Opposition MPs in Zambia this week attempted to force the government to release a draft of the new constitution, which thus far it has refused to do. A private members' motion was tabled on March 7 by members of the United Party for National Development (UPND) and the Movement for Multiparty Democracy (MMD) to expedite the constitution-making process. Following a vote this week the motion was rejected. Parliament was also adjourned on March 11 and will resume in June 2014, suspending further motions on the constitution until then.
The technical committee drafting the Zambian constitution (TCDZC) has taken three years to produce a draft constitution, and completed its work in December 2013. The justice ministry then directed that only 10 copies be printed and that they be handed to President Michael Sata. Many Zambians see the current Constitution from 1996 as defective in that it does not support multiparty democracy. Sata himself says he shares this view, and initiated the constitutional review process in 2011.
It is now thought the government has misgivings about some clauses in the draft. Minister of Justice Wynter Kabimba, the secretary general of the ruling Patriotic Front (PF) and who has been overseeing the process, has in the recent past cautioned about "certain clauses that could be potential source of problems in Zambia". He identified the clause concerning the country's proposed electoral model, known as 50% +1, as problematic, since if adopted, would minimise the potential for PF win in the 2016 elections. This is because PF – at the peak of their popularity – won 42% of the total votes cast at the country's last polls in 2011. PF popularity has since been on the wane and they have lost some by-elections.
Another sticking point is the age limit – 75 – for presidential candidates. Sata is 77.
Separation of powers?
The PF is also against provisions concerning the appointment of ministers outside Parliament since under its administration half the house is also in the executive. The effect of this has been a blurring of the separation of powers and a weakening of government accountability as well as an unprecedented frequency of by-elections owing to seats becoming vacant when ministerial positions are given to the opposition.
The impasse on the public scrutiny of the draft constitution also raises questions of legal procedure, in particular whether a national referendum on the constitution would be convened as required by law once the Bill of Rights in the constitution have been changed. The Bill of Rights was expanded to include rights of other groups such as the elders and children.
Similar questions are also being raised by civil society organisations, which despite government opposition have yielded a strong multi-stakeholder civil society force called the Grand Coalition on the demand for a People-Driven Constitution, established in January 2014.
Some of its demands to the government include that the final draft must be released immediately and open debate and review must be allowed and that non-contentious clauses must be enacted and contentious ones put to a referendum. The coalition has also said the government must account for $23-million that has already spent on the process since 2011.
Notwithstanding the current impasse, another $8.8-million has been put aside in the 2014 budget for the preparatory works for the enactment of the constitution.
Dimpho Motsamai is a policy analyst focusing on Southern Africa, from the Institute for Security Studies in Pretoria and McDonald Chipenzi, is the director for the Foundation for Democratic Process in Lusaka.