APPROACHES TO DEVELOPING A NEW CONSTITUTION FOR ZAMBIA

Muna Ndulo (Cornell University)

And
Chaloka Beyani (London School of Economics and Political Science)

I. Background:
1. Zambia has been engaged in several efforts to try and develop a new constitution in the
context of both demands for a more democratic constitution and the need to rebuild
Zambian political institutions which have been distorted by political manipulation over
the years. Both the ruling party and opposition parties and civil society broadly agree on
the need for a new constitution. They, however, differ on the process to be employed
in developing a new constitution and on the content of the constitution. A new
constitution for Zambia must provide important safeguards to ensure public
accountability, responsiveness to the electorate, participation of the people in
governance and the devolution of power to local communities.

2. Zambia has had several constitutions: the 1964 Independence Constitution, the 1973
Constitution and 1991 constitution. There have also been several major constitutional
amendments in particular the 1969 and 1996 amendments. In addition, there have
been a number of constitution review commissions including: the Chona Commission in
1972; the Mvunga Commission 1991; the Mwanakatwe Commission 1991; and the
Mungomba Commission of 2003.

3. Following the Mugomba Commission, the Mwanawasa Government held the 2008 -
2010 Constitution Review Conference. The Mungomba Commission was a result of civil
society organizations demands for a comprehensive review of the 1996 constitution.
President Mwanawasa appointed the Commission in 2003. The Mungomba commission
prepared a draft constitution and recommended that the constitution be adopted by a
constituent Assembly. The Mwanawasa government was opposed to the constituent

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 assembly idea and sought to ensure that this did not happen. This was largely because
the Mwanawasa government sought to control the constitution process to ensure that
the outcome was to its liking.

4. In 2007 following a meeting of all political parties represented in Parliament, it was

resolved that instead of a constituent Assembly, a National Constitutional Conference
be convened to deliberate on and adopt the Mungomba draft constitution. The process
was boycotted by a number of political parties (including the current governing party,
churches and civil society.

5. In August of 2010 the National Constitutional Conference presented its final report.
The draft constitution that came out of the process sought to amend parts of the
constitution while leaving intact the Bill of Rights section of the constitution in order to
avoid a referendum which is required to amend chapter three of the current
constitution. The draft failed to gain the necessary parliamentary majority required to
amend the constitution.

6. Of all the previous drafts, the most progressive draft, and one that appears to have the
most support, is that which resulted from the Mungomba Commission. It should,
therefore, form the basis of the future constitution of Zambia. The approach to the
making of a new constitution for Zambia must build on the past. It must be
participatory and be guided by dialogue, debate, consultation and participation.
Additionally, it should be guided by diversity, inclusivity, autonomy, accountability and
legitimacy. The process must be empowering to civil society.

7. It must be realized that developing an effective procedure to prevent the manipulation

of a constitution making process is a considerable challenge-one that would be helped
by clearly articulating the principles and mechanisms that govern the process. For
example, the 1993-1996 South African constitution making process articulated a set of

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 principles that were to guide the process. Such articulation of principles enhances the
process’ quality and increases the possibility of success.

8. The making of a new constitution in Zambia will require a legitimate, transparent, and
agreed statutory framework setting out the process, principles, mechanisms,
accountability and timelines. Comparable experience shows that the process will take
much longer than 90 days. A newly elected Narc Government in Kenya in 2002 had
promised a new constitution within 100 days. This timeline was not met and an ill-
conceived process, on which Zambia's previous National Constitutional Conference
appears to have been modeled, was initiated and failed to deliver. Devastating political
consequences followed as a result in 2007/2008. In the circumstances of that crisis, a
well thought out process established extensive consultations led by an independent
Committee of Experts operating under a statutory framework with proper safeguard
delivered a new constitution in 2010. The constitution was adopted in a referendum by
an overwhelming majority.

9. This time round, Zambia is well placed to avoid the type of constitutional crises that
happened in Kenya in 2007/2008 by building on past constitution making processes
described above with a well-managed process that should start within 90 days of the
tenure of the new Government. The country is also well placed to avoid political
confusion and manipulation of the constitution making process as in the case of
Zimbabwe at present. There are also important lessons to learn from the failure of the
immediate past National Constitutional Conference in Zambia.

II. Suggested Steps:

a. It is suggested that there should be no more review commissions to collect views of the
public. The views of Zambians on the future constitution for Zambia have been
adequately canvassed through several previous commissions indicated above. There is
no need to go into this again. In light of several previous Commissions already referred

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 to above, what is required now is a Committee of Experts of no more than 7 persons to
review the previous constitutional proposals and lead the process of making a new
constitution for Zambia. This was recognized in 1991 when a Task Force was appointed
to review past constitutional proposals and prepare a new constitution. Unfortunately,
the Task Force had no legislative basis and it was discontinued due to political
expediency and another Commission was appointed instead. The idea itself was correct,
but it lacked a legislative and legitimate base to implement it.

b. Members of the Committee of Experts should be persons known for their expertise in
constitution making. It is desirable that the committee include two non-lawyers
preferably political scientists. The committee must be representative in terms of gender
and diversity. It would be useful to include 2 non Zambians on the committee. It is
always useful to have the expertise of external experts to bring in comparative
experience. This will help to gain a comparative understanding of constitutional
practices and experiences from elsewhere. Persons who have participated in previous
constitution making exercises should not be members of the Committee of Experts. The
Committee should be appointed by the President subject to ratification by Parliament.
Prospective Zambian members of the Committee of Experts should be scrutinized and
vetted by a Committee of Parliament.

c. The Committee should adopt its own rules of procedure. It should also be able to
engage experts on specialized issues that need to be addressed in a constitution. One of
the mandates of the Expert Committee should be to look at all past Zambia
constitutions. The Committee should identify areas of agreement and disagreement.
The working document of the Committee should be the Mungomba draft. As earlier
pointed out this appears to be a draft that is generally accepted in Zambia as forming a
good basis for a future constitution of Zambia. The Committee should come out with a
draft Constitution of Zambia within a stipulated time frame.

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d. The draft Constitution should be submitted to a select Committee of Members of
Parliament for reaction. The Parliamentary Select Committee should not be too large.
It should be representative of all political parties in proportion to their representation in
Parliament. The Committee of Experts should dialogue with the Parliamentary
Committee on the draft. After the dialogue with the Parliamentary Committee, the
Committee of Experts should come up with a draft which takes into account the
dialogue with the Parliamentary select committee. All the time remembering that the
basis of discussion should be the Mungomba draft. The responsibility for drafting the
new constitution should remain that of the Expert Committee. The idea of a
Parliamentary Select committee is to ensure parliamentary participation in the process.

e. After the Parliamentary Select Committee’s reaction to the priliminary draft

constitution, the Committee of Experts should come out with a final draft to be
submitted to the public for public comment. The public review should be well
structured and of limited duration. It should last no more than one month. Public
participation at this stage increases the public’s understanding of the process.

f. After the public review, the Committee of Experts should come out with a final draft
Constitution to be presented to Parliament for Enactment. Subsequent to the
enactment, the constitution should be submitted to a referendum for adoption.

g. To avoid a prolonged process, the process must be subject to reasonable time frames
which should be clearly stipulated and made known. The process and the time frames
must be enacted into law.

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 III. Steps to be Taken to Implement the Process:

The following practical steps are suggested as the way forward:

a. A clear and public expression of political will and commitment to making a new
constitution should be made by the new Government, with process earmarked to begin
within 90 days of the Government being in office;

b. Steps should be taken within 90 days to begin to build political and civil consensus on
the desirability of a new constitution making process;

c. Preparation and adoption by Parliament within 90 days of a statutory framework

(legislation) to govern the new constitution making process. This is for reasons of
legitimacy, transparency, accountability, and regulation of the process; and

d. The statutory framework or Act must be designed in such a way as to guarantee success
of the constitution making process. To this end, it should specify the objectives to be
achieved, establish an independent Committee of Experts as a legal body to spearhead
the constitution making process, provide for the composition and functions of the
Committee, lay down the principles which will govern the making of the new
constitution, indicate the method to be used by the Committee, specify the timelines in
which key stages of the process must be accomplished, and narrate the roles of the
Parliamentary Select Committee, and the Parliament.

IV. Methodology to be Employed by the Committee:

Following consultations on these proposals, a draft statute should be prepared with objectives,
principles, structures, method, and timelines. The proposed structures, method and timelines
are as follows:

a. The Committee of Experts will review past constitutional proposals made by the
Mvunga, Mwanakatwe, and Mungomba Commissions as well as the National
Constitutional Conference and identify areas of consensus and areas of no consensus.
The Committee will then make proposals on how to resolve issues of no consensus and

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 apply international best practice to resolve these issues. The timeline for this would be
three months.

b. A draft of the proposals made by the Committee would be released to the public, with
formal and simplified versions distributed in all the Districts. The public would then have
one month in which to comment on the draft proposals made by the Committee and to
send their views to the Committee. During this period the Expert Committee should
encourage seminars and workshops to improve people’s understanding of the draft
constitution. The Committee would have a further two months to incorporate the views
of the public into a draft constitution.

c. Thereafter, the draft constitution will be presented to the Parliamentary Select

Committee on the Constitution. That Parliamentary Committee would have 3 weeks in
which to consider the draft constitution and refer it back to the Committee. Within one
month of receiving the views of the Parliamentary Select Committee, the Committee of
Experts will finalize a draft constitution which will be presented to Parliament for
enactment. Parliament will have 28 days in which to enact the constitution. Any
amendments to the draft constitution proposed by Parliament will require an
affirmative vote of 65% of the Members of Parliament present and voting in Parliament.
The same vote will be required to be met if the draft constitution were to be rejected by
Parliament. The new constitution will stand enacted if the dissenting vote in Parliament
failed to reach the 65% threshold.

d. In the event that the draft constitution is rejected by Parliament, the latter will present
to the Committee of Experts one week after the expiry of 28 days the reasons for
rejecting the draft constitution. Committee of Experts will within two weeks of receiving
the reasons from Parliament convene a meeting with the Parliamentary Select
Committee to consider those reasons and revise the draft constitution accordingly and
refer it to Parliament for enactment. Parliament shall enact the draft constitution as
presented within a week of receiving it.

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e. The Attorney General will publish copies of the proposed constitution for distribution
throughout the country and the Electoral Commissions and the Committee of Experts
will conduct civic education on the proposed constitution until the referendum. The
referendum should be held within two months of the enactment by Parliament of the
proposed constitution. The Electoral Commission will conduct the referendum and
decide on the symbols for the 'yes' and 'no' campaigns. The Committee of Experts will
lead the conduct of civic education in the period leading to the referendum and will be
assisted by the Electoral Commission.

f. If passed by the referendum, the proposed constitution will be published as the

Constitution of Zambia and will be promulgated by the President within two weeks of
being adopted by referendum.

g. If not passed by the referendum, the Committee of Experts, and the Parliamentary
Select Committee, will convene a meeting chaired by the Committee of Experts within
two weeks after the referendum to consider the way forward in making a new
constitution for the country.