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Constitutionalism in Zambia: Past, Present and Future

Published online by Cambridge University Press:  28 July 2009

Muna B. Ndulo  and
Robert B. Kent
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Extract

Writing about any constitution is tricky business and that of Zambia is no exception. Four constitutions in 32 years hardly represents a settled state of affairs, and an end, or even a stopping place of long duration, does not appear in sight. This is, however, an interesting, even exciting period in Zambia’s brief constitutional history. The subject cries out for an examination of where the country has been, where it is, and where, at least in the opinion of these observers, it ought to be heading.

We are happy to undertake this brief assessment in the context of recognition of the career of Professor J.S. Read. This able, patient, effective, and thoughtful scholar has been a mentor to generations of African lawyers, including Zambians. To both of us Jim Read has been a warm and generous friend, from time to time a wise counsellor who has contributed much to our own efforts.

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Articles
Information
Journal of African Law , Volume 40 , Issue 2: SPECIAL FORTIETH ANNIVERSARY NUMBER LIBER AMICORUM FOR PROFESSOR JAMES S. READ , Autumn 1996 , pp. 256 - 278
Copyright
Copyright © School of Oriental and African Studies 1996

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References

1 Since Zambia gained independence from Great Britain on 24 October, 1964, it has had the following Constitutions: 1964 Constitution provided for in Schedule 2 to the Zambia Independence Order, 1964, promulgated by Her Majesty in Council under the provisions of the Foreign Jurisdiction Act, 1890; The Constitution of Zambia Act, 1973; The Constitution of Zambia Act, 1991, and The Constitution of Zambia (Amendment) Act, 1996, which, even though it did not repeal the whole of the 1991 Constitution, introduced such significant changes as to render the resulting document a new Constitution.

2 See Paul, James C.N., “Developing constitutional orders in Sub Saharan Africa: an unofficial report”, Third World Legal Studies, 1988, 1.Google Scholar In this article Professor Paul maps out the scope and content of developing constitutional order in Africa. See also Kwamena Bentsi-Enchill, “Civitas Dei Africana. realizing the African political dream“, [1969] Zambia Law Journal 65; and also de Smith, S.A., The Mew Commonwealth and its Constitutions, London, 1964.Google Scholar

3 International Round Table on Democratic Constitutional Development, Commonwealth Secretariat, 1995, 22.

4 A recent report of the Commonwealth Human Rights Initiative which went to examine the political situation after the May 1996 amendments to the Constitution concluded: “The political situation in Zambia merits urgent attention from its friends and from the international community at large as a fragile experiment in democracy is under threat in a situation where the shortage of time is a critical factor“, The Post, 24 September, 1996.

5 Mann, K. and Roberts, R. (eds.), Law in Colonial Africa, London, 1991, 3–23Google Scholar and Ojwang, J.B., “Rural settlement in Kenya”, (1975–1978) 7–10 Zambia Law Journal, 63–83; and T. Nhlapo, “Accommodating traditional forms of governance”, International Round Table on Democratic Constitutional Development, above, 168.Google Scholar

6 The Portuguese had by the 15th century established themselves on the east coast of Africa and carried on a gold trade particularly around Sofala. See Exelson, E.V., The Portuguese in South-East Africa 1600–1700, London, 1960Google Scholar and Wills, A.J., An Introduction to the History of Central Africa, London, 1973.Google Scholar

7 Hole, H.M., The Making of Rhodesia, London, 1926.Google Scholar

8 Royal Charter of Incorporation of the British South Africa Company, 29 October, 1889. As originally drawn the Charter covered the area south of the Zambezi River. On 5 March, 1891, it was amended to include the area north of the Zambezi.

9 Gann, L.H., The Birth of a Plural Society: the Development of Northern Rhodesia under the British South Africa Company, 1894–1914, Manchester, 1958.Google Scholar

10 Gann, L.H., History of Northern Rhodesia: Early Days to 1953, London, 1964.Google Scholar

11 Northern Rhodesia Proclamation No. 1 of 1911.

12 This was later reflected in the 1964 constitutional arrangements. At the time of independence Britain concluded what is known as the Barotse Agreement of 1964. The status of Barotseland has continued to be a matter of political dispute. See Report of the Constitutional Review, 1995, Chapter 29, 65.

13 Northern Rhodesia Order in Council, 1924.

14 Federation of Rhodesia and Nyasaland Order in Council, 1953.

15 Roberts, A., A History of Zambia, London, 1976.Google Scholar

16 See Hall, R., Northern Rhodesia, London, 1964Google Scholar and Rotberg, R.I., The Rise of Nationalism in Central Africa, Cambridge, 1965.Google Scholar

17 Zambia Independence Order, 1964, and Zambia Independence Act, 1964.

18 The Northern Rhodesia Order in Council, 24 February, 1924, set up Legislative and Executive Councils; in 1959 a ministerial system was introduced; Northern Rhodesia Constitution promulgated on 11 December, 1962.

19 Mubako, S., “Zambia's single-party constitution—a search for unity and development”, (1973) 5 Zambia Law Journal, 67.Google Scholar

20 Hall, , above and Mwanakatwe, J.M., The End of the Kaunda Era, Lusaka, 1994.Google Scholar

21 Seen. 17.

22 Constitution of Zambia, 1964.

23 Provisions concerning the alteration of the Constitution were contained in section 72. It provided in section 72(1), (2)(a)(b) that a bill amending the Constitution shall not be passed unless “the bill is supported on second and third reading by the votes of not less than two-thirds of all the members of the Assembly”. In so far as the amendment concerned Chapter III and Chapter VII of the Constitution, section 72(3)(a)(b)(c) required the amendment to be approved by a national referendum.

24 Hall, R., Zambia, London, 1964.Google Scholar

25 Art. 33(1) (2)(a)(b)(c).

26 Art. 33(4)(b).

27 Art. 33(4)(e).

28 Art. 36(l)(a)(b) (2) (3)(a)(b)(c) (4) (5).

29 Art. 48(1) (2) (3).

30 Art. 44(1) (2) (3)(a)(b)(c).

31 Mwanakatwe, above, 107. B.C. Chikulo also made this observation in “Decentralization in centralism: an analysis of the Zambian experience (1964–1981)”, in Osei-Hwedie, K. and Ndulo, M. (eds.), Issues in Zambian Development, Lusaka, 1985, 340.Google Scholar

32 Art. 41(1).

33 Art. 49(1).

34 The President was also the President of the ruling party, UNIP.

35 Art. 57.

36 Art. 58.

37 Art. 63(1).

38 Art. 71(1).

39 Art. 71(5) (6).

40 Art. 27(l)(a)(b) (2)(a)(b).

41 Arts. 85 and 86.

42 Mwanakatwe, above, 85.

43 Arts. 97 and 98.

44 Art. 98(1).

45 Ibid.

46 Art. 99(1).

47 Art. 99(2).

48 Art. 100(1) (2) (3)(a)(b)(c) (4) (5).

49 Hall, R., High Price of Principles, Harmondsworth, 1969.Google Scholar

50 For a detailed study of the lower courts see Spalding, F.O. et al. , “One nation, one judiciary: the lower courts of Zambia”, (1970) 1 Zambia Law Journal 1.Google Scholar

51 Chapter III of the Constitution of 1964.

52 Arts. 13–25.

53 Art. 25(4)(c)(d)(e).

54 Art. 28(1).

55 Art. 28(2)(a)(b).

56 E.g. Kachasu v. Attorney-General (1964) ZR 145; Attorney-General v. Mumba (1974 ) ZR 218; Chimba & Others v. Attorney-General (1972) ZR 165 and Patel v. Attorney-General (1968) ZR 99.

57 Art. 72(1).

58 Art. 72(3)(a)(b)(c).

59 Constitutional (Amendment) (No. 3) Act of 1969 amended the Constitution so that, after it became law, it would no longer be necessary to submit to a referendum any Act of Parliament which provided for the alteration of Chapters III and VII and arts. 71(2), 72 and 73 of the Constitution.

60 See Turok, B., Development in Zambia: A Reader, London, 1979, 71.Google Scholar

61 Mwanakatwe, above, 88.

63 Mubako, above, 67–68. Mubako supports the view that the decision to introduce the “One Party Democracy” at the time and in the manner it was introduced was largely influenced by political developments in the ruling party UNIP.

63 Mwanakatwe, above, 86.

64 Report of the National Commission on the Establishment of a One-Party Participatory Democracy in Zambia, Government Printer, Lusaka, 1971.Google Scholar

65 Government White Paper No. 1 of 1972.

66 The Constitution of Zambia Act, 1973.

67 Ibid.

68 Arts. 107–116-Judiciary; 63–94-Parliament; 37–62-Executive.

69 The Constitution of Zambia Act, 1973, art. 42(1) (2).

70 Ibid., art. 48.

71 Ibid., art. 4(1) (2).

72 Ibid., art. 26.

73 Ibid., art. 27(l)(a).

74 Ibid., art. 27(l)(c).

75 Ibid., art. 27(2).

76 Ibid., art. 117.

77 B.C. Chikulo, “Elections in a one-party participatory democracy”, in Turok, above, 201; see also Gertzel, C. et al. , The Dynamics of the One-Party Stale in Zambia, Manchester, 1984, 29.Google Scholar

78 This was based on the philosophy that the party was supreme. The supremacy of the party was recognized in the Constitution of Zambia (Amendment) Act No. 22 of 1975. For a discussion of this amendment see Zimba, L.S., “The Constitution of Zambia (Amendment) Act No. 22 of 1975: the legal recognition of the principle of ‘party supremacy’ in Zambia”, (1982) 14 Gambia LawJournal, 82.Google Scholar

79 The Constitution of Zambia Act, 1973, Art. 32.

80 The Leadership Code Act, 1976.

81 The 1991 Constitutional Commission recommended the abolition of the Leadership Code on the grounds that “although well intended, it had failed to achieve its objectives”: Report of the Constitution Commission, 1991, 187.

82 There are several accounts of the economic situation during this period. See, for example, Mwanakatwe, above, 113; “Sub-Saharan Africa: from crisis to sustainable growth”, World Bank Report, 1989; “African economies: African alternative framework for structural adjustment programmes for social economic recovery and transformation (AAF-SAF), United Nations Economic Commission for Africa (E/ECA/CM.15/6/Rev.3).

83 There were two significant coup attempts, in 1980 and 1990. The 1990 attempt followed food riots to protest against the rising cost of food, particularly maize meal. See Mwanakatwe, above, 165.

84 The MMD was formed at a meeting held at th e Garden Motel in Lusaka in July 1990. It was largely an initiative of intellectuals, students and unions.

85 In 1990 a Referendum Commission was established. A provision in the Referendum Act allowed the Commission to issue instructions “to any public authority, public individual, public office”. The Commission interpreted this provision freely and liberally and was able to use it to override government power over the media and police in its efforts to ensure a level playing field.

86 The Commission was appointed on 8 October, 1990, by Statutory Instrument No. 135, 1990.

87 Report of the Constitution Commission, April 1991.

88 Mwanakatwe, above, 215.

89 Ibid., 218.

90 Ibid., 219.

91 The Constitution of Zambia Act, 1991, art. 1(2).

92 Part III of the Constitution. For the limitations on the rights see arts. 16(2); 17(2)(a)(b); 19(5); 20(3)(a)(b); 21(2)(a)(b); and 25.

93 The Constitution of Zambi a Act, 1991, art. 23(4)(d)(e).

94 Ibid., arts. 22(3)(a)(b) and 26(1).

95 Ibid., art. 34(1) (2).

96 Ibid., art. 34(3)(a)(b)(c)(d).

97 Ibid., art. 34(6) (7) (8) (11).

98 Ibid., art. 35(2).

99 Ibid., arts. 93(1) (2); 95(1); 54(1); 55(1) and 56(1).

100 Ibid., art. 68.

101 Ibid., art. 79(l)(a)(b).

102 Ibid., art. 79(3).

103 Commonwealth Human Rights Initiative Report, The Post, 24 September, 1996; Bratton, Michael, “Zambia starts over”, (1992) 3 Journal of Democracy, 81;CrossRefGoogle ScholarMilimo, John, “Multiparty democracy in Africa: lessons from Zambia”, (1993) 10 International Journal of World Peace, 35Google Scholar; and National Democratic Institute for Internationa l Affairs, Uneven Paths: Advancing Democracy in Southern Africa, Windhoek, 1993, 37.Google Scholar

104 Mwanakatwe, above, 229.

105 Ibid., 223.

106 The Commission was appointed on 22 November, 1993, under Statutory Instrument No. 151 of 1993 as amended by Statutory Instrument No. 173 of 1993.

107 Terms of Reference of the Commission (1), (2), (3), (4). The terms of reference are contained in Statutory Instrument No. 151 of 1993.

108 Ibid., term of reference (9).

109 Report of the Constitutional Review Commission, 1995, Chapter 27 of the Report, recommendation 27 and 27(1).

110 Ibid., Chapter 28 of the Report.

111 Ibid., 64.

112 Ibid., Chapter 3, paragraph 3.6, 10.

113 Ibid., Chapter 4, paragraphs 4.0–4.3.7.

114 Ibid., Chapter 7, paragraph 7.2, 15.

115 Ibid., Chapter 7, paragraph 7.2.15 and paragraph 7.2.16, 18.

116 Ibid., Chapter 7, paragraphs 7.2.17 and 7.2.20, 18 and 19.

117 Ibid., Chapter 7, paragraph 7.2.21, 19.

118 Ibid., Chapter 7, paragraph 7.2.23, 19.

119 Ibid., Chapter 7, paragraph 7.6, 21.

120 Ibid., Chapter 11, paragraph 11.4.1.

121 Ibid., Chapter 11, paragraph 11.5, 29. This has been implemented in the Constitution of Zambia (Amendment) Act No. 18 of 1996, art. 35(2).

122 Art. 35(2) of the Constitution of Zambia Act, 1991, read “… after the commencement of this Constitution no person who holds or has held office as President for two terms of five years each, shall be eligible for re-election to that office”.

123 The Constitution of Zambia Act (Amendment) Act No. 18, 1996, provides that “a Chief shall not be qualified for election as a member of the National Assembly” and art. 65(4) provides that “a Chief who intends to stand for election to the National Assembly shall abdicate his Chieftaincy before lodging his nomination”. The Commission version would have only required the Chief to resign upon being elected to Parliament. See Report of the Constitutional Review Commission, 1995, Chapter 12, paragraph 12.6, 36.

124 Report of the Constitutional Review Commission, 1995, Chapter 11, paragraph 11.9, 32.

125 Ibid., Chapter 12, paragraph 12.25, 40.

126 Ibid., Chapter 13, paragraph 13.6.1, 42.

127 Ibid., Chapter 25, 59.

128 Ibid., Chapter 14, 46.

129 Ibid., Chapter 20, 54.

130 Ibid., Chapter 8, paragraphs 8.1–8.5, 22.

131 Ibid., Chapter 10, paragraphs 10.0–10.10.

132 Republic of Zambia, Government White Paper, No. 1 of 1995.

133 Ibid., paragraph 13.6.1, 55 (Constitutional Court) and paragraph 12.22, 51 (Electoral Commission).

134 Ibid., paragraph 3.6, 11.

135 Ibid., paragraph 11.4.9, 38.

136 Ibid., paragraph 11.5, 38.

137 Ibid. The Government White Paper added the proviso that “such Chiefs should abdicate their Chieftaincy before lodging their nomination”, paragraph 12.6, 46.

138 Ibid., paragraph 11.19, 43.

139 Ibid., paragraph 8.1, 29.

140 Ibid., paragraph 27.0, 71–73.

141 Citizens' “Green Paper” Summary of Resolutions by the Citizens' Convention on the draft Constitution, 1–10 March, Lusaka, 1996. The conference was an initiative of church organizations and NGOs. The convention was attended by over 257 participants from a cross-section of the Zambian population.

142 The Constitution of Zambia was amended under Act No. 18 of 1996. The constitutional amendments were adopted without the participation of the major opposition party in Parliament, UNIP, whose members walked out of Parliament in protest at the amendments.

143 Mwanakatwe, above, 222.

144 Ibid., 223.

145 Ibid., 215–222.

146 The Constitution of Zambia (as amended by Act No. 18 of 1996), art. 65(3) (4).

147 Citizenship of Zambia was created by article 3(1) in the 1964 Constitution in these terms: “Every person who having been born in the former Protectorate of Northern Rhodesia, is on 23rd October, 1964, a British Protected person shall become a citizen of Zambia on 24 October, 1994”.

148 See Constitution of Zambia, 1964, art. 67; Constitution of Zambia, 1973, art. 73(1); Constitution of Zambia, 1991, art. 76.

149 The Constitution of Zambia (as amended by Act No. 18 of 1996), art. 76.

150 Report of the Constitutional Review Commission, above, Chapter 12, paragraph 12.21.1, 39.

151 The Constitution of Zambia (as amended by Act No. 18 of 1996), art. 20(3)(a)(b)(c).

152 Art. 23 makes exceptions to which the prohibition against discrimination does not apply. As a result it does not apply to matters relating to taxation; it is inapplicable to non-citizens and with respect to matters relating to adoption, marriage, divorce, burial, devolution of property on deadi or other matters of personal law. Most importantly, it is inapplicable in the case of members of a particular race or tribe, to customary law “with respect to any matter to the exclusion of any law with respect to that matter which is applicable in the case of other persons”.