During a visit to Lusaka, Zambia last week, I had the opportunity to discuss the preparations for a new constitution. I had meetings with the leadership of the National Constitutional Conference (NCC), leaders of all the Zambian political parties, civil society leaders, representatives of the international donor community and Zambia’s new President Rupiah Banda. Discussions were also held with the Board of the Zambian Center for Interparty Dialogue (ZCID), NIMD’s partner in Zambia.

It was ZCID that initiated a summit of the leaders of the political parties, including the late President Mwanawasa, mid 2007, which created a breakthrough in the long existing political impasse about the process and roadmap for the making of a new constitution in Zambia. The current constitution dates back to the time of Independence 45 years ago and incorporates many features imported from the former colonial master. Zambians across the political spectrum felt that a first fully home-grown Zambian constitution is needed that addresses the imbalance in powers between the various arms of government and that ‘can stand the test of time’. The breakthrough resulted in the establishment of the National Constitutional Conference (NCC) in which 498 Zambians from various walks of life participate.

A process delayed
Because of the untimely death of President Mwanawasa in 2008 and the need to organize new presidential elections, the roadmap for the constitution-making process was interrupted by half a year. Now the process is back on track and should result in a draft constitution by the end of 2009. All 11 committees of the NCC have completed review of their part of the constitution in an reportedly open and constructive atmosphere. A positive aspect of the process so far is that the representatives of political parties are not participating on the basis of party instructions, but engage in discussions on the basis of their own views. The debates in the commissions have been aired on radio and TV and covered in the newspapers.

All committee reports will now be presented to the NCC plenary meeting for approval by a 2/3 majority. The plenary is expected to convene during the months of May and June 2009. This should result in a draft constitution that will be presented to the Zambian people for country-wide consultations and feed-back to the NCC. The NCC will then reconvene later this year to consider the inputs received on the draft constitution and decide on a final text. This text will need to be enacted in parliament and endorsed by the Zambian people through a referendum. What exactly will be submitted for the referendum is still subject of discussion: should it be the full text of the draft constitution or a number of key issues on which the NCC has not been able to reach agreement?

Agreeing the provisions
Substantial issues have received approval at committee stage. These include, amongst others, the provision that in future, presidential candidates need to be elected with a majority of 50% + 1 of the votes; the strengthening of parliamentary oversight of the executive, the national budget and appointments of key positions; a mixed electoral system that will allow for better representation of women and other underrepresented groups; a Bill of Rights that enshrines social and economic rights; an independent electoral commission; a Constitutional Court; and a role of chiefs in representative bodies and budgets for local governments.

The discussions at ZCID focused on the questions as to how to maintain the open atmosphere within the constitution-making process until the very end, and how to prevent that the process will stall in political bickering. Constitution-making is about finding consensus on a new contract between the state and its citizens, establishing new rules of the game on how citizens want to be governed. It process of nation building par excellence. It is about cementing the nation and not dividing it. At the end of the day, the constitution ought to receive support from a substantial majority of Zambians. Hence, it is important that broad consultations are organized and information widely disseminated about the draft constitution.

Going forward
Both the ruling party, MMD and the opposition party Patriotic Front (PF) carry special responsibility for ensuring that the process is completed successfully. What will happen if Zambians fail to agree on a new constitution? The current, inadequate constitution will remain in force for years to come. Examples of failed constitution-making processes in neighboring Zimbabwe and Kenya are to ghastly to contemplate.

Currently, the PF is divided about participating in the NCC while the Catholic Church has become the loudest opposition force against the constitution-making process in civil society, actively campaigning against the NCC. It raises questions that a church takes such a high profile controversial position in a sensitive political process of nation building.

A number of grievances are related to the representation of various civil society groups in the NCC. However, guarantees have been obtained by the leadership of the NCC that the doors are open for those who have decided to remain outside the process. For example, Catholic church representatives have been able to give presentations on the Bill of Rights at the committee stage and their proposals have been accepted. The political parties participating in the NCC speak about a ‘constitution-making process without borders’. Hence, it is important to continue working on making the process as inclusive as possible, and to address negative perceptions and deep rooted distrust along the way.

An example to other countries
If Zambians succeed in completing the constitution-making process successfully early next year, it will not only create conditions for improved governance in Zambia, but it will also provide a good example for other countries in Africa where constitutional reform processes have resulted in entrenched political conflict. The stakes are high. NIMD will continue to support ZCID pro-actively in creating the conditions for a successful constitution-making process that results in a constitution owned by Zambians regardless of their political affiliations.