Loyalist soldiers quelled the coup and a shaken UNIP Secretary General; Grey Zulu announced that the coup was crashed and described the ordeal as’’ the work of an indiscipline officer’’.

Kaunda withdrew the referendum and embarked on a process that would return Zambia to a stable and peaceful path.

Kaunda set up the Mvunga Commission on 24th September 1990.

He appointed Solicitor General Professor Patrick Mvunga to head the 22 man commission with Professor Muyunda Mwanalushi as vice-chairperson. Other notables were Major General Tom Fara, Julius Sakala, Bright Nalubamba, Stephen Malama and Bishop Telesphore Mpundu.

The mandate of the Commission was to help establish a constitution that would return Zambia to multi-party democracy and promote personal liberties.

From the start, the process was wrought with controversies as the movement (MMD) and its representatives Akashambatwa (Secretary) and Wina (Chairperson) refused to sit on the Commission.

When the Commission completed its work and submitted to government of Kaunda, his government issued a white paper rejecting progressive clauses and threatening the holding of free and fair elections.

This Commission made far reaching recommendations among them; enactment of a Bill of Right, the creation of the position of Vice-President (which was abolished by the 1973 Constitution), a cabinet constituted outside parliament, establishment of a Constitutional Court, abolition of the House of Chiefs and funding of political parties with a presence in Parliament!

The Commission also recommended for a limited five year term for a Republican President.

In fact, UNIP wanted to hold elections under the old constitution since Kaunda had repealed Article IV on 4th December 1990 that allowed the existence of other political parties. Kaunda was surrounded by a clique that refused to see the signs and times of the day.

The MMD threatened to boycott the elections due later in 1991. This had the possibility of plunging the country into chaos.

The church quickly intervened (this was the Church that was not openly partisan and could summon all or any political party to its hearings) and called for the historic Cathedral Meeting.

At this meeting chaired by Bishop Stephen Mumba (Anglican), Kenneth Kaunda and Frederick Chiluba led their teams to a successful adoption of minimum clauses that would guarantee the holding of free and fair elections and would grant personal liberties and promote political freedoms.

The Constitution therefore was treated as a transition document. The MMD promised the country a more credible constitution when they came to power.

In that year UNIP was routed and trounced, and the MMD and Frederick Chiluba swept to an emphatic victory.

THE MWANAKATWE CONSTITUTION REVIEW COMMISSION

In fulfilment of the campaign pledges, the new president Frederick Chiluba embarked on a quest for a new constitution. As is customary, he appointed a Constitution Review Commission (CRC) under the Inquiries Act, Chapter 181 of the Laws of Zambia.

Chiluba appointed a veteran politician, lawyer, writer and respected servant of the people John Mupanga Mwanakatwe as Chairperson.

He was assisted by Professor Lawrence Shimba as vice.

The 26 member committee comprised various people such as Chieftainess Chiyaba (Christine Eva Mamno) and Chief Makasa (Japhet Ngandu), and experienced commissioners that had sat on the Mvunga CRC, such as Bishop Telesphore Mpundu, Professor Patrick Mphanza Mvunga. Others were Reverend Mwape Chilekwa, father Ives Bantungwa, Ernest Mwansa, Beatrice Chileshe and Hilary Mulenga Fyfe.

Others were Richard Nganga Mukelebai, Lucy Banda Sichone and Azwell Banda.

Opposition leader Chama Mushota Chakomboka also sat on the Commission!

The Commission was given 14 terms of references that directed it to collect views from as many Zambians as was practical. The Commission was also directed help enact a constitution that exalted, entrenched and promoted legal and institutional protection of human rights.

The Commission was requested to recommend a system of government that promoted democratic principles and promoted the holding of free and fair elections.

The terms of references also directed the commission to make provisions that promoted the impartiality and independence of the Judiciary.

Article 9 of the terms of reference has now spawned a debate that has overshadowed debate on content and the constitution debate stuck in discussing the process!

It stated that;

‘’Recommend on whether the Constitution should be adopted by the National Assembly, by a Constituent Assembly, or by a National Referendum or by any other method’’

At the end of its work, the Commission recommended the creation of the Permanent human rights Commission (owing to Zambia’s past human rights abuses during the one party state era).

It also recommended for a vice-president that was a running mate to the president and elected by the people.

It shelved the call for secondary rights; economic, social and cultural rights and consigned them to the Directive Principles of State Policy.

It also recommended for an independent Judiciary and independent Director of Public Prosecutions. The Commission recommended for a limited cabinet of 18 ministers only. It also proposed a mechanism that would recall members of parliament when citizens of such a Constituency were dissatisfied.

The report also recommended for the Constitution to be adopted by the Constituent Assembly and later by a National Referendum.

Members Lucy Banda Sichone and Azwell Banda differed with other members on the issues of secondary rights, parentage clause and other matters and wrote their own minority reports.

The debates that followed were heated and fractious. Government led by Legal Affairs Minister Remmy Mushota argued that the Constitution could not be adopted by a Constituent Assembly as this was not provided for.

The call to improve the Bill of Rights also faced difficulties owing to Article 79 which entrenched the charter.

This prompted government to argue that the difficulties Article 79 were difficult to surmount as it bars the amendments to Part III (Bill of Rights) of the constitution without holding of a Referendum.

Article 79 states that;

‘’A Bill for the alteration of Part III of this Constitution or this article (Art.79) shall not be passed unless before the First Reading of the Bill in the National Assembly, it has been put to a national referendum with or without amendment by not less than 50% of persons entitled to be registered as voters for the purposes of presidential and parliamentary elections.’’

This double entrenchment will haunt Zambia as it is difficult to amend, repeal or create a new constitution especially to articles relating to Part 111 and article 79 without holding a successful Referendum (which is almost impossible in the fashion Article 79 prescribes).

The Civil Society and opposition political parties however led a lobby to force government to adopt the Constitution through a Constituent Assembly.

In the end government only proceeded to effect amendments to the 1991 Constitution.

The quest for another Constitution remained alive despite the amendments.

THE MUNGOMBA CONSTITUTION REVIEW COMMISSION

Towards the end of his tenure, Chiluba attempted to go for a third term. These moves meant that the Constitution was going to suffer an unwelcome amendment.

Chiluba’s opponents espoused the sacredness of the Constitution and embarked on a united campaign to ‘’protect’’ the constitution and guard against the possible attempts to amend it. Civil society groupings, the church and political parties came together united against Chiluba to stop the third term calls.

The Church and main civil society groupings came together under the umbrella of the OASIS FORUM named after the venue of its inaugural meeting.

The MMD abandoned the third term just after electing Chiluba as Party President in May 2001.

The general elections were due at the end of the year. MMD only picked its candidate, Levy Mwanawasa in August 2001.

By then his competitors Anderson Mazoka of the United Party for National Development (UPND), General Christon Tembo of the Forum for Democracy and Development (FDD) and General Godfrey Miyanda of the Heritage Party (HP) had covered immense grounds.

The elections were a close call with Mwanawasa winning by only 28.9% followed by Anderson Mazoka with 27%.

Over all, the MMD candidate received over 70% percent votes against it!

Mwanawasa suffered issues of legitimacy as the election results were contested and his rule literally disputed.

So when in 2003, he set up the Mungomba Constitution Review Commission, he received broad condemnation. Many felt that he was not suitable to reform, review or create a Constitution since he was an illegitimate leader with his presidency still disputed in the Supreme Court. (there was a presidential petition against by Anderson Kambela Mazoka, Lt. Gen Christon Tembo and Gen Godfrey Miyanda).

The OASIS resurrected from slumber and attempted to rally citizens against Mwanawasa’s manoeuvres.

Members of the OASIS (Non Government Organising Coordinating Committee (NGOCC), Law Association of Zambia (LAZ), Christian Council of Zambia (CCZ), Evangelical Fellowship of Zambia and the, Zambia Episcopal Conference (ZEC))

The other contention was that Mwanawasa had used tired and failed methods, which were not people driven, such as the Inquiries Act and the CRC to reform the Constitution.

They also advocated that Mwanawasa could instead constitute a technical committee that should gather common views from the Chona, Mvunga and Mwanakatwe commissions and present them to a Constituent Assembly as proposed by the Mwanakatwe CRC.

Mwanawasa proceeded to establish a CRC, set his terms of reference and appointed commissioners.

He appointed a 41 member commission headed by veteran lawyer and businessman Willa Mungomba and who was assisted by his vice, Senior Chief Inyambo Yeta.

The members comprised chiefs, members of parliament, lawyers and civil society leaders.

Chiefs such as Nalubamba and Mwansakombe and MPs such as Rosemary Banda, Mwitila Shumina, Kennedy Shepande, Sipula Kabanje and Lucas Limbikani Phiri sat on the commission.

Members of civil society and trade unions Joyce Nonde, Alex Chola Kafwabulula, and Ridgeway Liwena, Hicks Sikazwe and Dickson Jere, also joined the Commission

Others were veterans of previous commission Professor Patrick Mphanza Mvunga, Hilary Mulenga Fyfe and Bright Nalubamba.

The law fraternity were represented by Nellie Butete Kashumba Mutti, Jitesh Naik, and Christopher Mundia.

The OASIS Forum raised a lobby against the constitutional process using similar methods used in 2001.

They criticised the CRC from its top heavy composition to its terms of references that were deemed as duplicating the work done by previous commissions.

The Mungomba conducted wide sittings and its consultations were broader than previous commissions.

When it tendered its report two years later, on 29th June 2005, the arguments never went away.

Mungomba presented a report and a draft constitution.

His recommendations did not vary with the findings of previous commissions.

It called for the adoption of the constitution through a Constituent Assembly.

Later Mwanawasa remarked that the constitution could only be ready in 2008! His government released a road map from Constituent Assembly to a National Referendum costing USD43million!

The OASIS Forum called for nationwide demonstrations. By now, the citizenry was fatigued and the momentum for calls a constituent assembly and attempts to have the 2006 elections to be held under a new constitution petered away and the OASIS Forum disintegrated with LAZ pulling out.

Government acceded to the demand for a popular body to adopt the constitution and called for an inter-party conference. All parties including the PF supported the setting up of a popular body.

It became clear that the leaders and civil society groupings were yet again not singing from the same hymn sheet!

When the National Constitution Conference (NCC) was set up through an act of parliament- Act no 19 of 2007.

The Act gives legal powers to the NCC to debate, recommend and adopt recommendations from the Mungomba Draft Constitution Report.

Although the NCC had features of a Constituent Assembly, civil society still condemned government for the composition accusing it of designing an ‘’in-built majority’’. The NCC has about 600 persons!

It comprises all members of Parliament (about 25 MPs from PF were withdrawn), 6 representatives from members of political parties which are members of the Zambia Inter-party Dialogue.

It also comprises members of church mother bodies. It also has representations from all professional bodies.

It also has representatives from law enforcement agencies, and other government bodies.

It also has representations from private and public media bodies and from members of civil society.

It has members from the arts fraternity and 10 senior citizens from all the nine provinces.

This is the most diverse grouping to adopt the Constitution and presents Zambia with a credible possibility of having a good Constitution.

It is for this reasons that even when the Zambia Episcopal conference and the Patriotic Front withdrew the membership and raised a campaign against the NCC; it never took off and received muted silence.

CONCLUSION

Zambia continues to grapple with attempts to make a credible, durable, legitimate constitution. The civil society has demanded for a credible process to protect content. Government has the unique responsibility of facilitating the enactment of a good constitution. Citizens also are encouraged to help drive the process so that the country may obtain a document that would qualify the rich words that are in the preamble of the 1991 Constitution;

We, the people of Zambia, by our representatives assembled in our Parliament, having solemnly resolved to constitute Zambia into a Christian Nation and Sovereign Democratic Republic;
In Pursuance of our determination to uphold our inherent and inviolable right to decide, appoint and proclaim the means and style whereby we shall govern ourselves as a united and indivisible Sovereign State;
Proceedings from the premise that all men have the right freely to determine and build their own political, economic and social system by ways and means of their own free choice;
Determined to ensure the rights of all men to participate fully and without hindrance in the affairs of their own government and in shaping the destiny of their own mother land;
Recognizing that individual rights of citizens including freedom, justice, liberty and quality are founded on the realization of the rights and duties of all men in the protection of life, liberty and property, freedom of conscience, expression and association within the context of our National Constitution;
Recognizing the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment;
Pledging to all citizens the right to equal access to social, economic and cultural services and facilities provided by the State or by public authorities;
Recognizing that the family is the natural and fundamental unit of society and should be protected by the State;
Pledging to every citizen the right to education;
Pledging further to all citizens the bounden duty of the State to respect the rights and dignity of all members of the human family, to uphold the laws of the State and to conduct the affairs of the state in such manner that its resources are preserved, developed and enjoyed for the benefit of its citizens as a whole;
do hereby enact and give to ourselves this Constitution.

Ishmail Mohamed, leading South African lawyer and Judge stated that;

All Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions, the basic premises upon which judicial, legislative and executive power is to be wielded; the Constitutional limits and the conditions upon which that power is to be exercised, the national ethos which defines and regulates that exercise, and the moral and ethical direction which the nation has identified for its future

The State Vs Makwanyane and Mchunu

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