Limitations of referendum for adopting a constitution


There has been so much talk about the constitution being adopted through a referendum. In my view this passion for referendum does not appear to be based on tested capabilities of referendum as a model for adopting a complex multidimensional document like a whole constitution. Rather it reflects the general disappointment with past outcomes of previous constitutional commissions.

The advantage of a referendum is that people are given direct say in the issues to be decided. Referendum has proven to be very useful in deciding single issues. However, there are serious practical challenges in using a referendum to determine a multidimensional issue like a constitution with several provisions. The proposed Zambian constitution has 322 articles or specific issues to be determined. Will the voter get the opportunity to vote on each individual issue? If this were possible it would reflect the will of the people on all the issues. Even with the available IT facilities, for each voter to vote on all the issues will create serious logistical problems starting with ballot papers which will have to be voluminous documents listing all issues. Even without mentioning the problem of high illiteracy rate, the documentation and voting can be quite challenging.

To avoid this daunting challenge, it may be tempting to vote YES/NO on the constitutional proposals as a whole document. But will this lead to the optimal outcomes? Can this reflect the will of the people on all issues of concern? Can you assume a realistic homogenous single answer to all questions/issues of the constitution for any individual?  While the proposed constitution is a very good document with very good proposals, it would be unrealistic to assume that the typical voter will give a single YES or NO to everything in the document. Most people will find areas they agree with and areas they disagree with.

Does one reject the entire constitution because one is very unhappy with a few provisions, while happy with others. For instance, most chiefs are passionately opposed to proposals on the land administration. Do they vote against the whole document just because of their passionate objection to this article even though there may be other provisions with which they are happy? If they reject the constitution as a whole, is that the best outcome for them or the country? Will such a vote reflect the will of the chiefs on all articles of the constitution?

Indeed, with regard to achieving the best outcomes, it should be noted that some proposed articles may not be adopted or rejected as presented, but could be amended to get the optimal outcome. For instance the proposed numbers for MPs can be amended in the light of detailed consideration of cost implications and the need for effective representation of the electorate. A referendum would rob the electorate of the opportunity for optimal outcomes that could come with prudent amendments of the proposed articles.

To subject a multidimensional document to a single vote clearly does not lead to the best outcomes, and cannot be said to reflect the will of the people on the constitution. On the other hand to implement a referendum in which each voter is able to vote on each article of the constitution is clearly not practical. Under these circumstances spending money on a referendum to adopt the constitution would be a waste of money as this will not bring out the will of the people on the constitution.

As provided for in the current constitution, the referendum can be used for single contentious issues like the Bill of Rights. Even here there will be need to be cost conscious. There is need to be practical and realistic.

For instance there is no debate about human rights to clean water and other amenities. But will it make sense to spend millions on a referendum on rights to clean water when we have no resources to implement those rights. The money on such a referendum could as well be spent directly on some water projects which may not solve the entire water problem, but can have some impact on the problem.

Inevitability of representative democracy.

While one appreciates the best expression of the will of the people is through the direct vote of all voters on each issue, it is generally accepted that it is not practical for this system to be adopted for multidimensional complex documents like a constitution. That is why throughout the history of democracy, constitution developments have been done through representative democracy where an elected group or some form of representative organ expresses the will of the represented masses.

It was representative conferences of liberation parties and others that formulated constitutions of new nations that got independence from colonial masters e.g. India, Zambia and other colonies and post apartheid South Africa.  It is representative organs such as Zambia’s Parliament that have powers to amend constitutions in all democracies with the provision that single issue items such as bill of rights can be taken to the direct democratic process of a referendum.

Representative democracy, just like democracy itself may not be the perfect system, but we have to accept it as the most practical and cost effective democratic dispensation available to society. Hence, its universal dominance of the democratic practices around the world.

The real challenge we face in Zambia is for the elected representatives and political parties to show the true spirit of representative democracy as carrying the will and best interests of the people rather than to champion narrow partisan interests based on interests of the political elite. As observed by the Hon Member of Parliament for Mafinga (30 July, 2015 debate in the House) if Parliament was able to rise above partisan politics, it can deliver a credible people driven constitution. In Zambia, Parliament has the responsibility for amending the constitution. Since constitutional amendments require 75% of the National Assembly vote, the country’s National Assembly is today very well placed to amend the constitution in that no single party has that dominant majority. This gives a lot of opportunity for give and take in the constitutional making process.

The Government and all political parties are challenged to commit themselves to a non-partisan approach to the constitution development.



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