THE CONSTITUTION
- A Constitution is a system of laws, customs, and principles usually written down, according to which a country or an organization is governed.
- Customs refer to the accepted traditions and habits of the people in a society. A constitution is the Supreme Law to which all other laws are subordinate.
- A nation needs a constitution in order to regulate the activities of its citizens.
TYPES OF CONSTITUTIONS
Written constitutions.
Unwritten constitutions.
- WRITTEN CONSTITUTION
- This is a constitution in which most of the provisions or contents are documented in a single formal written document.
- It is a set of rules that the citizens of a nation contribute to, discuss and agree to be governed by.
- Countries with written constitutions include Zambia, Botswana, Tanzania, Namibia, South Africa, and America.
Advantages of a Written Constitution
- It is usually drawn up with great care and deliberations
- It is clear and definite.
- They are stable and steady.
- They are free from manipulation by the Judiciary.
- It affords protection to the individuals and guarantee people’s rights.
Disadvantages of a Written Constitution
- They are not easily adaptable to emergencies and changing needs in society.
- It tends to compress into one document all the ideals and political principles of a nation.
- It is difficult to amend when rigidity and conservatism are carried too far.
- UNWRITTEN CONSTITUTION
- This is a Constitution that has most of its provisions not found in a single document but in a collection of documents, statutesand traditional practices that are generally accepted as governing a nation.
- The British constitution is one such example.
Advantages of Unwritten Constitution
- It is easily adaptable to changing conditions of a dynamic society.
- It can be bent to meet national emergencies without breaking their framework.
- It provides legal means for satisfying popular passions and preventing revolutions.
Disadvantages of Unwritten Constitution
- It is unstable as it can be bent or twisted easily.
- It can be changed or amended according to individuals or party’s wishes and desires.
- It is vague because it is unclear and indefinite.
- It requires a high degree of political consciousness in order to understand it among the people.
- It is taken for guaranteed that it exists, even though it is not written.
- It can easily be manipulated by the Judiciary
FORMS OF CONSTITUTIONS
The two types of constitutions can either be Flexible or Rigid.
- FLEXIBLE CONSTITUTION
- This is a form of a constitution that can easily be amended or changed by the majority of eligible citizens without calling for a referendum.
- A Referendum is a situation when citizens are asked to vote YES or NO on an important national issue, such as voting whether to abolish the death sentence or not.
- RIGID CONSTITUTION
- This is a form of a Constitution that cannot easily be amended.
- This type of a constitution is usually amended by a different body such as the National Constitution Conference (NCC) as is the case in Zambia, and also through a Constituent Assembly (C.A) and a Referendum, which have a special status than ordinary institutions or Parliament.
STRUCTURE AND CONTENT OF THE ZAMBIAN CONSTITUTION
- The Zambian Constitution begins with a Preamble which is an introduction to the document.
- The preamble states, ‘We, the people of Zambia by our representatives, assembled in our Parliament, having solemnly resolved to maintain Zambia as a sovereign Democratic Republic and that Zambia shall forever remain a unitary , indivisible, multiparty and Democratic Sovereign State; do hereby enact and give ourselves this Constitution’.
STRUCTURE AND CONTENT OF THE ZAMBIAN CONSTITUTION
|
PART |
TITLE |
CONTENT |
|
i. |
NATIONAL SOVEREIGNTY AND THE STATE |
Ø Declaration of Zambia as a Sovereign state. |
|
ii. |
CITIZENSHIP
|
Ø Deals with the qualification for Zambian citizenship and conditions which can lead to withdrawal of Zambian citizenship. |
|
iii. |
PROTECTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL |
Ø Deals with the Rights and Freedoms of individuals which are protected. Stating the protection of rights and freedoms of individuals. |
|
iv. |
THE EXECUTIVE |
Ø Deals with election, tenure of office and removal of the president from office; functions of the president, Ministers and Deputy Ministers, Secretary to the Cabinet, Attorney General, Solicitor General, Director of Public Prosecutions and Advisory Committee. |
|
v |
THE LEGISLATURE |
Ø Deals with qualifications for election to the National Assembly; legislative powers, membership of parliament and composition of national assembly. |
|
Vii |
THE JUDICATURE |
Ø Deals with courts and appointment of judges, High court, Supreme Court, Chairman and Deputy Chairman of Industrial Relations Court. |
|
Vii |
DEFENCE AND NATIONAL SECURITY |
Ø Deals with the functions of the Zambia Defense Forces, the Zambia Police Service, the Prisons Service and the Zambia Security Intelligence Services. |
|
Vii |
LOCAL GOVERNMENT SYSTEM |
Ø Deals with the structure and functions of local councils. |
|
ix |
DIRECTIVE PRINCIPLES OF STATE POLICY AND THE DUTIES OF A CITIZEN |
Ø Deals with development of national, policies, implementation of national policies, making and enactment of laws; and application of the constitution and any other law. |
|
x |
FINANCE |
Ø Deals with taxation, withdrawal of monies from the general revenues, financial reports, remunerations of officers, public debt and the Auditor General. |
|
xi |
SERVICE COMMISSIONS |
Ø Deals with commissions, pension laws and protection. |
|
xii |
HUMAN RIGHTS COMMISSION |
Ø Deals with the establishment, the independence, functions, powers, composition and procedures of Human Rights Commission. |
|
xiii |
CHIEFS AND HOUSE OF CHIEFS |
Ø Deals with institutions of chiefs, House of Chiefs, its functions and composition. |
|
xiv |
MISCELLANEOUS |
Ø Resignations, re-appointments, concurrent appointments. |
HISTORY OF CONSTITUTION MAKING PROCESS IN ZAMBIA
- When Zambia got independence on 24th October 1964, it inherited the Northern Rhodesia self-government constitution of 1963.
- The provisions in that constitution were meant to safeguard the interests of white settlers.
- Therefore, from 1964 to 2016, Zambia has had five Constitutional Review Commissions (CRCs) with the view of improving its constitution.
CONSTITUTION REVIEW COMMISSIONS IN ZAMBIA SINCE INDEPENDENCE
- The Constitutional Review Commissions in Zambia are usually named after the chairpersons of the commission.
- CHONA CONSTITUTION REVIEW COMMISSION OF 1972
-
- This was the first Constitutional Review Commission and it recommended the establishment of a One Party State.
- This meant that all other political parties were banned and not allowed to exist except UNIP (United National Independence Party) which President Kaunda was heading. It became illegal to form any other political party.
- This recommendation was adopted in 1973 and this was the beginning of the Second Republic.
- A constitution that outlaws (banns) the formation of political parties does not encourage free electoral participation and infringes on people rights and freedoms such as Freedom of Association, Freedom of Conscience, etc.
- MVUNGA CONSTITUTION REVIEW COMMISSION OF 1991
-
- This was the second Constitutional Review Commission and it recommended that Zambia should revert to, or reintroduce multiparty democracy.
- This marked the beginning of the Third Republic.
- MWANAKATWE CONSTITUTION REVIEW COMMISSIONS OF 1995
-
- This was the third Constitutional Review Commission and its main amendment to the Zambian constitution was the parentage of persons contesting the presidency of Zambia.
- It recommended that only persons whose parents were both born in Zambia could be eligible (allowed) to stand for the presidency. As a result, the then-presidential aspirant Dr. Kenneth Kaunda was automatically disqualified since his parents were not born in Zambia.
- MUNG’OMBA CONSTITUTION REVIEW COMMISSION OF 2005
This is the fourth Constitutional Review Commission and its recommendations were not adopted.
- CONSTITUTION AMENDMENT ACT NUMBER 2 OF 2016.
This Constitutional Review Commission was made up of experts and some of the recommendations include the running mate, Dual citizenship, No crossing over of the floor, and the fifty plus one percent for one to win the general election.
CONSTITUTION MAKING AND ADOPTION PROCESSES
CONSTITUTION MAKING PROCESS
- This is a legally acceptable process which a country uses to make its supreme law of the land or constitution.
- A constitution can be made through a Constituent Assembly and Constitutional Review Commission[CRC]
A CONSTITUENT ASSEMBLY
- is a body of representatives elected by their respective interest groups to formulate, amend or adopt a constitution of a country
- Representatives are drawn from Churches, learning institutions, Trade Unions, Civil Society, Student bodies, and Special interest groups
A CONSTITUTIONAL REVIEW COMMISSION
- This is a group of people appointed by the President to collect views from the general public on what should be contained in the constitution.
- In Zambia, the Executive wing of government initiates the making of the National Constitution.
- The Republican president using the Inquiries Acts appoints a Constitutional Review Commission to collect views from citizens through sittings conducted country-wide where citizens make submissions orally or in writing as groups or individuals.
- Thereafter, the Constitutional Review Commission produces a draft constitution. The Inquiries Act is a law that gives the president power to appoint a commission of inquiry.
CONSTITUTION ADOPTION PROCESS
- This is a process of approving the copy of a draft constitution so that it becomes an official document.
- There are two main methods that are used to adopt a constitution and these are;
THROUGH PARLIAMENT
- Under this method, the draft constitution is submitted to Parliament, which debates the draft Constitution before adopting and sending it to the president for assent (signing).
- Zambia used this method for the first three Constitutional Review Commissions.
THROUGH A CONSTITUENT ASSEMBLY (CA)
- A Constituent Assembly is a body of representatives elected by their respective interest groups to formulate, amend or adopt a constitution of any country.
- Representatives may be drawn from churches, learning institutions, trade unions, civil society, etc. The most important thing is that every citizen regardless of gender, religion, ethnicity, creed, sex, age and beliefs identifies with the interests being expressed by a member or members of a Constituent Assembly.
- This is the best way of adopting a constitution as it is more representative than parliament.
- It is independent and also free from the control of the government or any person. Countries like India, Namibia, Ethiopia, South Africa, America, adopted their constitutions through this process.
- National Constitutional Conference (NCC) is similar to Constituent Assembly except that under the National Constitutional Conference, the adoption is done by parliament, which can decide either to adopt or reject the draft constitution.
CHARACTERISTICS OF A GOOD CONSTITUTION
- It must be clear as the language used in the document must not be too technical for ordinary citizens other than lawyers to understand and interpret it.
- Must protect the Rights and freedoms of citizens.
- Must cater to the interests of various groups in society.
- Must protect and respond to the social, economic, and political needs of citizens.
- Must be stable and stand a test of time (useful over a long period of time). It must not easily be changed at the pleasure of any president who comes into power.
- It must be neither too rigid to prevent change nor too flexible to encourage tampering with the basic principles.
IMPORTANCE OF A CONSTITUTION
- It also sets out the composition and functions of the wings of government.
- It ensures democratic governance.
- It gives equal opportunities for individual development.
- It is owned and guarded by citizens.
- It promotes and protects the Rule of Law.
- It safeguards the fundamental rights and freedoms of citizens.
SAMPLE QUESTIONS
- What is a Constitution Review Commission?
- Outline two things that could happen if a Constitution does not stand the test of time.
- Differentiate a flexible Constitution from a Rigid Constitution.
- With clear examples discuss the characteristics of a good Constitution.
- Describe the main characteristics of the Zambian constitution.
- State the features of a good constitution.
- Why is a constitution important to a nation?
- compare and contrast written and unwritten constitution
- .Example what is meant by constituent Assembly?
- Outline what could happen if the constitution does not stand the test of time.
