EMMANUEL NYIRENDA
BY REJECTING the option of amending the current Constitution to realise the demand for a new one and insisting that the draft document be put to a national referendum, the Grand Coalition is reopening controversy about whether there is need for repeal of the old one and, if so, what is the best mode of adoption of the draft.
Previous constitution review commissions had all recommended that the draft be adopted by a constituent assembly comprising representative delegates.
Thus, many stakeholders believe that if this process were skipped, then there would be no need for a costly referendum.
Affirming his government’s commitment to deliver a new constitution before the 2016 general elections, late President Michael Sata said what was needed most was a process of amending parts of the draft Constitution as a start.
He observed that since there was no constitutional crisis in the country, he saw no need for the long and costly process of repealing the current Constitution.
President Edgar Lungu has reaffirmed the same, advising Zambians to consider a cheaper, and yet faster, approach to achieving the same goal of a new constitution. He has advised that the cost of doing so must be measured against other equally important demands on the national treasury.
Echoing the same views, National Restoration Party president Elias Chipimo Jr recently said the country does not have the resources to embark on a costly process of repealing the current Constitution.
Zambia has just spent an unbudgeted K400 million, following the death of President Sata.
Since the 2015 budget has already been passed, it is estimated that Government would have to source an additional K400 million to hold a referendum or double this if both were to be held this year alone, apart from about K600 million for the 2016 general elections
Perhaps to underscore the point that enactment of the Justice Annel Silungwe draft constitution is not as simple a matter as some stakeholders may think, President Lungu has urged Zambians to consider consensus building since there are several proposed provisions in the draft constitution on which stakeholders may hold different opinions.
However, the Grand Coalition, comprising political parties, religious organisations and civil society organisations insists that there ought to be an adoption referendum and that the current Constitution should be repealed and not amended before the 2016 general election as the President has suggested.
It has threatened to campaign against candidates who do not support its rigid position.
Going by this demand, legal experts observe that there would have to be two referendums – one to adopt the draft and the other in compliance with provisions of Article 79 since there will be amendments to Part III of the current Constitution.
Further, it is not clear if the grand coalition is against the recommendation by almost all previous constitution review commissions that the draft be put to a constituent assembly for adoption on behalf of the people.
It is observed that a referendum before the process of enactment suggests there would be no need for a people’s representative body to debate and, if necessary, amend the draft.
Although a referendum, especially for adoption, would deny the people the opportunity to scrutinise and build consensus, it would appear that some stakeholders insisting on such a referendum believe that its outcome would be binding on the government and Parliament.
Clause (2) of Article 79 says, “Subject to clause (3) a bill for the alteration of this constitution or the Constitution of Zambia Act shall not be passed unless … (b) the bill is supported by the votes of not less than two thirds  of all members of the Assembly.”
By implication the assembly can reject or amend the bill even if it forms the outcome of an adoption referendum.
On the other hand, those opposed to an adoption referendum without a consensus building process fear that it would attract many “no” votes from those who might be opposed to some of the provisions that could be ironed out through a  people’s representative body.
In order to use this provision for adoption it would require questions specific to the draft constitution in addition to those in respect of Part III, assuming the Referendum Commission would allow this. In addition this would be complicated by the requirement that 50 percent votes of the total number of people eligible to register as voters vote in favour.
Speaking as Acting President, Dr Guy Scott recently observed that Zambia could achieve, within months, the objective of a good constitution by simply taking to Parliament non-contentious draft provisions for enactment.
So, what’s the fuss all about?
The author is a veteran journalist and former permanent secretary in the Ministry of Information.