Prof Muna Ndulo

By Julia Malunga

The Constitution Amendment Bill is a mad idea, but I have faith in the Zambian voters because they are not foolish, if they were foolish, Kaunda would still be President after 1991, Chiluba would have stood for a third term and Rupiah Banda would have won in 2011, says Constitutional Lawyer John Sangwa State Counsel.

And American-based Constitution-making expert Professor Muna Ndulo says the whole Constitution Amendment Bill must be withdrawn even if it may have a few progressive proposals, arguing that even in the rubbish bin, when you look long enough, you can find something useful, but it doesn’t change the fact that it belongs in the rubbish bin.

Meanwhile, Kabwe Central member of parliament Tutwa Ngulube who attended the event, asked Prof Ndulo to withdraw the rubbish bin reference, but an agitated audience thwarted his demand.

Speaking during the News Diggers, OSISA, Eden University and Prime TV-organised public discussion forum last Friday, Sangwa said the Constitution Amendment Bill No.10 was about giving back absolute power to the executive which President Edgar Lungu unwittingly ceded when he enacted the 2016 Constitution Amendment Bill.

He charged that the Patriotic Front was pushing the Bill in order to create a mechanism that would enable it win the 2021 general elections by all means, adding that he had faith in the Zambian voters because they are not foolish.

Below is the summary of Sangwa’s opening remarks:

“Let’s look at this issue not through a partisan lens. Let’s forget our political orientation or whatever political tag you carry is inconsequential. If we do that, we will be able to answer this question how dangerous this bill is to become law. My answer to this is that it is very dangerous.

This Bill is contrary to what other people are saying that it is about cleaning up the Constitution, it is not about cleaning up the Constitution, it is about power and more power, that is what this is about. It is about 2021 elections no matter how hard you try to mask it.

We need to acknowledge one thing, that since January 2016, the President made something very unusual which has never been done by all previous presidents. He signed an instrument into law which is the Constitution Amendment Bill of 2016 which amended the 1991 Constitution as amended in 1996.

This Bill is about reversing whatever advances we made in 2016. When I saw the President signing the Bill, I did not believe that he was going to sign it because the Constitution that was there in place, this was the Constitution that enabled [Levy] Mwanawasa to come into power with 29.8 per cent of the votes. For some reason, he (President Lungu) decided to change that to provide for 50+1. I don’t know whether he over estimated his own popularity, but the point is that whatever happened, it was good for the country because the problem is that we are being played by the issue of power.

The bottom line is if you look at the amendments, my position remains that President Edgar Lungu is not eligible to stand for election in 2021 but these changes are designed to stop that from happening! They are designed to enable him to be able to stand in 2021.

When it comes to Parliament, you will find 15 amendments affecting Parliament. For the first time, the budget was a secret that is why we didn’t know the extent of the debts the country had acquired, now there is proviso saying that before you contract a debt, that debt has to be approved by the National Assembly, they want to eliminate that. So all these institutions will lose their powers and the only office that will gain will be the Office of the President. That is the reason we need to fight against this to make sure that the Bill does not become law.

What we are dealing with is the mutilation of the Constitution. That should not be allowed to happen. Technically, whatever is being proposed is illegal, it alters the basic structure of the Constitution. There are some in-built mechanisms to protect the Constitution. For example, Article 61. That article says ‘in the exercise of your legislative authority, you must protect the Constitution’. None of these provisions protect it, they actually seek to destroy it and it for that reason that the proposed Bill is illegal.

And speaking at the same event, Prof Ndulo submitted that the whole Amendment Bill must be withdrawn because it was unconstitutional.

Below is a summary of his opening remarks:

“In my submission today, I want to convince you that the amendments they are proposing are unconstitutional.
We have to realise that a Constitution is a basic structure and it is about the separation of powers…A Constitution should be a document of special character, subject only to the ultimate will of the people and nobody else and hence the high offices created by the Constitution are themselves subject to the Constitution. Parliament is created by the Constitution, so is the Judiciary and the Executive and so they all can only exercise powers as given to them by the Constitution. So if you get into a situation where Parliament thinks it is above the Constitution, it is wrong, isn’t it?

The project of Constitution making in Africa has been one of trying to reduce executive powers. I think Thomas Jefferson put it very nicely when he said ‘the two enemies of the people are criminals and the government, so let us tie the second down with the chains of the Constitution so the second will not become the legalised version of the first’.

And I think that is very true. The greatest danger to democracy is always the Executive because they control the monopoly of force and therefore, are most able to intimidate all other agencies and that is why you need to control them.

So I think that leaves me to look at what I see is wrong with the current amendments. The project has been one to democratise the Constitution. In Zambia, we have tried to do that since 1991 and I think the reason why we have failed is because the processes we have adopted have not been the correct process, they are not inclusive and there has been constant efforts by whoever is in power to control the process.

In my view, the proposed amendments seek to undermine the basic structure of the Constitution. They undermine the separation of powers and seem to concentrate powers in the presidency which in fact defeats the project of making our Constitution more democratic. For a start, the amendments are too broad, there are lots of amendments dealing with almost every aspect of state powers, public life in the country and moreover there is even an omnibus clause which says it ‘provides for matters connected with or incidental with or incidental to’, well I don’t know where we are going or what that means but there seems to be an attempt to capture everything and anything just in case you forgot something.

If you look at Article 107, the proposal is to delete the words ‘physical or mental’. Basically what they are doing there, this will stop Parliament from enquiring into the physical or mental health of the President. And check any other Constitution in the world, this is a common approach because you are dealing with the medical condition, if there is a medical issue, why should it not be enquired into?

The legislative intention in the existing law should be that Parliament has a final say via secret ballot as to whether the findings made out, or the allegations have been made out, but all that will cease and that will not be the case. To remove this power, is to make it possible for the finding of the tribunal to be an heir of vulnerability, it removes the capacity of Parliament to ratify or value the outcome of such tribunals. I must say how much this consolidates power in the head of the President and puts pressure on the committee as to investigate is quite clear. It will put tremendous expressions on those that are appointed to do that.

The same can be said when it comes to the amendments to the tenure on the Office of the Vice-President and the vacancy. Tragically, the amendments seek to eliminate tenure limits because the person who assumes those offices will no longer be serving an expired term of office, equally the person who has served the Vice-President twice will no longer be disqualified from serving third, fourth, fifth and tenth terms.

Coming to the Judiciary, there are a number of proposals that have been opposed by the reputable international organisations and they have issued statements worldwide to say that Zambia is wrong in trying to do this. They have unanimously come out and said the provisions are not correct and that they are a violation of international and regional standards.

The amendments relating to the Bank of Zambia which are really terrible! Banks all over, Central Banks, control economies through the mandatory policy. And this will be taken from Bank of Zambia and nobody else has done that. Why? Is Zambia so unique?

And the coalition government, there is obvious, complete lack of understanding on how the coalition government functions. The provisions they have put there are not workable. Secondly, when you vote for the President, you vote for an individual even though the party proposes that individual, you cannot transfer your votes from one individual to another you don’t have that authority constitutionally. The proposals on proportional representation don’t show an understanding of this concept in terms of thresholds, in terms of how it will work. Proportional representation doesn’t mean one thing. If you look at the South African model, it is different from Mexican model, it is different from the French model so you have to be very careful in terms of what you want to do and they are not clear on what they want to do.

My argument is that these provisions are unconstitutional. In 1964, the Indian Constitution developed the basic structure. And it is a constitutional principle that now has spread in many parts of the world, it sits on the basis that a constitution has basic features that cannot be altered through amendment by Parliament.

I’d like to end my remarks by quoting Mandela, “people come and go, customs, fashions and processes change, yet a web of judgmental rights and justice which a nation proclaims must not be broken. It is a task to ensure that the values of freedom and equality which underline the constitution are natured and protected so that they may ensure. Constitutionalism means that no institution and no office can be higher than the constitution. The highest and the most humble in the land owe allegiance to the same document, the same principles. The authority of government comes from the people, through the constitution, the people speak through the Constitution”.

Meanwhile, during the question and answer session, Ngulube asked the panelists what they felt the way forward was, suggesting that some of the provisions were progressive.

“I would like to find out, very few sentiments have been made regarding the way forward. We have before us, as Parliament on the table of the House the Bill to amend this Constitution and we have not heard whether Professor Ndulo or SC John Sangwa are encouraging the Zambians to come and make submissions because yes, we can condemn the context but what is the way forward?” Ngulube asked.

In his response, Prof Ndulo observed that even in a dust-bin, if one looked hard enough, he could find something valuable but that did not change the fact that it belonged there.

“You have to have a holistic approach. This is a basic document you are dealing with. Once, someone said to me, and I will repeat this, not to be rude but he said; you know, even in the dustbin if you look very hard, you will find something valuable,” Prof Ndulo said, sending the filled-to-capacity auditorium into pangs of laughter and applause.

“So the approach must be holistic, how does it fit? How does it work? You can’t pick one or two things.”

But Ngulube wasn’t having the analogy so he stood up on a ‘point of order’ in true Parliamentary fashion but the audience could not allow him to make his point amidst the jeering.

Moderator Joseph Mwenda, who is also News Diggers editor-in-chief, promised to allow Ngulube to speak later on.

And responding to Ngulube’s question on the way forward, Sangwa said the Bill had to be withdrawn because it had no single progressive proposal.

“What is the way forward? You have already tabled the Bill. You need to withdraw the Bill!” Sangwa said as the audience applauded.

“It is very simple. You cannot do something illegal and say ‘oh we have already done it, so what is the way forward?’ Whatever is being attempted is against the Constitution. This is illegal. Remember as MPs, you are bound by the Constitution so the primary question you must ask yourself is that; are you complying with the Constitution as it stands in the current exercise to amend it? And my view is that you are not!”

Among members of the audience who asked questions and made contributions during the discussion were political commentator Dr Sishuwa Sishuwa, who urged Ngulube to listen more to the electorate, an UNZA law student Joakina, who argued that putting religious clauses in the Constitution was dangerous, and Gift Beene, who urged government to withdraw the bill.

Others were YALI governance advisor Isaac Mwanza and ZCTU deputy secretary general Elaston Njobvu, who promised that the union was against the Bill because it undermined the welfare of workers.

“As ZCTU, we are interested in all those articles that you talked about but in the interest of time, something that is affecting us and agitating us is the removal of Article 39 which talks about the retirement benefits being paid promptly and Clause 2 has actually been deleted which states that in the event that the pension benefit is not paid, the employer shall maintain the employee on the payroll; that’s killing my members. And I want to assure you people that we are not going to support Bill number 10,” said Njobvu.

Concerned citizen Mwanakatwe Sikasuba and Grace Shankaya asked if the bill could be stopped through the courts of law and in response, Sangwa said he hoped the courts would strike down the Bill if they were to be independent.

Meanwhile, Ngulube braved the agitated audience once again to explain that his party had joined the rest of the Zambians in rejecting bad proposals, giving an example of the PF’s position on deputy ministers, a statement which threw the auditorium into laugher.

“I am aware that the majority of the people that are criticising this Constitution have not fully understood the entire context of the whole Constitution. There are provisions in this proposed Constitution which are progressive for example, the people who oppose this provision are speaking the same language as the ruling party for example the issue of Deputy Ministers, the PF has rejected deputy ministers just like the people of Zambia,” said Ngulube as people laughed.

“There are certain provisions that are progressive and others that are perceived to be retrogressive,” he continued, “It will not add any value to this process if that Bill was simply withdrawn and put in the graveyard of other Constitution amendment process. The Constitution amendment process will only make sense if we became bold ourselves and face Parliament and made our submissions and reject what you have rejected and in considering your report, Parliament will take your points into account. I want to say that it will not help us if we withdraw the Constitution Amendment Bill speaking right now, there is no law that allows anybody to stop Parliament from making laws.”

In his concluding remarks, Sangwa warned that Zambians were not foolish and they were capable of rejecting certain atrocities.

“I have taken the liberty to examine each and every provisions in the bill, there is no single progressive provision in that bill. What you are trying to do is to undo the progress we have made which you shouldn’t. My own view is that we have elected bad people to the Office of President. If you put good people in office, they will do good things because it is in their nature to do good things, if you put criminals in power, no matter how good the Constitution is, they will break it down,” said Sangwa.

“Maybe in 2021, we have an opportunity to try change that. Yes, we have painted a very gloomy picture here but the point is that I still remain very optimistic about Zambia. The reason is, I have faith in the Zambian voters, they’re smart. If Zambian voters were not smart, Kaunda would have been President after 91, Chiluba would have gone for a third term, RB would have won in 2011, so that is something to be hopeful about.”

And in his concluding remarks, Prof Ndulo stressed the importance of consensus in Constitution making.

“It has to be looked at as a national project and be inclusive. If you look at the South African process and the Kenyan process, everybody came to that process. There was no question of ‘you are a small party or you are this’. When you look at the South African process, even the chairing of the meeting changed every week so that all 27 parties shared the process. People need to feel that they are wanted, that they are participating. I would like to make a plea that one day, my hope is that in this country, we have a national constitution which is embraced by everybody. I have seen countries where people proudly walk around with their constitutions,” said Prof Ndulo. -ND

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