Constitution making process: The Zambian experience
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Date
2015
Authors
Lungwangwa, Vincent
Journal Title
Journal ISSN
Volume Title
Publisher
The University of Zambia
Abstract
Zambia has experienced constant constitutional instability since attaining independence in
1964 to date. That is, she has since independence, never achieved a Constitution that has been
regarded as legitimate, democratic and durable. To date, the quest to achieve a legitimate,
democratic and durable Constitution still rages on.
The objective of the study was to examine why Zambia has failed to achieve a legitimate,
democratic and durable Constitution. The study primarily focused on the constitution – making
processes embarked by the country, from the process leading to the crafting of the 1964
independence Constitution, to the current constitution – making process embarked by the
Technical Committee on Drafting the Zambian Constitution (TCDZC). The study therefore, does
not delve much into the contents of successive Zambian Constitutions.
The research employed the pure legal research methodology. The research was basically a desk
review of secondary sources on constitution – making process in Zambia and other jurisdictions.
The study opened with a discussion of the notion of the people as the repository of constituent
authority as the starting point to discussing constitution – making process. Thereafter, the
study discussed the theory of New Constitutionalism or Democratic Constitution Making. This
discussion was followed by an examination of the various constitution - making processes that
the country has undertaken, beginning with the process leading to the crafting of the 1964
Independence Constitution, to the on - going constitution – making process.
The main findings of the study are, firstly, that the failure by Zambia to achieve a legitimate,
democratic and durable Constitution has been attributed to the methods of constitution –
making used to craft Zambia’s successive Constitutions. The methods used have been such that
successive Constitutions have been imposed on the citizenry; hence these Constitutions have
lacked legitimacy (acceptance) and moral authority of the citizenry. Secondly, that constitution
– making process plays a vital role in achievement of a legitimate, democratic and durable
constitution. And finally, that Zambia needs a proper legal framework to regulate and guide
constitution – making process. The legal frame work should expressly vest in the citizenry, the
power or authority to adopt and approve the final draft Constitution before it becomes law.
The study concluded that to a very large extent, a legitimate, democratic and durable
Constitution is inevitably achieved when the citizens participate in its adoption and final
ratification.
The main recommendations of the study (in view of the findings), are that, firstly, there is need
for a legal frame work that will vest expressly in the citizenry, the power or authority to adopt
and approve final draft Constitutions before they are enacted into law. Secondly, that a
legitimate, democratic and durable Constitution under the current process undertaken by the
TCDZC will be achieved only if the TCDZC incorporates the people’s wishes into the final draft
Constitution and that Government does not manipulate this final draft. In addition, the people
should be given an opportunity to ratify the final draft Constitution through a referendum
Description
Keywords
Constitution law--Zambia , Zambia-Politics and Government , Constitutional amendments--Zambia