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Constitutional Compromise - Is it the only way Forward?

(Fr. Peter Fr. Henriot, SJ)



Everyone wants a “Constitution that will stand the test of time!” But right now it seems that we are in the midst of a “Constitutional process that takes too much time!” How do we get out of the impasse that is blocking the way forward on effective and equitable constitutional reform?

There is currently a real and dangerous stalemate between Government and civil society that threatens the calm and intelligent deliberation necessary to put a good Constitution in place. Civil society, represented by the Oasis Forum, wants a Constituent Assembly (CA) to adopt the Constitution and the Parliament to enact it before the 2006 elections. Prominent opposition party leaders back this position. But Government, represented by President Mwanawasa and Minister of Justice George Kunda, says that this is not possible because of serious legal and financial constraints. They are adamant in refusing to back down on this position and have rallied MMD parliamentarians to support their position.

Let me be clear about my own stance from the start, speaking as one trained in constitutional law and committed for many years to true development in Zambia. I believe that politically, socially and morally, the Oasis Forum position is correct and necessary. The constant and seemingly deliberate delay to move forward the constitutional reform effectively – the most recent example being the failure to print adequate copies of the text! – is unacceptable in a democratic society. A process pledged shortly after the 2001 elections has been sidetracked by fears, manipulations and partisan interests. So now we face a true constitutional crisis and those who are to blame for dragging their feet know who they are and they also know that others know who they are!

But for the sake of moving the process forward now for the good of the whole country, let’s put the best interpretation possible on the reasons for this stalemate, not accusing either side of personal or partisan stances. One reason is a difference in understanding about what is necessary to put in place a Constituent Assembly. For example, can Parliament simply pass enabling legislation for a CA?

A second reason is the cost, with Government expressing concern that the money required to hold a CA will have to be diverted – either by the donors or by Government itself – from social development programmes. A third reason is the time factor, with a feeling among civil society that steps can still be taken in the next few months to get a good Constitution, while Government feels there simply isn’t enough time.
Good Constitution, Good Elections
Whatever the differences between Government and civil society might be, two things do seem now to be very clear, can and should be readily acknowledged by both sides, and can and should be built on to get us out of this impasse.

First, we do have in hand now a very good Draft of a new Constitution, very good indeed. The Mung’omba Constitutional Review Commission (CRC) worked hard to listen to public opinion, researched well into previous constitutional review efforts, and wrote clearly and cogently a Draft that would definitely move the country forward under a new fundamental rule of law.

There may be some differences that stir public debate – e.g., “Christian Nation,” death penalty, appointment of Ministers from outside Parliament, etc., etc. – but these points do not distract from the overall worth of the document. And the significant advance in the content of the Bill of Rights – now dealing with women, children, media, environment, and the whole list of economic, social and cultural rights -- is something Zambians can be proud of!

Second, we definitely do need substantial reform of the electoral process prior to the 2006 elections. No one can honestly defend the system presently in place, filled as it is with ambiguities, deficiencies and dangers. The Supreme Court opinions after the 1996 elections and the 2001 elections clearly pointed out flaws such as the role of the Chief Justice as Returning Officer, the powers of the Electoral Commission, the use of media, etc. Following the clear and strong recommendations of the CRC and Electoral Reform Technical Committee (ERTC), these obvious flaws can and must be corrected.

Moreover, the insertion into the 1996 amended Constitution of the “first past the post” rule for election of the President (done for a clearly personal ambitious reason by the then-sitting President) must be reversed to what had wisely been in previous constitutions, the 50% plus 1 clause. This point was strongly made by submissions to the CRC from MMD officials, Members of Parliament, and many civil society groups, and has been reinforced by the recommendations of the ERTC. Recent debates in the Parliament raise questions about the sincerity and ethics of opponents of the 50% plus 1 clause that has been so soundly endorsed by the relevant commissions and wider public opinion.
Need for Compromise
So how do we assure that a very good Constitution is enacted and that very good elections are held? Can both desired elements occur in 2006, despite the opposing positions currently taken by Government and civil society?

Yes, I believe that we can achieve both goods – but only if a wise and sincere compromise is taken by both parties in this dispute. To compromise is not to admit defeat or to give away one’s important values. The dictionary says it is a move to cooperate, to make necessary concessions, to engage in “give and take,” to find the middle ground. To compromise in political matters as serious as the impasse over the current constitutional reform is a sign of statesmanship by all those involved. Just what would this compromise entail?

On its part, civil society, represented by the Oasis Forum, would continue the very good research and public education it has been conducting (along with FODEP and the Consultative Group on the Constitution). Moreover, the Oasis Forum would hold very open and inclusive public meetings to consolidate its position on the elements of the new Draft and continue to make recommendations for a Constituent Assembly. But it would also acknowledge that the actual CA, if it is to touch on all key constitutional issues (e.g., powers of the President, Bill of Rights, etc.), could probably only be held after the 2006 elections – given the time and financial constraints. The Supreme Court would be asked to make a ruling to clarify whether or not a referendum is actually required to hold a CA so that this issue is not simply politically debated.

On its part, the Government would cease its criticisms and threats aimed at undermining the legitimacy of positions other than its own. It would readily acknowledge the urgent need for full electoral reform and immediately put before the Parliament two packages: (1) the electoral reform legislation recommended by the ERTC, and (2) a constitutional amendment including key issues such as the restoration of the 50% plus 1 clause for election of the President and the appointment of someone else than the Chief Justice as Returning Officer. President Mwanawasa, as president of the ruling party, would urge all MPs from his party to fully support these two packages so that elections would go forward with efficiency and harmony.

Good 2006 Elections

This would mean that during the campaign for the 2006 elections, the content of the Constitution would be openly debated and candidates’ positions readily put forth, examined and evaluated. Any presidential candidate who would ask for votes would be expected to solemnly swear to support the Constituent Assembly approach endorsed by the CRC and the general public.

Then at the start of 2007, whoever is elected President through the reformed electoral process would honour her or his solemn oath and immediately convene the Constituent Assembly. This CA would be possible through financial support from donors who now can recognise the good faith and sincere efforts made by all parties (something about which they currently have legitimate doubts!). This would enable the constitutional process to move forward rapidly, efficiently and equitably.

Is such a compromise possible? Yes, but it will surely take statesmanship on the part of both the civil society leadership and the President and his party leadership. Both sides are going to have to enter into “give and take,” openly and without prejudice. Neither side is going to get what it might consider the best solution.

When I studied constitutional law in the USA many years ago, I learned that the “best” is often the enemy of the “good.” That means holding on to unwinnable positions can derail the overall processes. But “constitutional compromises” have accounted for much of the successes of long-standing legal institutions in many successful democracies in the past (e.g., the United States of America) and in more recent times (e.g., in South Africa). The same can be true in Zambia today if we reach a genuinely democratic constitutional compromise!
What do the opposing parties say to this proposal for comprom