SAY NO TO REFERENDUM IN DEFENCE OF GOOD GOVERNANCE AND CONSTITUTIONALISM IN ZAMBIA
[By Brig Gen Godfrey Miyanda – 5th August 2016]
I urge Zambians who value good governance and constitutionalism to vote NO in the Referendum on 11th August 2016. On 11th April 2016 I filed my Petition in the Constitutional Court (Cause Number 2016/CC/0006), challenging, inter alia, the combining of the National Referendum and the General Election. My prayer was that it be heard BEFORE the elections and I am still to learn when the Petition will be heard. But in the light of the one-sided aggressive promotion of the YES VOTE by President Lungu and his “Christians for Lungu” I must reiterate the other side of this contentious topic.
I emphasize that I am not opposing the Referendum nor the improvement of our Constitution and other laws but the timing, irregularity and politicisation of it for political gain. I am against the deceptive, dishonest, vote-catching scheme and the multi-dimensional questions hidden in the belly of the ECZ’s “one-answer” question (illustrated read below).
I appeal to concerned Zambians who value constitutionalism in Zambia to give me a hearing. I am aware that I all those opposing the Referendum are being labelled unpatriotic and Satanists as has become the pastime of some hate-mongering Christians; I do not care because what is at stake is the prevention of the continued official raping of the Constitution using uninformed and even illiterate citizens by those with an insatiable appetite for votes.
Some of my reasons for speaking out against President Lungu’s Referendum are: i. Betrayal of the people by the Law Association of Zambia (LAZ); ii. Poor leadership by the President who deliberately turned the Referendum into a partisan vote-catching stratagem; iii. Presenting a trick question that does not qualify as a Referendum Question; iv. The Census Imperative; v. A contradictory and incoherent Public Policy:
i. The U-turn by LAZ on the Referendum is a betrayal of the people of Zambia; worst of all their attempt to explain themselves is incoherent gibberish. LAZ ‘explained’ that they no longer were against the holding of the combined referendum and general election but then declared that they do not approve of the Referendum Question! Come on LAZ, this is Double Speak because the Referendum Question is the raison d’etre of the decision to hold a National Referendum! If you do not agree with it then you are saying you do not support the Referendum, and rightly so because there is no question to answer!
ii. Poor leadership by President Lungu (vis a vis Article 44 of the Constitution CAP 1) is depicted by his abrogation of his legal duty and obligation under the Referendum Act and turning the Referendum into a partisan PF stratagem for vote-catching. On or about 21st May 2016, during the live launch of the PF manifesto at the Independence Stadium, the President in tandem also launched the Referendum and revealed that he was going to VOTE YES and directed his audience to do likewise because “the PF Central Committee had so decided”! He repeated this same instruction on another live broadcast during the Africa Freedom Day at State House on 25th May 2016; and since then he has not relented and almost on a daily basis he has continued to insist that voters must vote yes but without explaining or discussing the actual Referendum Question. Literary the whole nation was listening to his address carried live nationally on radio and television. In spite of his abdication of his national duty and obligation the PF are condemning those promoting a contrary opinion, accusing them of ‘politicising’ the Referendum – what could be more politicisation of an issue than combining the launch of his political party’s manifesto with the launch of the non-partisan National Referendum? More Double Speak!
iii. The Referendum Question is really a deceptive electoral scheme consisting of “several questions disguised as one” (see the question below). LAZ was correct to reject the question but wrong, double wrong to support the Referendum!
iv. The Census Imperative: Conducting a census is a credible legal formula for establishing the mandatory 50 % mathematical threshold. By not holding a census before the Referendum scheduled for 11th August 2016 President Lungu has thrown away this credible formula for determining the said 50 percent threshold; it is my humble contention that holding a census should or must be a condition precedent to the holding of the referendum on 11th August 2016, for how will the 50 % threshold demanded by law be arrived at? The last national census was in 2010 and since then every minute that passes new voters have come of age. This Referendum is a fraud to say the least!
v. Public Policy: the Minister of Justice, Honourable Dr Ngosa Simbyakula, MP addressed the last Parliament in its final session last year, giving three grounds for opting for a National Referendum. The three grounds in sequence were a. The Cost Element; b. The decision to take the whole document (Constitutional Bill) to Parliament to determine non-contentious issues and c. To conduct a National Referendum. I quote verbatim the relevant parts of the Minister’s address, namely Ground Three of the three grounds:
“Mr Speaker I beg to move that the Bill be now read a second time….. To be successful, the Constitution development must involve all stakeholders, which leads me to the third ground.
Sir, admittedly, in the Patriotic Front Manifesto, we advocated for a referendum as the mode of adopting the Constitution. There is no doubt that the best manifestation of the expression of the will of the people on an issue is through a direct vote of all voters in a referendum. I repeat, on an issue. In other words, a referendum is the most democratic way of deciding single issues. For example, if we, here in Zambia, want to decide whether to maintain or abolish the death penalty, a referendum will provide the Zambian people with the most democratic and direct say in the matter. That will be the best expression of the will of the people on the death penalty.
Mr Speaker, similarly, on one hand, the Bill of Rights is one such issue on which the people can decide in a referendum. On the other hand, a Constitution is not a single issue, but a complex, multi-dimensional document consisting of a multitude of diverse issues. On reflection, we, like many Zambians, came to the realisation that on multi-dimensional issues like the Constitution, a referendum as a mode for decision-making, faces serious practical challenges.
Sir, the Draft Constitution before us consists of 322 clauses. Unless and until we can find a practical way of determining the will of the people on each of the clauses, a yes or no vote to the whole document cannot reflect the true will of the voter on the ground. It is not possible for a voter to agree on all the 322 clauses. To request the voter to say either, ‘yes’ or ‘no’ to a whole document when he/she may accept some clauses and reject others, places the voter in a serious dilemma. A yes or no vote on the whole document would not be a true reflection of the will of the people.
….we are of the view that we proceed with it and enact the non-contentious clauses in the Bill.
Hon Government Members: Hear, hear!” End of quote.
Now do you agree that this Referendum Question is a single issue question? I don’t because it is a multi-choice type of question that cannot reasonably attract only a yes or no answer as illustrated below. Now here is the actual Referendum Question published as a supplement to the Zambian Government Gazette dated 23rd May 2016 and quoted verbatim:
“Do you agree to the amendment to the Constitution to enhance the Bill of rights contained in Part III of the Constitution of Zambia and to repeal and replace Article 79 of the Constitution of Zambia”.
Please notice the duplicity in this question. This is a multi-dimensional question as defined by the Minister himself, with several questions hidden in its belly. Here is my surgical analysis of the “question/s”:
a. First Question, do you agree that the current Part III of the Bill of Rights, which contains at least 22 clauses, be amended? YES or NO?
b. If YES which of the clauses do you say YES to? And if NO which ones? [Of course this suggests that the 22 clauses should be listed as part of the multiple-choice Referendum Question!]
c. And then do you agree that Article 79 of the Constitution be removed and replaced? YES or NO?
d. Do you agree that the Constitution of Zambia (Amendment) Bill 2016, published in the Zambia Daily Mail, which is the proposed new Part III Bill of Rights and which contains at least 66 clauses, be amended as proposed? YES or NO?
e. If YES or NO which of the clauses do you say YES to and/or NO to? [Again the 66 clauses must be listed as part of the multiple-choice Referendum Question, giving a total of 88 clauses!]
How and why did the President classify this as a single issue question? This is official deceitfulness; and there is a real threat of the re-emergence of the One Party State as happened before. This deceit is a replay of the fiasco following the 1969 Referendum when a scheme was hatched which later led to the establishment of the “Chona Commission”, the harbinger of the One Party State. The pattern is the same: briefly, the complaining Zambians were told that if they wanted the Government to repossess land from absentee Land Lords (white farmers especially in Southern Province who had relocated to South Africa and other places), they should vote yes. Zambians voted yes en masse and gave the UNIP Government about 80 to 84 percent. But did they get the Promised Land? Instead of land they got the One Party State because power was given to the Government and Parliament to tamper with the Constitution.
Neither the President nor his Ministers and other PF supporters have explained or justified the complex Referendum Question – they are using deception: instead of land as before, today they are using ‘enhanced economic rights’ which is selling very well like the land promise!
The Referendum Question in its current form is not a single issue, but “a complex, multi-dimensional document consisting of a multitude of 88 diverse issues”! What reason do you have to vote YES to all of the 88 clauses instead of to those you agree with? It is a trick – so VOTE NO! A standalone Referendum can be held later after a proper multiparty consultation leading to consensus on the identified single issue, preceded by a census of eligible Zambians whose details shall be documented in the Census register, NOT projections.
There you are; commit hara-kiri but do not say you were not warned of the Writing on the Wall – ‘I have said my own’!
[5TH AUGUST 2016]