SUBMISSION TO THE NATIONAL CONSTITUTIONAL CONFERENCE (NCC) ON THE DRAFT CONSTITUTION OF ZAMBIA

ZAMBIA RESEARCH FOUNDATION (ZRF)
(Registered with the Registrar of Societies – Registration Number ORS/102/35/403)

SUBMISSIONS TO THE NATIONAL CONSTITUTIONAL CONFERENCE (NCC)
ON THE DRAFT CONSTITUTION OF THE REPUBLIC OF ZAMBIA
PUBLISHED ON 18TH JUNE 2010

SUBMITTED BY:

Dr. Mbita Chitala Chairman
ZAMBIA RESEARCH FOUNDATION, P.O. BOX 35443, LUSAKA , ZAMBIA
Tel +260 211 214777, Mobile: 0976 030398 Email: mbitachitala@yahoo.co.uk
___________________________________________________________________________

Dear Hon.Mr. Chifumu Banda SC
Chairman of the NCC
LUSAKA.



Since the NCC has finally produced a draft constitution, we as a civil society research organization with to present and recommend these submissions for the NCC’s considerations before you submit your recommendations to the Minister of Justice as provided in the NCC Act.
1. PREAMBLE
The Paragraph reading “Declare the Republic a Christian Nation ……” should be deleted as it is controversial, contradictory to Art 48(i) which protects citizens from discrimination on grounds of religion etc and Art 57(3) which provides for freedom of conscience. The multi-religious character of our nation can be added in the paragraph that “Recognizes the multi-ethnic, multi-cultural and multi-religious character of our nation”. Freedom of worship should not be used to infringe onto other peoples comforts however few they may be. Zambia should not adopt a State Religion.

2. PART II – THE REPUBLIC OF ZAMBIA AND ITS SOVEREIGNTY
a. Need to add a new clause: “For purposes of Clause (5), the formation of provinces and districts shall not be treated as establishment of new states
b. Need to add a new clause on culture to provide for promotion of Zambian culture, recognition of indigenous technologies, promotion of intellectual property rights and enacting legislation for communities to be compensated via royalties.
c. Need to provide that Presidential Flag, National Assembly Flag and the motto One Zambia One Nation shall be national symbols in Clause (6).
d. Need to include as Official National Languages Bemba, Kaonde, Lunsa, Luvale, Nyanja, Silozi and Tonga in addition to English in Clause 7(1).
e. Need to provide for a new clause on Decentralization and Access to Services to provide that “Zambia is divided into Provinces and Districts as specified in Schedule………..”
f. Need to provide a clause on State and Religion “That there shall be no State Religion”.

3. PART III - NATIONAL VALUES, PRINCIPLES, OBJECTIVES AND DIRECTIVE PRINCIPLES OF NATIONAL POLICY
a. Need to include in Clause 13(L) provision for “the state to provide education and other public goods such as roads”.
4. PART IV- LAWS OF ZAMBIA
a. Need to delete reference to “British Laws” in Clause 20(d)(f) and be replaced with “Foreign Laws” to allow Zambia to adopt good laws from any other country.

5. PART VI - BILL OF RIGHTS
a. Article 40(2) providing for capital punishment should be deleted and be replaced with a clause reading as follows:“A person shall not be deprived of life intentionally.” This is consistent with civilized international practice.
b. Art 47(5), should be edited to include civil cases in addition to criminal cases to allow persons to appeal for a retrial if new and compelling evidence has become available.
c. Art 49 should provide for the establishment of a Gender Commission whose objective will among others to provide for affirmative action for purposes of redressing imbalances created by history, tradition or custom.
d. Need to delete Art 50(2)© as it contradicts Art 51(1).
e. Need to delete the derogation in Art 51(1) starting at “ except that an Act of Parliament……” as this derogation would allow for the abuse of children.
f. In Art 52, there is need to define concept of “Family” as referring to nuclear, extended and polygamous marriages and not heterosexual unions or same sex unions or sorolate unions.
g. Art 52(5) outlawing same sex marriages need not be in the Constitution as it is controversial and may adversely impact Zambia’s international relations. Need to delete the clause.
h. Art 53 should include in persons with disabilities older members of society, refugees and displaced persons. Should include in the title these categories of persons.
i. Art 58)f) should be re- worded to delete the word “registration” as registration conflicts with freedom of expression. Rather, the word regulation suffices to prevent anarchy.
j. Art 59 be re titled “Right of Access to Information” and the constitution should provide for the right to access to information held by the state or any other person if required for protection of fundamental freedoms. Parliament should enact a law to provide for this.
k. In Art 60(3)(f), the word “registration” should be deleted as the idea is to regulate and not to subvert the freedom of the media.
l. Art. 66 should be more specific to provide workers rights to fair compensation, reasonable working conditions, to form and join trade unions, for employers rights to form employer organizations and for the right to collective bargaining.
m. Art 67 must be rephrased to make social security a mandatory obligation of the state and should include shelter and other public goods such as roads and transportation.
n. There is also need for the constitution to indicate the following in this Part:
- Right of citizens to shelter and housing; food; water; and sanitation
- Right of citizens not to obey unlawful instructions
- An article on consumer rights to provide for right to reasonable quality goods and services, information and protection of their health and safety as well as compensation for loss or injury.
- Need in Art 74 on enforcement of Bill of Rights to, for the constitution to establish the Human Rights Commission and define its powers in an enabling law of Parliament otherwise the enforcement provided currently would become an academic exercise.

6. PART VII - CODE OF CONDUCT OF PUBLIC OFFICES
This part should provide for the creation by the constitution an organ to ascertain information provided and penalties – otherwise it is academic in its present form. An independent Ethics Commission would suffice. The current system where declarations are lodged with the Chief Justice is inherently wrong as the courts are appellant institutions.

7. PART VIII – REPRESENTATION OF THE PEOPLE
a. Art 84(1) should be re-phrased to avoid wastage of public resources. By elections for MPs and Counsellors should be limited to seats falling vacant held by independent MPs or Counsellors. In all other cases where a vacancy occurs, a political party holding that seat should be able to nominate a replacement from their lists.
b. Art 87(2)(a) should not limit the chairmanship of the Electoral Commission to Judges only as this is discriminatory and unnecessary. Other citizens suitably qualified can also serve as Chairmen and as members.
c. Art 86 on the Selection Committee to peruse and recommend membership to be vetted by Parliament and then be appointed by the President as members of the Electoral Commission should be deleted as it is an unnecessary cost. The position where Parliament vets Presidential nominations is adequate.
d. Art 100(1) providing that only parties with representation in Parliament will be funded should be deleted and substitute with an article that provides for any political party participating in national as well as local government elections shall be funded on an equitable and proportional basis. The idea of funding only those with seats in Parliament is not only discriminatory but not fair to investing in democracy.
e. An additional article should be added to provide that “no civil servant shall hold office in a political party”. This is standard practice in all democracies.

8. PART IX – EXCUTIVE
a. Art 108(d) providing for a minimum age of 35 years to be elected and serve as President should also provide for a maximum age of 75 years as beyond that, most Zambians become senile and need to rest and enjoy their pensions.
b. Art 108(e) providing for a minimum qualification of First Degree to be candidate to the Presidency of Zambia should be deleted as it is controversial, divisive discriminatory and can lead to unnecessary judicial action.
c. Art 113 on Tenure of Office of the President, the constitution should also provide that it will be treasonable offence for a person who has lost elections or been removed as provided in the constitution to refuse to vacate office within the period provided in the constitution.
d. Art 128 on the appointment of the Vice President. The constitution should provide that the VP shall be a running mate so that the VP also has a national mandate when he acts as President. The costly idea of going for by elections when the office of President falls vacant will also be addressed since the VP would immediately be sworn in to complete the term of office.
- The constitution should also provide for both emolument and retirement benefits for the VP
- A by election should only occur if the office of VP is also vacant as that of the President.
e. Art 130(i) 131(1) , 132(1) as well as 128(2) allowing the President to appoint ministers from Opposition Parties should be deleted as this weakens our democracy and may enable the executive to rule without checks and balances. The commitment to multi-partism should limit a President to appoint ministers from the party that sponsored him or her and to citizens who are neither opposition MPs or Counsellors.

9. PART X - THE LEGISLATRE
a. Art 143(a) providing for 240 MPS to be directly elected is unjustifiable. This should be left to an enabling legislation which will be based on scientific study of demographic patterns, geography etc. The constitution should so direct.
b. Art 144(5) providing that Chiefs are not qualified to seek elective office must provide for a derogation that they can if they resign as chiefs.
c. The constitution should also provide for voters to have a right to recall an MP or Counsellor and state that Parliament will enact legislation to this effect providing for grounds and the process for recall.

10. PART XII – LOCAL GOVERNMENT
a. Article 212(2) on objectives of Local Government should include the following objectives:
- Ensure equitable sharing of national and local resources
- Facilitate decentralization/devolution of State organs, functions, and services from Lusaka to the Provinces and Districts
- Recognize the right of communities to manage their affairs.
b. Article 216(2)(3) on composition and functions/duties of District Council should provide in the constitution as a directive principles to any other legislation the following:
- That the Mayor and Deputy Mayor or Chairman and Vice Chairman shall be elected directly by the electorate from voters in the district who are not members of the council but pay ground rent to the council for their properties. And that the Mayor/Chairman and their Deputies will be ex-officicial members of the council.
- The Mayor/Chairman shall constitute the executive authority of the council and appoint other officers of the council with the approval of the Council
- That Parliament shall enact legislation to provide for the elections, removal of mayors, vacancy, functions and powers, boundaries of councils, relationships with central government, support of districts, conflict of laws, suspension of district councils etc.
c. Article 224(3) on consequential amendments. Need to delete reference of Provincial Minister as being a Deputy Minister as this conflicts with Article 133 that include Provincial Ministers as members of Cabinet.

11. PART XIII - CHIEFTAINCY AND HOUSE OF CHIEFS
a. Article 227 should be expanded to provide for the establishment of “Community Development Funds” in each district for the purpose of advancing development in each chieftainship. These funds under colonial rule were called “Native Authority Treasuries” for each “tribe” as the nationalities were known then. Since the Chieftaincies are corporation sole as provided in Article 226(a) and with power to manage land and other natural resources as provided in Article 227(2), it is necessary to protect chiefs from being corrupted by land speculators etc by creating these community funds in which land royalties and other presents can be pooled and managed. Parliament will then provide the appropriate legislation to manage these funds.

12. PART XIV PUBLIC SERVICE COMMISSIONS
a. There should be included in the Constitution a clause establishing and providing for the functions and powers of statutory institutions and parastatal companies.
b. The constitution should in addition to establishing the Public Service Commission, should also create all other commissions and provide for their functions etc. These commissions include the following:
- Teachers Service Commission
- Local Government Service Commission
- Salaries and Remuneration Commission – a new commission to standardize salaries in the Public Service etc
- Financial and Fiscal Commission to replace the ineffective Economic Advisory Council
- National Land Commission – to superintend on all land matters
- Public Debt Management Commission

13. PART XVII – PUBLIC FINANCE AND BUDGET
a. Article 265 on imposition of taxes should also provide for
- Principles that will guide Zambia’s public finance such as accountability, equitable, fair taxation and expenditure management as well as prudency and needs of future generations etc
b. The constitution should also create an Equalization Fund to support local government
c. Article 274 on management of public debt should provide for the establishment of a Debt Management Office to centralize the currently haphazard management of finance and fiscal functions which have been abating corruption and abuses.

14. PART XIX – LAND AND PROPERTY
a. Article 287 on Basis of Land Policy should include as Art 287(i) the objective of “Elimination of gender discrimination”
b. Article 288 on Classification of Land should be re- phrased to
- Delete “customary land” and substitute “Community Land”. Customary land denotes tribal land which is anathema to Zambia as a unitary state.
- Replace classification of “State Land” with “Public Land” as the concept state in this context is meaningless
- The constitution should also provide for Private Land which shall be held on freehold terms. This should be the case in community lands.
c. Article 292 on land tenure should include as article 292(5) a clause that land under “customary” classification can only be alienated to non-citizens on the basis of co-ownership with the chieftaincy and on which royalties will be paid.
d. Article 291 on the vesting of land in the President should be deleted and provide that land will be vested in the National Land Commission which will be a corporate sole etc. There is need to remove the one party practice and democratize land administration.
e. The constitution should also establish a Land Development Fund and Parliament will provide legislation on its management.

15. PART XXI – REVIEW, ADOPTION, AND AMENDMENT OF CONSTITUTION
a. In Article 303(4), the word “all” should be deleted as it is meaningless.
b. The constitution should also provide that the constitution can be amended without referendum by either
- parliamentary initiative and/or
- by popular initiative after collecting one million signatures of citizens
This completes the process and gives citizens avenues that can be less costly but consensual.

16. PART XXII – GENERAL PROVISIONS
The constitution should provide the following additional provisions:
a. That all international agreements shall be tabled in Parliament
b. That state organs may delegate any power or function to other state organs
c. Ascribe to the right of self determination by communities

Yours in National Service

Mbita Chitala PhD
CHAIRMAN -ZAMBIA RESEARCH FOUNDATION