PERSONAL LIBERTIES, FREEDOMS AND RIGHTS

1. Bill of Rights –

1. In order to guarantee protection of the basic Human Rights, all the fundamental freedoms of conscience, religion, worship, assembly association and movement, contained in the Bill of Rights, should continue to be justiciable; and the said freedom of religion should include the right of religion organisations to set up or continue servicing various institutions providing social services to the people.

   This is ACCEPTED. However, the latter part expanding on the freedom of religion is a matter of administrative detail.

    

2. Where practicable, the neuter gender be employed to replace the word ‘man’ if the context so requires.

   This is ACCEPTED

3. While noting that the discrimination against non-Zambian men married to Zambian women has since been removed by amendment of Article 8(1)(b) of the present Constitution, the protection from discrimination contained in the present constitution be retained and explicitly prohibit discrimination on grounds of sex or marital status.

   This is ACCEPTED

4. The right of freedom of movement be extended to include freedom to freely leave Zambia and settle anywhere outside Zambia.

   This is ACCEPTED. However, the part relating to the freedom to "settle anywhere and outside Zambia" is beyond the competence of Zambia government as it is subject to the laws of the country of intended residence.

    

5. The right to freedom of movement be supplemented by the right of every Zambian to be issued with a passport subject only to refusal on grounds of State security or good cause.

   This is ACCEPTED.

    

6. The Bill of Rights should include the principal Human Rights, which appear in international instruments to which Zambia is a party or signatory.

   This is ACCEPTED with the following qualification added to it: "Subject to local conditions."

    

7. Supportive facilities in the exercise and enjoyment of Human Rights be provided by the State, particularly to the handicapped, to the extent practicable, possible and compatible with the resources available to the state.

   This is ACCEPTED.

    

8. The Bill of Rights contained in part III of the present Constitution be retained but subject to extensions which are referred to hereunder.

1. Provisions relating to Restriction, Detention, and special Tribunals, Enforcement of protective provisions, Emergencies and threatened emergencies.

1. The laws with regard to detention and restriction be amended by repealing those sections that empower the police to detain or restrict persons under the preservation of Public Security Regulations.

   This is NOT ACCEPTED. However, the period of detention by the police under the Preservation of Public Security Regulations should be limited to not more than twenty-one days.

    

2. The powers of the Police and other agents of the State to search homes, business premises and other property without warrant, be reviewed with the aim of establishing a code of conduct for the Police during such searches and to make any course of an illegal search liable to be ruled inadmissible in court proceedings.

   This is ACCEPTED but should be provided for but should be provided for under the appropriate legislation and not under The Constitution.

3. Since the rationale for making improperly procured evidence inadmissible is to discourage the impropriety of illegal searching, this should extend to any evidence improperly obtained by anybody from anywhere.

4. The powers of detention or restriction without trial may be exercised, only by the president personally or, subject to strict conditions as to duration etc., by persons to whom he has personally delegated them.

   This is ACCEPTED even though the recommendation contradicts the earlier recommendation contained in paragraph (a). However, this recommendation should be provided for under the Emergency or Public Security Legislation.

    

5. Any special tribunals, set up to determine or review detentions or restrictions or any basic rights of an individual, be empowered to make decisions that will be binding on the Executive and Legislature.

   This is ACCEPTED.

    

6. Powers to declare emergencies over the whole country or part thereof in times of strife, should be vested in the Republican President subject to parliamentary approval and review as laid down in the present Constitution.

   This is ACCEPTED. However, the last part reading "…as laid down in the present constitution" be left out as it is inaccurate as The Constitution does not provide for a specific period of review.

    

7. If not revoked earlier, the Executive should give consideration to reviewing of the current State of Emergency upon coming into effect of The Constitution creating the Third Republic.

   This is ACCEPTED.

    

8. There should be no change in respect of the powers of the Director of Public Prosecutions to enter a nolle prosequi at any time during a criminal trial. These powers are an essential part of his Constitutional functions in relation to prosecutions. It is important that his independence in exercising those functions should not be compromised.

   This is ACCEPTED.

    

9. The new constitution should allow for compensation in all instances of unlawful detention by the State and remove the existing limitation that compensation can only be awarded for physical and mental ill- treatment or any error in identifying of a person restricted or detained.

   This is ACCEPTED.

10. The last proviso in Article 26 of the present Constitution, which has been interpreted to mean that reasonableness of a detention is for the subjective determination of the detaining authority and not for the court, be deleted to restore the courts’ jurisdiction to determine reasonableness in all instances of detention.

    This is NOT ACCEPTED because Article 26 does not contain a proper proviso so called, but makes an exception within the substantive section, which begins ‘unless it is shown….’. If this exception is deleted the Article would be rendered meaningless. However, if the intention were to give the courts jurisdiction to determine reasonableness of grounds of detention in all instances of detention, such a recommendation would be acceptable.

11. Considering the vastness of the land mass of Zambia and the limited financial and human resources during this period of economic strain, limitations on when civil and criminal proceedings should conclude and requiring accused persons to be brought before courts immediately in all instances is impracticable, but those concerned, particularly the Ministry of Legal Affairs, the Judiciary and the Law Association of Zambia, should continue to review the unsatisfactory situation of delays in the administration of justice and identify and effect appropriate corrective measures.

This is ACCEPTED.

1. Additional Rights – the Right to life, the right of the unborn child, Protection of young persons from exploitative labour, Freedom of the Press.

The commission recommends that:

1. The rights of parents to decide freely the number of children they should have, the right to information on family planning methods, the rights of the family as a natural and fundamental unit of society should be recognised explicitly in The Constitution (as a Directive Principle) and protected by the State whenever practicable or possible.

   This is ACCEPTED, but should be included in the preamble and not the main body of The Constitution.

2. Subject to medical consideration affecting both the mother and child and further subject to consent of the mother or a person in loco parentis to termination of the pregnancy; and further subject to such consent not being unreasonably withheld, The Constitution should explicitly provide for recognition of the Right to Life of the Unborn child from conception.

   This is ACCEPTED.

3. Considering that the subject of abolition of the death penalty poses fundamental questions, there should be further national debate to ascertain the national consensus.

   This is ACCEPTED.

4. The Constitution should expressly recognise the right of young persons to be exploitation.

   This is ACCEPTED but should be provided for under an appropriate Act of Parliament.

    

5. The fundamental right of ‘freedom of expression’, as contained in Article 22 (1) of the present constitution, be extended to include a specific reference to freedom of the press. But the existing law in relation to defences available to the press and journalists is adequate.

   This is ACCEPTED. The current law does not prohibit any person or organisation from establishing newspapers and other propaganda machinery.

    

6. Apart from Government news media, political parties individuals and organisations be free to establish their own newspapers and other propaganda machinery subject to legislative regulation.

This is ACCEPTED.

1. Directive Principles of State Policy – Security of Social order and promotion of welfare; living wage of workers; right to education.

The commission recommends that:

The Directive Principles of State Policy be incorporated in The Constitution, but that these shall not be justiciable.

The notion of directive Principles of State Policy is ACCEPTED, however, the inclusion of such principles in the main body of The Constitution is not accepted on the grounds that such inclusion would lead to misunderstanding and unnecessary litigation regarding effectuation of such principles and they should be contained in the preamble to The Constitution.