Sunday, January 31, 2010
By Mwala Kalaluka
Sun 31 Jan. 2010, 04:01 CAT
Former LAZ president William Mweemba (l) with NCC spokesperson Mwangala Zaloumis (c) during the Newsmakers Forum at Courtyard Hotel in Lusaka on Friday evening - Picture by Thomas Nsama
CITIZENS Forum executive secretary Simon Kabanda has said the National Constitutional Conference (NCC) must be disbanded to avoid the deepening conflict situation created in the nation over the reference of the 50 per cent plus one issue to a referendum.
And former Law Association of Zambia (LAZ) president William Mweemba has said the provision of electing a Republican president through the 50 per cent plus one threshold will bring order to the country.
But NCC spokesperson Mwangala Zaloumis said she does not believe that the conference was on a wrong path.
During a Southern African Centre for the Constructive Resolution of Disputes (SACCORD) – organised forum on the question of whether the issue of the 50 per cent plus one could cause anarchy, held at Lusaka’s Court Yard Hotel on Friday, Kabanda said Zambians had no choice but to disband the NCC.
Kabanda said as a way forward on the constitution-making process, it was time for the country to make a radical political decision by disbanding the NCC because it had failed to safeguard the principles that Zambians set for themselves during the reversion to multi-party democracy in 1991.
He said the NCC’s legally backed deviation from these principles had made it a major source of conflict in the entire constitution-making process.
“I wish to state that as at now this issue has already created conflict in Zambia. Why do I say so? It has already created conflict because the people of Zambia have spoken on this issue and they have said we would want to have the provision of 50 per cent plus one in our Republican constitution,” Kabanda said.
“In all these years the people of Zambia have overwhelmingly demanded for more than 50 per cent plus one threshold for a winning presidential candidate in a multi-party democracy and the Zambian people demanded for this provision because we embraced multi-party democracy. We set for ourselves these principles to guide and strengthen our multi-party democracy.”
Kabanda said it was the throwing away of these principles by the NCC and sympathizers that had created conflict in the constitution review process.
“When you begin to tamper with the views of the people on an issue then you begin to create conflicts,” Kabanda said. “I wish to sadly state that 19th January 2010 will go down in the history of Zambia, as the black Tuesday when the NCC subjected to a vote an issue that the people of Zambia had already decided upon since we reverted to multi-party democracy in 1991. On that day, black Tuesday, the NCC legally tampered with the desires of the people of Zambia on the 50 per cent plus one. They legally tampered with the desires of the people of Zambia on this issue. This is a source of conflict.”
Kabanda said the people of Zambia knew what they wanted when they decided on the 50 per cent plus one.
“The decision to subject this issue to a referendum is even a source of greater conflict, for the following reasons: One, it is not a constitutional requirement to subject the issue of 50 per cent plus one to a referendum. Why do you subject an issue that the people of Zambia have protractedly decided upon to a referendum from 1991 to date?” Kabanda asked.
“In fact it is not practically and legally possible to have a referendum before the 2011 elections. It is not possible. So allowing the 50 per cent plus one to go to a referendum will make it practically impossible to have the issue in the new constitution before the 2011 elections and this is a source of conflict.”
He said those opposing the winning threshold were not basing their arguments on the principles that the people set themselves in 1991.
“So when you have arguments that are not based on principle that is a recipe for conflict,” Kabanda said. “This conflict has been created by the issue of the 50 per cent plus one as part of the larger conflict that has been created by the NCC.
The NCC and its supporting legislation are the major sources of conflict in the constitution making process and why? It is because the NCC has legally deviated from its role of adopting the constitution. Sadly, the NCC Act decided to throw away these principles we set for ourselves.
“The NCC has been legally given the powers to remove not to adopt. Its role is to merely adopt the processes that we agreed upon in the first stage,” he said. “To vary and remove and to add are also a source of conflict because these are contrary to the principles of adopting because to vary means to differ. This is what has happened to the issue of the 50 per cent plus. To remove is also another legal power of the NCC. You begin to create conflicts when you are preoccupied with power politics.”
Kabanda said in order to avoid the conflict being deepened there was need to find the way forward.
And during the same discussion, Mweemba said the people of Zambia had been consistent on their demand for the 50 per cent plus one provision for a long time.
“That has been the position 1964. The 1964 constitution provided for a majority president. When the one-party state controlled, it did not really matter because as you know there was essentially one candidate,” Mweemba said.
Mweemba said the Mvunga Constitutional Review Commission did accept suggestions from the people and that it in fact recommended the threshold.
“Consequently, the 1991 constitution does have that provision. You all recall that second Republican president FTJ Chiluba was elected on a majority vote. He received much more than 50 per cent plus one,” he said. “What then happened was something interesting… the Mwanakatwe CRC recommendation report was sent to president Chiluba and his cabinet and they did an injustice to the people of Zambia.”
Mweemba said all this was happening in 1996.
“One of the recommendations that the Chiluba government rejected was the fact that we should continue to have a clause to have a majority president,” he said. “Remember, when he came into power in 1991, he was a majority president and for self reasons he changed that clause knowing that going forward he was going to go for the third term and he knew that the majority of the people would not accept the third term. So he was pushing for a provision which was going to make it easy for him to win.”
Mweemba said a constitutional provision that allowed for minority president was a source of conflict.
“If you are a minority president, once you get into power you will be fighting to make yourself legitimate,” he said. “On the 50 per cent plus one, the people, that which was removed secretly by president Chiluba must be put back in the constitution.
Mweemba said it was worrying that the NCC had assumed the role of Cabinet and the White Paper.
“The NCC has no business changing what the people of Zambia want,” Mweemba said. “I am taken aback that the NCC have now resolved to take the issue of the 50 per cent plus one to a referendum. The fact is the 50 per cent plus one ought not to have been debated. This is the provision that has been there starting from 1964 and was a provision that was illegitimately changed by president Chiluba. We do have a problem.”
But Zaloumis said she did not agree that the NCC was on a wrong path and that all had not been lost in the process.
“50 per cent plus one is not a new innovation it has been there for a long time,” Zaloumis said. “The constitution of 1965 does not talk about 50 per cent plus one. Nothing. It talks about a majority vote…the 1973 constitution talks about the majority winner.”
Zaloumis said it was only in 1991 during the Mvunga Commission when the qualified benchmark of 50 per cent plus started being heard.
“In 1996, we saw the amendment when it was simple majority,” she said.
Zaloumis said if there was no need for the NCC to vary and discuss some of the provisions from the Mung’omba CRC then there would have been no need to have a constituent assembly.
“There is no debate that is one way,” Zaloumis said. “There are some people who believe that the 50 per cent plus one is not such a good system.”
Zaloumis said the NCC had followed procedure when it referred the 50 per cent plus one to a referendum.
“As spokesperson for the NCC my function is to articulate what is going on in the NCC, not my views,” she said. “These people in the NCC are Zambians just like you and me.”
Zaloumis said even when they were voting over the 50 per cent plus one, the NCC delegates had the interest of Zambians at heart.
“The government could not garner two-thirds and the other people could not garner two-thirds… to subject it to a wider community is better,” Zaloumis said. “No one group did override the other so that will definitely go to a referendum.”
Zaloumis said since Zambia was not a banana republic the NCC Act was now a law, which should be respected by all Zambians.