Isaac Mwanza writes…
*Does the Constitution now need amendment?*
By Isaac Mwanza
*Introduction*
Every time Zambia has a change of an administration, the priority target for the new administration is to amend the Constitution for the benefit of those who govern. The current attempt to amend the Constitution is driven by the desire to, in the name of curing lacunae, abolish the Constitutional Court and restore more power to the Presidency, a very bad motive. The Constitution does not need amendments but interpretation.
*Zambians were right…*
Zambians spoke loud and clear this year that they don’t want their Constitution amended. Renowned State Counsel, John Sangwa, was actually on record to state that there is nothing wrong with the current Constitution and civil society organisations run around to defend the Constitution against any amendments. This is the spirit that must continue in the next five years.
Of course, some of us advocated for amendments to this Constitution. I must concede that we were wrong to want to amend the Constitution which was not broken. The majority Zambians were right. It is actually good for us to acknowledge that those of us who took that path to amend the Constitution were wrong. There was no need to amend the Constitution.
*Resolving Constitutional lacunae*
Does the Constitution have lacunae which need to be cured through amendments? By now, history must have taught us that when you try to cure one lacuna with amendments, you create many more lacunae. Amendments is thus no perfect route to curing the lancunae contained in the Constitution.
Immediately upon amendments of the Constitution in 2016, the first lacuna which was noticed in the Constitution was that Article 60 did not allow Councillors to be sponsored by Political Parties as they were not categorised as State Officers. This lacuna was cured by interpretation of the Constitutional Court when two lawyers and an NGO approached the Court in the first ever case to be determined by the Constitutional Court.
Again in 2016, the issue of Ministers staying in office until another President takes over was also cured when the matter was taken to the Constitutional Court. The Court disagreed with the Executive and made the former Ministers to pay back the money they received during time Parliament was dissolved.
In the same year, when the question came up among lawyers on how to count 14 days, the Court gave an interpretation and now everyone agrees that we all know how to calculate 14 days for hearing a Presidential Petition. You do not need amendment to explain the meaning of 14 days now.
In 2018, when the then LUSAKA Mayor died, a question came up on whether the Constitutional allows a Councillor to contest the office of the Mayor as a way of filling up a vacancy. The Court again gave a very sound interpretation the provision which advances the spirit of the Constitution that a Councillor cannot contest the seat while holding that seat and neither can he contest the seat after resigning as he or she would have contributed to the vacancy.
In 2020, the Court also interpreted on whether a councillor (in extension all persons elected) who resigns can withdraw his or her resignation after it has been tendered. Again, the Constitutional Court cured that lacuna in the Constitution by giving a solid judgment on it.
From the above, it is clear the main role assigned to the Court was to deal with issues of interpretation of the Constitution whenever questions arise that border on governance or to clear lacunae in the Constitution when such arise. Most lacunae in the Constitution can be cleaned up through interpretation by the Constitutional Court, not complete overhaul. A complete overhaul just introduces more and more lacunae.
But it is clear that the Constitutional Court has never been a darling of the current administration because of how the 2016 Petition ended. A lot of accusations were heaped on the Constitutional Court when it was the lawyers on both sides that did not mind the time and kept bringing up one application against another.
There is no doubt that when you get an unfavourable judgment from any court, it’s normal to feel that the court is biased or to looked down on judges as is currently being shown by some of the lawyers. What we forget is that the Courts are not there to win anyone an a case. The Courts arrive at Judgment based on how the law and the arguments by both sides.
So attempts to amend the Constitution just for purposes of doing away with the Constitutional Court are not helpful at all. The Constitutional Court, which is the people’s court, must be allowed to stand side by side with the other Courts.
*Conclusion*
Members of Parliament must not be duped to amend the Constitution again. They will be creating an easy way to weaken the new governance system that has worked well in the last 5 years but they may also do things the way of the Mwalitetas who amended the Constitution and ended up barring themselves from standing as candidates