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Zambia is undergoing a protracted process of constitutional reform which began two decades ago. Due to numerous setbacks, the constitutional reform process has been abandoned and restarted several times. An article in Voices from the Field on 29 January 2016 offers a detailed analysis of the constitution making process in Zambia to date. Although it appears that the latest attempt initiated at the end of 2011 may finally result in the much touted people driven process and content, many challenges continue to arise. Two questions are of particular concern.
First there is the question of whether a sequenced reform process can result in a new Constitution of Zambia. The procedure for amending the current Zambian Constitution (The Constitution to be replaced) is set out in Article 79 of the Constitution of Zambia Act no. 1 of 1991 as amended by Act no.18 of 1996. Article 79 permits the amendment of non- entrenched provisions by a two thirds majority in Parliament. Entrenched provisions, namely the Bill of Rights and Article 79 itself can only be amended through a referendum process. A successful referendum is quite cumbersome since it requires endorsement by 50% of the persons entitled to be registered as voters in presidential and parliamentary elections.
Effectively then, a new constitution is achieved through a unified process beginning with a national referendum. The enactment of the new Zambian constitution however is being done in two phases. Phase 1 is the enactment of non-entrenched provisions whereas phase 2 deals with the entrenched provisions. In January 2016 the Constitution Act no.1 of 2016 and the Constitution Amendment Act no. 2 of 2016 based on the non-entrenched provisions became law. The Constitution Act contains transitional provisions whereas the substantive constitutional provisions are found in the Constitution Amendment Act.
The Constitution Amendment Act however is not a complete document since it is missing the Bill of Rights and Alteration Clause. Having been passed by Parliament, the Constitution Amendment Act had to be confined to provisions that are not entrenched. The Technical Committee Drafting the Zambian Constitution (TCDZC)’s proposed Bill of Rights (which enjoys wide popular support) and Alteration Clause which need to replace the equally entrenched existing provisions will only be passed through a referendum process set to take place simultaneously with the country’s general elections in August 2016. It follows that the January and August amendments should then be viewed as one document and become in essence a new constitution but this interpretation of the process has yet to be realised. Furthermore the spectre of continuing voter apathy resulting in a failed referendum process continues to overshadow gains from the January 2016 amendment, since it is uncertain whether phase 2 will come to pass.
This brings us to the second problem. The TCDZC did not anticipate a sequenced process or substantive changes to the document when it submitted the Draft Constitution to the Government for enactment into law in 2013/2014. A delay by the Government in presenting the document to Parliament however led to popular calls (despite opposition party and some civil society resistance) to allow Parliament to pass the many changes in the document (which are widely favoured by a cross-section of society) thus avoiding the expense and risk of having an unsuccessful referendum; a reasonable possibility given the voter apathy which has marred election processes in the last decade or two. The opposition to having Parliament enact the non-entrenched provisions is equally well founded. Previous constitution reform processes have failed because past governments have repeatedly rejected popular constitutional recommendations that they find inconvenient; replacing them with a government white paper; leading to the enactment by Parliament only of provisions that the government of the day favours.
Although there was no white paper in 2015, changes were made by Parliament itself whilst debating the Constitution Amendment Bill no 17 of 2015. The changes made were few but have profound implications for future democratic governance and more inclusive participation in the political process. They include the rejection of a system of devolved governance; the rejection of a system in which cabinet ministers would not be drawn from members of Parliament; and the rejection of a mixed member representation system. It is unclear whether these provisions will be returned to Parliament for re-consideration at some future point since the main reason for their rejection is the country’s dire financial situation.
Given the two issues raised above as well as other challenges not discussed herein it remains to be seen whether the referendum in August 2016 will provide finality to this highly complex process.
Mulela Margaret Munalula is Associate Professor, University of Zambia, School of Law.