WHY ZAMBA NEEDS A NEW CONSTITUTION

BY O’BRIEN KAABA (DR)

In this article, Dr Kaaba argues that although it is important to reform the constitution in order to clarify language, eradicate gaps and remove contradictions, such reforms would do little to resolve the country’s major structural constitutional challenges.

The constitution making process is on the horizon again. Although the new government has not given any detailed plans or set the process in motion, it has at several occasions indicated that it is committed to undertaking constitutional reforms. What exactly this entails is not clear. Will the process lead to a new constitution or simply superficial amendments to clarify language and eliminate contradictions?

This article is intended to motivate against superficial amendments, in favour of substantive structural reforms, leading to a new constitution with a restructured power map. Although it is important to reform the constitution in order to clarify language, eradicate gaps and remove contradictions, such reforms would do little to resolve our major structural constitutional challenges as a country. The structural constitutional problems go to the heart of the state and itsdesign and cannot be cured by superficial amendments.

To accurately diagnose the constitutional problem, it is important to understand the formation of the current Zambian state, modelled on the African state in general. Zambia, like almost all African states, is a construct of colonialism. The colonial legacy continues to shape and define the system of governance in a profound way, predisposing it to anti-democratic tendencies. In trying to answer why the African state has become authoritarian, Nic Cheeseman and Jonathan Fisher identified at least two elements of the colonial state that have predisposed the postcolonial African state to authoritarianism.

The first is that the colonial state was designed to systematically deny Africans their political and economic rights. This saw the development and implementation of a cocktail of repressive laws and policies, under an extremely centralized government.

The second is that, in order to govern huge swaths of territory, colonial administrators co-opted local leaders and communities to cooperate with them in managing the territories. This led to the evolution of the culture of “big men” who were not accountable to the people within the communities.

These two characteristics led to the exercise of power without accountability to the people. As can be seen, overall, this led to a state sustained by the construction of a legal framework that was primarily based on abuse of power, within effective checks and balances.

This design of the state remained intact at independence. Instead of reforming, the new governments soon after independence sought to consolidate and further centralise power.

In the case of Zambia, this can be seen more readily through the 1973 constitution that established a one-party state. Subsequent reforms have been superficial and largely focusing on liberalising politics and allowing for competition, but without rethinking the design of the state and its power-map infrastructure. As a result, the reforms have left intact the highly centralised, hegemonic unitary state where the executive dominates all institutions and is largely not accountable to anyone. As Professor Kwasi Prempeh has argued, even after reforms, “Africa’s new constitutions have generally failed to address or reform the structure and distribution of power within the postcolonial state. Instead, the current constitutions have preserved the centralising tendencies- and other original sins – of the founding generation that have defined the structure and organisation of power within the African state since the early 1960s.”

These are still the defining features of the Zambian state, as the 2013 APRM country report noted: “There is no real separation of powers between the principal branches of government and the executive is overly dominant, relatively unchecked and lacking in accountability. The legislature is too weak and dominated by the executive for it to exercise effective oversight…the system of political patronage that permeates the entire organisation of government institutions renders all state institutions virtually beholden to the President.”

It must be acknowledged that previous constitutional reforms have yielded some benefits, such as reinstatement of multiparty electoral competition; presidential term limits; broadening of the franchise and the setting of a clear election date. These, however, do not shift the power structure of the constitution in any way. Even recently established institutions, such as the office of the Public Protector and the Constitutional Court are of little use as they have been swallowed in the pre-existing constitutional culture. Simply establishing new institutions without attending to the underlying power base only creates new avenues for undermining democracy, as the ‘jurisprudence’ from our enfeebled Constitutional Court demonstrates.

Major constitutional issues are yet to be attended to. There is need to look at the design and interrelationship of the arms of government to re-affirm their co-equal status; to genuinely devolve power from the centre and not simply pay lip service to devolution as is currently the case; to end the systematic exclusion of women from elective public office; to redesign the electoral system in order to tamper with cut-throat politics and winner-take-all outcomes; to constitutionalise administrative justice and broaden its scope beyond the common law remedies of judicial review which are inaccessible and least effective for many ordinary people; to provide for an insulated and professional civil service; to cure the Bill of Rights that considers human rights as residual; to bring the integrity of the environment to the centre of sustainable development; to bring the security, military and intelligence wings under the governance of democratic norms; to write the constitution in plain and accessible language; and to re-affirm a value driven constitutional project.

I believe this is what should be the focus of the constitutional reforms. The state should be dissected and reformed. Superficial amendments to clarify language, although important, will not lead to effective constitutionalism. There is need to rearrange the state power-map. The goal should not be to weaken the government and create a lame-duck executive, but to find a reasonable balance to have a government strong enough to be able to govern effectively but trammeled by reasonable restraints to avoid abuse of power. In the words of Professor Charles Fombad, “the ultimate goal is to prevent the twin evils of tyranny and anarchy.” Without opening up the state for redesign and re-mapping of power, the constitutional reform projects will continue to treat symptoms and not the root cause of constitutional illegitimacy in Zambia. In order to have a successful constitution making process, there is need to carefully design the process so as to avoid the pitfalls of the past. The constitution-making process should have a forecast of implementation mechanisms to ensure that the product does not end up being an ornamental document.

[The author is a lecturer in the School of Law at the University of Zambia]