Wednesday, July 13, 2016

The Referendum - an orchestra of noise!

“If liberty means anything at all, it means the right to tell people what they don't want to hear."
- George Orwell

Eish! I have been reading the Constitution of Zambia (Amendment) Bill No. 37 of 2016 (NAB 37) with a microscope, and I am still scratching my head. The noise is unbearable. Here it is.

On the Bill of Rights, first and foremost why is,  the right to take part in government and to vote, still not proposed to be enshrined in our bill of rights? Instead, we are proposing "A citizen has a right to participate in political activities" in Article 24 (General political rights), which is not the same as the right to vote!

The franchise, is still buried in Article 46 of the Constitution of Zambia (Amendment) No. 2 of 2016. Or we have never read the Universal Declaration of Human Rights, which in Article 21(1) states, “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives”.

Further, Protection from inhuman treatment, Article 15 of the existing Constitution, has now been denigrated by merging it to read as “Security of person and protection from inhuman treatment” (proposed Article 17). This now reads as, "(1) A person has the right to security of the person which includes the right not to be subjected to human trafficking (2) A person has the right not to be - (a) subjected to torture; or (b) treated or punished in a cruel, inhuman or degrading manner".

Didn’t the draftees realise that the proposed Article 17 is simply two different rights and freedoms? That is, (1) A person has the right not to be subjected to human trafficking; and (2) A person has the right not to be subjected to torture or treated or punished in a cruel, inhuman or degrading manner – which is Freedom from torture, cruel, inhuman or degrading treatment and punishment!

And what was  wrong with “A person shall not be subjected to torture, or to inhuman or degrading punishment or other like treatment”, as is provided in Article 15 of the existing Constitution?

Then, there is the so-called momentous economic and social rights.

Article 45. Progressive realisation of economic, social, cultural and environmental rights, states:
(1) The State shall take reasonable measures for the progressive realisation of economic, social, cultural and environmental rights.
(2) Where a claim is made against the Sate on the nonrealisation of an economic, social, cultural and environmental right, it is the responsibility of the State to show that the resources are not available.
(3) The Constitutional Court shall not interfere with a decision by the State concerning the allocation of available resources for the progressive realisation of economic, social, cultural and environmental rights.

Wait a minute!

Does sub-article 3, mean the Constitutional Court can not adjudicate that the allocation of available resources is not reasonable, as has been evidenced before in this country of my birth?

If so, is this not contrary to Article  1 (5) of the Constitution of Zambia (Amendment) No. 2 of 2016, which reads, “A matter relating to this Constitution shall be heard by the Constitutional Court”? What then is the point of the Constitutional Court hearing a matter, where the Constitution gives the State the power not to even bother to show reasonableness?

Articles 52, 53, 54, under the section "Non Derogable Rights and Freedoms, Limitations and Derogations", are all contrary to the rationale for the review of the Bill of Rights. That is, the enjoyment of rights and freedoms under the current Constitution is subject to derogation clauses, that restrict or limit enjoyment of rights and freedoms on the evidenced unconvincing grounds of defence, public safety, public order, public morality and public health.

Yet, this is what the draft precisely does in Article 54! Sic.

Article 54 (Limitations and restrictions under law), "A law that limits or restricts a right or freedom is valid only to the extent that the law - (a) is reasonably required in the interest of public defence and security, public safety, public order, public morality, public health, blah, blah....."

Oops! And we still want to murder the murderer, for capital offences! Yet, the  Constitution Review Commission Report of 2005, notes, “The Commission observes that a very large number of petitioners made submissions on this subject. The majority expressed the view that the death penalty should be abolished while others expressed the view that the death penalty should be maintained”.

The orchestra of noise gets louder on alteration/amendment of the Constitution.

Article 79 (Alteration of Constitution) sub-article 3 of the existing Constitution states, “A bill for the alteration of Part III of this Constitution or of this Article shall not be passed unless before the first reading of the bill in the National Assembly it has been put to a National referendum with or without amendment by not less than fifty per cent of persons entitled to be registered as voters for the purposes of Presidential and parliamentary elections”. Part III is the Bill of Rights.

On the other hand, NAB 37, proposes in Article 303(1), "A Bill to amend the Bill of Rights, Article 1, Article 4, Article 5, Article 47 (1) and (2), Article 106, Article 110(1), Article 116, Article 117, Article 301, Article 302 or this Article shall be by a referendum and in accordance with this Article.

These Articles, herein, are:
Article 303(1) -  "A Bill to amend the Bill of Rights”.

Article 1 – “Short title”.

Article 4 – “Republic of Zambia”.

Article 5 - Printing and publication of Constitution - "The Constitution may be printed and published by the Government Printer separately from this Act, and the production of a copy of the Constitution purporting to be so printed shall be prima facie evidence in courts and for all purposes in connection with the Constitution as its provisions". This is a referendum issue?

Article 47 (1) and (2), is a complexity! In NAB 37 it is,  "Further protections and rights relating to marriage and family". In Constitution of Zambia (Amendment) No. 2 of 2016, it is Electoral systems! Which one is correct?

Article 106 – “Tenure of office of President and vacancy”.

Article 110(1) – “There shall be a Vice-President for the Republic who shall be the running mate to a presidential candidate in a presidential election”.

Article 116 - Ministers. (1) for instance reads, "The President shall appoint a prescribed number of Members of Parliament as Ministers", and Article 117 - Provincial Minister! Are these referendum issues?

It is inarguable that, the foregoing on the rationale for a referendum, shows a clear case for simplicity and clarity of reason as evident in the current constitution.

Exactly, what are we changing? Does what we say really matter? My opinion. Zilch.

I am voting NO during Lefeli Ndambo! It is simply an orchestra of noise.

Verbum satis sapienti.


  1. Mbinji, I was telling a colleague that I am confused. I am torn between agreeing with you and not agreeing with you. Perhaps it is the idealist in me that thinks that I should err on the side of positivity and ignore what I do not think will work. Let me clarify what I can though.
    The Constitutional Court has jurisdiction to hear all matters pertaining the Constitution, including infringement of Economic Social and Cultural Rights, it cannot however make a judgement allocating resources for the fulfillment of certain rights. This is to ensure that the principles of separation of powers is upheld. There is case law in South Africa to indicate where the role of the court ends. The allocation of resources is not a function of the Judiciary.
    A "child" is defined in the definition provided in article 266 as a person who has attained or is below the age of eighteen.
    Some of the provisions that are proposed to requires a referendum to change are as you rightly observe, not referendum issues. LAZ will have a debate this evening on the Bill of Rights, will you attend it?
    The articles are counted as beginning from the Supremacy of the Constitution which is Article 1.
    Taking part in political activities to me is broader than the right to vote and take part in government which is not a bad thing.
    Like I mentioned in our other discussion, the independence and objectivity of the Constitutional Court will be important to the enjoyment of our rights. Thank you for the insight, you have highlighted things I overlooked for instance the lack of clarity on the numbering of the articles.

    1. Thanks a lot Josiah. First, you have however not addressed the core issue that the rationale for review of the Bill of Rights is the unconvincing and often abused derogations. A fact that has been consistence in all Constitutional Review processes. Derogations in NAB37 are now more pronounced. Second, I am not arguing that the Constitutional Court can adjudicate on how to allocate resources, my argument is that it should be allowed to show that the State has not shown reasonable grounds if it does not allocate resources fairly.

      Again thanks for the response.

    2. Thanks for bringing my attention to Article 266 of the Constitution of Zambia (Amendment) No. 2 of 2016. Edited accordingly. Regards.