By Peter Sinkamba

IT IS NOT TREASON TO ADVOCATE TO AMEND ANY PROVISION OF THE CONSTITUTION

A few days ago, UPND Mwinilunga Member of Parliament Hon Newton Samakai advocated for the Constitution of Zambia to be amended so as to provide for a Federal State. Hon Samakai advocated for provinces to govern themselves.

This constitutional proposal have raised considerable debate, with one group of citizens, led by PF Lukashya Member of Parliament Hon George Chisanga labelling the advocacy as “bordering on treason”.

I disagree with Hon Chisanga. Any citizen of the country has a constitutional right to advocate for amendment of any provision of the Constitution of Zambia, if in their view, they think that the existing provisions are inadequate or inimical to the people of Zambia. For this reason, since 2016, alot of calls have been made by citizens for amendment of the Constitution to address perceived lacunas and inconsistencies noted from several unpopular decisions of the Constitutional Court. Such calls can never be labelled as treason because citizens have a fundamental right to express themselves on governance systems, including the constitution.

I remember in 1990, I was at the time one of the youths that were in the forefront advocating for amendment of the Constitution of Zambia to move from One Party system of government to Multi-Party system of government. That was not contemplated in any way as treason.

Also, 2000, the former President Fredrick Chiluba hire proxy youth to advocate for amendment of the Constitution to move from two-term tenure of presidency to limitless tenure. I remember working closely with Father Bwalya to oppose the third term advocacy. Those who advocated for third term (limitless tenure) were not perceived to have committed treason because it was within their fundamental rights to do so.

In any case, the provincial governance system that Hon Samakai advocated for is already provided for in the Constitution of Zambia Amendment 2016. The problem is that PF in government ignored to implement the governance system. Part IX GENERAL PRINCIPLES OF DEVOLVED GOVERNANCE in Article 147 provides for System of Devolved Governance.

Paragraph (1) provides that management and administration of the political, social, legal and economic affairs of the State shall be devolved from the national government level to the local government level.

Paragraph (2), provides concurrent and exclusive functions of the national, provincial and local government levels as listed in the Annex and are supposed to be prescribed.

Paragraph (3) provides that the different spheres of government should observe and adhere to the following principles:
(a) good governance, through democratic, effective and coherent governance systems and institutions;
(b) respect for the constitutional jurisdiction of each level of government;
(c) autonomy of the sub-structures; and
(d) equitable distribution and application of national resources to the sub-structures. 148. (1) Local governance shall be undertaken through substructures.

The other issue raised by Hon Samakai to justify his call for devolved provincial governance or federal system was benefit sharing of mineral revenue. He called for retention of significant mineral revenue in mining areas.

I recall that when the current Chief Justice was the Attorney General, I worked with him as an environmentalist, when drafting the Mines and Minerals Development Act 2008. Through advocacy we managed to include Section 136 in the said Act which provided for sharing mechanism of mineral revenue, particularly mineral royalty tax whereby Central Government would retain 60% and the host community for the minerals 40%.

From 2008 to 2011, the MMD government refused to comply with the requirements of Section 136. Also PF refused to comply from 2011 to 2015 despite several pleas from mining communities and NGOs. Rudely, PF repealed Section 136 in 2015.

From the above submission, it is clear that it is no offence, treason or otherwise, to advocate for amendment of the Constitution. And it is also clear that a call for equitable benefit of revenue accruing to host communities is not new. It was once upon provided for in the Mines and Minerals Development Act of 2008. If it were not for impunity of those in government between 2008 and 2015,