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Professor Mvunga on constitution making

Veteran lawyer Patrick Mvunga

THE formulation of Zambia’s constitution has been a touchy subject, starting with the so-called MacLeod 15-15-15 constitution of 1962, which birthed the coalition government of UNIP and the African National Congress (ANC).
Even after returning to multi-party politics in 1991, the issue of the constitution repeatedly dogged the country.
Who is not familiar with the term people-driven constitution? It is a widely used phrase, one which prompted the late President Michael Sata to ask whether or not there is an animal-driven constitution.
Anyhow, there is one person who has closely been involved in the constitution-making process of the country, starting with the 1991 Commission which he chaired; Professor Patrick Mphanza Mvunga.
“We had six months before the 1991 elections when I was appointed chairperson of the commission. We confined ourselves to provincial centres we visited to get views of the people and came up with a report which we submitted to the government on April 25 1991,” he says.
The report summarised everything that was done in all the provinces. However, there was no continuity because of change of power as the Movement for Multi-Party Democracy (MMD) took office the same year from the United National Independence Party (UNIP) which had been in power for 17 years.
“This is was a transitional arrangement so most of the things that were recommended depended on the successive government. And MMD also had their own views on how to democratise the constitution, as they saw fit since they had been swept into power under the banner of democratisation,”  he says.
But the distinguished lawyer recalls that in 1991, there was a feeling of mistrust in that some felt there were ‘traps’ in some of the provisions and so they wanted to make sure everything was as it seemed.
“I remember the two term issue, they were not happy with the expression of commencement of this constitution because the term of the president was fixed at two terms. Other issues included two chamber parliament and number of nominated members of parliament. The figure was higher but they all agreed on eight,” he says.
Prof Mvunga was, to later sit on another constitutional commission appointed by President Frederick Chiluba. The commission was chaired by eminent lawyer John Mwanakatwe.
Unlike the previous commission, this one had more time and visited almost all districts in the country.
It also addressed itself to very novel issues on human rights, extending the boundaries which are political in nature to social, economic and cultural rights.
“There is a big chunk on the economic, social and cultural rights which are not in the present constitution in part three. But the parentage clause was returned. The clause was that for one to be candidate for the presidency, you needed to have both parents who were born in Zambia,” he says.
Prof Mvunga is of the view that the government white paper dwelt so much on the parentage clause.
“The 1996 amendment in the 1991 constitution did not reflect the greater part of the Mwanakatwe recommendations. A lot of things were left in abyss, but the parentage clause came out clearly,” he says.
He dismisses perceptions that the Mwanakatwe review commission did not meet people’s expectations.
“The Mwanakatwe [report] did reflect what we submitted except that the greater part of the report did not receive warm reception. In other words, what the Mwanakatwe report did, most of it is not or was not put in the constitution. That is by way [of the] government white paper,” he says.
Then, followed the Mung’omba Constitution Review Commission, which according to Prof Mvunga, operated in a very liberal environment as it was given broader terms and made to build up on the Mwanakatwe report.
The conclusion of the Mungomba constitution review commission led to the establishment of the National Constitutional Commission (NCC) by an Act of Parliament.
“This was so that we could go and formulate, in draft form, the document called the constitution. The Mungomba commission touched on many issues but repeated works started by the Mwanakatwe commission on economic and cultural rights. In fact, a big part of that is a subject of the referendum,” he says.
The NCC deliberated on the Mung’omba report and adopted what was felt to be good provisions. After completion and draft bill was done, it was sent to the National Assembly but it was not adopted because the numbers were not sufficient.
“Some of the limiting factors to producing a product from NCC are that there was a group of Members of Parliament who took part in the NCC who did not vote for it when it went to the National Assembly. The ruling party now also boycotted the whole exercise,” he says.
And now, there is a new amended constitution.
Prof Mvunga says there are a lot of features which have come out which were submitted by people, citing the 50 percent-plus-one threshold for the wining presidential candidate, the running mate, age qualification, Constitutional Court, Court of Appeal, election date and grade 12 qualifications.
“You need a lot of time to read through this document but most of the features have been retained. People insisted on the grade 12 as a minimum qualification for anyone aspiring to be a councillor, MP or president. As for the 50 plus one, people were serious because they said they don’t want a minority president,” he says.
He notes that having a presidential candidate and running mate being elected at the same time ensures legitimacy on the part of the vice president to take over office.
On the implementation of the amended constitution, Prof Mvunga says there are transitional provisions in offices which ensure continuation.
“I can’t specifically commit myself because I wasn’t part of the assessment team, but it is quite fashionable in drafting to allow when these provisions will take effect. So they are saying effective date meaning, the date of commencement of this act and constitution amendment as provided in section four,” he says.
He says it is not possible to have the Constitution of Zambia Amendment Act implemented immediately the president signs; there has to be some time given for such things to be put in place.
But why has the country laboured for so long with the issue of the constitution?
“The methodology adopted when formulating the constitution was restricted. The white paper approach is under the Inquires Act and this act has always been used in the past, but it is not the usual method of constitution making,” he says.
“This is because under the Inquires Act, when you are finished with the inquiry, a report is written and submitted to the appointing authority who is the president, head of executive, who has to react to it. This is the limitation because it’s not the people reacting but the executive.”
He says the white paper has an opportunity to reject and accept what the government of the day wants and that was a very inhibiting way of going about the constitution making process.
“That is why it has taken us so long. And this is why the Mung’omba Commission did not have the restriction that the reaction be through the white paper,” he says.
However, despite being a long and tedious process involving several review commissions, Prof Mvunga is happy with his contribution to the constitution-making process for Zambia.
“I am very happy. From 1991 to date, I am familiar with the views expressed; the recorded and prepared reports were reflective of what people wanted. We didn’t add anything and we made it clear what the views were. Some views start from 1991 up to the Mung’omba commission, so you see, a build-up was from the beginning to the end,” he says.
After all is said and done, Prof Mvunga says one looks forwards to the complete constitution, a conclusion reflection of what people have said in the past and come up with a document which is a product of the four Constitution Review Commissions.
“And the earlier we did that, the better,” he says.

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