Constitutional Development in Zambia, 1890-1975

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Sipalo, Ngenda
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Zambia is today a one party state. Though this would appear to represent a clean break with the past, in reality, however this is not entirely accurate. To the extent that there is an absence of a plurality of political parties or that because of the demands which a single party system entails there has got to be a limitation on freedom of association end assembly and communication, the proposition that a single party state represents a clean break with the past would appear to hold water but the legal realities make it absolutely difficult to get away from history. For instance the constitution of the Zambia Independence Act and the Zambia Independence Order had to be preserved is so far as this was not inconsistent with the new order. Even more important perhaps is the fact that although the one party-state constitution contains a number of original features such as the Commission of investigations popularly known as the Ombudsman and the concept of the Leadership Code the One Party Constitution preserves and perpetuates by way of organic growth the constitutional development during the colonial period and even before. Though Zambia today is a one party state it has experienced different forms of administrations. The Zambia Independence Act 1964 an enactment of the British Parliament provided for the termination of the British protectorate status over the territories of Northern Rhodesia and that they would henceforth become the independent republic of Zambia. Between 1924 and 1964 Northern Rhodesia experienced the British system of colonial government headed by a Governor and supported by a legislative council and an Executive council. Before 1924 going back to the 1890s Northern Rhodesia was administered by a commercial concern incorporated by Royal charter, the British South Africa company. Basing its right to rule on the agreements entered between itself and Lewanika the traditional ruler of the Lozi in the North West of Rhodesia and agreement entered between company officials and chief a in North Eastern Rhodesia it caused to be promulgated in 19OO the North Eastern Rhodesia Order in Council and the Barotseland North Western Rhodesia Order in Council of 1899 in order to facilitate the administering of the two components of Northern Rhodesia. In 1911 however, the two parts were amalgamated in the Northern Rhodesia Order in Council of that year. The British South Africa company had an official representative during company Rule in Northern Rhodesia called an administrator but he could not make laws for the territory, thus up until 1924 when Company rule was terminated in Northern Rhodesia by an Order in Council the country was administered by proclamations made either by the High Commissioner in South Africa or by the Commissioner in Nyasaland (Malawi) today some of these proclamations are still being enforced in Zambia. During company charter rule in Northern Rhodesia the interests of the British settlers were not always coincidental with those of the British Government and the interests of the Company coincided with neither of these. In addition the interests of the indigenous people were not identical with those of the company, which as a commercial concern its motives were ensentially profit oriented. It was therefore, not surprising when the British government following a report by a commission which had visited the area at the time terminated company rule by the Northern Rhodesia Order in Council of 1924, and Northern Rhodesia became a protectorate. Northern Rhodesia began to experience the colonial form of government. This form of government was to go on until 1953 when Northern Rhodesia was incorporated together with Southern Rhodesia and Nyasaland in the federation of Rhodesia and Nyasaland. With the F.H.N. Act the federation of Rhodesia and Nyasaland was established and the Federation (Constitution) Order-in-Council promulgated. This period was marked by intense African opposition to these forms of Administrations and because Northern Rhodesia remained a protectorate during the Federation period with the federal framework this made it possible for constitutional development to take place even though this left the Federal constitutional development behind. As a result of the frantic constitutional developments in Northern Rhodesia in a bid to widen the franchise this ultimately led to the formation of a black government in 1962 following a coalition of the two main black political parties. And with the dissolution of the Federal arrangement in 1963, this paved the way for full independence status for Northern Rhodesia. The General Elections of January, 1964 following the new self-governing constitution adopted in 1963 unshered in a black government and in May, 1964, at an independence conference in London a Republican constitution was finally agreed upon and promulgated in an order-in-council formally made by the British Monarch under the Zambia Independence Act which created the Republic. The scope of this paper therefore, will be from the 1890s when the British South Africa Company attempted to provide a system of administration to 1973 when Gambia, after having experienced different constitutional arrangements finally adopted a one party-state constitution. Our concern there¬fore, is with a type of constitutional law which is in written form and derives from institutions and modes of legislation unknown to customary law. Though a lawyer writing on government would invariably concern himself with the rules governing those institutions "rules" as Professor Nwabueze points out in the introduction to his book Presidentialism in commonwealth Africa are not to be regarded as a selfsufficient subject of study. The underlying political and social forces motivating them are as vital as the rules. This is more so with regard to the present study. The development of constitutional law in Zambia has inevitably been shaped by the political and social forces which characterised the changing focus in power relationships. For instance the federation of Rhodesia and Nyasaland was brought out by European settlers mostly in Northern and Southern Rhodesia who thought that such an arrangement would finally give them dominion status like that enjoyed by Australia and Canada. But the Africans on the other hand saw it as the embodiment of white supremacy and they were thus determined to fight it. In Barotse Province (as it was then called} on the other hand, the ruling elite there felt that because of the treaties which Lewanika had entered with Company officials in the l890s they were to be consulted on any constitutional changes which would affect their position and hence the inclusion of provisions referring to their special position in the constitutions of 1911, 1924-1953 and finally in 1961. And even in 1964 when the republican constitution was finally agreed upon in London a separate agreement. The Barotseland Agreement had to be signed in order to assuage the fears of the Litunga when independence finally came on 24th October, 1964. The nationalists on the other hand were determined to have one Zambia. One Nation in which all the people will have equal status hence the gradual but determined effort to bring Barotse Province on par with all other provinces. Thus the approach adopted in this paper is not one of dealing with the rules in vacuo but of dealing with the rules against a back drop of social and political undercurrents which determined them. Thus the rules will, as it were form the framework - the skeleton, while the social and political forces the flesh with which to help us understand the course and nature of constitutional development which Zambia has gone through. This paper will therefore attempt: a) to nonitor the historical evolutionary stages through which Gambia's Constitutional development has passed. Northern Rhodesia (Zambia) compared to Nyasaland (Malawi) or Rhodesia has seen more Constitutional Changes than any of the two countries. First under Charter rule and then Colonial protectorate Zambia was going through a Constitutional metarmophosis which reached its high water mark between the period 1958 and 1964 when for the first time the Africans of Northern Rhodesia began to be enfranchised albeit with some means, educational and property qualifications but by the beginning of 1964 the Africans had won Universal adult suffrage for themselves. Thus within a period of six years Zambia was to have four different Constitutions. There was a new constitution in 1959 then 1962 and in 1963 there was the internal self-governing Constitution which was itself replaced in May 1964 by a Republican Constitution agreed at a Conference in London. On the other hand Malawi evinces a different picture from Zambia. Malawi was not opened by Charter Company but by missionary endeavours. The British Government took over Control of the territory in 1902 when an Order-in-Council appointing a Commissioner to administer the protectorate in the name and on behalf of the Majesty was made. In 1907 the High Commissioner was replaced by the Governor, an executive Council and a legislative Council. This position remained essentially the ease until 1962 when a new Constitution was introduced which brought an African Majority in the Legislative Council. A new Constitution was agreed to in May 1963 which brought in internal self-government and finally independence in July 1964. Southern Rhodesia like Zambia was under Charter Company rule but the white settlers gained early control of Government to warrant the conferment of a self-governing Constitution in 1923. This Constitution remained the same until 1961 when a new Constitution was introduced. In 1965 Rhodesia Unilaterally declared itself independent after failure to reach agreement with the British Government. In 1969 some changes were made in its Constitution in preparation for a Republican Status in 1970. But the 1961 Constitution has remained in force all along. All the three territories became part of the ill fated Federation of Rhodesia and Nyasaland in 1953 which finally met its Waterloo in 1963 after implacable resistance to its implementations by the politically conscious Africans from Zambia and Malawi. (b) to show that the British Constitutional provisions and institutions which have characterised powers, procedures and traditions of the colonial government continue to buttness the system. We will contend that though Zambia's political parties could have opted for any Constitutional formula, their familiarity with the British one made their choice of the former much more certain. (c) an examination of Gambia's present Constitutional Legislation i.e. the One Party State Constitution. It will be contended that the principles of democracy are no less protected and enjoyed by the people in the One Party State than they were when Zambia was under a multi-party system. It is not necessarily the Constitutions which make or break the system but the people running such systems. Thus an apparently democratic Constitution can be violated at will by its framers thus making it no better than a villains manifesto.
Zambia -- Constitutional history , Constitution making - Zambia