A Progressive Document – If Implemented

The draft constitution is a progressive document, which will strengthen good governance in Zambia, says the human rights organization SACCORD. That is if the suggestions for a new Zambian constitution are implemented

By Manja Kamwi, Information Officer MS Zambia

27. November 2005

It was under protest and with great scepticism that Southern Africa Centre for Constructive Resolution of Disputes (SACCORD) last year made their submissions to the Constitutional Review Commission (CRC).

Like many other civil society organisations in Zambia they were very critical when it became clear that the government intended to appoint the members of the CRC and did so in spite of the massive protest from civil society.

However, when the CRC by the end of June this year finally presented the draft Constitution and its report the content took SACCORD and many other organisations by surprise.

“I must say the Constitutional Review Commission shocked most of us with this draft they came out with. We expected them to serve the interests of the executive powers but they didn’t. It is a very progressive draft constitution and overall I think it contains most of the important issues that the Zambian people think should guide this nation,” says Lee M. Habasonda, the Executive Director of SACCORD.

What SACCORD is especially pleased with in the draft constitution is the overall general tendency to limit the executive powers and create basis for more transparency and accountability in the governance of the country.

“We are getting closer to the South African Constitution, which in my opinion is one of the best in the world. This draft constitution is suggesting changes, which will cut on the excessive powers of the president and at the same time it has put in measures to create more accountability.”

One of these measures is the establishment of an Office of a Parliamentary Ombudsman, which is also known from many Scandinavian countries among them Denmark. An Ombudsman is an independent institution with powers to check the administration of the law in public offices and also has the powers to initiate investigations either by own motion or a complaint into cases of abuse of public office.

“An independent institution such as an Ombudsman will strengthen accountability and bring wrongdoings out in the open,” says Lee Habasonda.

SACCORD is also pleased with the CRC proposal which will demand that a presidential candidate must win 50 percent plus one of the votes in order to become president.

“This will give the presidency more legitimacy and it will ensure more accountability as the president will answer to a larger number of the people compared to now where you can win the presidency with a very small percentage of the votes. We think that this proposal will limit a president from trying to please a certain group of people as he or she has more people to answer to.”

Further the CRC has proposed to establish a Constitutional Court, which will deal with issues of constitutional matter and human rights issues, which according to SACCORD will have a tremendous impact on the human rights situation in Zambia.

“In this sense the draft constitution is a very progressive document because for the first time it is proposed to establish a Constitutional Court, which will deal with human rights issues and constitutional matters. For example we think the president violated the constitution in the way he appointed the vice president and appointed opposition members of parliament for ministerial positions. But there are no proper legal institutions where these issues can be addressed properly. Right now we are relying on the Supreme Court to deal with matters of this nature but the right place to put forward cases like this is a Constitutional Court,” says Lee Habasonda.

“In Zambia very few people are aware of their human rights and what they are but if we have a Constitutional Court, where human rights issues could be dealt with you would also have more focus on these issues and more people would be aware of their rights.”

The CRC has also proposed that social, economical and cultural rights should be included in the constitution: “Though it might not have any immediate effect on the society it is a very innovative proposal and would show commitment to where we want to go as nation,” says Lee Habasonda.

However, there are certain issues that SACCORD would have like to seen addressed in the draft constitution.

“We are very disappointed that the CRC did not look into the freedom of association issue. Unfortunately any executive can wake up any morning and decide to deregister any organisation that does not please his or her wish of the day,” says Lee Habasonda who as director of SACCORD has experienced the effect of the lack of protection of organisations.

SACCORD has previously experienced deregistration for no apparent reason. And though the Supreme Court later ruled that the deregistration should be lifted the possibility of other organisations being deregistered remains.

Further SACCORD would have liked the CRC to remove the demand that Presidential candidates must be third generation Zambians.

“We find that demand very discriminative. Either you are a Zambian or not and it is inconsistent with the Constitution.”

The CRC has recommended that a new constitution should be adopted through a Constituent Assembly and that is also paramount to SACCORD. However, the CRC and its recommendations are one thing while the political will to follow these is another.

Just as pleased Lee Habasonda is with the draft Constitution he is pessimistic with regards to the political will to implement the recommendations.

“Unfortunately there is not much which implies that the current government will have the courage to go ahead and implement the recommendations as it will reduce their powers.”

The challenge now is for SACCORD and other civil society organisations to push for government’s quick implementation of the recommendations.