SACCORD appraises NCC, maintains need for Referundum

Habasonda (Right) with Reuben Lifuka and Samuel Mulafulafu

Habasonda (Right) with Reuben Lifuka and Samuel Mulafulafu

The Southern African Centre for the Constructive Resolution of Disputes (SACCORD) says the people of Zambia must endorse the draft constitution through a referendum.

SACCORD Director Lee Habasonda says that the government must urgently state whether  a referendum will be conducted or not.

He said that the public deserves to know if the constitution will be subjected to a referendum after the 2010 population census or it will merely be passed on to parliament for amendment.

Habaosnda said that the civil society is concerned that a referendum will require as much resources as the elections in 2011 and it is better to prepare the public on the direction that the constitution-making process will take in order to avoid conflicts surrounding elections.

‘As civil society, we maintain our posture that the NCC’s is to adopt the draft constitution while the people of Zambia must endorse it and the national assembly must enact it into law. Failure to follow this three step process will definitely extinguish the little hope that many Zambians had placed in the NCC process. Hence, we appeal for clear and definite timelines from both the NCC and the government on this process,’ he said.

Habasonda was speaking in Lusaka Wednesday morning when he launched a booklet on the the appraisal of the National Constitutional Conference (NCC).

He also observed that for the first time in the country’s history, the process of drafting a constitution has been restructured to allow for broad participation of a broad spectrum of Zambian society.

Habasonda further noted thathe NCC has provided the nation a platform to re-examine the Mungomba draft Constitution in a new context and that insights that were not captured during the work of the Mun’gomba Commission have now emerged resulting in the Mun’gomba draft being refined and better articulated.

He also said that the deliberations of the NCC so far have been peaceful but said that this could be due to the composition of delegates.


[1] In depth discussion with NCC Commissioner, 13 October, 2009

Below is the full text of what Habasonda said:

SACCORD speech at the launch of an appraisal of the National Constitutional Conference (NCC) Process held at the SACCORD Secretariat on 23/12/2009

I welcome representatives from the various media houses to this occasion. Thank you for coming!

Ladies and gentlemen, one of the key activities that the Southern African Centre for the Constructive Resolution of Disputes (SACCORD) has been undertaking under the key programme area of Accountability and Good Governance (AGOGO is Legislative and Policy Tracking. One of the main aims of this activity is to monitor and document important national processes such as the African Peer Review Mechanism (APRM), National Constitutional Conference (NCC) and other legislative and policy processes. The monitoring and documentation of such national processes are very important as they are allow for reflection of the extent to which these processes are fulfilling the Terms of Reference (TOR) for which they were established. We believe that since the NCC is mandated to arrive at a people centered constitution, it is difficult to ascertain whether this can be accomplished successfully unless and until the process is monitored and its undertakings are documented.

Colleagues, this report was undertaken to assess the progress the NCC has made in crafting a constitution based on all inclusive consensus and consistent with the provisions of the National Constitutional Conference Act, to which presidential assent was granted on 31st August 2007. The report was done as part of the contribution to promoting good governance in Zambia that is anchored on constitutionalism.

Over the last several years since the Mun’gomba Constitutional Review Commission (CRC) submitted its report in 2005, mistrust between the government and citizens over the ground rules of constitution making has led to stalemate and political instability. Zambia’s experience in constitution making since  independence in 1964 demonstrates that the mode of adopting and enacting the basic law has tended to allow the government of the day to decisively  influence the outcome of the process in a way that buttresses its grip on executive power.  It may therefore be correct when observers note that, ‘past experience has left people unconvinced of government’s sincerity.

Ladies and gentlemen, it is in light of this rather uninspiring record of constitution making in Zambia that this project was undertaken  to assess what the ongoing National Constitutional Conference has accomplished as per its terms of reference which are enunciated in the National Constitutional Conference Act of 2007.

The methodology deployed in putting together this report entailed the review of available electronic and hard copy documentation. A number of NCC Commissioners and Staff members of the Secretariat were interviewed. Alternative views were also provided by representatives of influential stakeholders who for various reasons opted to stay out of the NCC process.  Hence, data emanating from the desk review was well complimented by the perspectives of stakeholders interviewed and enabled better contextualization of the collected information.

Following the enactment of the National Constitution Conference Act, No. 19 of 2007, on 31st August 2007, the National Constitution Conference commenced its work on 19th December 2007 when it was officially launched by President Mwanawasa.

The NCC has delegated its work to eleven committees that have debated and made recommendations on each Article of the Draft Mun’gomba Constitution. The articles of the Draft Constitution form a Term of Reference for each of the eleven committees.[1]The committees make recommendations in line with their terms of reference but their resolutions shall only be binding once adopted by the plenary. The eleven committees are as follows:

  1. General Constitutional Principles;
  2. Citizenship Committee;
  3. Human Rights Committee;
  4. Democratic Governance Committee;
  5. Executive Committee;
  6. Legislative Committee;
  7. Judicial Committee;
  8. Local Government Committee;
  9. Public Service Committee;
  10. Public Finance Committee;
  11. Land and Environment Committee.

Ladies and gentlemen, information as it relates to committee reports of the NCC is not easily available and hence what is presented below is pieced from several sources including media reports and interviews conducted with various stakeholders in the constitution making process. This is so particularly in view of the provisions of section 21 of the National Constitutional Conference Act No. 19 of 2007 (The NCC Act) which makes it a criminal offence for anyone to disseminate information without the permission in writing of the conference.

Ladies and gentlemen, at the time of preparing this report, the NCC had amended more than 64 Articles recommended by the Mun’gomba draft constitution to make them more articulate and relevant. About 36 articles had been adopted as proposed by the Mun’gomba draft, while more than 10 had been deleted and 20 relegated to subsidiary legislation. Several new articles have been introduced into the draft constitution by the NCC. The NCC had also approved reports submitted by Committees dealing with the Public Service, Judicial Affairs, Public Finance, Citizenship and Lands and the Environment.[2]

During these deliberations, the NCC agreed on the inclusion of a clause on dual citizenship in the draft constitution, aimed at encouraging Zambians in the Diaspora to participate in the political, social and economic development of the country.

It is hoped that policy makers and the government in general will use the experiences contained in this report to reflect on how best the country can improve in ensuring that a people centered constitution is realized.

Lessons from the NCC so far

On the basis of the survey of available materials complemented by in-depth discussions with informants/stakeholders very familiar with the evolution and performance of the NCC to date, some lessons inferred are the following:

v  For the first time in the country’s history, the process of drafting a constitution has been restructured to allow for broad participation of a broad spectrum of Zambian society. However, the composition seems to be what undermines the conference because selection of delegates did not meet a democratic criterion. Further afield, it is unthinkable that future constitution making will revert back to the ‘secretive’ process of Cabinet using the White Paper to select recommendations that government likes, while those it doesn’t like are discarded.  The ‘political center of gravity’ in regard to constitution making has therefore shifted  from the corridors of Cabinet Office into the public domain[3]

v  The NCC has provided the nation a platform to re-examine the Mungomba draft Constitution in a new context. One informant observed that the proceedings of the NCC have proved that the Mun’gomba constitutional draft was ‘not cast in stone’[4]. Thus, insights that were not captured during the work of the Mun’gomba Commission have now emerged resulting in the Mun’gomba draft being refined and better articulated.

v   To date, deliberations of the Constitutional Conference have been peaceful. Commissioners have amicably resolved their differences in opinion and judgment and thereby ensured that the Conference remains focused on its core business of scrutinizing the Mun’gomba draft constitution. This picture of tranquility contrasts sharply with the experience of other Constitutional Conferences in some Francophone African countries in the 1990s which got bogged down in acrimonious debates consequently distracting them from effecting important constitutional reforms.

v  The National Constitutional Conference has generated very healthy and robust debate on the country’s constitutional future and the type of governance Zambians wish to embrace. Debate has transcended political affiliation and it has not been unusual to find former Government Ministers taking positions convergent with those of Civil Society actors; because in the words of one informant, they (former government Ministers) are now able to see ‘the other  side of the coin’[5].

Our concerns

In view of the 2011 elections and the role that the ongoing constitutional engineering process has on it, we wish to demand that the NCC provides a clear roadmap on what steps we expect between now and 2011 with regard to the NCC process. The public deserves to know if the constitution will be subjected to a referendum after the 2010 population census or it will merely be passed on to parliament for amendment. We are concerned that a referendum will require as much resources as the elections in 2011 and it is better to prepare the public on the direction that the constitution-making process will take in order to avoid conflicts surrounding elections. As civil society, we maintain our posture that the NCC’s is to adopt the draft constitution while the people of Zambia must endorse it and the national assembly must enact it into law. Failure to follow this three step process will definitely extinguish the little hope that many Zambians had placed in the NCC process. Hence, we appeal for clear and definite timelines from both the NCC and the government on this process.

Conclusion

In conclusion ladies and gentlemen, the performance of the National Constitutional Conference will be judged on the basis of the credibility and durability of its end-output; a constitution which in the words of the NCC Act, ‘faithfully reflects the wishes of the people of Zambia’. The people of Zambia harbor the high expectation that the 2011 Presidential, Parliamentary and Local Government Elections will be held under a new basic law. Failure to hold elections under a new constitutional dispensation in 2011 is an outcome that should be avoided at all costs as it will mean Zambia would have been in a financially costly process of constitutional reform for eight years. Such an outcome might not only seriously jeopardize the legitimacy that must underpin any constitutional overhaul process, but might seriously erode the credibility of the state in the eyes of ordinary citizens who desperately yearn for good governance.   Such a scenario would not be in the best interests of constitutional stability and good political governance, two key preconditions for consolidation of peace and sustainable development in the country.

With these few concluding words, I would like to officially launch The National Constitutional Conference (NCC) Process: Hopes, Aspirations, Challenges and Opportunities-An Appraisal by SACCORD.

THANK YOU!


[1] In-depth discussion with an NCC Commissioner; 16 October, 2009

[2] In depth discussion with an NCC Commissioner ; 16 October , 2009

[3] In depth discussion with an NCC Commissioner ; 16 October , 2009

[4] In depth discussion with NCC Commissioner, 13 October, 2009

[5] In depth discussion with an NCC Commissioner ; 16 October , 2009

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