By PRO. CEPHAS LUMINA –

During his inauguration on January 26,  2015, President Edgar Lungu committed his Government to delivering a “people-driven” constitution and appointed Dr Ngosa Simbyakula as Minister of Justice, to drive the process of enacting a new constitution. This is commendable.
However, the Proposed Roadmap for the Final Phase of the Constitution Review Process released by the Government on January 13,  2015 is not only unclear and unrealistic; it has enormous cost implications and is likely to lead to a delay in the adoption of the new constitution before the elections next year. To compound matters, there is, as yet, no legal framework to aid the enactment of the constitution into law.
A poorly managed constitutional development process can lead to conflict and, ultimately, undermine democracy. A realistic roadmap and an agreed statutory framework that sets out the process, standards, mechanisms and timelines, are critical elements of the constitution-making process.
Before discussing the way forward, it would be useful to briefly explain why the country urgently needs a new constitution.
Why Zambia needs a robust constitution
A constitution contains the most important rules of a country’s political system as well as the values and principles according to which the inhabitants of a state aspire to live. It defines the state institutions and their powers and puts restrictions on the exercise of those powers.
A good constitution establishes government limited by law and based on the rule of law. These are critical preconditions for accountability of the governors to the governed and for the legitimate exercise of state power. A constitution also supports efforts to achieve sustainable social and economic development.
Nevertheless, the previous attempts to develop a new constitution have largely failed to deliver a lasting document that reflects the aspirations and will of the Zambian people.
The main reason for this is that these efforts were driven more by political expediency and self-interest on the part of the Government of the day rather than by a genuine desire to deliver more transparent and accountable governance and to improve the well-being of the people through a broadly accepted constitution reflecting their ideals and aspirations.
Thus, these constitutions have tended to undermine, rather than, help consolidate the country’s democratic gains.
Needless to mention, the resulting absence of a robust constitutional framework to guide the country has created opportunities for successive Governments to exercise state power in a manner that is completely at odds with any accepted notion of good governance.
Key weaknesses in the country’s constitutions to date include excessive executive powers and a failure to ensure accountability of those in power to those governed in relation to the use and management of public resources.
A good and popularly adopted constitution will not only help consolidate the country’s democracy but will also provide the appropriate legal and political framework for the government’s efforts to improve the lives and well-being of the people of this country, while ensuring that those entrusted with public power exercise it responsibly and in accordance with the mandate given to them by the people.
In short, a good constitution will help ensure accountable and democratic government while advancing the establishment of a social, economic and political environment in which the people of Zambia can fully realize their aspirations and potential.
The need for a committee of experts
The views of the people on the content of the new constitution have already been obtained through several public consultations. Therefore, the focus should now be on drafting the final constitution.
This can be achieved, at minimal cost, through a technical committee of recognised constitutional experts with a mandate to review and improve the Final Draft Constitution over a specified period of time (no more than three months).
The recent controversies concerning the eligibility of the Acting President following the death of President Michael Sata, and the qualification of Judge Lombe Chibesakunda to act as Chief Justice after she had attained retirement age underscore the importance of expert drafting.
Most constitutional law experts would agree that the current draft is poorly drafted and that it contains a number of problematic provisions (including on executive powers, the judiciary, devolution, etc) which arguably render it worse than the existing Constitution.
The experts will significantly improve the constitution by providing guidance from comparative viewpoints. The committee should consist of no more than seven experts and should reflect gender diversity. It would also be helpful to include two non-Zambians on the Committee.
Untainted by local political affiliations and considerations, they would be able to offer comparative expertise to the drafting process in an objective manner.
The Committee should be appointed by the Government and ratified by a parliamentary committee, subject to ratification by the entire parliament.
The committee so appointed should have the latitude to consult other experts on specialised issues or provisions, which may need to be addressed. Significantly, the experts’ review process should be protected from self-serving political interference.
A “people-driven” constitution
Much has been made of the fact that the constitution should be “people driven” but there appears to be some misunderstanding as to what this means. In my view, a “people-driven constitution” implies that the people, not the government of the day, must play a dominant role in the process of drafting and adopting the constitution.
Simply put, the constitution should not be imposed on the people, but the people themselves must be involved in the formulation and adoption of their constitution. This is critical because a constitution should reflect the values, interests and aspirations of the people. In this regard, it is disquieting that there has been little debate on the content of the Draft Constitution.
Ensuring that the constitution-making process is people-driven is the best guarantee we can have that the new constitution will not only be durable, but will also be based on national consensus and the will of the people, and that it will be respected by all the people and institutions in Zambia. Moreover, genuine participation of the people in the constitution-making process will confer legitimacy and acceptability to the constitution.
An important aspect of the constitution-making process is to ensure that the constitution is adopted only if it passes a referendum vote. In my view, the constitution produced by the committee of experts should be widely disseminated throughout the country, and thereafter put to a referendum, which should require approval by not less than 75 percent of persons voting in the referendum.
If approved in the referendum, the constitution should be enacted by Parliament within a short period of time – ideally within 30 days of the referendum.
(The author is research Professor of Public Law, University of Fort Hare; Extra-Ordinary Professor of Human Rights Law, University of Pretoria; Advocate of the High Court of Zambia; and former United Nations Expert on foreign debt and human rights.)