This paper will first give an overview of the constitution and what democracy is and then analyse what should be amended in the current constitution. In conclusion the assignment will highlight the rights of the Zambian people with regard to the constitution and democracy. Oxford dictionary defines democracy as “a system of government the whole population or all the eligible members of a state typically through elected representative” Democracy can be thought of as a system of government four key elements namely, a political system for choosing and replacing the government through free and fair election, the active participation of the people as citizens in politics, civic life and the protection of the human rights of all citizens and a rule of law in which the law and procedures apply equally to all citizens. In a democracy, the principle of accountability holds that government officials whether elected or appointed by those who have been elected. The leaders are responsible to the citizens for their decisions and actions. Transparency requires that the decisions and action of those in government are open to public scrutiny and that the public has right to access information. Without accountability and transparency democracy is impossible. The option taken by the government to ignore the Zambian citizens calling for the people driven constitution does not ensure transparency. The constitution process had numerous flaws that made it difficult to come up with the people’s constitution. The constitution making process is deeply flawed and is unlikely to deliver a constitution that is legitimate and provides a framework for the democratic governance of Zambia. According to Sneh (2011) “A constitution is a system of law, customs and principles usually written down, according to which a country or organisation is governed.” In this regard, it can be said that a constitution is the supreme law to which all other laws of a country are subordinate were customs and traditions or habits of the people in a society are accepted. Most developing countries that have embraced democracy have one major problem – constitutions that have been not adequately revised since they attained political independence. Zambia is one such country which since independence in 1964 has tried to revise its constitution and laws to make them more consistent with the kind of system of government and also with international treaties that it has signed on to. Zambia bill is a bill seeking to validate the amendment process of the 1996 constitution and clearly stating what things should be changed and the others that will remain the same. Constitutional development in Zambia can be traced back to the British colonial times especially from the beginning 1950. An attempt to get a lasting constitution for Zambia was made. A commission chaired by John Mwanakatwe was appointed in 1993 to draft a constitution. Unfortunately, the process failed to win popular support and a resulting constitutional amendment in 1996 was considered to lack legitimacy as most of the commission recommendations were ultimately rejected by the government. According to the constitution of Zambia Article 238. “The President shall perform, with dignity, leadership and integrity, the acts that are necessary, expedient for, or reasonably incidental to, the performance of the executive powers of the State, subject to the overriding terms and spirit of this Constitution and any other law,” This clearly shows that the president’s comments concerning the people driven constitution does not promote democracy because of the president’s executive interference of the legislature by sending police officers to surround parliament when the issue of constitution was to be passed in parliament. In democracy, a good constitution limits the powers of the executive and makes them accountable and answerable to the public. It is a good constitution that ensures that the executive legislature and judiciary carry out proper checks and balances on each other. There is need to revise the article 268 in order to limit his legistrative powers. In a democracy, the people are sovereign they are the highest form of political authority. Power flows from the people to the leaders of government who hold power only temporarily The president advised the new appointees to ignore the people talking about the constitution. This clearly shows that the president does not want to give the Zambian people a new constitution because of the powers he enjoys under the current constitution which has invested all the powers in the president as outline in article 268 of the current constitution. There should be a provision of greater separation of power between the executive, legislature and judiciary in the new constitution. Under the current constitution Article 90: 3, a plethora of political parties compete and the new president is the leader of the party that scores highest in the election. The current president won the presidency in 2011 with 42 percent. This figure would not get him into power under the new constitution which would require a second run-off election between the top scoring parties from round one if there is no out right winner. The new constitution include the adoption of 50 percent plus one mode of choosing the president so that the chosen person enjoys majority vote and confidence, having a presidential running mate standing together with presidential candidates, greater noninterference of the electoral commission of Zambia and a clearly stipulated provision forbidding use of public resources by party in elections. According to Sneh (2011)” in a democracy every citizen has certain rights that the state cannot take away from them”. This shows that the rights of the citizens cannot be taken away from them because they are guaranteed under international law. Zambian citizens have the right assemble freely and protest government actions over the constitution. But this is not done because each time they try to assemble; they are not given permission hold such meetings. The Bill of Rights is a list of fundamental rights and freedoms covered in Part III of the Constitution of Zambia which is the Supreme Law of the Land. This is the country’s main instrument of protecting the rights and freedoms of the individual. The Bill of Rights in Zambia is entrenched in the Constitution and hence cannot be easily amended because of the strict amendment requirements. It can only be amended after a national referendum in which not less than two thirds or 50% of the eligible voters vote in favour of the bill rights. Many groups including non-governmental organizations and the churches have been advocating for the inclusion of social economic and political rights in the bill of rights of the constitution. There is need to have a fully developed bill of rights that is up to date with major international human rights instruments. According to Held. D. (1987) freedom of association and assembly is the right to associate with others for the purpose of engaging in constitutionally protected activities.” In the current constitution article 41 a person has the right to, peacefully and unarmed, to assemble, demonstrate, picket or lock out and present petitions to public authorities. In a democratic dispensation, the rights are always respected. The public order Act in its current amended form removed the requirement for people wanting to assemble or conduct a march to obtain permits. According to Green (1985)” peaceful political change is a significant strength of the modern constitutional democratic state.” In contemporary constitutional democracies almost any matter may become a public issue if a significant number of people wish to make one. The people are free to criticize leaders and representatives by observing how they conduct the business of the government. The key role of democracy is to participate in public life. Citizens have an obligation to become informed about public issues and to watch carefully hoe their political leaders and representatives use their power to express their own opinion and interests. The Zambian people calling for a constitution should be not by those in power because in a country were democracy is functioning, presidents do not give the citizens the silent treat but rather engage them in discussion. Charles (2007) states that,” a constitution is a set of laws a particular of a government”. The purpose of the constitution is to limit the government power; it is the body of fundamentalism laws setting out the principles, structures and processes of a government. The reluctance expressed by the government in championing the release of the draft constitution raises a concern. The conflict in the Technical Committees submissions as having submitted the three documents to the ministry of justice and the information from the ministry as having not received the said documents does not instill any sense of trust by the citizens , in those whom the responsibilities to lead the nation has been vested. The effectiveness of the Ministry of justice in handling this constitution is questionable in view of these recent developments. The silence from the head of state on this critical issue of national development is even more alarming. The matter at hand is very important because it does not only shape the present day governance and legal frameworks but that of the future as well. There is need to revised because of thing that are taking place which are against the Zambian constitution, for example, Article 43 (1-2) of the constitution provides that: Civil proceedings shall not be instituted or continued against the person holding the office of president or performing the function of that office in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity. A person holding the office of president or performing that function shall not be charged with criminal offence or be amenable to the criminal jurisdiction of any court in respect of any act omitted to be done during his performance of the functions of that office. The immunity the president enjoys is not a bar to him suing but to him being sued. The Zambian president appeared in court as a witness which is against the constitution. There is a very a good analysis, in a country were rule of law exists the law would take its course but with a country like Zambia were democracy is just on paper nothing can be done. In conclusion, the rule of law means that government or those in power rule the country in accordance with the constitution and the other laws of the country. All people in the country are subject to the same laws and should be held accountable if they break them. Without the rule of law there will be anarchy in society. However the rule of law can only be legitimate if credible laws are in place. Democracy is a government based on the consent of the people. Citizen participation is, therefore, a key factor in good governance. Without citizen participation in national affairs: Government leaders would be elected by a minority of citizens who are politically active to govern over the inactive majority. A democratic society should be based on majority rule. Poor government policies may go unchecked. Citizens remain ignorant of government policies and intentions. Leaders of low caliber may find it easy to corrupt the few politically active citizens and win elections. Government leaders will not be held accountable. REFERENCES Charles Tilly (2007) Democracy: Cambridge University: Press Draft Constitution of Zambia (1996) Held David (1987) Models of Democracy: Oxford: Basil Blackwell Green. Philip (1985) Retrieving Democracy: In search of Civic equality: London: Methuen Sneh . I. (2011) Democracy: Berkshire: Encyclopedia of world history second edition. Chicago Sabine G.H (1963) A History of Political Theory 3rd Ed: London : Harrap
Posted on: Wed, 19 Nov 2014 09:04:39 +0000
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