Saturday, May 04, 2013

Impunity among leaders dangerous - Kabimba
By Moses Kuwema in Livingstone
Sat 04 May 2013, 14:01 CAT

WYNTER Kabimba says the spirit of impunity among those in leadership positions is dangerous to governance.

And University of Pretoria Professor of law, Michelo Hansungule has observed that most African constitutions are transplants.

Kabimba, who is justice minister, said leaders should not steep into the spirit of impunity but ought to be cautious and break it.

He was responding to a presentation by South Africa-based Prof Hansungule during the Law Association of Zambia second annual law conference at Zambezi Sun Hotel in Livingstone on Thursday, where he advised the ruling PF against fighting the opposition, saying that would hinder the development agenda.

"The impunity of trying to intimidate others can revisit you or can grow into a culture. We ought to tame that as leaders. We also have to ensure that those who remain in the opposition after losing must also accept defeat. Don't pretend that you have won. We must ensure that the losers accept that they have lost and the winners must not oppress the losers but include them in the governance system," Kabimba said.

On Prof Hansungule's concerns about the lack of a legal framework for the constitution making process, he said the process has not been prejudiced in any way because of lack of one.

"I have heard this argument time and time again from LAZ and other stakeholders. Is there anybody that can tell me to date that the constitution making process has been prejudiced in any way because of the want of the so-called legal framework?" Kabimba said.

He said when the Americans were making their constitution, they did not have any legal framework but only agreed in their sessions after the delegates had formulated the constitution that they would take it to the states for ratification.

"We have said as government that we shall not issue a white paper to prejudice the opinion of any stakeholder in the constitution-making process. We shall allow this process to be driven by the people. There will be no cutting and pasting," Kabimba said.

And Kabimba said third world countries were in the process of democratisation as they had not yet reached democracy.

"We are still building institutions. We are still grappling with issues of what should be in the Bill of Rights so we have to take cognizant of this process of democratisation. We must have a spirit of being prepared to go through the process of democratisation and it is a long journey," said Kabimba.

Meanwhile, in his presentation titled "Challenges to the rule of law, human rights, constitution and constitutionalism in Zambia", Prof Hansungule said most constitutions in Africa, including Zambia's, were not rooted in the soil as there was no involvement of the people in writing them.

"The non-participation of the people in putting their values is not a good approach to take in relation to what we are trying to do. This is my view. What seems to be the problem in Africa and the constitutions, I have already said that the majority of them are transplants. They are transplanted, even if you put Hansungule to write the constitution, he is likely to transplant the ideas from the Atlantic Ocean and put them in Zambia. It is quite easier for the constitutional writer to just cut and paste. This is why most of our constitutions have never taken root because they are cut and paste. You come to the village, they know absolutely nothing about what you mean about the Bill of Rights," he said.

Prof Hansungule said the other challenge faced in the constitution-making processes was their extreme focus on the Bill of Rights.

"We rarely give focus on the institutions and yet the constitution has two parts, the Bill of Rights and the institutions to enforce the Bill of Rights. If you leave the institutions like they are more or less like the power of the president, then you find there is some dis-proportionality and if there is some dis-proportionality between the institutions and the rights, it is very unlikely for people to enjoy their liberty. We must always aim at striking a proportional balance between the institutions and the rights," he said.
On constitutionalism, Prof Hansungule said this meant governing on limited powers.

He said constitutionalism does not mean that the leaders were free to do what they liked.

"Everything you do should be based on the law. If you are able to do things without any limitations then it is unconstitutional. The limitations may be prescribed in the law," Prof Hansungule said.
And Prof Hansungule said leadership issues in the Judiciary must be solved as soon as possible.

He said Zambia should in future try to borrow from the Danish constitution which he said was very attractive to the problems faced by the Zambian Judiciary.

"In the Danish constitution, they say the chief justice shall be elected by the peers, the Supreme Court judges are the ones who nominate then they send the list to the Judicial Service Commission and from there to the president. The president should be separated so that there is separation of powers on a proportional basis. The president should stay away from this, let them mess up their activities; he should not be part of the mess in the Judiciary," said Prof Hansungule.

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