By O’Brien Kaaba
The Government has abruptly announced a constitution making process. So far nothing is clear as there are no details furnished and no roadmap provided. Neither has any Bill been made public. Various government officials and party functionaries have, however, been aggressively defending the decision. What is clear from the cocktail of contradictions in the roationalisation of the impending process is that there is no clear plan and the whole enterprise might just be a resurrection of the ill-fated Bill 10, an illiberal attempt at undermining constitutional order. Constitution-making is never a neutral undertaking. It can be for a noble purpose, but as the Zambian history has also taught us, it can also be a political tool to fight perceived political battles, especially when some elites see some provisions as a liability to short term political goals.
When a constitution and constitution making are not in public interest but only serve short term political interests, the effect is to turn the constitution from being a fundamental law establishing the state, limiting its powers, disciplining its government and committing the national leadership to set collective values, to a tool giving a veneer of legitimacy to bad governance. Instead of limiting government and fostering collective values such as transparency and accountability, constitutions can be deployed by regimes to entrench themselves, violate human rights and loot public resources. The case of how several African regimes soon after independence amended constitutions to entrench single party dictatorships, violate human rights and consolidate power is well known. In many countries in Africa, this is still the status quo, leading constitutional scholars to coin phrases such as ‘politically enabling documents,’ ‘constitutions without constitutionalism,’ ‘façade constitutions,’ ‘trap constitutions,’ ‘nominal constitutions,’ and ‘abusive constitutionalism’ to aptly describe the phenomena. In general, what all these phrases denote is that when seen from afar the constitutions look democratic and contain several elements of liberal constitutions that limit governmental power and foster democratic values. But viewed closely, one sees that such constitutions are crafted in a manner that undermines democratic values, allows for unchecked executive powers and serve the interests of the ruling and well-connected elite than the common good.
Given the problematic context of constitution making in Zambia and Africa at large, it is strange that we seem not to have learnt something from the past, especially the national rejection of Bill 10. A haphazard constitution making process has potential to undermine constitutionalism and public trust in government. What Zambia needs is a well-panned, comprehensive, consensus driven constitution making process aimed at redesigning the power map of the state. Superficial amendments will not address any of the fundamental governance challenges of the country. The county needs a well-coordinated, clearly thought out process aimed at re-engineering the state. As Prof Chaloka Beyani has argued, the goal of constitutional reform in Zambia should be to “reconfigure the oppressive vertical authority of the state to a people driven state with horizontal authority, and to rebase and build it according to the will and well-being of the people as an inclusive whole, without discrimination or marginalisation politically, economically, socially, including on dimensions of gender.” It is about re-imagining the state beyond its colonial construct in order to enable the people to live in freedom, design a responsive governance system and craft an inclusive polity. We do not need another Bill 10.