Zambia's draft constitution fails scrutiny

Critics say the Zambian constitution-drafting process has been intrinsically flawed. (Jerome Delay, AP)

Critics say the Zambian constitution-drafting process has been intrinsically flawed. (Jerome Delay, AP)

A draft constitution for Zambia released last month by a government-appointed technical committee has drawn criticism from an eminent lawyer because of “insufficient debate and the absence of legislation to insulate it from political manipulation”.

Last year the Zambian president, Michael Sata, appointed a technical committee comprising 20 eminent Zambians to draft a constitution. The committee was given 12 months in which to conclude its work and released the first draft for public scrutiny last month.

The spokesperson of the committee, Simon Kabanda, said the draft copy was released to give the public a chance to analyse the document and give their input on it.

He said the public had 40 days from the time the draft constitution was launched to do so.

But a distinguished Zambian legal academic, Muna Ndulo, professor of law at Cornell Law School in the United States, has cast doubts on the credibility of the process.

Ndulo helped to draft the constitutions of South Africa, Zimbabwe, Kenya and Afghanistan. He worked in Johannesburg between 1992 and 1994 as chief legal and political adviser to the United Nations. Ndulo holds a master’s degree in law from Harvard University in the US and a doctorate from Trinity College, Oxford, in the United Kingdom. However, he has never been invited to take part in any of Zambia’s several constitution-drafting processes.

Praise for Mandela
Ndulo has praised former president Nelson Mandela for his exceptional leadership when he guided South Africa to a world-class constitution.

Earlier this month he told a group of Catholic student priests at St Dominic’s Major Seminary in the Zambian capital, Lusaka, that Mandela’s selflessness had ensured that the constitution-making process was a great success.

“I remember him walking into a discussion at Kempton Park ... and he said: ‘You guys are working on the constitution, please do one thing – don’t draw an ANC constitution. You are here to draw a South African constitution. We can discuss policies after that. Please look at the larger picture.’”

One of the main reasons for why the South African constitution process succeeded, Ndulo said, was because people talked. “There was a debate for one year just about what do we want to do. So they said: ‘We want to have a nonracial society, yes, we want a society that is not sexist.’ And those principles were drawn and then adopted by legislation.”
Ndulo added: “If you look at the Zambian process, we don’t have a legal framework within which we have been doing things. We had commissions … and you see the problem with the commissions is that you report to the president and after that you have no control.”

This view is shared by Caritas Zambia, one of the country’s leading civil society organisations.

Lack of consensus
The organisation notes in its analysis of the draft constitution that, “with regard to the current process, there is no legal instrument that safeguards and protects the constitution-making process and its content”.

Experts say Zambia’s failure to have a constitution that addresses the political, social, economic and cultural interests of its citizens is owed in part to a lack of consensus.
Ndulo said the big lesson he had learned in his work was that the constitution-making process had to have a clear road map and be inclusive.
“You can’t say the substance is going to be right when the process is wrong. It just doesn’t happen. You could get miracles, no doubt, but I think ordinarily those things don’t happen that way.”

Ndulo said the most successful constitutions were those in which there was a complete separation of powers between the three arms of government – legislative, executive and judicial.

“I think one of the main issues that run through these processes is presidential power. The perception is that African presidents have too much power and the question is how do you structure the constitution in such a way that there are checks and balances. And one of the approaches to that is that there is a separation of powers.”

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