Mvunga (1991)

EXECUTIVE SUMMARY

1. COMPOSITION AND APPOINTMENT OF THE COMMISSION

   On 22^nd November 1993, in exercise of the powers under the Inquiries Act, Chapter 181 of the Laws of Zambia, the President of the Republic of Zambia, Mr. Frederick Jacob Titus Chiluba, appointed a commission to review The Constitution of Zambia. The commission was gazetted under Statutory Instrument No. 151 of 1993 as amended by Statutory Instrument No. 173 of 1993. Some members were appointed directly by the President while others were appointed by the President on recommendations of various organisations and institutions.

   The commission consisted of the following commissioners:

   John Mupanga Mwanakatwe, Esq. SC Chairman
   Professor Lawrence Shimba Vice Chairman
   Chieftainess Chiyaba (Christine Eva Mamno) Member
   Chief Makasa (Japhet Ng’andu) Member
   Bishop Telesphore George Mpundu Member
   Reverend Mwape Chilekwa Member
   Father Ives Bantungwa Member
   Headman Remus Kalepa, Esq. Member
   Ernest Mwansa, MP Member
   Dr. Ernest Muketoi Beele Member
   Chama Mushota Chakomboka, Esq. Member
   Professor Patrick Mphanza Mvunga, MP Member
   Boyd Aaron Chikatula, Esq Member
   Peter Sinkamba, Esq. Member
   Dr. Davies Kabole Mwaba Member
   Azwell Banda, Esq Member
   Richard Nganga Mukelabai, Esq Member
   Francis Kunda, Esq Member
   Joe Hasson, Esq Member
   Lee Musonda, Esq Member
   Ms. Beatrice Chileshe Member
   Mrs Hilary Mulenga Fyfe Member
   Pumhrey H. Dyololo, Esq Member
   Isaac Zimba, Esq Member
   Mrs. Lucy Banda Sichone Member
   Dr Sipula Kabanje Secretary; and
   Mr. Villie Lombanya Deputy Secretary

2. TERMS OF REFERENCE

Under the Terms of Reference contained in statutory Instrument No. 151 of 1993 which appears in Appendix 1 of this Report, the commission was directed to:

1. Collect views by all practicable means from the general public both in rural and urban areas from Zambians living outside Zambia, on what type of constitution Zambia should enact, bearing in mind that The Constitution should exalt and effectively entrench and promote legal and institutional protection of fundamental human rights and stand the test of time;

2. Recommend a system of government that will ensure that Zambia is governed in a manner that will promote the democratic principles of regular and fair elections, transparency and accountability, and that will guard against the re-emergence of a dictatorial form of government;

3. Recommend appropriate arrangements for the entrenchment and protection of human rights, the rule of law and good governance;

4. Recommend provisions to ensure the competence, impartiality and independence of the Judiciary, and for access of the public to the law;

5. Examine and recommend the composition and functions of the organs of State and their manner of operating, with a view of maximising their checks and balances and securing, as much as possible, their independence;

6. Recommend a suitable system for a smooth transfer of power following election;

7. Recommend the relationship that should exist between the party in power and the parties in opposition and whether of not political parties should be subsidised by government and, if so, to what extent;

8. Take into account the 1964 Republican constitution and other previous Constitutions, the views submitted to the Mvunga commission and The Constitutions of other countries;

9. Recommend on whether The Constitution should be adopted by the National Assembly or by a Constituent Assembly, by a National Referendum or by any other method;

10. Recommend a suitable method of mending any part of The Constitution;

11. Examine and recommend effective grassroots participation in the political and district administration should be instituted;

12. Examine and recommend any subject matter of a constitutional or political nature which, in the commission’s view has relevance in the strengthening of parliamentary and multi-party democracy;

13. Examine and recommend on any matter which is connected with or incidental to the foregoing terms of reference; and

14. In the discharge of its responsibilities, undertake wide consultations with the public and relevant social, political and economic groups on its terms of reference and should endeavour to ensure a high degree of public debate on constitutional proposals on a democratic Zambia.

1. SCOPE OF TERMS OF REFERENCE

   The Terms of Reference of the Commission were sufficiently broad and generous to accommodate all shades of opinion aimed at securing individual liberty and advancing the cause of an open, free and democratic society. The commission was granted liberty to make recommendations on the substance of The Constitution and the mode of adoption of The Constitution. These Terms of Reference were clearly wider than those given to any other previous constitution commission. This broad mandate enabled the commission to consider provisions, which would help the country create an open, transparent and democratic society and a constitution that will stand the test of time.

2. METHOD OF WORK

   The commission travelled extensively throughout Zambia between March 1994 and September 1994 and conducted 46 public sittings in all the nine provinces attracting a total of 996 petitioners. Among petitioners who appeared and submitted to the commission were children, politicians, traditional rulers, members of the clergy, Judges of the Supreme Court and Magistrates. Associations took advantage of the commission’s sittings and made representations. Notable among these were the Law Association of Zambia, (LAZ), the Press Association of Zambia (PAZA), the Zambia Congress of Trade Unions (ZCTU), the Economics Association of Zambia (EAZ). Political parties also made their submissions. Men and women from all walks of life and different stations in life petitioned the commission. Among them were businessmen, students, farmers, civil servants, Diplomats. Able-bodied petitioners as well as the lame and the blind all petitioned. It was very satisfying and worthwhile experience for commissioners to see the old and the young come, in some cases, after covering long distances.

    

3. PLENARY SITTINGS

   Finally, after the end of public sittings, the Plenary Session sat from 13th February to 2^nd March 1995, at the River Motel, in Kafue. The Plenary Session identified constitutional principles to be reflected in the Draft Constitution. The commission agreed that immediately after the completion of the draft Constitution by the Plenary Session, the Report and The Constitutional proposals would be made public in order to ensure a high degree of public debate in accordance with the commission’s term of reference No. 14.

4. SUMMARY OF RECOMMENDATIONS

In the Government’s view the following were the major issues raised by the Mwanakatwe Constitutional Review Commission:

1. LANGUAGE

   The commission noted the positive role, which the English language has played as a unifying factor in national integration and therefore recommended the continued use of English as the official language.

2. GENDER NEUTRAL LANGUAGE

   The commission recommended that the government should progressively work towards adopting a gender-neutral language for all laws.

3. SEPARATION OF STATE AND RELIGION

   The commission was of the view that Christianity or any other religion could be safely secured without any form of declaration and recommended that the Zambian Constitution should make it clear that Zambia should remain a secular state.

    

4. DIRECTIVE PRINCIPLES OF STATE POLICY

   The commission observed that consigning Directive-Principles of State Policy to a preamble was unsatisfactory and therefore recommended that The Constitution should devote a Chapter on the directive Principles of State Policy. In particular the policy, economic policy, social policy, cultural policy, environment policy and land policy.

    

5. CITIZENSHIP

   To ensure that Zambian citizenship is restricted to those persons who deserve it, the commission recommended that only two categories of citizenship remain, namely, citizenship by birth and descent and citizenship by registration. The result of this recommendation is that marriage would no longer be a ground for entitling a person to apply for citizenship. In addition, the commission took the view that citizenship is a primary right and therefore recommended that no one should be arbitrarily deprived of his or her citizenship. Related to the issue of citizenship was the subject of children’s passports. It was the commissions view that an alternative method be devised that would ensure that the consent of both parents should not be required whenever a child applied for a passport or needed to be included on the mother’s passport.

    

6. FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS

The commission recommended the broadening or widening of the scope and regime of rights and freedoms in order to consolidate democracy and secure more liberties. It was the commission’s view that the rights of women, children and disabled persons should be given prominence. In some instances the commission recommended that certain rights that were previously being dealt with, as aspects of other rights should be treated as new rights that are capable of standing on their own. For example, the freedom of residence, religion and conscience should stand on their own.

In broad terms, the commission has highlighted the following as being the new rights and freedoms that it would wish to be reflected in The Constitution:

1. The respect of human dignity

2. The right to administrative justice

3. The right of journalists not to be compelled to divulge their sources of information.

4. The right to culture.

5. Freedom of demonstration and petition.

6. The right to strike and lockout.

7. . The right to equal treatment.

8. The rights of women.

9. The right to found a family.

10. The right to a clean environment

11. The right to a passport.

12. The right against corporal punishment.

13. The right to bail.

The commission also recommended the abridging, from 14 days to 7days, the period for serving grounds on a detained person, and that a detention be reviewed once every 30 days.

The commission also recommends that in order to enhance speedy delivery of judgements, courts be compelled to deliver judgements within 30 days of conclusion of trial.

The commission recommended unqualified freedom of the press. The commission further recommended that private postal correspondence as well as other communication should be inviolable. The commission also recommended the right of access to official information provided a person required it to secure the protection of his fundamental rights.

Further, the commission recommends the introduction of a general derogation clause for all the rights and freedoms.

1. REMEDIES AND MACHINERY FOR ENFORCING RIGHTS.

   In order to strengthen the available machinery for the enforcement of fundamental rights, the commission recommended the creation of a Permanent Human Rights Commission and the establishment of a constitutional court. They further recommended the increase of persons who may have Locus Standi in Matters of Human Rights Protection.

    

2. ELECTION OF THE PRESIDENT

   The commission that the first Thursday of September after every five years should be the fixed date in The Constitution for the conduct of both Presidential and Parliamentary elections.

   In addition to the existing qualifications for election to the office of the President the commission recommended the inclusion of third generation citizenship as opposed to citizenship per se. The presidential candidate may exercise the option of also running for a parliamentary seat. The number of registered voters supporting nomination of the presidential candidate has been increased from 200 to 900 (100 from each province).

3. ECONOMIC, SOCIAL AND CULTURAL RIGHTS

   The commission recommended the recognition of economic social and cultural rights, which would be defined in the Directive Principles of State Policy.

4. VICE PRESIDENT

   The commission recommended the adoption of the practice of a presidential running mate who would serve as Republican Vice President, and whose qualifications for election would be similar to that of President.

    

5. DIRECTOR OF PUBLIC PROSECUTIONS

   The commission recommended change in the procedure of appointing the Director of Public Prosecutions. It recommends that the Director of Public Prosecutions be appointed by the Judicial Service Commission and not by the President. It also recommended that the director of Public Prosecutions be obliged to give reasons to the court before entering a nolle prosequi.

6. JUDICATURE

   The commission recommended that an incoming president should have the prerogative of appointing and removing the Chief Justice and proposed the expansion of the power of the Judicial Service Commission in the appointment of both supreme Court and High Court Judges.

7. MINISTERS

   The commission recommended the appointment of ministers from parliament and a limited Cabinet of 18.

    

8. RECALL OF MEMBERS OF PARLIAMENT.

   The commission recommended that The Constitution should prescribe the procedures for recall of members of National Assembly.

    

9. CONSTITUTIONAL ENTITIES

   The commission recommends the establishment by The Constitution, of the Central Bank and Law Development Commission. The commission further propose to enhance the power of the National Assembly by making the Auditor General and the Investigator General directly answerable to the National Assembly.

    

10. SECRETARY TO THE CABINET.

    The commission recommended that the Public Service Commission should be consulted by the President before he appoints the Secretary to the cabinet.

     

11. PERMANENT SECRETARY.

    The commission recommended that Permanent Secretaries should be appointed by the Public Service Commission, which should base its decisions on merit and professionalism.

12. LOCAL GOVERNMENT

    The commission recommended that the role and financing of Local Government be included in The Constitution and that to strengthen provincial administration the offices of Assistant Ministers for the province, provincial commissioners and district Commissioners be introduced.

     

13. BAROTSE AGREEMENT

    The commission recommended further discussions of the Barotse Agreement.

     

14. HOUSE OF CHIEFS

    The commission recommended that the House of Chiefs be restored and that members of the House of Chiefs should be elected by chiefs in the respective provinces.

15. CABINET- VOTE OF NO CONFIDENCE

    The commission recommended that the National Assembly should have powers to pass a vote of no confidence in individual Ministers but not in the entire Cabinet. Further, the National Assembly should have no power to pass a vote of no confidence in the president whose mandate to govern is derived from the people.

16. TRANSLATION OF CONSTITUTION INTO LOCAL LANGUAGES.

    The commission observed that many advantages would be derived in promoting civic awareness through the study of The Constitution especially if fundamental human rights were translated into local languages.

17. TEACHING OF The Constitution

    The commission recommended that The Constitution should be taught in schools and that The Constitution should be bound in a special hard cover edition or booklet.

     

18. ADOPTION OF The Constitution.

The commission recommended The Constitution to be adopted through a constituent assembly and national referendum.