MMD vice-president Reuben Sambo says the debate on Bill 10 in its current form is a perfect example of what happens when people succeed in confusing each other.
Reverend Sambo said the debate had reached a perfect point for interest groups to hijack it and use it to meet their own specific interests.
“The debate in its current form is the perfect example of what happens when people succeed in confusing each other about why they started out in the first place and why they have ended up where they are,” he said.
He said the effort which had culminated into bill 10 was initially only supposed to be limited to dialogue and reconciliation (primarily in the political arena).
Rev Sambo said the idea was to diffuse the tensions that had built up in society to address issues of political violence, deal with the refusal by some sections of society to accept the 2016 election results, as well as the Edgar Lungu presidency; deal with the unfair use of instruments such as the public order Act (POA); and the militarisation of cadres and unfairness in management of elections, among many others.
“This is what the meetings with His Excellency Mr Ibrahim Gambari (Comminwelth representatuve) were about. This is what the Siavonga meeting of political parties was about. This is also what the proposal for the Church-led process was supposed to be about,” he said.
He said the amendment of the constitution of Zambia was also proposed and envisaged by stakeholders as a separate issue altogether and was going to be undertaken as prescribed by the Constitution.
Rev Sambo said the dialogue and reconciliation process was to be undertaken as a separate process and in that proposal, the Church was going to be the main moderator, while the constitution making process was to be both a political and legal process as was always the case.
“Clearly, these were two separate processes. When you undertake things like dialogue and indabas, usually you need no serious legal frameworks to hold them. These are generally seen as social balancing acts which require no formalities nor frameworks serve for willingness to deal with a particular social issue or isssues. These are conducted under loose forums of citizens get togethers,” he said.
“However, when you identify a need to deal with amendments to the Constitution, then you must consider the different processes as provided for in the Constitution. It appears to me that whether deliberately, accidentally or mistakenly, these two important things were weaved together and that is where the problem began.”
He said it was a case of having a 20 tonne heavy load needing to be carried to a place, but one had only a wheelbarrow insight for the exercise.
Rev Sambo said the National Dialogue Forum (NDF) was sufficient as a forum of citizens but clearly would not suffice for repealing and amending the Constitution.
“So others argued that the NDF was a Special Purpose Vehicle specifically designed to carry the two processes together. But then there was no legal framework prior that operstionalised it as such. As a result, it was ‘binding’ (as in brake binding on motor vehicle brakes) right from the start. Whereas you can drive an indaba or insaka with simple chairman’s rules and rules that are made on the floor of the meeting, you would need a specially authorised vehicle to undertake constitutional reforms,” he said.
“It is similar to the issue of moving ordinary cargo versus moving explosives. You need no special vehicle to carry maize across a city, but you certainly need a specially designed and authorised vehicle to carry explosives through that same city. You need red flag vehicles in front and at the back, you need well trained personnel too and a couple of licenses before you can get moving.”
He said with regard to Bill 10, two things were being proposed.
Rev Sambo said firstly there were articles which are being put forward for amendments only.
He said this means changing a word or rephrasing.
Rev Sambo said ,secondly, he counted at least about 28 articles which were being put forward for repealing.
“This means completely removing and either installing a whole new thing or discarding all together. This is what those who are opposing have taken issue with, as they contend that in fact what is being proposed is not mere amendments but in fact changing the structure of the Constitution as a whole,” he said.
“They argue that such a responsibility requires inquiries that at the very least are representative on a national scale. It is the contention of the opposers that Bill 10 is being used to fundamentally change the structure of the Constitution by way of repealing articles of the Zambian Constitution. It is actually this same reason that the Law Association of Zambia and Chapter One Foundation used to mount a Constitutional Court challenge. They contend that Parliament can amend laws and make laws which do not conflict with the constitution, but do not have powers to change the structure of the constitution. They say constitutional reconstruction requires citizens’ participation.”
Rev Sambo said essentially, the framers of the Constitution took the view that to undertake constitutional reforms, especially if repeals are involved, a process needs to include at the very least broad national consultations.
Rev Sambo said this, in some sense, means the process of going round the country ought to be commisioned or should be, at the very least, an acceptable enough process that resembles a peoples’ gathering designed to propose that constitutional amendments must be held.
He said this must be held under a clearly spelt out legal framework.
Rev Sambo said the product from such an inquiry would then be transmitted to Parliament who then would carry out the conversion of that outcome into reforms and amendments, which ever the case may be.
“In the current debate, it is clear that the NDF did not begin as a constitution-making vehicle nor was it clothed with such powers. It appears to have been disguised as a social forum for national healing. Somewhere in the process, it mutated into a Special Purpose Vehicle for constitution making. This is a sticking point,” he said.
“The second problem is that some clauses that were included in the Bill #10 were so explicitly against the democratic aspirations of our nationhood that one wonders how they could even be included. It is these inclusions that gave rise to very grave suspicions and heated debates. Those who are opposed alleged that maybe there was something more than meets the eye which the movers were trying to get done. How could they be so arrogant as to suggest that parliament should carry on to the elections day and beyond? How could they be so patronising as to propose the reintroduction of the deputy minister’s office?”
He said the third problem was the fiery nature of engagement that followed, giving rise to more worry about what was in the bag.
“Could it just be amendments which would divide the nation so much? Of course, the debate has taken a new turn with the Nakachinda Select Committee report. Those who are defending the bill have quickly jumped on to the report and made claims that in fact the bill has been amended. Those who are opposing are saying no, it has not been amended. The position is that Bill 10 is not yet amended. The Nakachinda report is a pack of recommendations by the select committee,” he said.
“The opposers are suspicious that the report may have been introduced as anesthesia, to put them to sleep while a serious operation was being undertaken on the Constitution. They fear that some clandestine work is going on under the cover of darkness to create passage for Bill 10.”
Rev Sambo said the proposers on the other hand are pleading with the opposers to trust them on the matter.
“They assure that in fact their recommendations (in the report) will make the final document. This is another sticking point. The fact is that there is still a bit of work to be done before we can really call it done,” he said.
“Once the debate is over in parliament, government will receive back their bill and make their own amendments and recommendations, then through a caninet white paper, they will communicate their views to Parliament. In the past, this is the point at which dishonesty was fully manifested. Parliament would vote on a document that they would not have fully appreciated.”
Rev Sambo said for people who are familiar with constitution making in the country, the issue of suspicions in such a process are not without grounds.
He said there had been lost opportunities before.
“Therefore, the current crop of leaders in the ruling Patrotic Front government require to convince citizens that they are cut from a different cloth than that of our fathers. But equally so, those opposed must demonstrate that they are above merely opposition. That they can be magnanimous when needs be,” he said.
“This process will remain contentious and troubled as long as the leaders on both sides do not rise from simplistic debates such as we have seen before. They must literally prove that they are trustworthy and must be trusted on their own score. They must prove that they belong to Zambia that is looking forward and not playing games.”
He said President Edgar Lungu should face the cameras and assure the nation in a contrite posture that he, unlike his predecessors who did “half-baked jobs” on this issue, was not trying to trick anybody.
Rev Sambo said President Lungu must show that he is a different man.
He said it was not enough to sponsor people to go around in defence of either side of the proposals without proving in many other ways to be trustworthy leaders.
“Zambians are sensitive now when it comes to touching their Constitution. They are very irritable and unyielding. So my take is that this debate must move away from the technicalities to the softer issues of trust and honesty. The debate must come down and back to the table of Dialogue and Reconciliation. Political leaders, leaders of the judiciary and leaders of the National Assembly together with Church leaders and other eminent persons must get into a place of retreat together and prove their humanity to each other. In the absence of this kind of bridge building, Bill 10 will mean nothing,” said Rev Sambo.