Constitutional-making process requires wide consultations-Dora Siliya

Constitutional-making process requires wide consultations-Dora Siliya

DORA SILIYA ON CONSTITUTIONAL AMENDMENTS

The principle of democracy is that the majority views carry the day. But American President Thomas Jefferson attributed the strength of a democrat to the ability to defend the right of opposing views to be heard. Later, British Prime Minister Margaret Thatcher implied that strong character is not to be afraid to have an opinion, even when it may not be shared by the majority.

The above, in my view, continues to capture the essence of the democratic political process.
At independence, Zambia had the 1964 constitution, which provided for multiparty democracy and a prime minister as head of government, based on the British system.

This was altered on 13th December 1972, when Zambia was declared a One Party Participatory Democracy which gave way to the 1973 constitution. In 1991, the constitution was amended to allow for a return to multiparty democracy.

This version was later amended significantly in 1996 and included new clauses on parentage status to determine citizenship. Since then, many attempts have been made at crafting a constitution that represents the citizens’ will, today, and into the future.

The history of constitutional making has mostly been preceded by nationwide consultation. The Chona Commission was the first in 1972 and led to the introduction of a one party state under UNIP in 1973, when a new constitution was adopted.

Following the wind of change to return to multiparty politics in 1991, the Mvunga Commission went nationwide as well, to hear the views of Zambians on many issues, including the death penalty. A new constitution led to the first plural elections since the one party state was declared in 1972. By the end of 1991, the United National Independence Party (UNIP) lost power and the Movement for MultipartyDemocracy (MMD), just about a year old then, became the second administration since independence in 1964.

In 1996, the constitutional amendments were preceded by the Mwanakatwe Commission and resulted in major changes to the 1991 constitution. A critical recommendation was the Bill of Rights guaranteeing citizens access to basics such as water and sanitation, health and education access, and decent housing. Some observers said the 1991 constitution was as good as repealed in 1996.

Finally, there was the Mungomba Commission in 2003 tasked to draft a progressive constitution for the nation after over a decade of plural politics. Once again, the commission went nationwide to seek the views of the citizens before submitting a draft. The new clauses included respect for human rights, freedom of expression, equality before the law, and provision for affirmative action for women and other disadvantaged groups.

It was at this point that a massive debate ensued on how the draft constitution would be adopted. While others argued that citizens elected parliamentarians to represent their interests, many in civil society expressed concern over leaving the adoption of such an important document to parliamentarians alone.

They argued that parliament represented narrow interests of the majority party, which would curtail critical debate that was in the interest of the citizens. Others, further argued that most of the MPs at the time, were  not well educated to deeply understand implications of the clauses, on the governance of the country (a grade 12 certificate is the minimum for one to stand as an MP).

In the end, the executive gave in, and in 2007, the National Constitution Conference (NCC) Act was passed to review the Mungomba constitutin draft and to adopt a final draft for parliamentary adoption The sitting included all MPs, civil society, religious, business, youth, women, children, and legal and traditional representation, among others.

The Patriotic Front (PF) political party boycotted the conference. In 2011, the NCC draft was defeated in parliament after the United Party for National Development (UPND), which changed its position to support the amended draft. This was even after UPND participated at the NCC. The Movement for Multiparty Democracy (MMD) went on to lose elections that same year, and the PF became the third administration since independence.

Immediately after taking office, the PF released their constitutional draft and gave forty days for the public to scrutinise it. The draft included a Bill of Rights and clauses on forced labour, freedom of association, assembly, and demonstration, among others. Provincial conferences were held to include all stakeholders before a final national conference adopted the final draft, which was adopted after much debate in parliament in 2015.

On 5th January 2016, an amended new constitution came into being. This version removed the presidential by-election clause and introduced a running mate and the 50+1 winning clause at presidential elections. The deputy minister position was scrapped, and MPs were also removed as ex-officio members of the local authority. To deepen democracy and enhance good governance, the mayoral/council chairperson position became elective through universal sufferage. However, the public order act was maintained.

The Bill of Rights clause required a referendum of 50+1 to be amended and was defeated at the August 2016 general election after a massive campaign against it by the UPND and some civil society organisation. However, the PF won the elections with a new candidate who had won the presidential by-election in 2015.

However, it did not take long before lacunas were noticed in the 2016 amended constitution. These pertained to clause 52 on nominations and withdrawal of candidates, the position of the Chief Justice (CJ) in relation to that of the President of the constitutional court (administrative wise they are at par but the CJ is head of the Judiciary), delimitation of constituencies and even Commissions provided for but not functional, among others.

Bill 10 was proposed by the government to address some of the outstanding issues. However, the government failed to garner the support of the largest opposition, the UPND and the Bill was defeated. At the end of 2021, the PF also lost the elections in a massive defeat to the UPND, which became the fourth administration since independence.

By 2024, rumours began circulating about a secret team drafting amendments to the current constitution. As 2025 dawned, the government campaign on amendments to the 2016 constitution took shape and focused mostly on electoral clauses. Proportional representation for women, youth, and those with disabilities was also re-introduced. However, the driving thrust appeared to be delimitation of constituencies a year before the general election from 156 to 21, elected first past the post.

There are many individuals and organisations who took position with amendents to the constitution even before the draft was released. Many opposed very strongly new clauses without nationwide consultation, as has been the practice in the past.

I have personally participated in three constitutional processes from 2007 to 2011, 2012, and 2016, and 2018 to 2021. It is the most sacred duty of an MP. The constitution is an embodiment of our soul as a people and reflects our common struggle, ambition, and hope for the self-actualization of even those not yet born. IT IS EVERYTHING.

However, I felt that I could not make an informed opinion until I had sight of the draft, and now I have. I will share my position on the various clauses all week, from Wednesday at 12 hours.

Remain blessed.