The ongoing constitutional making process bears all the hallmarks and traits of failure. The fatal errors lie in the absence of a roadmap, legal legitimacy and a above all the failure of the Patriotic Front Government to achieve consensus.
Most delegates at the ongoing constitutional making process believe that the composition of the convention was itself skewed and structured in a manner that was intended to give advantage to the positions held by the PF.
This is evident from the manner the Barotse agreement has been treated. Little wonder that the delegates from Barotseland walked out of the constitutional making process because they felt excluded by the process.
That walk out and the process that produced a draft that did not include Barotseland shows a lack of inclusivity. It was shows that the process is not representative.
The Barotse issue has been treated with the same cynicism that visited the reported of the Commission of Inquiry on the matter. It will be recalled that the President gave his reaction to the report even before he read it.
This was in spite of the fact that our local expert Dr. Rodger Chongwe and his colleagues had labored over the contents. Obviously we have learnt nothing from the experience of our colleagues in Kenya who entrenched the process in clear legal framework, thereby imbuing a sense of legitimacy to the entire process.
Our process lacks such legal legitimacy and as has already been alluded to by many people, this singular deficiency takes away the vestiges of assurance that the process will result in a document that will stand the test of time.
For a start the people of Barotseland will be entitled to challenge the process and in the absence of a legal framework the process has no legal room to stand on.
If simple inquiries can be guided by Acts of Parliament why such an important undertaking as constitution making should not be covered by law?
To make it worse, it is not clear how the constitution will be adopted. Not even the technical committee knows. The Chairperson of the Technical Committee on Drafting the Zambian Constitution Chairperson, Annel Silungwe is on record stating that the Committee’s Terms of Reference ended with handing the draft constitution to the Republican President, Michael Sata who appointed it.
This clarification from Judge Silungwe came from disquiet from members of the opposition who feel that the final document should have been beyond partisan political interest.
It is true that the President appointed the Technical Committee but this did not in itself mean that the final document should be approved by the President who obviously has political bias and leaning on many of the issues as has already been alluded to by many PF members who have commented on aspects of the constitution.
Judge Silungwe was quite candid and emphatic, that the work of the Technical Committee will come to an end once the Final Draft Constitution is drafted and presented to the Republication President.
This certainly is not what the people of Zambia expected. It departs from the principle of an all encompassing constitution that would be drafted by the people for adoption by the National Assembly after a plebiscite over the entrenched wo lawyers stated on Thursday.