Maravi

EDITORIAL - Legitimacy

Legitimacy
By Editor
Sunday June 24, 2007 [04:00]

For a long time now, there has been a protracted debate in our country on the mode of adopting a new constitution for ourselves as Zambians. In our view, this debate which is being provoked by the MMD government, is unnecessary because the issues under discussion are very straightforward and not complicated as President Levy Mwanawasa and his administration want the public to believe. This is why our people must now insist that this debate is closed by compelling Levy and his administration to do what is expected of them in terms of giving the Constitution the legitimacy it deserves.

We are grateful to Professor Patrick Mvunga for restating that there are no legal impediments to establishing a constituent assembly, contrary to the government position. Professor Mvunga says "a constituent assembly can be initiated now without amending the Constitution. 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 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."

This advice is from a very renowned constitutional lawyer and we do not think so that Professor Mvunga does not know or understand what he is talking about.

Levy and his lawyer friends in government should appreciate our people's insistence that the Constitution should be adopted via a constituent assembly. Since independence, Zambia has had no stable constitution for the simple reason that all the four constitutions Zambia has had lacked legitimacy or authority from the citizens. The legitimacy of a constitution is concerned with how it will command the loyalty, obedience and confidence of the people. A constitution that is not respected by its people will be remote to their lives and thinking. It will be illegitimate, an imposition on the people albeit their opposition or condemnation.

To be legitimate, a constitution must be respected by the people and in the absence of that respect it will never command people's loyalty. If a constitution has to command people's loyalty, the people must be involved in its making process. This is a pre-requisite for the legitimacy of the constitution. This means that people must be involved in scrutinising both the content and form that the constitution will take. The Constitution will only become the property of the people once they are involved in the process of adopting it, in its making process, short of this will amount to imposing the Constitution on Zambians. And the only meaningful vehicle to ensure the people's involvement or participation in the constitution-making process is the constituent assembly.

Since 1964, constitutions have been imposed on Zambians. No wonder there has been no constitution that has stood the test of time. In 1964 after Zambia got independence, Britain imposed a constitution on our people which they called an independence constitution. And everything that has been done on the issue of the Constitution from that time has lacked legitimacy from our people.

Levy is also just about to impose a constitution on Zambians and the moment he steps out of State House, the new leader will try to undo what he will do. There should be an end to this. For once, Zambians deserve a constitution that they are going to make for themselves. Zambia is a democracy and in a democracy, people are supreme. All power is deposited in them, not in a sitting President and his praise-singers. Therefore, the people are supposed to make their own Constitution. It is not Levy's business to make a constitution for Zambians. It is the Zambians' business to make a constitution for themselves.

It is clear from Professor Mvunga's legal explanations that what we have been lacking as a country for a long time now is political will. Our politicians put their interests first as opposed to allowing people's interests to prevail in this constitution -making process.

Because they are concerned about preserving their political powers, they are concerned with sustaining a firm hold on power, these politicians conveniently overlook all the fundamental elements in the constitution-making process. Levy, as a seasoned lawyer, should know better that a country or state with an imposed constitution is as good as one without a constitution. And a state without a constitution is not a state but a regime of anarchy. This is what lawyers say. So if Levy is not careful, he will sooner than later be presiding not over the affairs of a democratic country but a regime of anarchy.

There are serious reasons as to why a country should be governed by a legitimate constitution, not just a constitution. A legitimate constitution will curb the powers of the executive by fundamental law and will create legal relations between the government and its people. Maybe that is why the government is reluctant to allow a people-driven constitution. For as long as Levy keeps hearing that the draft constitution is proposing to reduce presidential powers, he will look for all the tricks in the book to ensure that Zambians are denied their right to give themselves a constitution.

Once more, we call upon our people not to sleep on their rights. Let them do everything within their powers to ensure that together we exert all the necessary pressure on Levy to compel him to do public good and not personal good. What is required in all this process is political will. Professor Mvunga says the law cannot be bigger than the people who made it. He says if the law resists to be changed, force is stronger than the law, displace it.

It is cheaper to invest in a constitution which is based on national consensus because this will stand the test of time. This is the process Zambia needs today. The United State's Constitution has stood the test of time mainly because it was adopted via a constituent assembly in 1877. That's a long time ago. But because this is what Americans wanted for themselves, their Constitution has remained relevant and valid to this day. Their Constitution has never been repealed except for minor amendments because it reflects their wishes, desires and aspirations.

This is not too difficult for Zambia and the entire Africa to emulate. But because this concept of legitimacy has not been embraced in Africa generally, one should not therefore search for answers as to why there is constitutional instability in Africa.

Levy should learn from history and make a difference. He should not pretend to be wiser than all the people who have spoken on this issue. After all, wisdom is like a baobab tree. One individual cannot embrace it.

Labels: CONSTITUENT ASSEMBLY, CONSTITUTION, EDITORIAL

posted by MrK @ 6:36 AM