DR MBITA CHITALA – DIRECTOR, THE ZAMBIA RESEARCH FOUNDATION The Draft Constitution prepared by the Technical Committee on Drafting the Zambian Constitution (TCDZC) is a progressive document and provides a forum on which national consensus can be built. It however needs to be strengthened by addressing a few omissions and flaws that are clearly discernible from the draft. It is also important that since His Honour the Vice President Guy Scott on the BBC interview “Hardtalk” announced that we may have a national referendum before the end of this year, the Technical Committee or the Hon. Minister of Justice should be alive to this timing and provide the nation with a schedule that will enable the nation reach consensus and adopt the constitution.The current uncertainty regarding the time-frame the final draft will be available, when the Referendum will be held and when the new constitution will take effect, is not good for public plicy consideration. It is further worsened by the fact that the Technical Committee, by sending teams to all provinces to explain the constitution. is in contravention of their Terms of Reference of their committee as they are not supposed to start influencing public opinion. Rather, they should leave that responsibility to civil society. The tragedy is that the committee is a creation of the Enquiries Act and not on a specific Act as was the case with the NCC and so the committees' work is subject to abuse as it has been with other commissions in the past. As it is not known yet how citizens will usefully impact on the draft constitution, it will be necessary for the TCDZC to consider the following articles before drafting the final draft which will then be subjected to a National Referendum. PREAMBLE: The Paragraph reading “Declare the Republic a Christian Nation ……” appears to be contradictory to Art 27(1) which protects citizens from discrimination on grounds of religion and Art 35 which provides for freedom of religion and 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. This is also a clear case where any Constitutional Court would rule the provision as being unconstitutional. PART II – THE REPUBLIC OF ZAMBIA AND ITS SOVEREIGNTY: There is need to add a new clause 5(4): “For purposes of Clause (5), the formation of provinces and districts shall not be treated as establishment of new states. PART V11 – BILL OF RIGHTS: Article 32(2) providing for security of person to include two more sub clauses (c) not to be removed or extradited from Zambia and (b) not to be deprived of life intentionally. This is consistent with civilized international practice. The article on the retention of capital punishment should be deleted as it is an affront to all civilized behavior. Article 53 on older members of society needs to include following clause: (a)to remove the ambiguity,older members of society are all persons above the official retirement age. (b) The state shall provide for their benefits under an Act of Parliament ( Benefits to include such services as free medical attention, half fare on transport costs, lower tax rates etc. In Art 54, there is need to define concept of “Family” as referring to nuclear, extended and any union accepted by customary and international law. Art 37 should be re titled “Right of Access to Information” and Parliament should enact a law to provide for this. Art. 65 should include 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. There is need to have a new article on social security, to make social security a mandatory obligation of the state and such services should include shelter and other public goods such as roads and transportation. 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. PART VI – REPRESENTATION OF THE PEOPLE: Art. 80(1) on Independent and unopposed candidates to include the Presidential candidates - Need to provide an article to provide that bye elections will only be limited to independent candidate s Art. 105 (4) should provide that it is two thirds of eligible voters for a motion to impeach the President to pass and not only those attending to vote. Art. 121 on Provincial Ministers. Designation should change to Provincial Governors or Commissioners and the Constitution should provide for their election. - Provincial Governors and Deputy Governors must be elected by voters in Provinces instead of being appointed by the President - Ministers and Governors together with their Deputies must also attend Parliament to explain government policy and work as ex officios. Art. 122 providing for creation of Parliamentary Secretaries should be deleted as it is an unnecessary cost. - Ministers should attend parliament as Ex officios and non voting members. - Parliamentary Secretaries could then deputize for Ministers. Art. 142 should provide that the Vice President shall be the Leader of Government Business in Parliament instead of a Parliamentary Secretary. Alternatively,we should take the Chona Recommendations that provided for the possiblity of a coalition government.If this accepted, thenn there will be no need for running mate for the President.In this scenario, the President would then have the role of asking the majority party or coalition of parties in Parliament to form government.The leader of such a grouping would then be called a Prime Minister. In such a scheme, there would need to make consequential ammends to the draft to reflect this position. PART V11 – EXCUTIVE: Art 97 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. Art 103 on Tenure of Office of the President, the constitution should also provide that it will be an 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. PART VII1 – LEGISLATURE: Art. 143 Code of Conduct for MPs. This part should provide for the creation by the constitution of an organ to ascertain information provided and penalties – otherwise it is academic in its present form. An independent Ethics Commission or the Office of Public Protector would suffice. The current system where declarations are lodged with the Chief Justice is inherently wrong as the courts are appellant institutions. Art 143 on code of conduct should also provide for voters to have a right to recall an MP or Counsellor and that Parliament will enact legislation to this effect providing for grounds and the process for recall. PART IX – JUDICIARY: There is need to combine functions of Supreme Court , Constitutional Court and Court of Appeal into one to function as is and when need arises. There is no need to overburden our small economy with too many consumptive institutions. Art. 165 on Financial Independence of the Judiciary is neither here nor there. All government departments can demand the same independence. Our system is based on limited government principles. PART X- GENERAL PRINCIPLES OF DEVOLVED GOVERNANCE: The draft presentation is fine although we were warned by Prof. Patrick Mvunga SC that our constitution should not be too talkative. PART X1 – PROVINCIAL ADMINISTRATION: This part is most important for many patriots as the challenges of our country continuing to be a unitary state is anchored on this. It is important that devolution based on democratic principles is achieved. It is likely that without reaching consensus on this, the constitution making process risks to fail like the RB Banda proposals. Art. 202 on Provincial Minister should change, the designation should change to Provincial Governor of Commissioner. The position must be elective by the Provincial Electorate and not to be appointed by the President as is currently drafted. This robs the demand by the people for devolution. Art. 203 on Provincial Assemblies. Its composition must also be elective. The composition should include the Provincial Governor and his Deputy who will be a running mate, two elected representatives from each constituency. The elected Mayors/Chairmen of councils shall be ex officios. The proposed composition in the draft constitution comprising of unelected people is not only unnecessarily expensive but it is also un democratic. Furthermore, the powers of the Provincial Councils should include revenue raising from programs approved by Parliament. An equalization Fund for the provinces must be established by Parliament. CAPITAL CITY OF LUSAKA: There is need to create the Greater Lusaka Authority as the Capital of Zambia and establish for a Lusaka Authority, a Lusaka Assembly and an elected Mayor on the lines of Washington DC or London. PART XII – LOCAL GOVERNMENT: Art. 211(2) needs to be inserted to provide that Local Government shall (h) ensure equitable sharing of national and local resources. Art. 215 (5) should be inserted to provide for removal of mayors/chairmen , disciplinary matters , creation of boundaries . PART XIII - CHIEFTAINCY AND HOUSE OF CHIEFS: 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. Furthermore, since the Chieftainships are corporation sole as provided in Article 226(a) of the draft constitution, 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 and all manners of conmen by creating these community funds in which land royalties and other presents can be pooled and managed for the traditional communities. Parliament will then provide the appropriate legislation to manage these funds. PART XIV- PUBLIC SERVICE COMMISSIONS: There should be included in the Constitution a clause establishing and providing for the functions and powers of statutory institutions and parastatal companies. There is need to for the Constitution to create a Regulatory Body to supervise parastals and statutory institutions. In addition to the Commission suggested in the Draft Constitution, there should also be the Financial and Fiscal Commission to replace the ineffective Economic Advisory Council; National Land Commission – to superintend on all land matters and the Public Debt Management Office/Commission. PART XVII – PUBLIC FINANCE AND BUDGET: Article 265 on imposition of taxes should also provide for - Principles that will guide Zambia’s public finance such as accountability, equity, fair taxation and expenditure management as well as prudency and needs of future generations . The constitution should also create an Equalization Fund to support local government Article 283 on management of public debt should provide for the establishment of a Debt Management Office/Commission to centralize the currently haphazard management of finance and fiscal functions which have been abating corruption and abuses. PART XIX – LAND AND PROPERTY: Article 293 on Basis of Land Policy should include as Art 287(i) the objective of “Elimination of gender discrimination”. Article 295 on Classification of Land should delete “customary land” and substitute with “Community Land”. Customary land denotes tribal land which is anathema to Zambia as a unitary state. It is also advisable to 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 is the case in community lands (customary Land). 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 to the Chieftaincy. 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 . There is need to remove the one party practice and democratize land administration. The constitution should also establish a Land Development Fund and Parliament will provide legislation on its management. PART XX – AMENDMENT OF CONSTITUTION: In addition to the clauses in the draft constitution, there is also need to provide the constitution can be amended without a 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. PART XXI – 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. That the state shall abide by the principle of the right of self determination by communities. Dr. Mbita Chitala Executive Director Zambia Research Foundation Mobile: 0976 030398 Email: mbitachitala@yahoo.co.uk www.mbitachitala.blogspot.com