Constitutional Polemics


THERE is absolutely no need for acrimony in the constitution-making process.

In a democracy, there is room for all. Differences of opinion over such a substantive matter must be understood as the working of the democratic enterprise. There is actually a name to it, it is called the deliberative or discursive character of democracy.

Discursive democracy demands that deliberation will be central to the decision making process. It is different from the more legalistic form of democracy which emphasizes voting as the final legitimizing tool of any decision.

It is very tempting for both sides of the Constitution process to adopt a legalistic approach without considering the anxieties and concerns of either party. On one hand the Grand Coalition is advocating for a referendum as a mode of adoption for the entire Constitution while some parties including the ruling PF have advocated for piecemeal adoption of none contentious issues.

Both positions have merit. The answer now lies in hammering out a compromise that will meet the best aspirations of the Zambian people.

Whereas it is true that only Parliament which is the epitome of representative democracy has the power to legislate and therefore legitimize the Constitution, it does not follow that it is the sole institution vested with the power. It may indeed have the judicial authority, but using such authority without considering the concerns of other players in the democracy would be acting undemocratically.

Genuine democracy demands that issues are discussed without recourse to extraneous consideration. Each decision must be made on its merits without the distortion of superior number, influence or economic wealth. In short, the Grand Coalition should not abuse its moral authority, while the PF should not abuse its majority position to steamroll the Constitution. A vote should only come after there is a very clear consensus on the issues.

The coalition has asked very pertinent questions. These include a definition and itemization of the contentious and non contentious issues, to justify the piecemeal legislation of the constitution. This issue must be discussed exhaustively to allay the fears of the coalition and the public in general.

The Constitution is too important a document to pass without the widest possible consultation and we are gratified that the Minister of Justice has taken time to consult with the coalition, but this must be widened to all other interest groups including the chiefs who obviously have something to say about the proposed laws on reposing land in the President.

Although it is true that chiefs have been giving away huge tracts of land to foreign investors at the expense of local people, this matter must be exhaustively discussed so that both parties recognize the merits of orderly and equitable land acquisition to give every Zambian the opportunity to own a piece of their own country. This should include our peasants who farm traditional land without any thought to legal land ownership. These must be protected by the Government.



Of referendums

The Catholic Church in Ireland is aghast. The people, who included Catholics, voted overwhelmingly to legalize same-sex marriage in a historic referendum that had threatened to split the country.

Now more than 62% voted in favour of amending the country’s constitution to allow gay and lesbian couples to marry, a position the Catholic Church had campaigned against. The decision makes Ireland the first country in the world to legalise same-sex marriage through a popular vote.

Categorized | Editorial

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