Commenting on the national dialogue Bill that would result in the formation of the National Dialogue Forum (NDF), Prof Muna Ndulo says it is clear that the government has little understanding of the functions of a Constitution.
“It has even less knowledge of the dynamics of, and relationships between, institutions and procedures and seems unaware of several examples of successful constitution-making processes in Africa and elsewhere in the world and what lessons they give on how to design a constitution-making process that is inclusive, transparent and ensures meaningful participation by all citizens, regardless of tribe, class, religion or political persuasion,” says Prof Ndulo.
“I would also like to state that I completely support the analysis and views of the three Church mother bodies and the eleven NGOs on the proposed Bill. Their clear and correct understanding of constitutionalism makes me believe that despite the challenges we face today in giving our country a decent Constitution, we need not despair. The proposed 2019 constitution-making process is deeply flawed and will fail to deliver a Constitution that is legitimate and provides a framework for the democratic governance of Zambia.”
Prof Ndulo says the process is ill designed to build consensus, the legislation creating the forum does not say a word about its philosophical approach to the Constitution but its phobia about values, transparency, institutionalisation of accountability and policy is quite evident in its provisions, it is not guided by any constitutional principles.
Comparative constitution law and constitutional design literature show that it is unwise for citizens to entrust constitutional-making to the government of the day. That is because members of the government have vested interests in the existing status arrangements which they invariably wish to protect and defend in the new Constitution and will oppose any change which conflicts with these vested interests.
The ruling party is trying to hijack what was intended to be a peoples’ process by constituting itself into a body that serves as a vehicle for promoting party interests. Rather than consider the people as central to the process, they have reduced the people into mere spectators. The process the government wishes to implement through the Forum offends the basic conception of a good and inclusive constitution-making process in a democracy. The challenge for Zambia remains how to achieve a stable political and constitutional order that promotes development and good governance and guarantees citizens their rights and governance under the rule of law, regardless of their gender, colour, sex, or ethnic origin.”
It’s very clear that Edgar Lungu’s interest is in prolonging and defending his rule. And, at any cost, he has to enact a constitution and other laws that facilitate that.
But for true liberty, the Constitution is its palladium.
In a country as large as ours, it is literally impossible for any one individual, or agency, or government to know all there is to know in order to ensure the safety and happiness of the people. Our Constitution must recognise this, and therefore guarantee the principles of individual liberty and limited government.
We are embarrassed for their sake that they can make these ill informed and intentioned NDF arrangements to change the Constitution knowing very well where we are coming from as a nation on constitution making processes.
The Constitution is not something to play slate, insolo or injuka with by Edgar and his minions. It’s of crucial importance for every person who lives in Zambia. It is supposed to guarantee our most basic rights, including our right to life, freedom, property and to participate freely in our democratic system.
It is supposed to articulate the values for which Zambia stands and the goals for which we strive.
It is supposed to actively promote the equality of all Zambians, prohibits unfair discrimination of any kind.
The constitution-making process cannot be left to whims of those with a majority in parliament.
This is especially important for the political and other minorities. The majority can usually secure its interests through its control of Parliament and the levers of state power. Minorities on the other hand are often dependent on the Constitution and the law for the protection of their most important interests.
A good constitution provides a blueprint for peace, justice and harmony.
As citizens of the Republic of Zambia, we don’t have one single thing that binds us all together except our Constitution. We are not a single ethnic group, we are not a single religious group, and we have a very extensive history as a people.
Throughout history, it is the exception, rather than the rule, that individuals of different ethnic, religious and political groups can live together peacefully. We need a Constitution that enshrines the principle that government exists to protect the rights of all citizens, and has no legitimate power to deprive any citizen or class of citizen of their rights without due process of law.
We have so far been able to live together peacefully; and when we have failed, it has been because of the failures of citizens to respect the equality of all under the Constitution, or the failures of public officials to respect just limits on power.