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Judiciary has betrayed Zambians on Bill 10, says Sangwa

CONSTITUTIONAL lawyer John Sangwa says the Judiciary betrayed Zambians as well as failed to act as a safeguard when it rejected the challenging of Bill 10.

Sangwa, who petitioned the President of Zambia, the Attorney General and the National Assembly over the Constitution (Amendment) Bill No.10 of 2019, said the Judiciary betrayed Zambians on the bill and the only remaining safeguards were members of parliament.

Speaking at a public forum dubbed “Bill 10, the way forward” at the Lusaka InterContinental Hotel on Friday evening, Sangwa, however, maintained that changing the Constitution was not a priority for Zambians as the country was currently faced with bigger problems.

He said Zambia was not in a constitutional crisis but in an economic emergency and the money spent paying allowances at the National Dialogue Forum would have been more useful elsewhere.

“The point is this guys…the Constitution is not a priority, we have bigger problems or immediate problems. The money that was spent on the NDF in terms of allowances could have been better spent. Even in our own personal lives, we do have priorities, isn’t it? But how come as a country we can’t have priorities? In the general scheme of things, what is the most pressing issue to Zambians, it’s not the Constitution. So far we are not in a crisis, we have to allow this Constitution [to be] tested, we need to have the imperfections exposed but it will be exposed only if we allow it to breath but not to begin to manipulate it for one’s own objectives,” Sangwa said.

He said no genuine case had been made to support or justify Bill 10.

Sangwa told members of parliament that there was no harm for once for them to put aside their own interests and put the interests of the country.

“For once let us be patriotic, my appeal to the members of parliament is that for once put aside your own interests, let’s put Zambia first. Let me conclude by telling you this, I took the case to court to challenge Bill 10 and I can tell you but I can’t go into details because the final judgment of the court is not yet out…but one of the things I can say without hesitation is that the judiciary betrayed the Zambian people. The point is that the judiciary, I can’t go into reasons but yes they rejected it but in my view they betrayed the Zambian people,” he said.

“It is again the duty of every judge that sat that if by deciding what they decided they can sleep comfortably in the night, that’s okay according to them but the point is this, the beauty of our system is that once one safeguard has failed, you go to another safeguard. The Judiciary has failed, as a safeguard, and the only safeguard we have now are the MPs; make sure that the bill does not receive the two-thirds majority required. Our challenge is to make sure that the two-thirds is not realised but in the event that that happens then what is the solution? Ultimately the power lies with us, the people. I have no faith, let me not say this…I have no faith in the institutions of government but I have faith in the Zambian people.”

Sangwa maintained that the bill should not be allowed to proceed.

“As a country, we are not in a crisis in terms of the Constitution, our crisis is economic. Ideally our discussion today should have been centred on how we can confront the economic challenges and not the Constitution. Let me give you a few reasons why I oppose this. It’s good to discuss Bill 10 but again we can’t discuss it in a vacuum, you have to provide context to it. In order to understand why we have ended up here and also to look at the future, we need to understand the past and it’s one of the reasons why I oppose Bill 10,” he said.

Sangwa said Zambians should be ashamed, as a country, that 29 years has been spent discussing the Constitution when there were more pressing issues.

He said the Constitution debate started in 1991 and there was no way Zambians would go on talking about the same matter with every President that came into office.

“The real challenge that we face in order to understand why we are here today is the fact that when we go back to independence, Zambia was one of the richest countries in Africa. In terms of per capita income, it was the third in Africa apart from South Africa and Libya but by the end of the 1980s, Zambia emerged as one of the poorest. We ended up with an external debt of $7 billion, now if you divide the external debt at that particular time with the population of between 7-8 million then this was roughly a thousand dollars of debt if you divide the external debt but I don’t know what the debt is today, it’s top secret,” Sangwa said. “At the end of 1991 the challenge was to try and understand how a rich country which started off so well [can] end up so poor and Zambia was not alone in this regard. There was massive research that was done by local and international organisations to try and understand the reasons why the country had become so poor and one of the conclusions was that the Constitution was weak in the sense that it vested too much power in the President as a result Parliament could not check the President, the Judiciary could not check the President and as a result presidents were at liberty to come up with whatever policies they decided to bring. You all remember the introduction of the one party rule in 1972, there was no discussion, there was again nationalisation, again no discussion.

“I am sure you are old enough to remember that we used to have a body called the prices and income commission, this was the commission that was dictating the prices of each and every item, these were some of the crazy policies that existed because the President could not be checked. In 1991, the challenge was to say how do we reduce on the powers of the president and that’s what has been a challenge.”

Sangwa recalled that the 1991 constitution was abortive and was not realised while the 1996 one was also problematic.

He said the trend continued and the only time there was a glimmer of hope was when president Michael Sata came into power as he managed to do what his predecessor failed to do.

Sangwa recalled that the genesis of the current Constitution is the technical committee, which Sata mandated to draft the charter that ensured the separation of powers amongst the various state organs, including the executive, legislature and judiciary so as to create checks and balances between them and ensure accountability of the state organs and its officers.

“In short, the government had to be accountable to the people which was not the case then,” Sangwa said.
He said when President Edgar Lungu signed the Constitution as amended on January 5, 2016, the country did far much better than all the previous constitutions.

Sangwa said the effect of the changes of 2016 were that there was a considerable reduction on the powers of the president.

He however maintained that the Constitution remained imperfect but far much better than anything ever known by Zambians.

“I oppose the changes contained in Bill 10 because the intention of Bill 10 is to reverse what was achieved in 2016. That’s why I am opposing it. Listen, what the proposed amendment intends to do is to give the President back the powers which were taken away in 2016. When you start isolating one clause, analysing it, then you are missing the big picture and the question is what will be the effect of Bill 10 if it becomes law? That’s what we should be talking about. When it becomes law, what you will see is reversal of all advances we have made and guys let’s not lie to each other, the idea is that this Bill 10 is geared towards elections. The point is this, you never use the Constitution as a political tool, a constitution is supposed to be respected, dignified instrument,” he said.

Sangwa argued that none of the proponents of the Bill 10 had told Zambians why they ended up selecting only 79 out of 275 articles of the entire Constitution to be changed.

He asked who made the decision to change the articles and who made the decision and criteria used to isolate the clauses.

Sangwa insisted that there was no convincing reason to justify Bill 10 as he wondered who decided that there were imperfections in the Constitution.

And parliamentary select committee on Bill 10 member, Sebastian Kopulande had a tough time addressing the audience as he read through what was termed as ‘civics education’.

The audience insisted that Kopulande should not teach them civics education but address the matter, which was the reason for the gathering.

As he laboured to explain, Kapulande said his committee had held 26 meetings and consulted 87 organisations on Bill 10.

As the audience booed him, he added that there were 16 clauses that his committee rejected.

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