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Upholding chiefs’ right to reject draft constitution

The controversy over land provisions in the final draft constitution that some stakeholders want to be enacted into law without further debate is mounting and may not be resolved without a process of consensus building that includes all those who claim to represent the views and interests of the common man.
Already chiefs from almost all parts of the country are reported to have petitioned the President against draft provisions in the final draft by the Technical Committee on Drafting the New Constitution headed by Justice Annel Silungwe.
Not satisfied with submissions to the Ministry of Justice, in accordance with the government road map, chiefs want the president to commit his administration to those provisions they consider to take away their powers to administer and alienate customary land.
They are troubled by Article 269 which says, “There is established a Land Commission which shall have offices in all provinces and progressively in districts” and “…shall administer, manage and alienate land on behalf of the President as prescribed.”
They are also concerned by Article 296 which vests land in the president while classifying it as state or customary. Article 297 (2) adds: “the president may, through the Lands Commission, alienate land to citizens and non-citizens, as prescribed.”
For giving an ear to what the chiefs or other interest groups say about some draft provisions, President Lungu has been accused of pandering to chiefs’ demands and promising to remove the provisions they dislike.
In analysing the contentious draft provisions and the reactions of various people there might be need to compare provisions of the existing constitution, provisions in the 2005 draft constitution and those in the Silungwe first draft of 2012 in relation to the final draft provisions that chiefs reject.
Although subsidiary legislation classifies land as either state or customary, the current constitution does not, nor is there provision for a land commission with powers to administer and alienate such land. Article  127 of the current constitution provides for the institution of chief “which shall exist in any area of Zambia in accordance with the culture , customs and traditions or wishes and aspirations of the people to whom it applies”.
However, and  probably as an improvement on  the existing constitution, both the 2005 Mung’omba Constitution Review Commission and the 2012 first draft of the Silungwe Technical Committee  provided for vesting and classification of land, its administration and alienation in consultation with chiefs and local authorities.
Almost word for word, articles 328 and  329 of the 20005  draft constitution and  articles 294 to 297 of the 2012 draft constitutions provided for vesting  of land on the president in trust for and  on behalf of the people of Zambia, classified as state or customary land and administration and alienation through a Lands Commission established in the constitution.
Whilst these draft constitutions recognised the influence and powers of traditional leaders in land matters, the final draft constitution provision is a significant departure from the 2005 draft provisions whose clause (3) of Article 331 added, “… the President may, through the Lands Commission, chief or local authorities, alienate land to citizens or to non-citizens.”
What should be of concern to all stakeholders is how many other draft provisions do not have the full support of the people or groups of people and so requiring further debate in order to arrive at a consensus.
Many observers believe that the strong objections registered by chiefs could be only a small portion of many others by various institutions or other stakeholders that cannot be ignored but can be addressed through consensus building consultations.
Since government invited members of the public or stakeholder organisations to submit their comments on the final draft to the Ministry of Justice, there must be many petitions against some provisions that would be better dealt with through public consultations. In so doing the government would be exonerated from accusations that it had chosen to include or remove some provisions in order to serve its own interests.
Thus many observers and stakeholders now agree that whatever the goodwill of the government and the people, such consensus cannot be achieved through a referendum that is not preceded by debate and scrutiny of the draft constitution.
The author is a veteran journalist and a former vice-chairman of a team of permanent secretaries advising the Minister of Justice and government on the process of constitution writing.