The draft constitution with good clauses

By Paul Shalala

In this article, i will not dwell on the politics of whether the release of the Final Draft Constitution by Acting Justice Minister Dr Ngosa Simbyakula in parliament this morning is timely or not.

I will also not delve into the issue of the referendum as that process is dependent on the outcome of what Dr. Simbyakula has described as a ‘consultative process.’

However, my article will focus on the clauses that Zambians have CONSISTENTLY and FAITHFULLY submitted to past processes like the Mvunga, Mungomba, Mwanakatwe, NCC and the Electoral Reforms Technical Committee with the hope of one day seeing them in their supreme law of the land.

By all standards, the just released Final Draft Constitution meets what people call ‘a people’s constitution’ due to the fact that all the clauses considered contentious have been retained.

At the time when people were wondering whether the 50+1% majoritarian clause for election of the President would be upheld in the final constitution, the document has shown that the clause has been retained in Article 74 (1).

This article has been consistently submitted by Zambians in the past 40 years to various constitution review commissions.

The argument has been that Zambians want a ‘popular’ President who would be elected by a majority of the people either in a one off election or in a re-run if the 50+1% threshold is not achieved in the first round of a presidential election.

People’s hopes for the majoritarian clause where dampened last year when then Patriotic Front Secretary General and then Justice Minister Wynter Kabimba openly opposed this clause painting a picture of the ruling party and government not being in support of the clause.

However, the now dissolved Technical Committee on Drafting the Republican Constitution seems to have defied all odds and included this ‘popular’ clause in line with the people’s wish.

Another popular article that has been retained is Article 108 (1) which provides for a Vice President who is elected as a running mate to a Presidential candidate.

This is another clause whose proponents say it helps to avoid ‘costly’ Presidential by-elections in case of deaths or resignations of a sitting president as was the case in Zambia in 2008 when a presidential by-election was held when then President Levy Mwanawasa died.

This article has been held as a cost saving law that has been tried and tested in countries like Ghana where it has worked effectively.

The Final Draft Constitution has also adopted the mixed member representation electoral system in parliament where we will now have 150 elected Members of Parliament from the constituencies and 100 MPs elected through a party list submitted by participating political parties to the Electoral Commission of Zambia.

This means that Zambia will now have 250 elected MPs and 8 nominated MPs.

If finally adopted, this will be a new phenomenon in the Zambian political scene where MPs will be sent to Manda Hill through a two way election process as contained in Article 74 (2).

Zambians in the diaspora will be smiling when they hear that Article 18 of the final draft constitution has allowed dual citizenship in addition to the fact that any Zambian who acquires citizenship of another country will not automatically lose their Zambian citizenship.

Zambians living abroad have been calling for this law and finally it has come.

For the pro-life campaigners, its bad news for them as Article 28 (3) provides for capital punishment which is commonly known as death penalty.

Clause 2 of the same article has given a boost to Zambian pro-life campaigners like musician Kings Malembe Malembe as it has recognised life as beginning at conception as opposed to the more liberal definition of life beginning at birth.

This means that any Zambian woman who aborts during pregnancy, kills a human being.

This article was an emotive one as i remember during the National Constitution Convention in April 2013, the clergy were divided on whether to retain the death penalty or not.

The swearing in of the President immediately after the announcement of Presidential results by the Chief Justice will now be done away with as Article 103 (2) now proposes the ceremony to take place after 7 days.

This is because Article 83 (1) provides that General Elections will now be held on the second Thursday of August every after 5 years and swearing in of a new head of state will take place on a Tuesday which is 7 days after the announcement of the results.

In the current constitution, a new President must be sworn in within 24 hours of being declared winner of a presidential election even when losers have filed petitions.

The terms that an individual can serve as a president have been maintained at two as confirmed in Article 104 (3).

For Cabinet, the mostly suggested way of choosing Cabinet has been proposed in the draft constitution.

Article 114 suggests the the President will now appoint people from outside parliament to constitute Cabinet which will now include Provincial Ministers as explained in Article 111.

In terms of devolution of powers, the draft constitution has proposed the establishment of Provincial Assemblies which will include MPs, Chiefs, Mayors, Council Chairpersons, and several other stakeholders.

Article 181 explains that these Assemblies will have their own Speakers and function like Parliaments.

For those who have been critical of government contracting debts which they are not happy with, Article 249 (2) may make them smiling as all loans and grants will now be subjected to parliamentary approval before government officials append their signatures to loan agreements.

In the area of politics, reigning chiefs have been given the opportunity to contest elections for councillor or to Provincial Assemblies without them being forced to abdicate their thrones.

However, according to Article 205 of the Final Draft Constitution, chiefs will have to leave their chieftaincy if they are to run for parliament.

In the current 1991 Constitution as amended in 1996, chiefs are barred from active politics.

Article 200 provides for the Local Government Equalisation Fund which is expected to help local authorities function well in as far as funding their operations is concerned.

This fund will see the central government providing money to District Councils to boost their dwindling financial base.

In Article 3, the Final Draft Constitution proposes that Zambia continues to remain a multi-racial, multi-cultural, multi-religious and unitary state.

And in the preamble, the 1996 declaration of Zambia as a Christian Nation by then President Frederick Chiluba has been retained.

For my media colleagues, this final draft constitution has guaranteed freedom of the media in Article 36 and in Article 35, freedom of information for all Zambians has also been guaranteed.

On the emotive issue of land, the document has retained the vesting of all land in the President as contained in Article 296 (1).

According to Article, 297 (2), the final draft constitution has also maintained the duo classification of land as being state and customary land.

The above articles are some of those i have quickly noticed as some that Zambians really wanted to see in the constitution and true to the words of the former Chairman of the Technical Committee Justice Annel Silungwe,what the people of Zambia submitted is what has come out in the final draft constitution.

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