“banner728.gif"

KNOW YOUR CONSTITUTION: Who owns the Constitution?

[By Simon Kabanda]

Today we begin weekly reflections on the Constitution of Zambia. On this day every week, you will have an opportunity to get information on the contents of the Constitution of Zambia and other related issues.
This week we are reflecting on the question of who owns the Constitution. This is one question that should be asked and understood clearly. It is a question that is amplified by asking further questions:
Is the Republican Constitution owned by the Republican President? Is it owned by government Ministers? Is it owned by Members of Parliament (MPs)? Is it owned by the Lawyers and Judges? Is it owned by the Media?

The question of who owns the Republican Constitution ought to be answered by the Constitution itself. The governing Constitution today is the 2016 amended Constitution. Has the 2016 amended Constitution answered the question? YES, it has.

This question has been answered in the preamble. The preamble is the one that sets the tone of the Constitution. It is the one that declares what a particular constitution is all about. The opening of the preamble in the 2016 amended Constitution clearly outlines who the owners of the Constitution are. It states as follows:

“WE, THE PEOPLE OF ZAMBIA: …”
And after pronouncing the declarations, the preamble closes by stating the following:
“… DO HEREBY SOLEMNLY ADOPT AND GIVE TO OURSELVES THIS CONSTITUTION.”

Reading together the opening and the closing of the preamble, what it is saying is this: “We the people of Zambia, do hereby solemnly adopt and give to ourselves this Constitution.”

Has our Republican Constitution always stated like this? How does this declaration in the 2016 amended Constitution differ from the declaration in the 1996 amended Constitution? The opening of the preamble in the 1996 amended Constitution stated as follows:

“WE, THE PEOPLE OF ZAMBIA by our representatives, assembled in our Parliament, … DO HEREBY ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

In the 1996 Amended Constitution, the preamble stated as follows:
“WE THE PEOPLE OF ZAMBIA, BY OUR REPRESENTATIVES ASSEMBLED IN OUR PARLIAMENT.” However, the phrase: “BY OUR REPRESENTATIVES ASSEMBLED IN OUR PARLIAMENT” has been dropped. This was done by the people of Zambia through the submissions made to the Mung’omba Constitution Review Commission (2003-2005). In its recommendations, the Mung’omba CRC decided to drop this statement so as to avoid a perception whereby elected leaders take it upon themselves that through the elections the electorate abdicate their powers to govern to the elected representatives.

Going by the Preamble of the 1996 amended Constitution, elected leaders used to think that by voting, people transferred their thinking and reasoning to the elected leaders. This was why the elected leaders did not care to consult the electorate on issues of governance. They used to “boast”, saying that because they had been elected, they knew what the people wanted, and therefore there was no need to consult them.

In order for us to understand this subject clearly, I hereby reproduce the Observations and Recommendations of the Mung’omba CRC as stated in the REPORT OF THE CONSTITUTION REVIEW COMMISSION, Lusaka, 29th December 2005, pages 78-80:

Observations

“The Commission notes that it was the desire of petitioners that the people should define the constitution-making process and that the Constitution should be a product of the will of the people. Arising from this, the Constitution is supreme, final and binding on all authorities and peoples within Zambia. In their submissions to the various Commissions, the people said that they wanted to participate in the process of making their own Constitution. They did not want either the Government or any group of technocrats to draft a constitution for them. The visit to all the 150 parliamentary constituencies by this Commission was applauded by many people who made submissions because they saw in this exercise an opportunity to express their views on the subject. They stated that they did not want any Government ‘White Paper’ to determine their future. They preferred that a popularly representative body should discuss the findings of the Commission and that any Constitution ensuing from such findings and discussions must be referred to them by way of Referendum for approval.’’

Recommendations

“The Commission recommends that:
the Constitution should explicitly reflect in the preamble as well as the operative part that the people shall adopt and give to themselves the Constitution; the Constitution should recognise that Government derives all power from the people who shall exercise it in accordance with the Constitution; and the Constitution review process should not be conducted under the Inquiries Act. The Constitution should stipulate that the review process should involve participation by the people and, in this regard, Parliament should enact specific legislation for the entire constitution-making process.”

The question of who owns the Republican Constitution has therefore clearly been explained. The Republican Constitution is owned by WE THE PEOPLE OF ZAMBIA.

If you have any issue regarding the Constitution and/or related matters that you would like this column to discuss, kindly send a message to me:
Whatsapp: +260 761 206353. Email: shimwenya@yahoo.com.

Leave a Reply

Your email address will not be published. Required fields are marked *