“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.
