Zambia Law Development Commission



The Attorney General Mr. Mulilo Kabesha, SC.making a comment on the constitution making process during a legal seminar held at Mulungushi International Conference Center on 27th September 2023.
The Attorney General Mr. Mulilo Kabesha, SC.making a comment on the constitution making process during a legal seminar held at Mulungushi International Conference Center on 27th September 2023.

On 27th September, 2023 the ZLDC held a legal seminar at the Mulungushi Conference Centre in Lusaka on the topic “Constitution Making in Zambia: Finding the Way Forward’’.

The need for a Constitution that stands the test of time has grown over the years from the desire of Zambians to have a popular, legitimate, and stable Constitution that facilitates national development, good governance, the rule of law and protection of fundamental rights and freedoms.

In line with its function to hold seminars and conferences on legal issues, the ZLDC held a legal seminar where issues relating to the Constitution-making process were discussed.

The general objective of the seminar was to share experiences, views, and best practices from stakeholders on the constitution-making process. The participants and panellists for the seminar were purposively selected following a stakeholder mapping exercise conducted by the Commission.  The participants were identified from among civil society organisations, the church and faith-based organisations, the media, professional bodies, trade unions, political parties, universities, and other institutions of higher learning and Government ministries.

The panellists discussed and made submissions on:

  1. Procedural legitimacy in the Constitution-making process i.e. process, principles, mechanisms, accountability and timelines;
  2. The qualities of a good Constitution; and
  3. Strengthening the Bill of Rights in Zambia.

The key submissions from the panel presentations and the plenary session were:

  • Procedural Legitimacy in the Constitution-making Process: Process, Principles, Mechanisms, Accountability and Timelines:

The procedural legitimacy in the Constitution-making process needs to build consensus by integrating the ideas of all stakeholders in the country including government, political parties, civil society organisations, the church, and individual citizens.

In support of the above, to enhance the possibility of achieving procedural legitimacy a government should not control or unduly influence the process. The process should also not merely be a formal technical exercise but must be transparent for all.

Some of the principles and mechanisms that ensure the legitimacy of the process are public participation in the generation of content through a representative body which must consider the concerns of a wide segment of the people; the sittings of the said body must be transparent and its report should not be subject to manipulation by any person or entity.

Further, another important mechanism to ensure meaningful engagement in the constitution-making process is the education of the citizens on the contents of the constitution and the process.

The timing for undertaking constitution reforms is a key issue in the constitution-making process. Constitutional reforms coinciding with electoral cycles or national elections have tended to make the constitution-making process a campaign issue often resulting in controversial provisions .

  • Qualities of a Good Constitution:

The Constitution is the foundation on which a State is founded. It is desirable, that the foundational base of the Constitution ought to reflect the collective aspirations of the people within the State. This means that the qualities of a good Constitution are determined by the people themselves and what determines a good Constitution is one that contains what the people want to be in the Constitution.

The special status that a Constitution has, means that it should be a document of the people, by the people, and for the people. For a Constitution to receive acceptance as the people’s document, its making must be inspired by the people themselves and the final document must reflect the general aspirations of the people within the State. As the document of the people, it is necessary that people are the starting and end point in state constitution-making processes.

  • Strengthening the Bill of Rights in Zambia:

An inclusive Bill of Rights is important in the Constitution, and an inclusive Bill of Rights completes the Constitution. Its purpose, as a tool of political and social organisation, is to enable people to live not just in freedom, but to live dignified lives with access to the goods and services that enable them to live a fulfilling and meaningful life. Governments, therefore, do not protect human rights as a matter of charity or goodwill.  This is what gives rise to the belief that human beings are entitled to certain rights, regardless of what the State or the majority may wish.

Some of the limitations or weaknesses identified in the current Bill of Rights were a lack of recognition of social, economic, and cultural rights, derogation clauses and inadequate provision for horizontal application of the Bill of rights.

Key submissions from participants at the seminar emphasised the need to ensure consensus and participation by all in the process, a clear roadmap, transparency and adoption of the final constitutional text by a representative body.

The submissions gathered from the seminar are intended to help the Commission make recommendations to the Government on the content of the Constitution and on how to develop an effective procedure for the constitution-making process.

Our next article speaks to the role the Constitution plays in national development and consensus building in the Constitution-making process. Don’t miss it out! Visit our social media platforms for more information.


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