By STEPHEN KAPAMBWE –
IT is shocking that barely a month has passed since President Edgar Lungu assented to the amended Constitution and some people are already demanding that some of the new clauses be removed.
Many of these calls are coming from people who were party to the protracted Constitution-making process.
These are mostly opposition members of Parliament and some civil society groups who feel some of the new clauses in the amended Constitution are alien and, therefore, inimical to the interests of Zambians.
They feel the clauses are discriminatory, to say the least.
The clauses at the bone of contention are the dual citizenship, grade 12 requirement for councillors, members of Parliament and presidential candidates; the 50 per cent plus-one vote for a winning presidential candidate; running mate to the presidential candidate; and the requirement for presidential candidates to have at least 1,000 supporters drawn from all the provinces.
But President Lungu has said even if Parliament passed a law to remove the so-called ‘contentious clauses’, he would not sign it because the amendments in the Constitution were not one man’s wish but that of the majority of the people in the country.
President Lungu said ever since the Constitution-making process began in the 1970s, the majority of the people in the country had consistently called for the clauses that were assented to.
Speaker of the National Assembly Patrick Matibini has equally said he would not entertain the removal of the clauses in the amended Constitution.
Delivering a “people-driven Constitution” was one of the campaign issues of the Patriotic Front (PF).
On the party’s assumption of power, late President Michael Sata appointed a committee of experts to review recommendations of all previous constitution review commissions in order to present a Constitution containing aspirations of the majority of the population.
This was because the PF and Mr Sata believed that through the four constitution review commissions, the Zambian people had consistently indicated what they wanted to see in the Constitution.
The submissions were made to the Chona Commission in 1972, the Mvunga Commission in 1991, the Mwanakatwe Commission and the Mun’gomba Commission.
In fact during sittings that deliberated the findings of the Mung’omba Commission, the National Constitutional Conference (NCC) which was appointed by the MMD government dealt with, among other things, submissions relating to the minimum education qualification for presidential candidates.
At the time this issue was discussed at the NCC, the proposed minimum qualification was a university degree and not the moderate grade 12 certificate contained in the amended Constitution.
As usual, some people in the political arena thought the degree requirement for people seeking election to the office of the President was aimed at excluding Mr Sata, who was in the opposition then, from contesting the presidency.
At that time, what was then referred to as the ‘degree clause’ was thought to be an attempt by the then ruling MMD to knock out late President Sata from the presidential race and destabilise the PF and UPND that were in a political pact.
Those who opposed the clause claimed that the MMD was trying to “bring politics to the elite” which they said was discriminatory.
“Basically, they (MMD) are trying to fight one individual…” a well-known politician argued then.
Therefore, the grade 12 certificate requirement, together with other clauses in the amended Constitution, have been subjects of thorough debate since the Mvunga Commission of 1991.
Majority Zambians called for their inclusion in the Constitution, and President Lungu’s assent to the supreme law of the land ensured that the demands of the people were met.
Similarly, the 50 per cent plus-one vote for the winning presidential candidate has been subject of debate for a long time.
In 2001, late President Levy Mwanawasa succeeded President Frederick Chiluba with 43.117 per cent of the total valid votes cast. He beat the late UPND leader Anderson Mazoka who got 39.030 per cent of the votes.
Dr Mwanawasa retained the presidency in 2006 when he won 42.98 per cent of the total valid votes cast, beating Mr Sata (PF) who got 29.37 per cent.
In the snap presidential election that followed the demise of President Mwanawasa in 2008, MMD retained power through president Rupiah Banda who won 40.09 per cent of the total valid votes cast, beating Mr Sata who got 38.13 per cent.
This information, which is available on the Electoral Commission of Zambia (ECZ) official website, was used by sections of the opposition and some civil society organisations which claimed that Zambia had been ruled by minority presidents who had failed to command a popular vote.
Those pushing this agenda said the country needed to put the 50 per cent plus-one clause in place to avoid the election of minority presidents who only assumed power as a result of splintered votes caused by the multiplicity of presidential candidates.
They campaigned for the inclusion of the 50+1 per cent in the Constitution, as opposed to the simple majority vote system that was in use.
So these clauses have been subject of intense debate, especially since the Mvunga Commission of 1991 and sittings of the NCC, the technical committee that produced the Draft Constitution as well as parliamentary proceedings that passed the Constitution of Zambia (Amendment Bill) (N.A.B. 17, 2015) which President Lungu signed.
It should also be borne in mind that when the Draft Constitution went to Parliament, the opposition demanded that it be passed as it was without any changes.
The opposition was so adamant that at one time they even walked out of Parliament whenever they felt that the Constitution Amendment Bill was not being sufficiently debated.
Therefore, to have some of these people turn around and oppose a document they passed is rather shocking, although not entirely strange.
Lusaka-based constitutional lawyer John Sangwa is of the view that politicians calling for the removal of clauses in the amended Constitution are selfish.
Mr Sangwa said politicians thought that they had the power to prevail over the will of the majority when they were just representatives of the people who put them in office.
Another prominent Lawyer Mwangala Zaloumis said calls by some members of Parliament showed how uneducated and illiterate some lawmakers were.
She said that members of Parliament were crying foul because they did not read the amendend constitutional Bill.
“Now, is this because of the poor reading culture or is it lack of education?” Ms Zaloumis asked a Law Association of Zambia (LAZ) forum which was called to discuss the implications of the electoral system of the amended Constitution at Mulungunshi International Conference Centre in Lusaka recently.
“If this is because of a lack of education, would you like to have more people like that in Parliament? Grade 12 is a basic requirement; just look at companies when they are employing, who do they employ?” she asked.
Ms Zaloumis said prior to the passing of the amended Constitution, the basic education requirements for a member of Parliament were being literate and being able to speak English.
But the point is not whether the members of Parliament calling for the removal of clauses in the amended Constitution paid attention or not, but rather that their calls are misplaced.
They failed to air their views about the supreme law of the land when the opportunity arose.
From the Mvunga Commission in 1991, the NCC and the technical committee that prepared the draft, to sittings in Parliament which passed the Constitution Amendment Bill, members of Parliament had the opportunity to argue their case.
Therefore, to heed their call to reverse actions that have been taken with the input of the majority of the population would be tantamount to trivialising and ridiculing institutions like the Presidency as well as Parliament which were critical to the enactment of the Constitution.