Whether Zambians will vote ‘yes’ or ‘no’ to the referendum question on whether to amend the bill of rights in the current constitution is a waste of time and resources. Nothing will change, apart from the physical size of the constitution, which will be bigger due to the addition of empty words plagiarized from other countries.
In fact, even the way the referendum question is framed is embarrassing. Does parliament or the ministry of Justice still have qualified lawyers or they don’t teach legal skills in Zambia any more?
‘Do you agree to the amendment to the Constitution to enhance the Bill of rights contained in Part III of the Constitution of Zambia and to repeal and replace Article 79 of the Constitution of Zambia?’ That is how the ministry of justice and parliamentary lawyers framed the question.
Here is a suggested, punchy question:
‘Do you agree that the Zambian Constitution should be amended to enhance the Bill of Rights contained in Part III and that part 73 of the constitution should be repealed and replaced?
Anyway, even if the referendum question was written better, it would still not make sense because it does not explain exactly what this bill of rights is, what will be removed or added.
We share therefore endeavor to explain.
A Bill of Rights as used in this case simply means a list of human rights. The word ‘bill’ adds no value and can be omitted or as suggested replaced with the word ‘list’. So, Part 3 of the Zambian constitution contains a list of rights which Zambians and other persons in Zambia are entitled to. The problem is that, part 3 (the so called bill of rights), currently contains only civil and political rights. (This will be explained shortly). Economic and social rights are contained in a different section of the constitution, where they are not regarded as real rights.
Now, Human rights are world over demarcated into two broad categories. The first category is called civil and political rights. These include the right to life, freedom from torture, fair trial, right to equality of treatment, right to vote, freedom from discrimination, self-determination, freedom from slavery etc. Most of these rights are already in the constitution of Zambia (so called bill of rights), but whether Zambians actually enjoy and are able to enforce these rights is a different matter that requires a separate article. The second category of rights is termed ‘economic, social and cultural rights’. These include the right to food, right to work, decent housing, education, to healthy, to social security, to take part in cultural life, to clean water and sanitation etc… These rights are not not in the Zambian bill of rights. They are mentioned under a section of the constitution called directive principles of state policy. The problem is really not which part or page number of the constitution social and economic rights are placed. The problem is that, the current constitution clearly states that rights such as the right to water, employment, education are not real rights at all, and that no one can go to court to claim these rights.
The actual words of the constitution are that ‘the Directive Principles of State Policy set out in this part shall not be justiciable and shall not thereby, by themselves, despite being referred to as rights in certain instances, be legally enforceable in any court, tribunal or administrative institution or entity.”
So, you can’t go to court to demand your right to food, education, employment, clean environment etc. but you can sue government to grant you the right to vote, right to assembly, worship etc.…
The purpose of the referendum to be held on August 11, 2016 is ‘to amend and enhance the Bill of rights’.
According to the Constitution of Zambia (Amendment) Act of 2016, where the proposed changes to the so called bill of rights are contained, the new bill of rights will contain economic, social and environmental rights. Remember bill of rights here simply means list of rights.
Article 39 of the proposed law says a person has the right to health care services, decent housing, food, clean water, decent sanitation, social protection and education. Further, article 41 says a person has the right to employment and fair labor practices, fair remuneration and decent working conditions. Article 44 says a person has the right to safe, clean and healthy environment.
This sounds very good and well thought out. But, it must be remembered that, apart from South Africa, (where this was copied from), there is no other ‘democratic’ country in the world that has economic, social and economic rights specifically put in the constitution. Where they are, they are not even respected. This does not mean the author agrees with the exclusion of such rights from constitutions.
But the biggest problem is the hypocrisy and contradictions within the proposed changes to the Zambian bill of rights. While on one hand the proposed changes purport to grant economic and social rights in the constitution by placing them in the so called bill of rights, article 45 of the proposed changes literally takes these rights away (rights to food, jobs, water, food, clean environment etc…
Article 45 (1) of the proposed changes states that, ‘the state shall take reasonable measures for the progressive realization of economic, social, cultural and environmental rights.
What this means is that government will not be under a strict, enforceable obligation to provide food, housing, employment, clean environment (economic and social rights) to citizens. Instead, these rights will be granted or withheld at the government’s discretion. Government will only grant these rights when there are enough resources, but we all know what that means. Government says resources are never enough.
This statement (progressive realization) is common in many constitutions around the world and has been used to deny people the right to food, jobs, clean environment etc. It actually means that the government can only grant these rights when there are enough resources and the court should not interfere.
For example, the European Court of Human rights (the highest court of appeal in the entire European Union on matters of human rights only) states that, ‘while it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call a home… whether the state provides funds to enable everyone to have a home is a matter for political not judicial decision’.
The UK government’s official position is that economic and social rights including the right to work, food, healthy are mere declaratory principles but not legal obligations. So, in UK, there is no right to food or clean water. In fact, in 1995, the UK Court of Appeal said that making decisions on how a limited budget is best allocated to the maximum advantage of the maximum number of patients is not a judgment which the court can make.
The South African Constitution specifically grants citizens the right to health care services, reproductive health care, sufficient food and water; and social security, including, if they are unable to support themselves and their dependents, appropriate social assistance.
But the South African Constitution also limits these same rights by stating in the next paragraph that ‘the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right’.
This is the same thing the Zambian government is proposing to do.
In line with the paragraph above, the Constitutional Court of South Africa has in many cases refused to grant individuals their rights to food, housing, water etc.… In one case, the court said ‘it is essential that a reasonable part of the national housing budget be devoted to providing short term shelter, but the precise allocation is for national government to decide and that, while government programmes must ensure that a significant number of desperate people in need are afforded relief, it is not a necessary part of the constitutional obligation on the state that every desperate person receive relief immediately.
In another case, the same court said a court will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities whose responsibility it is to deal with such matters.
In yet another case, the South Africa highest court said, ‘It should be borne in mind that in dealing with economic and social rights matters, the courts are not institutionally equipped to make the wide-ranging factual and political enquiries necessary for deciding how public revenues should most effectively be spent. There are many pressing demands on the public purse.
It is important to know how other countries are dealing with such matters because, that is how Zambia will deal with them. As already noted, part of these proposed changes were plagiarized from South Africa, and the Zambian courts follow UK decisions religiously. So, it is reasonable to predict that when such a matter arises in the Zambian court, the Zambian constitutional court will follow what the UK courts have decided already. The point is, why put rights in the constitution when citizens will not go to court to enforce them?
Article 45 (2) of the proposed changes says that ‘where a claim is made against the state on the non-realization of economic, social, cultural or environmental right, it is the responsibility of the state to show that the resources are not available’. What this means is that if a jobless, sick person sues government for specialist treatment, the government is not under an obligation to provide specialist treatment to that particular person but only has a duty to prove to the court that it has no resources to do so. These are the meaningless changes you will be voting for in the referendum.
Article 45 (3) of the proposed law says ‘the constitutional court shall not interfere with a decision by the state concerning the allocation of available resources for the progressive realization of economic, social, cultural and environmental rights’. This simply tells the judges to fuck off. It means, once the ministry of defence has decided to employ only 20 out of 10, 000 applicants, courts have no right to interfere. In fact, that is what the South African Constitutional Court has been saying, that it is the executive not the judges that decide who must have jobs, food, clean water etc. In short, the economic and social rights placed in the constitution or bill of rights mean nothing, judges have no power to enforce them because the constitution has said so.
If Zambia was serious about making the right to food, water, housing and other basic rights, the government would have domesticated the International Covenant on Economic, social & cultural rights (ICESCR), which it signed in 1966, or at least African Charter on Human and Peoples Rights.
Just like the constitution that president Edgar Lungu signed in January 2016, the referendum scheduled for August 11, 2016 is worthless but wasteful. There will be no difference in the enforceability of human rights in the current constitution and what is being proposed. Both laws grant the economic and social rights in one section but renders them nugatory in the next paragraph.
The government would have saved thousands of lives if they utilised the money they are wasting on this referendum to stock UTH with medicine.
By the way, remember that, after you vote ‘yes’, it is upto parliament to enact the bill of rights and put in whatever the MPs wish to.