A Zambian has challenged Mandevu Member of Parliament to either resign or take part in the National Constitutional Commission (NCC). In a letter addressed to Kapata and copied to parliament, Law Association of Zambia and the Patriotic Front, Charles Longwe argues that Kapata is in error.
The entire letter is reproduced below:
P.O. Box G35
9th November, 2009
Hon. Jean Kapata MP
The Member of Parliament
RE: NON PARTICIPATION AT THE NATIONAL CONSTITUTIONAL CONFERENCE -YOURSELF
My name is Charles Longwe, a resident in the Constituency under your representation in the National Assembly. During the last parliamentary elections In 2006, I cast my vote at Olympia Basic School in Mulungushi Ward. (a copy of my Voters Card is attached) and a law abiding citizen of our beloved country, Zambia.
Hon. MP, I write to you upon careful perusal of the National Constitutional Conference (NCC) Act No. 19 of 2007, which legislation came into effect after the publication of Statutory Instrument No.68 of 2007 in the Gazette. The Bill was passed by the current Assembly in accordance with Article 78 (1) & (6), Article 79 (7) and Article 80 (2) of the Constitution. During which time, you being the incumbent elected Member of Parliament (MP) are representing the people in Mandevu constituency. Performing the civic duty therein, notwithstanding the constituent’s social, political, economic, cultural backgrounds or status until the day when the legal term of the House ends.
I am applying the purposive approach in interpreting the statutes herein since a certain amount of common sense must be applied in construing statutes and the objects of the Act must be considered.
The NCC has an unambiguous mandate and precise terms of reference in line with the Act. Following the passing of the Bill into law, which background I need not echo here on the assumption that as a parliamentarian you are familiar with the debates, all identified individuals (including yourself) were appointed in accordance with Section 4 (1) of the Act and thereafter the Conference was established and commenced its sittings.
Hon. Kapata, you are well aware of the complex challenges we the Zambian people have had in our quest for a better constitution. History can speak for itself; however, allow me to state that “there have been four (4) Constitutional Review Commissions in Forty (40) years of this young nation’s existence”.
Many things can be said about all these Commissions, nonetheless, the most recent Commission (Mung’omba) made recommendations for the creation of a body that would examine, debate, recommend or adopt, as the case may be, a new Constitution. It was argued that enactment is a preserve of Parliament according to Article 62, (the Government was reluctant but hedged the provision for any amendments to this Article) hence the NCC was established as opposed to the Constituent Assembly (CA) contrary to popular perception.
However, I am in utter dismay at your decision, which is contrary to written law, not to represent the electorate at this important constitution making process. Instead you chose to take a partisan position on such an important issue as the constitution making which is in the public interest.
I am persuaded that this scenario cannot henceforth go on unchallenged whereas, the mandatory obligation is on all MPs to participate. On the other hand, the Executive with the approval of National Assembly (to which you belong) has continued to commit enormous sums of public funds for this very undertaking. I am not in approval of the double standards being exhibited here.
In my view, an elected representative as provided for in Article 77 (3) Constitution is supposed to participate at this constitutional making platform, alas we are left without a voice or advocacy at such a forum dealing with issues that concern all constituents in Mandevu. I do hope on the other hand you are mindful to the fact that no other person can represent the Mandevu constituents.
I am alive to the arguments (the road map, composition,etc) arising from the debate resulting in the boycott or non-participation by some organisations who among them are some Non Governmental Organisations (NGOs), some Church Mother Bodies and the Patriotic Front (PF), a political organisation from which you belong.
Honourable Kapata, I am cognizant of the fact that your political party organisation neither subscribes nor supports the NCC in its current formation. However, as an elected representative of the people of Mandevu constituency and in view of the mandatory duty placed on you as MP in section 4 (1) (a), you owe it to yourself as area MP and to us constituents to responsibly participate at NCC. The mandatory obligation is instituted on all MPs by law, passed by this Assembly of Parliament.
In my view, the argument advanced by your party, warranting it not to participate at NCC is justified but limited to individuals in section 4 (1) (b) of the Act and not elected Members of Parliament. Under the law, the party retains the privilege not to nominate a representative (some organisations opted to do just that). Once appointed, the nominating institution is restrained from interference hence guaranteeing the appointed member’s right to exercise freedom of expression or conscience at the Conference. Therefore, the National Assembly does not coach its representatives to the Conference in any particular manner. In fact, this privilege is for to all NCC members even as provided in Section 14 of the Act.
I vouch for all law abiding citizens when I say that you have a mandatory obligation to participate at the NCC as provided by the law and it is not discretionary or a matter of choice. I here re-state that your party’s arguments can no longer hold in denying the electorate the constitutional right of representation at the NCC and further distance you from your election promise of being an effective ambassador of the people of this area on matters that do affect or concern them.
Hon. Kapata, at such a time as this, in our Nation’s history carefully examine your conscience, then weigh your sense of patriotism and loyalty to the overall interest of the Nation against party interests. There are times where we as a people should rise above partisan politics for the sake of all Zambians. I contend that the narrow interests of a political organisation must never override the Public interest. In my view matters of public interest include defence & security, public safety, public order and public morality. Otherwise we will turn into a society governed by jungle law or a Junta.
Let me cite a classic illustration of this case, the Conservatives Party in Britain, had made a political promise that once in power it would hold a referendum on their Country’s decision to ratify the European Union (EU) Treaty. But recently it withdrew that pledge following the ratification of the Treaty by all the Member States acceded to the EU Agenda, the last to sign was the Czech Republic. The Tories and all their MPs abandoned the pledge even against their own much published position. They did this upon the recognition of the fact that the Treaty was now law and hence it is binding on all States. In other words, an offence is not taken into account where there is no law but in the present case, you are duty bound by statute and compelled to participate in obedience of the law.
I fully appreciate the reasons or grounds which may have led to the decision by your party as well as some organisations to boycott their participation at the NCC, but I am here addressing the issue of an elected representative’s non participation at the Conference contrary to the provisions of the law. Clearly distinguish that under the Act, your participation at the NCC is premised of your membership at the National Assembly and not party affiliation.
Someone may insinuate and say that once compelled to participate, a member may oblige and yet remain mute during debates at the NCC. Granted, but that would not be surprising, since we the public are accustomed to observe how some MPs, who apart from their maiden speeches, have not uttered a single sentence in Parliament! I am rather more confident of better things in your case since you would represent and debate effectively in the NCC as in the National Assembly.
Furthermore, the continued reticence from the Parliamentary Standing Committee on this matter can no longer be glossed over, as it is unacceptable in a constitutional democracy. The continued scenario only guarantees a recipe against the smooth adoption of the constitution by a “small school of politicians” at the enactment stage in Parliament. In saying this I am well aware of the provision in Section 14(a), however, if this situation goes on unabated it may erode the confidence and integrity the public has in Parliament as an Institution and defeats the whole purpose of having provided for all MPs be part of an adoption process.
I am concerned that if this situation remains unabated, the independence and effectiveness of the National Assembly as a representative agent of oversight, change and reform in the democratic governance of Zambia may be at crossroads.
It has been authoritatively said that laws are meaningless unless there is power to enforce them by imposing penalties on those who break them. The jurisdiction of the House over its own Members and the right to impose discipline within the precincts is absolute and exclusive. Soon enough, Parliament may have to be called upon to exercise its penal powers on those in err. This may become necessary in order that Parliament protects its dignity as a representative of the sovereignty of the people who elected it.
Nevertheless, if you adhere to your current position in this matter and are unwilling to act as member in anyway, who then is representing the electorate? In my view, there remain only these options hereafter;
To continue with the breach of the law.
To resign from Parliament, in order that, as a member of your party you remain justified with your organisation’s position on this matter.
To seek an amendment of the NCC Act , so as to atone for your current predicament, otherwise
To acclaim that you are in contempt of Parliamentary etiquette and decorum, since in my view, your conduct is affront to the dignity of the House.
To reserve the right to vote wisely the next time around.
It is clear to me that the law has authority over a person for as long he /she lives. Therefore, a law maker should be the first in-line to demonstrate high esteem for the principles they enshrine. I wonder what kind of nation this would be if we all chose to disregard the law based of the mere fact that we feel that we lost an opposing view or motion during the enactment process of a Bill. If this becomes a norm, then all citizens will opt not to be subject to laws, such as PAYE, on taxation. I say this in light of your disposition, which signifies, that obeying the law is discretional.
So then, the non consideration of these facts of law should not result in the denial of the sovereign right the people of Mandevu Constituency have of being represented at this statutory body. An informed electorate is an important component of any healthy, stable democracy hence a Member of Parliament and constituents need to exchange ideas and information vital to carrying out the representative function of an elected member.
I hope you patiently endured with my letter, even as I endeavoured to have you realise the need for accountability to the people you so claim to represent and please accept the courtesy of this letter whereas I am expecting a response from you, in writing, within the next Five (5) days.
Charles J Longwe
A Concerned Citizen
CC The Speaker -National Assembly of Zambia
The Attorney General- Ministry of Justice
The President- The Law Association of Zambia
The Secretary General – Patriotic Front