Zambia has a Constitution conflict between the ConCourt and High Court, says Kabanda


ZAMBIA is now faced with a Constitution conflict between the Constitutional Court and the High Court because the supreme law of the land has not yet been finalised, says Simon Kabanda.

And Kabanda, who was a member of the technical committee drafting the constitution from the 2011 to 2013, has suggested that a National Referendum to amend the Bill of Rights should be held together with the 2021 Presidential and General Elections as holding it separately is costly.

In a statement made available to The Mast headed: ‘Constitution-making beyond 2018’, Kabanda stated that the journey towards completing the

Constitution-making process in Zambia was still on.

“The current Constitution making process started 25 years ago, with the appointment of the Mwanakatwe Constitution Review Commission (CRC) in September 1993. Unfortunately, it has been an unnecessarily, very long process…the Presidential Assent to the 2016 Constitution

Amendment Act could have marked the conclusion of the constitution making process that was started in September 1993. But it did not. This was because an important part of the Constitution was left out of the equation of constitution making. And this part was the Bill of Rights. As a consequence, today there is a ‘constitutional conflict’ between the Constitutional Court and the High Court,” Kabanda said.

He suggested that in order to have a ‘relatively perfect’ Constitution in 20 to 30 years from now, Zambia should adopt a practice whereby during every presidential and general election, there is a referendum question to fine-tune the country’s supreme law.

Kabanda stated the PF government made positive strides towards making Constitution reforms a success project.

He indicated that one such positive stride was made with the creation of the Technical Committee on Drafting the Zambian Constitution (TCDZC) in November 2011.

“The product of the TCDZC was the 2016 Amended Constitution, which was assented to on 5 January 2016,” Kabanda said.

He further revealed that the Bill of Rights in its current form does not sit well in a document that provides for the Constitutional Court.

Kabanda said matters regarding violations of human rights ought to be handled by the Constitutional Court.

But Article 28 refers them to the

High Court.

“Going forward, there is need for government to embark on a process that will eventually culminate into amending the Bill of Rights to include the economic, social, cultural and other special rights, in accordance with the draft Constitution that was produced by the TCDZC. However, the Bill of Rights can only be amended through holding a successful National Referendum,” he said.

“One impediment to holding the National Referendum to amend the Bill of Rights is the cost. However, holding it together with the 2021 Presidential and General Elections is a solution to this impediment. A successful National Referendum is what will conclude the constitution

making process and produce a complete Constitution,” Kabanda indicated.

He, however, called for preparations to hold the referendum to start earnestly.

“We know the various factors that contributed to the failure of the 2016 Referendum. Those factors can easily be addressed if we begin to prepare for the Referendum now…the first step now is constituting a Referendum Preparations Committee (RPC) which should be tasked to prepare the people of Zambia for participation in the National

Referendum to be held alongside the 2021 Presidential and General Elections,” Kabanda suggested.

He further said there was need for a minimum period of 18 months of preparations in order for Zambia to have a successful referendum.

Kabanda also suggested a road map towards the holding of a referendum to amend the Bill of Rights, with preparations being held between January and June 2019.

He said from July 2020 to August 2021, the period should be reserved for the preparation of the presidential and general elections.

He noted that while the 2019 budget does not provide for Referendum Preparations Committee (RPC), this could still be done, citing how the TCDZC was constituted and began works on December 1, 2011 despite not being budgeted for as an example.

“Financial resources were allocated to the (TCDZC) process in June 2012 through a supplementary budget…” Suggested Kabanda./

1 Comment

  1. Xavier Mbita

    December 9, 2018 at 8:28 am

    A nation on trial

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