SUMMARY OF THE MAIN RECOMMENDATIONS OF The Constitution COMMISSION OF INQUIRY TOGETHER WITH THE GOVERNMENT REACTIONS TO THE RECOMMENDATIONS 1991.

INTRODUCTION.

On the 24^th September 1990, in an address to the 25^th National Council of the United National Independence Party (UNIP), Hid Excellency the President, Dr. Kenneth David Kaunda, informed the Nation that the party and its government had decided that the country should revert to a multi-party democracy. The president also announced that a commission of inquiry would be appointed to recommend The Constitution for the Third Republic. Subsequently, on the 8^th of October 1990, His Excellency the president appointed The Constitution Commission of Inquiry, hereinafter referred to as the Commission. The commission, which was appointed under the Inquiries Act (volume 4 Cap.181 of the laws of Zambia), was dated 8^th October 1990. Membership of the commission consisted of the following:

• Professor Mphanza Patrick Mvunga, Chairman

• Professor Muyunda Mwanalushi, Vice Chairman

• Joseph B. Simuyandi Esq., Commissioner

• Dr. Joshua K. Manuwele, Commissioner

• Bright L. Nalubamba Esq., Commissioner

• Justice Anthony Richard Lawrence, Commissioner

• Bishop Teleshore Mpundu, Commissioner

• Philip Simuchoba Esq., Commissioner

• Alex J Mumba Esq., Commissioner

• Ms. Bernadette N Sikanyika, Commissioner

• Julius B Sakala Esq., Commissioner

• Major-General Tom Fara, Commissioner

• Ms. Celestina L. C. Kabalu, Commissioner

• Dr. Lufwendo Lishomwa, Commissioner

• Akashambatwa M Lewanika Esq., Commissioner

• Arthur N L Wina Esq., Commissioner

• Alex M Chungu Esq., Commissioner

• Ms. Amy Kabwe, Commissioner

• Hubert Bweupe Esq, Commissionner

• Samuel Lungu Esq, Commissionner

• Steven Malama Esq, Commissionner

Two Commissioners, Messrs Arthur N L Wina and Akashambatwa M Lewanika did not, however, take their places on the commission, thereby reducing the number of commissioners to twenty.

Two Commissioners, Messrs Arthur N L Wina and Akashambatwa M Lewanika did not, however, take their places on the commission, thereby reducing the number of commissioners to twenty.

Regrettably, one of the members of the Commission, Mr Razak Malik, died on the 24^th April 1991, only three days before the Commission was due to present its report.

2. Terms of Reference.

The Terms of Reference of the Commission were to:

"1. Examine and determine a system of political pluralism that would ensure a government which would be strong enough to rule the Zambian Nation and ensure the personal liberties of the people, but without prejudice to the generality of this power: -

1. To examine and determine a system of Government that would ensure the separation of the powers of Legislature, the Executive and the Judiciary so as to enhance the roles of these organs;

2. To examine and determine the status in relation to the Government of the ruling Party which has won an election;

3. To look into the composition and functions of the various organs of the state and recommend their modality of operation;

4. To examine in detail, guidelines, as contained in His Excellency the President’s opening address to the 25^th National Council of the United National Independence Party dated 24-29^th September, 1990, the National Council of the United National Independence Party’s Resolutions, the Report of the Special Parliamentary Select committee on the Democratisation of the United National Independence Party and Government Machinery dated 9^th July, 1990, such evidence as may be submitted to the Commission in the course of its inquiry and to recommend on how best these Resolutions and submissions could be enshrined in The Constitution of the Republic;

5. To examine any other issues related to of incidental to the above terms of reference.

2. Make such recommendations with regard to the matters covered by the first term

Of reference as the Commission may in the light of its findings deem appropriate.

3. The Government has accepted most of the recommendations of the commission with a few amendments.

Apart from The Constitution Commission Report the Government took into account the Report of the Special Parliamentary Select Committee, 1990 and the Address by His Excellency the President at the opening of the 25^th National Council of the United National Independence Party. Reference is made to the provisions of The Constitution of the Republic of Zambia 1973, as amended from time to time.

In the Government’s view, the following issues were the major areas raised and covered by The Constitution Commission (hereinafter referred to as the commission).

1. Bill of Rights The commission recommends the extension of the current Bill of Rights so as to include, specifically, the freedom of the press, freedom from discrimination based on sex or marital status, freedom of movement to leave and settle outside Zambia, the right to be issued with a passport, the right of the unborn child to life and protection of young persons from exploitative labour and further that the Bill of Rights should include the principle fundamental human rights reflected in international treaties and conventions to which Zambia is a state party or signatory.

2. Inclusion of Directive Principles of State Policy The commission was of the view that the new Zambian Constitution should introduce Directive Principles of State Policy to deal with matters relating to issues such as rights to, and provision of facilities in areas such as economic, social security and welfare, a living wage for workers, right to education and recognition of the family unit. The commission was emphatic that these rights or the Directive Principles would be there to serve as a constant reminder to the government of its wider obligations to its people.

3. Declaration of State of Emergency The commission noted that this subject was a source of considerable debate. It was their view that a state of emergency by the executive president should be of a limited duration and subject to periodic review and ratification by the National Assembly.

4. Review Tribunals for Detention cases. The commission recommends that Review Tribunals set up to consider cases of individuals detained under the terms of the Preservation of Public Security Regulations should be empowered to make decisions which are binding on the executive.

5. Republican President The commission recommends that the executive President be elected by popular vote arguing that allowing the president of the party which wins a majority to automatically become the Republican President or leaving the choice of president to be made by the National Assembly from amongst elected Members of Parliament would deprive the people of their right to elect a Republican President of their choice.

6. Composition of Cabinet The government noted that the commission did not make any preference for any one of the three options available for constituting the cabinet, namely appointment from within parliament, appointment entirely from outside parliament and a combination of appointment from within and without parliament. The commission left these for determination by individual presidents.

7. Cabinet-Whether it should function within or outside Parliament. This subject was initially raised in His Excellency the President’s opening address to the 25^th UNIP National council. He proposed that the Cabinet should be constituted and function outside Parliament. The commission did not make a specific recommendation on this. As in the case of the composition of the Cabinet it left the choice to be made by the President, conceding however, that a cabinet whether appointed from within or outside parliament would be acceptable.

8. Abolition of the office of Prime Minister and re-introduction of office of vice-president. The commission recommends the abolition of the office of Prime Minister and re-introduction of the office of office of Vice President in its place.

9. Ratification of appointment of constitutional Office holders and other Public Officers. An innovation introduced by the commission is the recommendation to have the appointment of certain holders of constitutional offices such as the Attorney-General, Chie Justice, Secretary to the Cabinet, Judges of the Supreme Court and High Court, Auditor-General, Director of Public Prosecutions etc ratified by the National Assembly. The rationale for this proposed change being that the public should be serviced by public officers of integrity, proven ability and experience.

10. Recognition of leader of the Opposition The commission recommends that official recognition and facilities (such as transport, office and residential accommodation) be given to the Leader of the Opposition.

11. Establishment of Constitutional Court The commission recommends the establishment of a constitutional Court to deal expeditiously and finally with cases of alleged violation of human rights as well as any other constitutional problems that may arise between the executive, legislature and the judiciary.

12. Enlargement of Membership of the Judicial Service Commission The commission recommends the expansion of the membership of the judicial service commission so as to include a member of the National Assembly, the Solicitor-General a representative of the Law Association of Zambia, the Dean of the School of Law, University of Zambia, a judge of the High Court appointed by the Chief Justice and another member appointed by the president.

13. Funding of Political Parties from Government Resources. The commission recommends that as a way of strengthening democracy through the promotion of viable political parties, the government should fund all the political parties which secure seats in parliament and that all such parties be eligible to receive the same amount in the form of a grant.

14. Two-tier Parliamentary System The commission recommends the introduction of a second House of Parliament namely the Chamber of Representatives whose members should be elected directly from the provinces by all registered voters in the respective provinces and chiefs elected by the provincial councils of chiefs.

15. Abolition of the House of Chiefs The Commission recommends the abolition of the House of chiefs arguing that the functions currently performed by that house could be adequately performed by the recommended chamber of representatives whose membership would include chiefs.

16. Participation of Public Officers in Politics

The commission recommends that public officers should not take an active part in party politics and should devote their time in assisting the government of the day to implement its programmes.