Professor Ndulo said the demand for the release of the draft constitution should also be followed by the demand that the next constitution be adopted via a referendum.
He said adopting the constitution through a referendum would help legitimize the entire constitution making process.
Professor Ndulo was speaking in Lusaka Wednesday evening when he presented a paper on Constitutionalism in Africa at a public discussion organised by the Law Association of Zambia.
“For me, I would first like to ask the Zambians to make a comparative study about what has happened in Kenya and Zimbabwe because I believe it is very similar to what is happening here and the various stag where the constitution debate has reached, where it is difficult to see the direction that it is going,” Professor Ndulo said
He added, “In Kenya, I was very involved in the Kenya process after a few failed processes, the two leaders there Odinga and Kibaki came and said please help us. We are done with this bickering and I strongly believe that Kenya had reached its own constitutional moment. In Zambia, we are at a stage where you have the draft and you are not sure what is in the draft.”
Professor Ndulo stated that the demand for the release of the draft should go side by side with the demand for a referendum.
“To me the demand for a referendum should not be just independent, so demand for release and plus referendum because you have to know what you are supporting. I’m not against the referendum, I support the referendum completely because it is a way to legitimize the process,” Professor Ndulo said.
He continued, “the way I regard a constitution is that it is a framework for governance, that you decide that okey, as us South African or Kenyans wherever, how are you going to be organised and how are you going to be dealing with arrangements such as government, institutions of governance and that I why it is important to recognise the constitution making process as a national project because you can disagree on policies afterwards but let’s agree on the framework.”
Professor Ndulo stated that the idea of the constitution is to regulate how the country is going to be run and how the various institutions will be governed.
“But you need to agree on what you want to create. In Zambia we have never had a debate about what kind of society we want to create. I think this debate has never taken place. I remember I was involved in the South African constitution and they had a whole year of debate about what kind of South Africa they wanted to create. They came up with 33 principles which were adopted and they had agreed that they wanted a non-racial society, and this and that and the constitution had to be tested against those principles and infact the constitution principles had to be tested in the constitutional and I remember on first attempt the constitutional court said no you didn’t and they didn’t argue, they had to go back and redraft and resubmitted and the constitutional court accepted.”
At the same event, UNZA Constitutional law lecturer Chipo Nkhata said the civil society in Zambia has played a key role in constitutional making in Zambia.
Ms Nkhata however said the relationship between the state and the civil society has not been cordial and the two are suspicious of each other’s intentions.
“NGOs in Zambia have tried to push the constitution agenda, there is a lot of good work that NGOs have done but they should ensure that the constitution place limitations on the state but NGOs themselves need to be aware of where the excesses are in the present constitution. There is need for a lot of advocacy work to hold the Government accountable, transparency and accountability are a key part of constitutionalism.
And media trainer Kellys Kaunda who spoke on the role of the media in constitutional making said freedom of the press across Africa is usually violated with impunity.
“Across the African continent, it is interesting that just about every constitution has a provision to that respects freedom of the press but what I have observed across Africa and you might want to ask what authority do you have to speak about other countries because when I was working for Voice of America, I had the opportunity of reporting in a majority of countries on the African continent and I saw firsthand how weak the enforcement of constitutions was, how law enforcement is, even when the constitution is clear on protection of Journalists, guys will violate the law willy nilly,” Mr Kaunda said.
He also urged Journalists to take a keen interest in constitution formulation saying the constitution is not a preserve of lawyers.
“I have always believed that a constitution is our autobiography as a people. It should reflect my aspirations as Kellys, it should reflect, Chanda, Phiri and Mulenga’s aspirations too.”