A Comment by Prof Ndulo on the National Dialogue

THE NATIONAL DIALOGUE (CONSTITUTION, ELECTORAL PROCESS, PUBLIC ORDER AND POLITICAL PARTIES), 2019

By Muna Ndulo

(a) Introduction

The Zambian Government has announced its intention to enact into law a bill to implement the National Dialogue (Constitution, Electoral Process, Public Order and Political Parties.)

The draft bill proposes to establish a forum to make amendments to the 2016 Constitution, the Elections Law and the Pubic Order Act. In brief comments, I would like to give an assessment of the proposed bill. It is clear, after reading the draft Bill, that the Government has little understanding of the functions of a constitution. It has even less knowledge of the dynamics of, and relationships between, institutions and procedures and seems unaware of several examples of successful constitution making processes in Africa and elsewhere in the world and what lessons they give on how to design a constitution in making process that is inclusive, transparent and ensures meaningful participation by all citizens regardless of tribe, class, religion or political persuasion. I would also like to state that I completely support the analysis and views of the Three Church mother bodies and the eleven NGO on the proposed bill. Their clear and correct understanding of constitutionalism makes me believe that despite the challenges we face today in giving our country a decent constitution, we need not despair. It is sad that those who want to push through this process and their surrogates have paraded a collection of characters who have no understanding of the role of a constitution in a democratic dispensation to publicly demonize the Church mother bodies and the NGOs. How does being a chief, a purely hereditary position, make one a constitutional expert? These behaviors undermine the dignity of our traditional leaders. It is indeed a theatre of the absurd. George Orwell might well have had Zambian society in mind when he observed: “political language is designed to make lies sound truthful and to give an appearance of solidarity to pure wind.”

(b) An Evaluation of the Draft Bill Establishing a Dialogue Forum

In 2007 Zambia embarked on its third attempt to develop a democratic and legitimate constitution since multiparty politics were introduced in 1991. The process was boycotted by several opposition political parties, NGOS, churches and other stakeholders. Despite the boycott, the process went ahead. It was manipulated by the MMD the then ruling party and the resulting draft constitution failed to produce a durable constitution. It seems that the nation did not learn anything from the failed 2007 process. The proposed 2019 constitution making process is deeply flawed and will fail to deliver a constitution that is legitimate and provides a framework for the democratic governance of Zambia. The primary flaws in the process are the following:

(a) the process itself is inherently unrepresentative and is completely dominated and controlled by the party in power; (b) it is ill designed to build consensus ; (c) the legislation creating the forum does not say a word about its philosophical approach to the constitution but its phobia about values, transparency, institutionalization of accountability and policy is quite evident in its provisions; ( d) it is not guided by any constitutional principles; (e) it is not clear what attention the process gives to the drafting of the constitution itself-an essential component of preparing the constitution and one of the shortcomings of the 2016 Constitution; and (f) the process is coercive and gives the impression that it has little understanding of the functions of a constitution. It has even less understanding of the dynamics and relationships between, institutions and procedures; (g) it shows disdain and disrespect for the views of the public and other stake holders who do not support the ruling party; (h) it is not guided by an understanding of the abundant best practices in Africa and the rest of the world of countries which have had successful constitution making processes e.g. Kenya (2010 Constitution process), South Africa (1993 and 1996 Constitution Making Process) and Namibia (1989 Constitution making process.) to name just a few. There are a lot of important lessons to be learned from these processes. The Zambian Government also does not learn from the failed past processes in the country (including the 2007 and 2016 processes). Further, the forum, has an unrealistic timeline for its work thereby making it open to abuse by those who want to manipulate the process, and advance their accumulation agenda. Article 14 of the proposed bill states that: “the Forum shall complete its work within a period of ten days from the date of the first sitting of the members under this Act or a longer period that the Minister may specify by statutory instrument.” This essentially means the Minister, without recourse to anyone, decides the timeline. In successful constitution making processes reasonable timelines are given and are agreed to by all stakeholders and are then secured by legislation.

The draft Bill, describes the Forum it is setting up, as a forum for the implementation and enhancement of the Siavonga resolutions for proposals to- (a) alter the constitution, based on the draft amendments proposed in the Constitution based on submissions from the stakeholders specified in the Schedule, following the enactment of the constitution of Zambia (Amendment) Act, 2016, and additional submissions from the church, and (b) reform the law on the electoral process, public order and regulation of political parties based on submissions from various stakeholders.” The Siavonga resolutions do not deal with the parts of the 1991 Constitution that requires a referendum to change. That means that this process does not address Chapter 3 of the Constitution which contains the bill of rights. It follows that social economic rights are not on the table. This more than anything reveals the real intentions of the government-not to produce a sound constitution but to rush through Parliament amendments designed to undermine their political competitors.

The Forum is so large that it will be completely unyielding to good management and is reminiscent of the 2000 Zimbabwe Constitutional Forum which had up to 400 members and failed to produce a constitution. There can be no meaningful discussions in such a large forum, especially one completely controlled by the Government. The Members of the Forum are appointed by the Secretary to the Cabinet. Article 5 (1) provides: “The Forum consists of all Members of Parliament and the following members appointed by the Secretary to the Cabinet.” It further provides that “The members of the Forum can on the recommendation of a standing committee be removed from the Forum and their membership terminated by the Secretary to the Cabinet.”
The secretariat of the Forum will be appointed by the Government. This is provided in article 11 (1) which states that: “the Secretary to the Cabinet shall appoint a Secretary to the Forum as head of the Secretariat for the purposes of the Forum.” And in 11 (2) that: “the Ministry responsible for justice is the Secretariat for the purposes of the Forum.” In Zambia the Secretary to the Cabinet has limited space to act independently in a system heavy on patronage. The question remains why take this approach. Why would a democratic system not allow stakeholders to choose their representative without reference to government? Organizations should have been allowed to pick who ever they thought would represent them well and the Government should have no role in that. To complete Government control of the process, article 5(a) provides that “The president shall subject to ratification by the Forum at the first meeting of the Forum appoint a Chairperson of the Forum.” The approach here shows little schooling in principles and effectiveness of representation. Instead it encourages patronage. To further underline the control of the process by the government, the President, under article (19) of the draft bill is free to dissolve the forum should he think that it is not fulfilling its functions.

In what is clearly a poorly drafted provision, article 4 (1) of draft Bill gives the Forum wide ranging functions, including the following: altering the constitution based on the draft amendments proposed to the Constitution based on submissions from the stakeholders specified in the schedule. Aricles14 (5) (6) gives the Minister the right to submit the draft bills to Parliament for enactment. In another equally badly drafted provision article 4(3) requires the Forum to be accountable to the people of Zambia and in (4) (d) to ensure that the final outcome of the adoption process faithfully reflects the wishes of the people of Zambia. The legislation does not even attempt to provide any monitoring or control mechanism to ensure that these outcomes are achieved making the provisions empty rhetoric. It is noticeable that most successful constitution making processes have a technical committee composed of constitutional experts to advice the constitution making body why certain provisions are required in a constitution. In all the processes that I am familiar with all stakeholders have a say as to who these experts should be. They are never imposed by the government on the other stakeholders. The Zambian process can be likened to building a house without an architect and engineer. Another matter of concern is the Forums decision making process. The draft Bill provides that: “Questions before the forum or any of its committees shall be determined by consensus, but in the absence of consensus, decisions of the Forum shall be determined by simple majority vote of the members present, except that voting shall be by secret ballot.” This is a very dangerous provision. There is absolutely no incentive to work towards consensus in this situation when you have a built in majority. It is in the interest of the majority party that there should be no consensus so that it can use its majority to adopt provisions of its choice. Experience shows that this approach is divisive. In Kenya (2010) and South Africa (1993 and 1996) there was no voting. All decisions were adopted by consensus. This encourages inclusiveness and promotes a sense of ownership of the constitution by all stakeholders. As Mandela observed in his address to ANC delegates during the drafting of the 1993 interim constitution: “you are drafting a national constitution and not a party document.” Those words were true in that context as they are true in our context today.

The process of adopting a constitution is as important as its substance. The ambivalence on the role of experts in constitution making by the draft Bill is troubling. Experts play an important role in constitution making. It is not enough that there are lawyers among members of the Constitutional conference just as it would not be enough to have general medical practitioners where a patient requires heart surgery. You would need a surgeon in such a situation. The two groups have difference expertise and experiences. Although it is important that a constitution making process be a local product experts encourage and enhance the local process by ensuring the observance of international standards as reflected in international human rights instruments most of which Zambia have been ratified by Zambia. Foreign experts would give inputs from a comparative constitutional law perspective. Experts would also give the best practices of different parts of the world and especially from other African countries. Moreover it is important that a constitution is justiciable and viable and that it does not conflict with Zambia’s international obligations freely acceded to by Zambia. No doubt the Kenyan, Namibian and South African constitutions serve as some of the best models of constitution arrangements that provide important safeguards to ensure public accountability, responsiveness to the electorate, and participation of the people in the governance of a state. The process followed in the elaboration of the South African constitutions teaches us that in order for a people to feel a sense of ownership, the constitution –making process must ensure extensive consultations with the people and all stakeholders in the country before the constitution is drawn and adopted. The process must be inclusive transparent, accessible, accountable, and empowering to civil society. It worth mentioning that in the Kenyan process, members of the Expert Committee that drafted the Kenyan constitution openly referenced the South African constitution as many countries including Zimbabwe, Colombia etc. have done. The idea was how to improve on what South Africa had achieved.

A democratic constitution, as Yash Ghai has ably observed “serves as an all time charter of government and not an instrument of power”. This is because it is made to serve all the people of all generations. The draft Bill completely forgets that the clamor for a new constitution in Zambia is based on the public’s justified unhappiness of the misuse of Presidential power by successive presidents since independence in 1964. The people are concerned about the concentration of power in the executive, highly centralized system of governance, excessive state control with limited capacity to govern, limited devolution of power to local communities, the prevalence of appointments to the civil service and public sector based on ethnic or geographical considerations, mediocrity in leadership, lack of transparency and endemic corruption. They realize that a country’s welfare as a polity is defined by the health of the three arms of government and the caliber of the men and women that run them. They are concerned about the independence of the judiciary. The 2016 Zambian Constitution more than the 1991 constitution as amended in 1996, it replaced, gives enormous powers to the executive without any checks thereby promoting authoritarianism. It allows the President limitless powers without any restraint whatsoever including making appointment to all important position in the three spheres of government. Zambians want to put in place a constitution that ensures and guarantees good governance and creates a capable state that is able to deliver services to its people and guarantees human dignity.

Comparative constitution law and constitutional design literature show that it is unwise for citizens to entrust constitutional making to the Government of the day. That is because members of the government have vested interests in the existing status arrangements which they invariably wish to protect and defend in the new constitution and will oppose any change which conflicts with these vested interests. The ruling party is trying to hijack what was intended to be a peoples’ process by constituting itself into a body that serves as a vehicle for promoting party interests. Rather than consider the people as central to the process they have reduced the people into mere spectators. But it is the people’s support of the document that gives the constitution its legitimacy. Politicians and ordinary citizens have diametrically opposed interests in constitution making. While ordinary people are interested in values, accountability, social justice, transparency, morality, human rights and security, politicians are obsessed with the structure and the power of the executive. This is because the politicians see the constitution as an instrument of power and domination. We must decide on a system of government not on the basis of the ambitions of a few politicians, but on the principles of democracy, participation, accountability and efficiency. The process the Government wishes to implement through the Forum offends the basic conception of a good and inclusive constitution making process in a democracy. It appears to be based on the view that a constitution is an instrument or weapon of power to be used by the politicians of the day to attain their ambitions. The challenge for Zambia remains how to achieve a stable political and constitutional order that promotes development and good governance and guarantees citizens their rights and governance under the rule of law regardless of their gender, color, sex, or ethnic origin. This calls for the development of political, economic, and administrative institutions for the proper governance of the state. Zambia needs to settle the constitutional debate and get on with addressing the extreme poverty that is the daily life of our people.

In conclusion, I would like to remind our politicians that in a developing country like Zambia with a great diversity of people, the constitution also serves as a social contract among the people, establishing common values and social solidarity.

This is not going to happen as if we continue with the proposed process. The constitution should seek to provide a vision for us as Zambians and for our people as a nation. Strengthening Zambia’s democracy will demand that constitution making be guided by the need to expand the frontiers of democracy and accountability to the people rather that to bend to the passing needs of elite power sharing, which is accelerating the fragility of African democracies. In the end whether Zambia’s long search for a democratic constitutional order will one day come to fruition will depend on leadership. Zambia needs leadership that has a big picture and has a vision to transform Zambia into an inclusive, fair and democratic state and sees the constitution as a transformative document for the achievement of those goals.

The Authour is a William Nelson Cromwell Professor of International and Comparative Law Cornell Law School and Director Cornell University’s Institute for African Development