AN NGO-DRIVEN CONSTITUTION?

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I am amused and amazed in equal measure as the constitutional debate keeps raging that almost everyone from political parties, churches, NGOs and every interest group in Zambia are all purporting to speak on behalf of “the people” as they all make various demands that are often incompatible and contradictory. The parties in Parliament say they represent the will of the people by enacting the constitution with most of the clauses that Zambians have always wanted.

But plenty of interest groups and NGOs such as the Grand Coalition and Fodep also claim to represent the will of the people since the constitution has been supposedly mutilated by leaving out or amending some clauses. So which is which? Are Zambians upset that we won’t have Provincial Assemblies and another 94 new MPs or are they happy that we now have 50%+1, the Running Mate Clause and Dual Citizenship?

I think neither of these apply. By my own unscientific estimate, 90% of Zambians simply do not care about the constitution as much as all the vested interests want us to believe. They are too busy trying to survive in this worsening economy while everyone purports to speak on their behalf.

The submissions made to the last full-blown constitutional review commission (The Mung’omba Commission) totaled up to less than thirteen thousand people (just over 1% of the population at the time). Yet so many people speak confidently about the “will of the people” or a “people-driven constitution”. Is 1% representative of the “will” of the people?

It is all a myth. The 1% mostly educated middle class people cannot approximate to the general populace. There were plenty of NGOs and interest groups that made submissions at the Mung’omba and previous Commissions since they are generally more informed and usually funded to do such kinds of things.

Are these “the people” driving the constitution or is it the NGOs? Do we really have a “people-driven” Constitution or an “NGO-driven” Constitution? The vast majority of Zambians do not fully comprehend all the complexities of a constitution the way NGOs do. If you don’t believe me, try explaining to villagers the concept of Proportional Representation and ask them to explain to you what difference it will make to their lives.

The American constitution was deliberated on by 55 white men and yet it has stood the test of time, to borrow an overused cliché. They never had a referendum to enact it. The first draft did not even have the Bill of Rights which was added through the first ten amendments. So this idea that you must have a referendum to get a successful constitution is not necessarily true. I would argue that the referendum method of adoption carries the risk of hijacking by special interest groups such a NGOs since they have the motivation to make submissions as explained already.

Groups such as the Grand Coalition have an all-or-nothing position. They are effectively saying that even if we removed one clause from the draft constitution (no matter how good the reasons are), we have mutilated the constitution, as if it is some perfect sacred document given to us from Mount Sinai. This is silly and absurd!

If one argues that ruling parties tend to mutilate and manipulate the constitution and should not therefore be trusted, it means that you do not trust the choice of Zambians. They are the ones who elected the MPs who are supposed to be smarter than them and have better understanding of all the issues at stake when enacting the constitution.

Parliament is the most representative body in this country (elected by rich and poor, urban and villagers alike) and are best placed to enact the constitution. If Zambians choose corrupt evil people to represent them in Parliament, it is still their right to do so and they will pay the price in poor laws and governance.

When a constitution is subjected to a referendum, plenty of NGOs will get tons of funding to conduct sensitization exercises for potential voters. Those pushing for certain clauses in the constitution get a feather in their cap and ask for more funding from their donors since they have proved how effective they are. Most (if not all) of these special interest groups do not really care about the poor or the constitution per se. They just want to line their pockets with donor money while they condemn corrupt politicians who mutilate constitutions. Looks like birds of a feather to me.

These NGOs have to keep making noise even if 99% of the constitution was adopted because that is how they stay relevant and keep getting money for their public campaigns. If they stopped “yapping”, they would become redundant and would need to be disbanded. So they shouldn’t think they can fool all of us into believing that this is really about what the Zambian people want, but is rather about “stomach infrastructure”, to borrow a term from Nigerians.

Using a referendum route means that special interest NGOs who pushed for their pet clauses to be added to the draft constitution will conduct campaigns to persuade people to vote yes. Since they are largely funded by Western countries, they may for example want to push for “gay rights” which the majority of Zambians oppose. The NGOs will tell Zambians about all the nice clauses in the constitution but leave out the ones that are less popular. Since the vote is either Yes or No for the entire document, Zambians won’t be any the wiser.

The Jesuit Center for Theological Reflections (JCTR) pushed for the so-called Economic and Social Rights to be put in the Bill of Rights in the draft constitution and to be made justiciable (ie you can sue the government if you don’t have them). They include absurd “rights” like the right to employment, the right to “clean and safe water”, “decent housing” and the right to “food of acceptable standard”.

So who is going to define what “decent housing” is? Is ifinkubala (caterpillars) “food of acceptable standard”? If I live in Chibolya and I am an unemployed youth, I can sue the government for not having running water and a job. Zambian lawyers will relish the prospect of initiating a class-action lawsuit against the government. But how will the broke and incompetent Zambian government manage to provide jobs for everyone in Chibolya and all villagers in Zambia? Will they force private companies to employ people by decree? Or will they expand the civil service ten times and levy more and more taxes and impose more debt on all of us?

Yet the absurdity of all this seems to be lost on all these communist-oriented NGOs and special interest groups who push for these ridiculous clauses which are nothing more than an academic exercise as the case of South Africa has proved. Cases brought into the South African Constitutional Court to rule on these “rights” have been thrown out with the argument of “progressive realization”, which basically means, “It ain’t gonna happen in your lifetime, so just go home and jump in the lake!”

Our NGOs like the Grand Coalition are either grossly irrational or totally dishonest (or both) for them not to see the absurdity of these “rights” which they want to be put into our constitution through a referendum and which they are citing as the reason they are opposed to the constitution about to be signed by President Edgar Lungu.

Of course Zambians want clean water and subsidized electricity without paying for it. If you asked them whether they are willing to be taxed more to guarantee those services, I suspect they may suddenly get an epiphany and have a very different perspective, especially since they know that sitting governments always steal and misappropriate money.

For the record, I am pleased that we shall have a new constitution under which the 2016 tripartite elections shall be held. I agree with the MMD and PF position that a bird in hand is worth two in the bush. It is better to have a constitution with 80% of the progressive clauses enacted rather than zero until 2016 when it may even get defeated.

I do not think our NGOs are omniscient to know that the Referendum will succeed in 2016. I do not even think it will be held because time is too short to do everything necessary to hold a referendum according to the letter of the law in terms of 50% of eligible voters participating and other conditions.

Zambians need to elect better leaders who can eventually produce better laws that make better systems. Zambia’s democracy is just 50 years old, more than half of which was spent under the evil one party dictatorship of UNIP. Our friends in the West have 200 year democracies. We are still very far. Hopefully, by the time all of us who are reading this article are dead and buried, Zambia shall be a much better and more advanced democracy.

Michael Chishala

You can get in touch with the author on michael [at] zambia [dot] co [dot] zm.

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