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The National Disaster Forum: Constitutionalism and the Challenge of Altering Zambia’s Constitutional Infrastructure

The just ended National Dialogue Forum (NDF) faces two significant challenges. The first is the substance of its proposals while the second is an enquiry into whether it has the legitimacy to suggest fundamental changes to Zambia’s constitutional infrastructure. We argue that the suggestions, particularly those to do with changing the constitution, are untenable. Further, we argue that even if these proposals were viable, the NDF lacks the legitimacy to propose those changes and have Parliament enact them. Here is why.

The NDF has proposed to allow for the formation of a coalition government if no candidate garners 50%+1 in a presidential election. The problem with this coalition presidency proposal has to do with the basic structure of our political and constitutional structure. Zambia runs separate elections of the president and that of Parliament. The elected president then chooses cabinet from the Parliament, which was elected separately. There is no guarantee in our system that Parliament will comprise members of the President’s party or any other presidential candidates. The President is elected separately, as is Parliament. The suggestion coming from the NDF is that if a presidential candidate fails to make the requisite percentage, they will be given time to negotiate with another presidential candidate to see if they can make it to 50%+1. In that scenario, the NDF has not explained what that new win will mean. If they call it a coalition, the problem becomes that you cannot have a presidential coalition. Only one person can occupy the presidency, and you cannot, therefore, create a coalition presidency. The word coalition means – “an alliance for combined action”. Zambia cannot have an alliance presidency as there can only be one president at any given time. If the NDF means that the supplier of the deficit points will form a government with the principal, what they are suggesting then is either a coalition of Parliament or some other coalition which has so far not been explained to the people. It cannot be a parliamentary coalition they are talking about since the 50%+1 applies to the election of a president and not to the national assembly.

We doubt if the NDF ever thought carefully about what they were suggesting. In any case, ten days or even 16 days can never be enough to deliberate, thoughtful constitutional issues and then come up with viable and legitimate bills to change a nation’s constitution. The only way by which you can gather for ten days and then come up with constitutional changes is if those changes were already pre-determined and then the NDF is used as a rubber stamp to legitimise changes that have already been created elsewhere.

In the second challenge, we argue that the NDF lacks the legitimacy to change the constitutional infrastructure of our Republic. The substantive changes being suggested by the NDF go to changing the constitutional infrastructure of the Republic. Changes to any country’s constitutional infrastructure require some level of popular participation. Tradition in Zambia has been that constitutional review commissions have been set-up to traverse the length and breadth of this country to find out what the people of Zambia want in their constitution. It is this commission mechanism that gives legitimacy to constitutional amendments. Without a genuinely national approach, the NDF cannot represent the wishes of the people. The NDF is labouring under a very mistaken belief that since their name says “national” they must then be national. The NDF first is not national. It is representative of mostly Lusaka dwellers. So the Attorney General and the Minister of Justice within weeks came up with a list of organisations to attend the so-called national forum. From the list of attendees itself, it is clear that it was full of Lusaka dwellers. Second, the NDF in its wisdom thought that the best way was to let the organisations themselves fund its delegates. The NDF, the Attorney General and the Minister of Justice genuinely believed that citizens from Milenge and Chipata should pay their way to come to Lusaka to participate in this constitutional review commission for 16 days. The unfortunate result of this chipantepante approach is that the constitutional amendment process was left to the rich and those who could afford to pay. This was not a constitution review mechanism; it was a pay to play. It was a gathering of the rich and powerful who could afford to pay themselves. Any deliberations from this NDF cannot be legitimate. Third, the NDF lacks constitutional legitimacy since it had no representation from key sectors such as the church bodies and Zambia’s official opposition party. Some are sadly suggesting that the UPND was represented because some UPND MPs were present at the NDF. UPND MPs are not the UPND party. UPND MPs are MPs, but they are not the UPND party, and they do not speak for the party. Without the UPND party being part of the deliberations, the NDF cannot claim the legitimacy to effect constitutional changes.

The NDF is suggesting changes to how mayors and councils are elected. These changes go to the heart of our constitution. We support Mayor Kang’ombe’s objection to the NDF’s proposal to fundamentally change the infrastructure of the constitution. As for the amendment of the preamble to exclude other religions, our comment must be brief and to the point – it is a very hopeless amendment not worth any salt or sugar.

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