There’s no doubt our 2016 Constitution is a disaster and needs a complete overhaul.
We agree with Prof Muna Ndulo’s description of our Constitution as inept, an embarrassing document not befitting country like Zambia. Our Constitution is supposed to be a set of fundamental principles on which our country is governed. And as such, it is supposed to
provide clear guidance and structure for the improvement of our country. It is supposed to make our nation better than it was and our people better citizens. And changing or amending a constitution requires a lot of care and dedication. And the greatest challenge in such an undertaking is the great care put to solve the problems of the past and to address the expediencies of the moment instead of understanding and taking care of those of the future.
It is said that a constitution is made of a spirit, institutions, and a practice. The principles of a good constitution are irrecoverably lost when the constitution making process is dominated by the executive. This Constitution shouldn’t have been enacted into law. Michael Sata’s hesitation to proceed with the enactment of that rubbish into law should now be clear to all. Some cheap minds rushed to try and gain political mileage by enacting that rubbish into law. The lesson from all this disaster is that if a constitution is not in close accord with the way the society itself is constituted, it will be irrelevant to the everyday life of the people. A constitution will be a failure if it is no more than a beautiful portrait of an ugly society. But it must be more than an accurate depiction of how the society is constituted.
The amendments Edgar Lungu and his minions want to make are aimed at nothing but giving him a third term of office. This will certainly not make our Constitution a good one. A good constitution must be enough like the institutions and the people to be relevant to the working of the society, but it should also have what might be called formative features, a capacity to make us better if we live according to its provisions and adhere to its institutional arrangements.
Our Constitution is a disaster partly because it was being drafted to suit the immediate political interests or concerns of certain people. And because of this, our Constitution has too many details which end up creating veritable chaos. Our Constitution should consist only of general provisions; the reason is that it must necessarily be permanent, and that it should not calculate for the possible change of things. With Edgar’s clear desire to stay in power much longer, the amendments they want to make will clear the disaster but make things worse.
The changes to the Constitution should be intended to preserve practical and substantial rights, not to maintain Edgar’s hold on power.
Our Constitution should, therefore, not be the act of Edgar and his minions, but of our people.
Indeed, Zambians deserve a better Constitution. And without a good constitution, the legitimacy of our governments will always be questioned, doubted because government without a good constitution is power without a right. Thomas Paine said, “All power exercised over a nation must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”
Our Constitution must be aimed at protecting us from the criminals who often end up running our government. Our Constitution is not an instrument for Edgar and his minions to restrain us and keep themselves in power, it should be an instrument for us to restrain them – lest they will want to dominate our lives and interests.
We have no sensible alternative but to proceed on the lines being suggested by Prof Ndulo if we have to harbour any hope of a better Constitution.