Why a clause by clause debate before the vote on the Constitutional Bills at Second Reading is critical

1.Introduction

Subject to clause (1) of Article 78 of the Constitution of Zambia the central function of the legislature is to make, amend or repeal laws. So to effect policies into law they pass through a legislative process which is summarised below for translating a policy or legislative proposal into law. Also all legislative proposals come to the National Assembly as the legislature in the form of a Bill and a Bill cannot become law unless it is goes through the necessary approvals plus the assent by the Presidency as the last step. Both the Constitution of Zambia Bill N.A.B Number 16 and the Constitution of Zambia (Amendment) Bill N.A B Number 17 have been presented to the National Assembly as government legislative proposals and the process is described herein below.

2.Understanding the legislative process vis a vis the Constitution making process

A diagram has been used to illustrate the ongoing legislative process in a simplified manner so that we know where we are coming from, where we are and where we are going.

Generally government instructions are sent to Drafting Department at the Ministry of Justice. Within Justice there is an Internal Legislation Committee chaired by the AG (the PS, SG and drafters are members). Once they approve a Bill, it goes to the Cabinet Legislation Committee and then to Cabinet. Cabinet approves it for publication in the Gazette as a Bill before it goes to Parliament. In the case of the Constitutional Bills there was a technical team appointed by the Republican President to consider all the past reports of the four Constitutional Review Commissions and on that basis draft a Constitutional Bill and a Report thereon. The Constitutional Bills were drafted as an outcome of the Report of the technical committee.

The Stages that a Bill passes through to become Law

First Reading: A formal presentation is made by the sponsor to introduce the Bill at this stage there is no debate but an objection can be made for example if, in the case of a constitutional amendment, thirty (30) days have not elapsed since it was published in the Government Gazette as prescribed by the Constitution. (See paragraphs (a) and (b) of clause (2) of Article 79 )

Second Reading: The Minister concerned as the sponsor of the Bill opens up this Stage by undertaking a second reading speech outlining the purpose and the general principles of the Bill. A general debate ensues and the debate process is broken down in two parts after which there is a vote that channels the Bill to Committee stage which is the first part of the Second Reading. These two parts are :

(We are here)

PART ONE
• Committee Stage:
Most Bills are referred to the standing committee with a mandate closely related to the subject matter of the Bill in issue.
So in this case the Constitutional Bills have been referred to the Committee on Legal Affairs, Governance, Human Rights and Gender to consider the text of the constitutional Bills and to make recommendations in the form of a Report which contains comments and proposals on each clause of the Bills after hearing witnesses and experts that appeared before it. This Report containing the comments and proposals is referred back to the Main House and is subjected to what is known as the report stage in the legislative process.

In the current scenario, the Committee on Legal Affairs, Governance, Human Rights and Gender matters has recommended that the Constitution of Zambia (Amendment ) Bill should be withdrawn reasons being that most of the witnesses and experts that appeared before it to give evidence could not reach a consensus on most of the critical issues in the Bill. The Committee also reported on the link between the two Constitutional Bills and how it would be an academic exercise to consider the non-contentious one without taking into account the relationship between the two Bills especially noting that the contentious issues were contained under the Schedule to the Constitution of Zambia Bill.

Despite the committee’s recommendation to withdraw the Bill government wants to proceed to enact what they are terming as the “non–contentious clauses of the Constitution of Zambia (Amendment ) Bill and yet again they have not given any position or explanation as to which clauses these are out of the whole text. Nor have they provided an explanation on the implications for the distinction between contentious clauses and non-contentious clauses. The significance of the failure by government to identify and distinguish contentious from non-contentious clauses and their implications is that it is actually a good way for government to conceal how far they have departed from the rational for seeking a new Constitution in the first place. Thus taking us back to the same place we were with a political document rather than a development document and if that is the case one has to ask the question why bother with the amendment if there is no change? The government knows very well that by identifying the contentious from the non-contentious clauses the people will soon establish we are back at square one and we have not moved forward. See the note below on the importance of revisiting at every stage the reasons for seeking a new Constitution.

Part 2
• Report Stage
After debate and agreement on clauses and the whole Bill, the Clerk reports on the Bill to the plenary, usually just stating (addressing the Speaker) that, the Bill passed “with amendment” (without giving the details) or “without amendment”.

Third Reading: there is no debate at this stage. The Speaker puts the question to the whole House that the Bill be read a third time. Once it is passed, the clerk prepares the copies for assent. According Clause (2) of Article 78 no Bill can be sent to the President for assent unless it has gone through the Third Reading

• Presidential Assent or veto subject to clause (3) of Article 78 If the President assents the Bill becomes a Law when the President signs the first of the copies. Coming into effect is another matter of course and depends on what the Act itself provides or does not provide, since the default position is that it becomes a Law upon publication in the Gazette. publication in the Gazette – clauses (6) & (7) of the Article 78

3. The Public Interest Issues that need to be addressed

Basically if the Bill passes the Second Reading there is no more debate and at the moment we are one more stage away from the Third Reading yet there has been no debate on each clause to justify why each clause should stand. Why would that be a problem? Since there is a recommendation to withdraw the Bill and this is what the Committee has taken to the House the most reasonable and logical thing to do is to debate the merits for either withdrawing the Bill or proceeding to the next stage.
In the event that government and other supporting MPs insist on proceeding to the next stage it is recommended that opposing MPs particularly opposition MPs must insist, in the public and national interest, that:

1. Clarification and identification of the contentious and non-contentious clauses and the implications of the distinction on the overall product should the Bill go through; and
2. The mode of debate should constitute a thorough and exhaustive clause by clause public debate to justify why the clauses have been adopted and the public interest purpose they would serve in strengthening democracy and the democratic institutions of our country. Because the focus for all should not be politics but public and national interest that serves all Zambians and not just a few people.

It must be pointed out that we do not support the current mode of adoption of the Constitution which in effect is virtually absent as it does not involve the people because the process of enactment of the new constitution champions the prioritization of politics over the national and public interest. A clause by clause debate is supported followed by a referendum for the whole Constitution Bill. However under the circumstances the vital point to note is that a clause by clause debate even in this unsatisfactory process will help among other things to:

1. Carry and keep the people updated on the proceedings that are a determining factor of their legal, social, political and economic destiny in this country rather than keeping them uninformed on the issues being discussed. This crucially provides the basis for justifying a referendum because people would go to a referendum fully informed and aware of the value of the overall constitutional text and the spirit behind the principle of each clause that is debated. In the absence of such a debate how will people make an informed choice to vote on the Constitution at the referendum? So this process would help Zambians recognize they to have a major role in this process and have a responsibility to ensure the outcome is the desired one;
2. Focus and direct MPs and the general public to the reason why we are seeking a new constitution in the first place. We need to keep asking ourselves at every stage why we want the current Constitution changed. The answer is rather simple to move away from a constitution as a political document that serves a few people on the basis of patronage by adopting a constitution that is a development document that embodies a collective development agenda for a more equitable and democratic society that benefit’s all Zambians;
3. Clarify the meaning of the clauses to be adopted and reveal how the clauses individually and collectively work together to achieve the original purpose for seeking a new constitution. We cannot lose sight of this;
4. Remind MPs that a Constitution should prioritize development and national welfare over politics; and
5. Provide tangible evidence that there is a mechanism in place for MPs and the government to be transparent and accountable to the people of Zambia in the Constitution making process which is important for establishing the legitimacy of the new Constitution.

The other issue is also on the aspect of Government stating that it has no position in the matter, this is a matter that needs to be addressed and solely so before we reach the Third Reading Stage. The moral aspect of this is that the sponsor of a Public Bill not having a standpoint view on the legislative smacks of a dereliction of duty especially that they are also supposed to provide policy guidance on how they intend to shape future legislation. Furthermore the question of how they can engage in a meaningful debate on an issue where they have “no position” also arises. The far reaching logical consequences of such a statement could derail the process or even corrupt it. The point being made is that if you have no position on the Bill that could amount to abandoning the Bill and if a Bill has been abandoned how you can proceed to the next stage.
This is a very critical time in the governance of our country and all relevant stakeholders are urged to take the up the mantle by engaging their Area Members of Parliament so that citizen justice is not only done but seen to be done in the quest to enact a new people’s driven and people serving constitution for the Republic of Zambia.

By Zambian Citizen