The merry go round of constitution making in Zambia
By Brig Gen Godfrey Miyanda – 9th April 2013
Zambians are habitually good at shooting themselves in the foot. When they identify that something is wrong or not backed by law, they nevertheless go ahead to support, promote and/or contribute to the same wrong thing! Just now there is a second circus that has been going on for some time now, unjustifiably gobbling up billions of Kwacha, in the name of writing the so-called new constitution without legal backing.
When we first used the term “Tower of Babel” against the fallen NCC we were roundly condemned. Later that NCC (the First Twin) died in the manner we had predicted, in the process leaving behind its twin sister, whose name is still not yet clear. The Second Twin Sister was first named “Committee of Experts” by the President but did not seem to have any experts in the name of draftsmen. The President also appointed three Catholic Bishops to sit on the committee, but they did not accept, confirming that ZEC were never consulted. No enabling Act with defined terms of reference was promulgated. Many citizens and civil society organisations, including Transparency International, cried foul but are now quiet.
The Government has to date not indicated under which law the creature came into existence. Previous ones used to be under the Inquiries Act which civil society condemned. But today there is not even the Inquiries Act or any other provision of the law – it is ‘Donchi Kubeba’ all over again. The persons sitting on this Committee later dubiously claimed that they were created under “Article 44” even though the President never indicated so.
When the President announced the establishment of this so-called “Committee of Experts”, he did NOT state under which law he had done that. Further he included a Cabinet Minister, the then Minister of Justice Hon Sebastian Zulu. Justifying the inclusion of the Minister, he stated that this would make it easier for the Committee to resolve problems that may arise in the course of their assignment since Minister Zulu who had direct access to the President would revert to him. This obviously meant that the President would be kept up to date on what was going on (was he a secret member of the committee?) No wonder the President always condemned the contents of reports being presented to him even BEFORE he had read them. He knew in advance what was in a report that had not yet been presented to him! Now we are told the Silungwe Committee will take their report to the President; under which provision? At least the NCC was created under an Act of Parliament, the NCC Act. What is our issue? It is that without an enabling law we, the People, remain at the mercy of the Executive to decide as they please.
I recall attending the last public meeting of the Committee at the Government Complex sometime in April 2012. The committee was about to embark on their paper trail of expensive but unjustified tours of the hinterland. Since there was no proper or legal definition, I asked them two questions: how were they going to decide who attends the regional meetings that they were embarking on? How will they decide which submissions to accept after the people have submitted? The Chairman, His Lordship Mr Justice Annel Silungwe, categorically stated that they would not allow new submissions but only comments. He avoided the second question. We ask this question again: how will the Committee decide which submissions or even comments to accept or not accept? What is their mandate to do so? Why should a Committee that was tasked to use existing materials decide to conduct their own plebiscite after the failed NCC fiasco? Is the President obliged to follow the recommendations that will be submitted by this irregular Committee? One of the Members of this Committee, Mr Kabanda, popularised the maxim “process protects content”. What law is his committee following?
A government of laws and not of men means one that respects and observes the law at all stages of an undertaking such as the constitution-making process. We are convinced that Zambians will once again be taken for a ride. With the routine poaching of opposition MPs, promoted by the President himself, the numbers in the National Assembly are daily being manipulated and inflated in favour of the Executive with no legal safeguards. Fellow Zambians, the writing is on the wall; do not come and say that we did not ‘kubeba’ you!