Constitutional reform agenda has many times been driven by a party in government with a motive to entrench itself in power

The Jesuit Centre for Theological Reflection (JCTR) says the celebration of 58 years of independence provides Zambia with an opportunity to introspect and check the worrying tendency of crippling and destroying the opposition by hook or by crook.

JCTR Executive Director Fr. Alex Muyebe, S.J said for democracy to thrive in Zambia, a healthy and vibrant opposition is needed.

Fr. Muyebe said:”We end by quoting a renowned and respected politician in this country: ‘Winning an election without your main competitor is no election at all. That is why ruling parties that we have seen before, have won by-elections and when the general elections come they lose because of creating uneven playfield in the by-elections.’’

He said the 58th independence anniversary celebration should be used to advocate democracy in the country.

“As long as the constitutional reform process continues to be driven by the Executive, a perception that “the current administration is manipulating the Electoral Commission of Zambia (ECZ) and the judicial process to increase their number of MPs in parliament for the purpose of amending the constitution to entrench themselves in power” will persist. We all know too well that this will inevitably have a negative impact on our budding democracy. This celebration of 58 years of independence provides the nation an opportunity to introspect and check the worrying tendency in this country of crippling and destroying the opposition by hook or by crook. For democracy to thrive in Zambia, we need a healthy and vibrant opposition,” Fr. Muyebe said.

Fr. Muyebe has since called for credible and people centered constitutional reforms.

He said the executive arm of the government should not interfere with constitutional reforms.

“Over the past 58 years, the nation has made some strides in realizing the true potential of democracy through a democratic system of government in which supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodic free elections. Some of the characteristics of a good democracy which successive governments have been entrenching to varying degrees include respect for basic human rights, a multi-party political system paired with political tolerance, a democratic voting system, respect for the rule of law, democratic governance, and citizen participation. One outstanding issue in Zambia’s democratic architecture is the on-going process of refining the Constitution of the Republic. Zambia has had the constitutional reforms of 1972 and 1991 under President Kaunda, the reforms of 1996 under President Chiluba, and the reforms of 2016 under President Lungu,” Fr. Muyebe said.

“All these attempts to refine the constitution have struggled to give Zambia a solid legal foundation which expresses the hopes and dreams of the people. Unfortunately, the constitutional reform agenda has many times been driven by a party in government with a motive to entrench itself in power. It is not clear if the current administration will be any different and avoid the pitfalls of the past by ensuring that the constitutional reform process really does result in a document that the people have participated in drafting by considering the input of different interest groups in the country. The Problem of a Process Driven by the Executive A major problem with past amendments of the Constitution has to do with the process of amendment. Previous presidents have opted to establish either commissions of inquiry under the Inquiries Act, or have used their executive powers to establish committees to prepare draft constitutions.1 Therefore, we have had drafts prepared by such commissions as the Mung’omba Commission under President Mwanawasa in 2003, and by the Technical Committee on Drafting the Zambian Constitution, instituted by President Sata in 2011,” he said.

Fr. Myebe said in order to ensure a people-driven constitution Zambia needs a legislative framework, the amendment of Article 79 of the Constitution and getting input from different stakeholders.

“In order to ensure a people-driven constitution the following three components to constitutional reform need to be in place: A Legislative Framework The first component involves legislation. To avoid the Executive branch of government being able to exert a disproportionate influence on the process, and to give all stakeholders a chance to provide their input, a legislative roadmap needs to be enacted. When South Africa was preparing its draft final constitution, this was done by following the roadmap set out in the Interim Constitution. When Kenya was preparing its draft constitution, the process to be followed was stipulated in the Constitution of Kenya Review Act of 2008. Therefore, in South African and in Kenya, legislation was needed to carefully set out the procedure to be followed. This legislative framework is crucial to a successful constitutional reform process,” Fr. Muyebe said.

“Amendment of Article 79 The second component involves the amendment of Article 79 of the Constitution of Zambia. Article 79 deals with situations where the text of the constitution is modified. In particular, it stipulates that if any provisions of the Bill of Rights are to be modified, a national referendum would need to take place. However, the wording of this section needs to be amended in order to avoid the injustices of the past. The wording indicates that in order for a successful national referendum to take place, not less than 50 percent of the registered voters need to vote. This formulation of the provision led to an injustice in the 2016 referendum. According to the results of that referendum, 71% of people voted in favour of the referendum. However, because only 44% of those entitled to vote actually voted on the day, the referendum failed,” he added.

Fr. Muyebe continued:”Getting the Right Balance of Input Between Different Interest Groups The third component involves getting the right balance of input between three key players in the reform process: namely, the politicians, the legal professionals, and the public. As much as one would advocate avoiding a disproportionate influence by politicians over the reform process, one needs to provide space for their input. They are the elected representatives of the people. As such, their ideas will be important in producing a solid constitutional draft for the people. Additionally, the views of legal professionals are required, since the constitution is essentially a legal document. Finally, submissions from the public are indispensable, since we desire a people-driven constitution.”

“The only problem is how to justly deal with the input from each of these players and arrive at a reasonably representative document, without allowing input from politicians to trump over input from other interest groups to ensure that the document enshrines the aspirations of the people and thereby providing the much needed legitimacy and ownership,” he concluded.