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Constituent assembly can be initiated now - Mvunga

Constituent assembly can be initiated now - Mvunga
By Nomusa Michelo
Sunday June 24, 2007 [04:00]

Prominent lawyer Professor Patrick Mvunga has said there is no legal impediment to establishing a constituent assembly. During a Newsmakers Forum organised by the Press Freedom Committee of The Post on Friday, Prof Mvunga said a constituent assembly could be initiated without any amendment to the current constitution.

“I can say with no doubt that there is no legal impediment to establishing a constituent assembly, there is none, a constituent assembly can be initiated now without amending the constitution,” he said. “Even if there was need to amend the constitution, it does not require a referendum. The only part of the constitution, which requires a referendum to amend it is Part III and Article 79. What we are talking about now is legislative authority, the power of an organ or institution to make laws, you can amend that part of the constitution in Zambia today without a referendum.”

Prof Mvunga, who is former chairperson of the Mvunga Constitution Review Commission, said he had been reflecting on the subject of having a constituent assembly and wondered why there should be a difference of opinion between lawyers on matters that were plain.

He said in his professional life as a teacher of law, a practitioner, student and researcher, he had come to know that the law was merely a tool to be used by the people.
“Just like a hoe in a crop field, if the law is unsuitable to the people, the people change it. If the law resist to be changed, force is stronger than law, displace it,” he said. “In terms of the jurisprudence of the constitution, a constitution is a grand norm, a fundamental law. All laws flow from the constitution.”

He said the executive, judiciary and legislature were not above the Constitution.
“The Constitution speaks louder than anybody,” he said. “Now let’s have this very clear, perhaps you may need to amend your slogan as well. The ultimate authority of establishing a constitution in whatever form is the people.”

Prof Mvunga said that authority was based on the law and common sense.
“Even in terms of the law as it is now, Article 79 vests the authority of making a constitution or overhauling a constitution in the people of Zambia, nobody else,” he said. “Now, a constituent assembly is not a mythical body, it is just a forum amongst many other fora. Before you enact a constitution there are various stages you have to go through, you have to assemble material, you have to debate, you have to agree on certain principles. And then the people can endorse.”

He said after an exhaustive debate the people could be asked if they want the constitution to be adopted.

“So you ask the people do you want this constitution and they will answer yes or no. Now if you rush to the people before the debate, there will be no debate and you cannot have a constitution without debate. The debate precedes the constitution,” he said. “If you subject a constituent assembly to a referendum you will have achieved very little and you would have incurred double the expenses.”

He said if the people said they do not want a constituent assembly, there would be no opportunity to ask the people what they want.
“If you don’t have the opportunity to debate, it can go from white paper to nothing,” he said. “We have to foresee the pitfalls and find a way of overcoming them. Inherently, there is nothing objectionable to a CA.”
Prof Mvunga said the Mung’omba Review Consitution has done more sampling than the previous two commissions – Mvumga and Mwanakatwe review commissions.

He said there is neither the need to amend article 62 nor article 79 of the constitution.
“I don’t want to bore you with constitutional law. If you look at article 79 it can be translated into all the languages, and in no language can article 79 say that you have to go to a referendum to amend the constitution,” he said.
He said it was only part III, which required going to a referendum to open up the bill of rights.

He also said the CA was an organ for debate and not an organ that would assume legislative power.

“There is nowhere in this article where it is said that if you want to share something with any other institution you have to go to a referendum, at the most you can argue that the constituent assembly is assuming legislative power,” he said. “It is an organ to debate the final product submitted to the people. It is a natural way of thinking. Let us be simple, it is a lot true and for me, it becomes too boring when I hear lawyers arguing from dawn to sunset about the same thing. We cannot afford to be too legalistic. Historically, there is this backing and even common sense.”
And Women for Change executive director Emily Sikazwe said the constitution was not a partisan issue but affect all Zambians.

“The constitution is one thing that I believe will unite us as Zambians, it will unite the rich and the poor together. We are each other’s keeper, and an injury to one is an injury to all,” she said. “If the constitution creates a condition where others live better than others then the people must unite and say they want to live together as one.”

And addressing University of Zambia students at the forum Sikazwe said they, of all people, should be able to make a connection between education and the constitution.
“Money is wasted on stupid by-elections and the lecturers are striking,” she said. “Now people are talking about white papers. They are saying the easiest way to get 80 per cent of what we want is through a white paper. We have seen white papers before and we have abashed white papers before. Abash white paper!”
Sikazwe urged political and church leaders who attended the forum to lead the people to the constituent assembly.

She, along with the audience, chanted slogans against a referendum.
She said nothing would divide Zambians over the constituent assembly and that no single individual should hold the country to ransom.

Oasis Forum spokesperson Musa Mwenye said President Mwanawasa should honour his promise to the people and facilitate creation of a constituent assembly
“President Levy Patrick Mwanawasa State Counsel needs to honour his promise to the people,” he said. He accused President Mwanawasa and the MMD of being deceitful over the constituent assembly.

Mwenye read to the audience part of the MMDs submission to the CRC dated September 27 2004.

“I have with me submission to the constitution review commission from the MMD. When I received this document I quickly went to the back and looked at the signature and lo and behold, one Mike Mulongoti,” he said.

And quoting page 32 of the submissions, Mwenye read;
“…Government has constituted the constitution review commission which has been gathering submission from the members of the public. One of the terms of reference for the commission is to recommend the mode of adoption of the constitution. The people of Zambia have been called to submit on whether they would prefer the constitution to be adopted by a constituent assembly, parliament or a referendum.

We know that government has committed itself to implementing the recommendations of the constitution review commission, subject to legal and financial hurdles being overcome. In this regard if the people of Zambia decide on the mode of adoption through a constituent assembly, then the MMD is of the view that government should implement that decision as the will of the people,” he read. “At page 34 item 30.17 The MMD believes we should let the people decide on this issue through this commission…”

Mwenye said the MMD stated that it was of the view that the will of the people should be implemented and wondered why the leaders had rejected the people’s wishes.
“The people were being told that there were legal and financial impediments. On the financial impediments, it is easy to dispel,” Mwenye said.

He said if the government was willing to go through an unnecessary referendum to decide on what the people have already decided - a constituent assembly - then it already had the money.

Mwenye said on the legal impediments, any lawyer worth his salt in the country knows that constitution-making in Zambia had involved the white paper.
“Through the white paper, the president has adopted the constitution alone. That is what happened,” he said.

He said the people of Zambia should be allowed to come up with their own white paper through the constituent assembly.

“For us as Oasis, we are calling upon everyone including progressive members of the MMD to come up and take up the challenge, this is our country, we cannot continue to waste resources on useless exercises. The standards of accountability in this country have risen, President Mwanawasa is better warned,” he said.

Mwenye said the standards of accountability in 1996 when former president Frederick Chiluba dribbled the people of Zambia over the constitution had fallen eleven years down the line.

“And this is a warning to the president, we want to put ourselves on record, this is a road you don’t want to take,” he said.

Transparency International Zambia (TIZ) president Reuben Lifuka said President Mwanawasa and his ministers were never serious about the constitution.
“I have a problem with leadership which is not consistent, one that changes position with the frequency of traffic lights. I can’t trust such leaders,” he said. “What we have seen today is that the MMD cannot be trusted.”

Lifuka said the constitution was not about President Mwanawasa but about the people of Zambia.

“We are told amongst other things, President Mwanawasa resigned from government because of the manner in which the constitution was being debated. President Mwanawasa has been very eloquent about how defective this constitution is,” Lifuka said. “Isn’t that a paradox, one morning you say it is defective and the next moment your are prepared to be nailed to the post defending a defective constitution. Then there is something wrong. If something is defective you should have a clear break between what you consider to be defective and what you consider to be right.”

Lufuka said if President Mwanawasa strongly believed that the constitution was defective he should have been the first one to take measures to put right what was defective.
“But clearly President Mwanawasa has never been honest, he will not be sincere now, he will not be sincere in the future,” he said. “He will never change on his position and we need to be mindful as a people.”

And a member of the audience Ndaniso Banda said it was unfortunate that there was no sign language interpreter at the forum because it appeared that President Mwanawasa did not understand spoken language and that the people would now show him what they wanted.

The forum was attended by members of the general public, civil society organisations, students, church leaders and political leaders among them All People’s Congress Party (APCP) president Ken Ngondo and United Party for National Development (UPND) Hakainde Hichilema.

Labels: CONSTITUENT ASSEMBLY

posted by MrK @ 6:34 AM