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Christina Holder

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Zambia's Constitutional Review Process Has Thwarted Meaningful Public Participation

Posted: 08/31/10 05:47 PM ET

"A costly spectacle." "A circus." "A charade." This is how some detractors in the Zambian media have described the Zambian National Constitutional Conference (NCC), the body charged with the important task of rewriting the Zambian Constitution. The body's website describes the NCC as a "unique Constitution-making process that seeks to produce Zambia's first ever people's Constitution." Many Zambians disagree.

Criticism of the NCC is not entirely unwarranted. The NCC was established by an act of the Zambian Parliament in August 2007 for the "examination, debate and adoption of proposals to alter the . . . draft constitution" proposed by the Mung'omba Constitution Review Commission in 2005. The Mung'omba Commission had based its draft constitution on information gathered through collecting submissions from 12,569 individuals across Zambia's 150 constituencies and visiting nine other countries to study successful constitutional review processes. The work of the Mung'omba Commission was well-received by the Zambian public, though it did not ultimately result in the adoption of a new constitution. Many Zambian non-governmental organizations (NGOs) recommended that the Government assemble a small group of experts to harmonize the Mung'omba Draft Constitution with earlier draft constitutions, the laws of Zambia, and the country's regional and international legal obligations. Instead, the Government decided to form an entirely new body comprised of 495 delegates -- politicians, ruling party officials and civil society representatives appointed by the Secretary of the Cabinet -- to reconsider the 352 provisions of the earlier draft. By statute, the NCC was to complete its duties within 12 months of the law's passage, not including periods when the National Assembly was in session. However, the process has lasted three years. During that time, delegates have reportedly collected sitting and transport fees ranging from roughly $130 per day for Lusaka-based delegates to $260 per day for non-Lusaka-based delegates - a small fortune for most Zambian people.

Many civil society organizations invited to participate in the NCC, including the Zambian Episcopal Conference and the Council of Churches in Zambia, boycotted the process on principle. They cited the NCC's expensive and unnecessary duplication of the work of the Mung'omba Commission, politicized composition and indeterminate process that did not specify, for example, whether the new draft constitution would be subject to adoption through referendum, parliamentary vote, or some hybrid procedure. Throughout the protracted NCC process, NGOs such as the Jesuit Center for Theological Reflection (JCTR) have served as public watchdogs, reporting when certain members of the NCC proposed to double the sitting fees for Lusaka-based Members of Parliament and dismissed economic, social and cultural rights (ESC rights), such as the rights to food and water included in the Mung'omba Draft Constitution, as "utopian."

On June 22, 2010, the NCC finally released its Draft Constitution, a 301 page document. Eight prominent Zambian NGOs -- Caritas Zambia, Citizens Forum, Civil Society for Poverty Reduction, JCTR, Non-Governmental Organization Coordinating Council, Southern African Center for the Constructive Resolution of Disputes, Center for Trade Policy and Development and Transparency International Zambia -- issued a joint statement "cautiously welcom[ing] the launch of the draft constitution" and expressing their hope that the launch would "go a long way in uniting Zambians in coming up with a people-driven and people-centered constitution." However, the NGOs also expressed disappointment with the NCC's failure to meaningfully engage the majority of Zambian people in the constitutional review process.

Indeed, the NCC largely ignored Article 23 of the NCC Act, which requires the body to make the Draft Constitution available to the public for 60 days and, upon the expiration of such period, to facilitate public discussion, debate and the collection of written comments to be incorporated into a revised draft. Without a compelling justification, the NCC consolidated and reduced the public distribution and discussion period to 40 days. This period was further reduced by the NCC's failure to release the Draft Constitution in paper and electronic form until a few days after the 40-day period had begun. This did not allow sufficient time for the draft to be shared with the public, particularly the 65 percent of Zambians living in rural areas who are not easily reached by road or radio. In addition, the NCC failed to summarize, simplify, translate, and distribute the Draft Constitution in alternative formats so that it would be accessible to all Zambians, regardless of their language, level of literacy, or disability. Such actions were required by human rights law, as well as the reality that 32 percent of the population cannot read.

During the 40-day comment period, NGOs criticized substantive provisions of the Draft Constitution that limited rights articulated by the Mung'omba Commission and that entrenched the power of the executive at the expense of separation of powers and devolution of authority to local government. NGOs spoke out forcefully against the most controversial aspects of the Draft Constitution, including the exclusion of certain ESC rights, elimination of the requirement that the president be elected by a majority vote, and the new requirement that presidential candidates possess a degree from a recognized university.

When the 40-day period ended, the NCC reconvened to consider the written comments submitted by the public. After taking three years to produce the draft, it reportedly spent only three days discussing the views of the Zambian people. In an unexpected reversal of its previous position, the NCC decided to retain the Mung'omba Draft Constitution's progressive ESC rights provisions by recognizing the rights to education, health, social protection, food, water, sanitation, and housing (subject to a referendum). The delegates also abandoned the presidential degree requirement. Nonetheless, other problematic provisions that conflict with the Mung'omba Draft Constitution remained: the Vice-President is appointed rather than elected as the President's running mate; Ministers and Cabinet Officials must be Members of Parliament, potentially undermining the separation of powers; the right to a safe and healthy environment is eliminated from the Bill of Rights; freedom of information is circumscribed; and freedom from discrimination does not apply "with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law," and therefore may be of limited practical value to rural women who have been historically disadvantaged in such matters.

The NCC announced that it would present the revised Draft Constitution to the Minister of Justice on August 31, 2010. It remains unclear what will happen next to the draft. Many NGOs have called on the government to immediately present a roadmap of post-presentment review procedures and to ultimately submit the entire document for a referendum.

As Zambia's latest constitutional review process nears completion, human rights supporters around the world should remain alert for opportunities to support local efforts to ensure that the Draft Constitution reflects the aspirations of the Zambian people and is accepted or rejected based on a direct vote. Official information and instructions for submitting comments are available on the NCC's website. A selection of public comments, which were not assembled and made available by the NCC, is available on the website of the Zambian Economist.