Catholic bishops of Zambia opine on draft constitution

Statement of the Catholic bishops conference of Zambia on the draft constitution of the republic of Zambia presented on July 21, 2010.

1. INTRODUCTION

To the Catholic Faithful in Zambia and all people of Good Will!

We, the Catholic Bishops of Zambia, greet you in the name of our Lord Jesus Christ!

“Happy are those who hunger and thirst for what is right; they shall be satisfied” (Mathew 5: 6)

Now that the National Constitutional Conference (NCC) has finally produced a Draft Constitution of the Republic of Zambia and invited the public to make submissions on this Draft, we wish as the Catholic Bishops Conference of Zambia, to share our perspectives on the whole Constitutional process in Zambia.

2. WHY WE STAYED AWAY FROM THE NCC

It is common knowledge that when the NCC Act No.19 of 2007 was promulgated, the Zambia Episcopal Conference together with other key institutions declined the invitation to participate in the NCC because of the manner in which the NCC Act was framed and the failure by Government to resolve contentious issues pointed to in the NCC Act. Among such issues were:

I. The composition: As we saw during the NCC sittings, the biggest single group of participants was that of Politicians and Government-related delegates. We have noted how this group has used its leverage of numbers to undo the popular recommendations that were made by the public through the Mung'omba Constitutional Review Commission (CRC). Among the recommendations that fell victim to this interest group were the proposed expansion of the Bill of Rights to include Social and Economic Rights; the requirement that the President be elected by a majority vote (50% plus 1); the selection of Cabinet Ministers from outside Parliament and the reduction of Presidential powers. The list is long.

II. Ambiguity of the whole NCC process: Our fears which led us not to participate in the NCC have now been confirmed by the Draft Constitution. Now that we have the Draft Constitution in hand, we have many questions: Is the current process headed for Constitutional amendments or will the current Constitution be repealed and replaced by a new one? Since most of the Members of Parliament were part of the NCC, will` Parliament have powers to further debate and change the Draft Constitution or merely enact it into law? What about the much talked about referendum on critical issues that have been referred to this process? All these and many more remain as unanswered questions that still make the future of this whole process bleak.

III. Legitimacy of the Final Document: Looking at the Draft Constitution, it has in a large measure departed from what the people recommended to the Mung'omba Commission and to several other Constitutional Review Commissions before. Didn't the Mwanakatwe Constitution Review Commission of 1996 equally have good provisions? How then did we end up with a bad Constitution of 1996? It was because the party in power then chose to put their narrow interests before the aspirations of the majority of the citizens. This then is where the problem lies. For example, the Bill of Rights under the NCC Draft has suffered a number of serious derogations or drawbacks. These derogations in most parts water down the rights that they aim to protect. Similarly, this Draft Constitution leaves out certain fundamental rights such as shelter and housing, food, water and sanitation. These are cardinal and fundamental rights which must be enjoyed and the State should not take them away. Even where media freedom is concerned, as in Article 60 of the Draft Constitution which provides for freedom of the media, this article, while being detailed on how the media should operate, has removed the people's aspirations as contained in the Mung'omba Draft Constitution, for independent media control and regulation.

3. CHALLENGES WITH THE DRAFT CONSTITUTION

The NCC Draft Constitution does have some positive elements. We welcome these positive contributions that the Draft Constitution has introduced which were missing in the Mung'omba Draft Constitution. Some of these include the recognition of the rights of the visually impaired and the deaf in the Bill of Rights; the inclusion of the rights of the unborn child; outlawing torture and all other forms of inhuman treatment. There are many others. Nevertheless, the Draft Constitution has many significant challenges. Some of these are the following:

I. It is noteworthy that this Draft constitution is very bulky. A Constitution should normally contain broad fundamental principles (guidelines) that guide the nation on how it wants to conduct or regulate its affairs. The issues that have been provided for in the Draft Constitution are in most instances matters which can easily be provided for in subsidiary legislation while retaining only the fundamental principles in the Constitution. The Draft Constitution is wordy and too long and complicated for an ordinary citizen.

II. The forty (40) days given for the public to receive and study the Draft Constitution and then make submissions to the NCC secretariat is an unrealistically short period. Moreover, there is no user friendly nor systematic manner of forwarding these submissions. Further, the availability and access to the Draft documents leave much to be desired. In any case, what further submissions should the people of Zambia make about the Draft Constitution when they have already eloquently spoken through the Mung'omba CRC? Even if people still reiterate what they have said to the Mung'omba CRC, what guarantee do they have that what they will submit this time will be listened to and incorporated in the Constitution by this same NCC?

III. As alluded to earlier, there is lack of clarity as to what happens to the final Draft Constitution that will come from the NCC. Are we destined once more to the Inquiries Act and Government producing a White Paper? Is this not the route that has failed us before? In order to avoid the White Paper syndrome, the Mung'omba CRC recommended that the new Constitution goes to a Referendum before Parliament who would enact it into law without further amendments. For now, it is not clear what Parliament will do once they receive the Draft Constitution. However, experience has shown that the ruling party will want to water down this Draft Constitution further by using their majority numbers in Parliament.

IV. Other challenges contained in the Draft Constitution include the failure by the NCC to provide for a decent period for transition after Presidential elections; the unrealistic expansion of the composition of the National Assembly without due regard to the cost and infrastructure currently obtaining; the creation of so many commissions most of which are through Presidential appointments; the elimination of the provision by citizens in a constituency to censure and recall a Member of Parliament who is not functioning in accordance with people's aspirations. The list of challenges goes on.

4. WHERE WE STAND TODAY ON THE CONSTITUTION

In spite of staying away from the NCC, we did not give up our right to participate in the debates albeit from outside. We hoped against hope that the NCC would come up with a progressive document. We have said time and again that content for the Constitution has never been a real problem. The people of Zambia are very clear and consistent with what they want but they have always been let down by those in power who are supposed to be the midwives of a good Constitution. The common good has always been sacrificed for parochial interests by those who want to entrench their hold on power through masterminding a weak and partisan Constitution. Under all these circumstances, there is no possibility that the Draft Constitution as produced by the NCC will have the legitimacy required for such an important document to stand the test of time. In short, what this NCC has succeeded in doing is to violate most of the people's desires as accurately captured in the Mung'omba Draft Constitution. In its present manner, the Draft Constitution is not acceptable as a basis for coming up with a Constitution that is people-driven and one that is expected to stand the test of time.

5. CONCLUSION - PRACTICAL WAY FORWARD

From what we are now witnessing, this NCC will go down in the history of Zambia as yet another of those Constitution-making processes that gobbled billions and billions of Kwacha while a people-driven Constitution continues to elude us as a nation. For a poor country such as Zambia, this situation cannot be allowed to continue. It has become a moral issue.

At the height of appointing the Mung'omba CRC, civil society and ourselves called for a small technical committee of experts to sit for a very limited amount of time in order to scrutinise and harmonise the wealth of information already available from the past Constitutional Review Commissions such as the Mvunga and Mwanakatwe. We know as a fact that the people's submissions to the Mung'omba CRC were a reiteration of what the people of Zambia already said in previous CRCs and constitute what the people genuinely want in their Constitution. It may still not be too late to consider this option of a small technical committee. This is certainly better than the nation going through yet another expensive process of Constitution-making on legitimate grounds that the current process has failed to meet the aspirations of the Zambian people.

Finally, we urge the people of Zambia not to lose hope. We truly believe the words of Jesus that those who hunger and thirst for Justice will be satisfied! We call on all to pray that the God of Justice will bless this nation and that sooner rather than later, the people will have justice.

May God bless you all.

Presented on July 21, 2010 and signed below by the following:

Rt. Rev. George Cosmas Lungu

BISHOP OF CHIPATA AND ZEC PRESIDENT

Rt. Rev. Ignatius Chama

BISHOP OF MPIKA AND ZEC VICE PRESIDENT

Most Rev. Telesphore-George Mpundu

ARCHBISHOP OF LUSAKA

Rt. Rev. Raymond Mpezele

BISHOP OF LIVINGSTONE

Rt. Rev. Paul Duffy, OMI

BISHOP OF MONGU

Rt. Rev. Emilio Patriarca

BISHOP OF MONZE

Rt. Rev. Alick Banda

BISHOP OF NDOLA

Rt. Rev. Charles Kasonde

BISHOP OF SOLWEZI

Very Rev. Fr. Michel Merizzi, M. Afr.

APOSTOLIC ADMINISTRATOR OF MANSA

Very Rev. Mgr. Ignatius Mwebe

APOSTOLIC ADMINISTRATOR OF KASAMA

Most Rev. Medardo Mazombwe

ARCHBISHOP EMERITUS OF LUSAKA

Most Rev. James Spaita

ARCHBISHOP EMERITUS OF KASAMA

Rt. Rev Aaron Andrew Chisha

BISHOP EMERITUS OF MANSA

Rt. Rev. Noel O'Regan, SMA

BISHOP EMERITUS OF NDOLA