Protecting your constitution

Protecting your constitution
By Dr Guy Scott
Wed 07 July 2010, 04:00 CAT

Danger! Tricky stuff ahead! I collected my copy of the NCC Draft Constitution as soon as Parliament resumed sitting last week. You should have got it last week as a pullout in the Times of Zambia of Friday the 2nd July. If not, you can obtain it on the web sites listed later; if you must have it in hard copy I would recommend a trip to the first floor of Mulungushi International Conference Centre. Government Printer is way behind schedule, though it may just catch up…..

Leafing through my copy, while seated in Parliament, I was surprised to find that the fifty per cent plus clause, as per the Mungomba Commission Draft, was intact! In great detail Article 79 and Article 110 spell out the requirements and procedures to be followed in assuring that the occupant of State House gets not less than “fifty per cent plus one votes of the valid votes cast”.

This of course, might require a run-off ballot between the two highest scorers in the first round; if so, this second ballot must be held within 30 days of the first. There are even elaborate procedures for a tie-break in the extremely improbable event of the second ballot being tied - something unlikely to happen in 100,000 years.

Now this is not what I had heard and read in the media. Readers may recall that the PF, of which I am the Vice President decided two years ago not to participate in the NCC (National Constitutional Conference) on the grounds that it was mainly an allowance generating machine for recipients of State patronage, as well as a device for rigging the next general election. The fifty per cent plus one condition that the Mungomba Commission instated in their version of the draft constitution clearly provides scope for opposition parties to enter into useful agreements dangerous to the incumbent. For example, in the last Presidential by-election, the votes split along the lines of: Banda 40 per cent; Sata 38 per cent; Hakainde 20 per cent. Under a fifty per cent plus 1 provision this would have led to a run-off ballot in which it might have been the case that Hakainde threw his weight behind Sata and overturned Banda’s majority. Any election rigger worth his salt would want such a wild card removed from the field of possible scenarios.

So why was it still there?
In bafflement I turned to my neighbour on the opposition front bench. What is this unchanged article doing in here, I asked him. The neighbour in question is Honourable Peter Machungwa, who is de facto leader or whip of the PF “rebels”. These rebels, who constitute somewhat under half of the PF complement of 42 in Parliament, are individuals who ignored the PF stand on the NCC and went off to it like hungry crows to carrion. They were quickly supported by Frederick Chiluba, and the distinction between the NCC rebel grouping and the Chilubista faction in Parliament is now pretty blurred, if indeed there is a distinction at all. Of course we tried to expel the rebels from the party but were prevented from doing so when they sought and were granted protection from the courts. So I regard Machungwa as a stowaway on the PF boat, but even stowaways have their uses.

So what’s this fifty per cent plus one system doing in here?
Machungwa was as shocked as I was. This is not what we wanted! he exclaimed. “We” presumably referring to the effective alliance between the MMD constitution fixers and the merely nominal (gonga) PF members. Puzzled, I took the question to the NCC chairman, the highly partisan pro-MMD Chifumo Banda, State Counsel and FDD MP for Chasefu in Eastern Province. He obligingly explained.

The law as laid down in the NCC Act provides that an article in the Mung’omba constitution can only be changed and form part of the new draft constitution if the 500+ members of the NCC agree the change unanimously or if it receive more than two-thirds of the votes cast. The removal of fifty per cent + one articles and four others received a majority of delegate’s votes but not as much as a two-thirds majority. Under the law, the change stands “referred to a national referendum”.

So there is going to be a referendum? Well, I guess not. A referendum requires a preceding Census - to establish the baseline of those eligible to vote from which the percentage of those who vote Yes is calculated and, the last time I checked, there was no money for a Census this year. Secondly, given that well over half of all voters, and probably even more of the adult population Zambia, are against the MMD, going for a referendum might easily result in a humiliating defeat - equivalent to losing a vote of confidence.

So is the fifty per cent plus one clause going to hold up then?
Not necessarily! The reason the NCC Draft Constitution has been published (after a fashion) is to invite the general public to comment upon it. Having compiled and collated the public’s comments, which may be made in writing in hard or soft copy, and/or given verbatim at venues and times to be advertised, the NCC will then re-debate the thing and come up with another version. This will be the version that is brought to Parliament to be enacted into law. Where’s the trick? The trick is, that unless you happen to know that articles such as 79 and 110 are not actually in accord with the wishes of the majority of the NCC you are likely to think they have been actually approved, and contently move on without bothering to comment. They are toxic recommendations that look as if they are safely ensconced; but an attempt will almost certainly be made to reverse them, on the basis of an “outcry” orchestrated by the MMD. You will be silent, thinking you have won the day on that particular issue; they will give you the shock of your life by reconsidering the matter and doing what they originally wanted to do, bringing a sufficient number of waverers on side by referring to the lack of public support for 50 per cent plus one.
There are other possibilities, but this route to finagling the issue seems to me the most likely. So what then must we do?

We must submit reams of evidence, decibels of evidence, tonnes of evidence to the NCC to the effect that the 50 per cent plus one articles must stay. We must not allow ourselves to be misled by the fact that the NCC appears to have already accepted the article; they have not, they just couldn’t (yet) get the overkill vote that they needed.

So: if you want to save your constitution then you should express your view that Articles 79 and 110 must be retained in their present (Mungomba) form:
Write in hard copy to: The Secretary, National Constitutional Conference, Mulungushi Conference Centre, Lusaka.

If you have access to the Internet you can log on and give your opinion on www.governance.gov.zm "www.parliament.gov.zm" and the NCC itself on ncczambia.org.

Since government web sites have a habit of crashing, it is a must to also email the Secretary of the NCC, Newton Ng’uni at his personal address: nimnguni@yahoo.com

Ask him to acknowledge receipt. If he doesn’t, you can chase him on cell 0977-613753.

You must lodge your comments by the end of this month, July.
We will try and look after you interests in Parliament but we must have your support.

I was going to conclude by applauding those members of the NCC who stood up to being browbeaten into voting to scrap Article 79. But my eye has just lit upon Article 108 which deals with qualifications of a presidential candidate. He or she must, it says, have “obtained, as a minimum academic qualification, a first degree or its equivalent from a recognised university or institution”.

This is of course an ad hominem measure aimed by the riggers at Michael Sata, who may or may not have one or more degrees from an institution “recognised” by persons unspecified. The otherwise honourable minority of the NCC who blocked five other retrogressive changes, have gone along with this one which discriminates against the vast majority of Zambians, especially those who grew up in the days when post-secondary education was very rare privilege. Presumably they believe their own education makes them supermen and superwomen, better than their fellow citizens.

I am inclined to agree with Chairman Mao’s opinion that education is as likely to make you more stupid as more clever.