TIME has come for serious consideration of the manner the new Constitution will be adopted, as there appears to be a deliberate misinformation scheme around the issue.
The Constitutional Bill published recently is exactly what the technical committee recommended, nothing has been changed but as required by law must be subjected to the National Assembly.
There is however some extraneous intervention that seems to be emerging.
We say this because the Law Association of Zambia, a virtual custodian of the law, seems to insinuate that enacting the new Constitution through Parliament will be setting a very dangerous precedent as it would assume that Parliament is more powerful than the will of the people of Zambia.
Coming from a legal institution this seems to be a fairly puzzling observation because in reality, Parliament, otherwise called the National Assembly, is the apex organization representing the will of the Zambian people.
There is no other organization we know of that has direct representatives, elected by the people to govern on their behalf. LAZ for certain does not represent the people; it represent lawyers. Similarly other interest organizations represent sections of society.
For all practical purposes, the National Assembly embodies the will of the Zambian people and provides oversight over the executive for and on behalf of the people of Zambia. The Executive under Article 51 of the Constitution is accountable to the national assembly.
Article 49(1) states that there shall be a Cabinet which shall consist of the President, the Vice President and the Ministers and Article 51 says the Cabinet, deputy minister’s shall be accountable collectively to the National Assembly.
It is therefore difficult to understand when LAZ states that politicians who represent only one section of stakeholders in this national assignment do not have the mandate to legislate.
There is a need for LAZ to explain this position because as far as we are concerned a referendum in itself cannot enact a constitution. Only Parliament or the National Assembly has that power and in this case procedures in parliament demand that the bill is read several times to allow for debate before it is passed.
How can the Law Association of Zambia deem to be a more credible voice, over and above Parliament, to speak for the people of Zambia when its membership comprises individuals who do not represent any constituency.
The proposal that a legal framework should be established to safeguard the content sounds reasonable and justified except that at every stage the same institution that is being ring fenced against will have to pass the requisite legislation if it is to become law.
Antagonising Parliament does not seem to be the most diplomatic and legal way of proceeding with this situation and in this regard we tend to agree Paramount Chief Chitimukulu Kanyanta Manga who very eloquently said a Constitution is only a piece of apaper which in many circumstances is honoured in breach rather than observance. It is not a panacea to all the challenges that we face as a nation.
The current debate seems more concerned with the form rather than substance of the constitution and at the rate we are going and given the predilection of our politicians debate will not end.
The reality is that no constitution can be cast in stone, not even the American constitution has that character, it has been amended several times.
To suggest therefore that Zambia will enact a Constitution that will last until eternity is a severe misrepresentation of fact.
LAZ seems to suggest that the President must act in Accordance with Article 44 which somehow seems to close a loophole that would have kept out stake holders from the process.
Article 44 of the constitution does not say anywhere that in enacting a constitution the authority of the national assembly will be subverted. If anything Article 44 (3)(b) states that the President will, “initiate in so far as he considers necessary and expedient laws for submission and consideration by the National Assembly.”
Therefore to suggest that stakeholders other than the people’s representatives should drive this process is erroneous and misleading.
We must get on with the process and craft for ourselves a constitution which under the present circumstances demands a two-stage process because the initial technical draft has not received unanimous approval from the people. The chiefs, for example have taken issue with it and so have other people with interests. It means therefore that the main body must go to that House which has the capacity to legislate, while the Bill of Rights must be subjected to a referendum as demanded by law.
We must go beyond semantics and deal with substance.