By Fred Mmembe
It was very clear from the very beginning that the National Dialogue Forum was a platform of Edgar Lungu to set up the constitutional, legal and political framework that would perpetuate his rule and safeguard his interests.
It was an illusion for anyone to think of it otherwise. Edgar doesn’t act fair and in national interest.
The National Dialogue Forum will produce a result Edgar wants. And everyone participating in Forum is either an accomplice or an ignorant person hoping for the impossible.
And those who have stayed away from this Forum – the three mother church bodies, UPND, Socialist Party, among others – are not fools or ill-intentioned people.
Withdrawing his participation from the Forum United Prosperous Peaceful Zambia president Charles Chanda dismissed it as sham. Indeed it is a sham. What meaningful dialogue is going on there?
Edgar is going to use the results of this sham dialogue to change the Constitution and rearrange the laws of this country in manner that assures his political survival. And this is what Chanda and other participants in that have been invited to ordain.
Constitutional amendment ordinarily channels public deliberation through formal, transparent, and predictable procedures designed to express the informed aggregated choices of political, popular, and institutional actors. Yet Edgar’s decision to try and amend the Constitution through his National Dialogue Forum conceals a democratically problematic strategy to innovate an informal, obscure, and irregular method of constitutional amendment: constitutional amendment by stealth. There are three distinguishing features of constitutional amendment by stealth – distinctions that make stealth amendment stand apart from other types of informal constitutional change: the circumvention of formal amendment processes, the intentional creation of a National Dialogue Forum, and the twinned consequences of both promoting and weakening democracy. Constitutional amendment by stealth occurs when those in government consciously establish a new process for amending the Constitution whose intention is to leave those who don’t agree with no alternative.
This is done without the democratic legitimacy we commonly associate with amendments to the Constitution. But this has serious consequences for the rule of law.
Procedures for amending the Constitution have been the subject of great controversy in constitutional politics in Zambia. From the amendments of 1972 to make Zambia a one party state, to the ones Edgar wants to push through using his National Dialogue Forum the process to be adopted has been at the centre of deep legal, political, and indeed moral disagreement in Zambia.
Edgar’s use of his party’s majority in parliament to unilaterally enact a national dialogue forum Act reflects a disjuncture between legality and legitimacy.
Although a purely formalist and strictly legalistic approach could indicate that Edgar may pursue his Constitution amendments through the National Dialogue Forum, political history and constitutional design counsel that it would be illegitimate whether legal or not.
What is going on at the National Dialogue Forum teaches of the need to understand the fact that there is a distinction between feeling obliged to do something and feeling obligated to do that thing.
The creation of meaningful and well represented constitutional convention turns on the special sense of obligation that binds political actors to feel obligated to do something, a feeling that is necessary for there to be a rule, without which no true constitutional convention could be said to exist.
Source: The Mast