The conclusion of the programme of work by the Technical Committee and the subsequent handover of the Final Draft Report, irrespective of whatever form or route it has taken should now render impetus for progress to the whole process. However, as (Patriotic Front) government we believe that all citizens should contribute to finding solutions to the challenges which have hitherto dogged our constitutional-making process. - Hon. Wynter Kabimba, Minister of Justice, April 30, 2014 PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 8 7
Introduction On 29 th April 2014, The Young African Leaders Initiative (YALI) held a 2!-hour closed door meeting with Government representative, Honorable Minister of Justice, Wynter Kabimba, to mutually discuss the way forward for Zambias current constitutional reform process initiated by His Excellency, the President of the Republic of Zambia, Mr. Michael C. Sata when he appointed the Technical Committee Drafting the Zambian Constitution (TCDZC).
YALI indicated that it remains cautiously optimistic that the ruling PF Government and stakeholders can reach a mutually agreed and negotiated process on the way forward on constitutional reform as opposed to current confrontational approach between stakeholders and Government, a process that has been repeating itself from previous review processes. YALI called on PF leadership to be more committed to dialogue and remain tolerant of divergent views being expressed by all stakeholders.
Zambias Justice Minister, Hon Kabimba, welcomed the call for a negotiated approach towards constitutional reform and emphasized President Satas commitment to giving Zambians a good and lasting Constitution that has eluded the country for the last 50 years. The Justice Minister underscored the need for consensus on the way forward as opposed to on-going confrontation which Government finds unnecessary as Government remains open and receptive to avenues for reaching consensus.
The Minister emphasized that it was President Satas view and his cabinet that Zambians deserve a good and lasting constitution than a half-backed document meant to serve sectional interests. He said the Ministry of Justice and Cabinet is open to receive concrete proposal for a negotiated approach that takes into consideration the interest of the State, Government, stakeholders and, in particular, Zambians citizens of whom the constitution is meant to govern to posterity.
Considerations Positions by Civil Society and the Church Stakeholders led by civil society and the church have been demanding the release of the Draft Constitution as the Technical Committee Drafting the Constitution has concluded its work and submitted the draft to Government, although the promise reflected in the Committees Terms of Reference was to simultaneously submit the Constitution to the President and the PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 9 7 public. Stakeholders have expressed anxiety that subsequent comments by different Government ministers and His Excellency the President seem to suggest deviation from policy pronouncements made by the President in Cabinet and the ruling party in general. Civil Society has increasingly called on Government to: Release the Draft Constitution to the Public come up with a clear roadmap for enactment of the constitution, Facilitate the legal framework protecting the process and content Setting up of Referendum Commission
Government response Since the commencement of the programme of work by the Judge Silungwe Technical Committee in November, 2011, His Excellency the President has expressed governments commitment to the constitutional-making process having made policy pronouncements during the official opening of parliament in 2011, 2012 and 2013.
Government does not share the view held by some stakeholders that the State should have no role to play in the process so as to guarantee its purity and legitimacy.
The projection of the view that the country is experiencing a constitutional crisis unless a new constitution is urgently enacted is a misrepresentation of the reality in the country.
It is important that the constitutional-making process presents itself as people-owned and people-driven. It must be all inclusive and non-partisan in its complexion. It must not appear to be a political tool or vehicle by one group of citizens against another.
We must all remain committed to institutionalized forms of dialogue which offer equal opportunities for rejoinder to all participants or stakeholders. The culture of promoting the hegemony of views or ideas by one group against another cannot yield positive results. These positions demand of us that we move to find a convergence point sooner rather than later, through some discourse such as this one, remarked the Justice Minister.
A constitutional-making process cannot succeed if it takes the form of Them And- Us. It is not a contest between two adversaries. It is a national and unifying project. PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 : 7 Fundamentals for Negotiated Approach In view of the divergent positions taken by both stakeholders and Government, YALI is proposing a negotiated approach that will lead towards the constitutional reform process becoming a national and unifying project. Leading to the proposal for a negotiated approach, the following four fundamentals were taken into consideration:
1. Legal Framework This Master Plan can inspire confidence in the negotiated approach to concluding the constitutional reform process if Government takes leadership and come up with the legal framework that will protect the process and content. The legal framework must include the negotiated roadmap towards the Referendum in 2016 and its final enactment by Parliament during the first sitting after the 2016 tripartite elections.
2. Cost Analysis The cost of running a referendum is equivalent to the cost of running a general election. YALI is aware that the approximate cost for the 2011 General Elections stood at K322 Billion. In view of the depreciating Kwacha and the timeframe, the cost of the referendum is projected at (rebased) K450 million to K500 Million. If the referendum is to be held separately anytime before 2016, approximately 2 years from now, taxpayers will have to spend a total of about K800million to K1billion to which Government argues that it would have to divert funds from priority areas such as health, education, agriculture, and infrastructure development. In view of the above, YALI has proposed the holding of the Referendum alongside the 2016 Tripartite Elections.
3. Duration The timeframe for holding the referendum has direct implications on the cost and other activities associated with national governance and developmental priorities. There is practically less than 2years before the next General Election in Zambia. The year 2015 will be marked by increased political campaigns by political parties in readiness for the 2016 elections. This entails that the political scene will be polarized and the general euphoria may render the holding of a successful referendum impossible. In view of the above and for purposes of allowing adequate negotiation and consensus on the draft Constitution, YALI proposes the referendum is held in 2016 after all is agreed among stakeholders and government.
PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 ; 7 4. Constitutional Provision (Article 79), 1996 vs the Referendum Act, 1969 The provisions of Article 79 of the Constitution of Zambia enacted in 1996 and the Referendum Act enacted in 1969 must be reconciled and consensus on holding the referendum using these two instruments must be reached. There is a risk factor on the referendum in that if the process if rushed and has not received consensus, the nation may not meet the required numbers of threshold as required by Article 79. It is a fundamental issue that the nations go to the referendum to simply endorse the proposed constitution as opposed to subjecting it to a contest of YES or NO. This therefore requires that all stakeholders reach an agreement on the proposed constitution for the referendum to be successful.
YALI proposes 10-Point Master Plan leading to the enactment of the constitution In view of the different positions taken by stakeholders and Government response, the Young African Leaders Initiative (YALI) proposes to Government a master plan for the conclusion of Zambias constitutional reform process. The proposal is one where the public allow reasonable time for Cabinet to endorse the work of the Technical Committee and provide authority for release of the Draft Constitution to the public, subsequent holding of the National Referendum alongside the 2016 Presidential, Parliamentary and Local Government Elections, Enactment of the new Constitution of Zambia during the first sitting of Parliament (post 2016 General Elections) and operationalising of the new Constitution in 2017.
Step One: YALI proposes that Cabinet spends a reasonable time to endorse the work of the Technical Committee and provide authorization for the release of the Draft Constitution.
Step Two: YALI proposes the release of the Draft Constitution on August 1, 2014 by His Excellency the President of Zambia, Mr. M. C. Sata. During this period, we propose the Solicitor General and Law Association of Zambia (LAZ) take a lead in proposing the necessary legal framework for protecting the process, deal with matters incidental to holding the Referendum and enacting the Constitution. The period can run up till the time when the Ministry of Justice submits to Parliament the proposed Bill for the legal framework and it is proposed that the proposed 10-steps are made as appendage to the framework.
Step Three: Upon Release of the document, we propose the document is subjected to 2 months of public scrutiny by various groups. Note must be taken that the TCDZC had earlier proposed public validation of the final draft Constitution, a process that did not take place. This proposed step will therefore allow the public to scrutinize the PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 < 7 draft Constitution as submitted by the TCDZC to Government and, should there be any contention or objections raised, submit the same to the Negotiating Committee of stakeholders, below. This third step is expected to end on September 30, 2014.
Step Four: YALI proposes the draft Constitution and various positions be subjected to formal negotiations starting on October 1, 2014 with the formation of a Constitution Negotiating Committee composed of Government Representative (e.g. Solicitor General), the Law Association of Zambia and proposed Task Managers, below, who will define issues of contention identified during the Silungwe review process. During the end of this process in January 31, 2014, the Committee is expected to reconvene a National Convention comprising of stakeholders for purposes of negotiations and consensus building on the final negotiated Draft Constitution that shall be submitted to the Referendum. This process can be financed from remaining allocation towards constitutional reform in the 2014 National Budget with the re- constitution of the National Convention budgeted for in the 2015 National Budget.
Step Five: with the end of a negotiated process on the final draft Constitution, we propose that His Excellency, President Sata appoint a Referendum Commission by February 1, 2015. In line with Government position on engaging stakeholders on the roadmap towards the referendum, we propose this period is utilized by the Commission to engage with various stakeholders on matters incidental to holding the National Referendum which is proposed for in Step Ten.
Step Six: With an agreed position on the Draft Constitution and feedback from various consultations held on the roadmap, we propose the Referendum Commission frame the referendum question and begin to publicize to citizens on progress or any alternative proposals towards the referendum. We propose this period take place between June 1, 2015 and July 31,
2015.
Step Seven: for the period of five months ending starting on August 1, 2015 and ending on December 31, 2015, we propose the Referendum Commission and the Electoral Commission of Zambia (ECZ) recruit and train referendum officers, printing of Referendum materials and do any such other work in readiness for the referendum. We propose that funding for this process be included in the 2015 National Budget although the Referendum Commission may lobby for funding from willing cooperating partners.
PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 = 7 Step Eight: Beginning January 1, 2016 until the time when the referendum is held, we propose ECZ conduct voter registration exercise and update the voters roll by ensuring eligible voters are captured and ready to participate in the referendum. During this period, we propose the Referendum Commission conduct national-wide public awareness campaigns on the Referendum with clear messages on the need for citizens to participate and cast the ballot on the Constitution. We propose the Ministry of Finance provides for this exercise in the 2016 National Budget although funding from willing cooperating partners can be sourced by the Commission.
Step Nine: We propose the National Referendum is held alongside the 2016 Tripartite Elections for Presidential, Parliamentary and Local Government. At each polling station, citizens will be made aware of the referendum ballot which will be cast in separate ballot box. This measure of holding the National Referendum together with the General Election is expected to provide for consolidated expenditure from Government and cooperating partners. By implications, the 2016 General Elections will be held under the 1996 Constitution of Zambia.
Step Ten: Shortly after the General Elections and the successful holding of the Referendum, we propose that the Parliament enact the New Constitution of Zambia. We propose that the enactment of the new Constitution is done during the first sitting when newly elected MPs are sworn in.
THEMATIC PRESENTATION OF THE 10-POINT MASTER PLAN Step Activity Duration Expectation No. 1: Cabinet Study the Draft Constitution and Report of the Technical Committee
Within a reasonable period of time - Cabinet Endorses Work of the TCDZC and gives authority for the release and publication of the Draft Constitution No. 2 Release of the Draft Constitution; and
Steps towards Legal Framework Proposal August 1, 2014
- H.E. President Sata releases the Draft Constitution for public scrutiny
- The Solicitor General and Law Association of Zambia (LAZ) take a lead to come up with legal framework and agree on legal matters relating to holding of the PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 > 7 Referendum) No. 3 Draft Constitution scrutinized by the Public
2 Months
Proposal: August 1 - 31 September 30, 2014 - Government and Stakeholders (Cabinet, Political Parties, Civil Society, Churches, Women and Youth Movements and other stakeholders (Chiefs, doctors, etc) allowed to scrutinize the Draft and submit any issues of contention to the Negotiating Committee. No. 4 Formation of the Constitution Negotiating Committee and Coordinated Negotiations on the Draft Constitution 4 Months
Proposal: October 1 January 31, 2015)
- Issues of contention during the Silungwe review process identified and subjected to consensus Building. - Negotiations on content of the draft Constitution conducted and the National Convention re-constituted to facilitate agreement on the final product for the referendum.
o Political Parties Negotiations Task Manager
o Civil Society Negotiations Task Manager
o Churches and other religions Negotiations Task Manager
o Women Movement Negotiations Task Manager
o Youth Movement Negotiations Task Manager o Other stakeholders (Chiefs, doctors, etc) PROPOSED 10-POINT MASTER PLAN ON ZAMBIAS CONSTITUTIONAL REFORM 7 ? 7
No. 5 His Excellency, the President, Mr. Michael C. Sata Appoints Referendum Commission 3 Months
Proposal: February 1, 2015 - May 31, 2015 - Engagement of Stakeholders (Government, Central Statistical Office, Electoral Commission, Political Parties, Civil Society, Media, Church mother bodies, cooperating partners, etc) on Roadmap and matters incidental to holding of the referendum No. 6 Framing of Referendum Questions and report toward of Referendum Commission
2 Month
Proposal: June 1, 2015 July 31, 2015 - Question framed for the referendum and Referendum Commission submits to Government and stakeholders any alterations to proposed Roadmap towards Referendum No. 7 Preparation of Referendum 5 Months
Proposal: August 1, 2015 to December 31, 2015 Referendum Commission and ECZ: - Recruit and train referendum officers
- Printing of Referendum Materials and any other work No. 8 Registration of Voters and Voter Education Proposal: January 1, 2016 to Referendum - Voter registration exercise and sensitization of voters on the referendum conducted No. 9 Referendum on Draft Constitution Proposal: Alongside 2016 Tripartite Elections - Referendum held alongside 2016 Presidential, Parliamentary and Local Government Elections
No. 10 Enactment of new Constitution of Zambia 2016/2017 - New Constitution of Zambia enacted during first sitting of Parliament after 2016 General Elections Uyhbiubb j - New Constitution becomes operational in 2017