Wednesday, July 8, 2015
SOME ISSUES SURROUNDING STAGE OF ADOPTION IN CONSTITUTION MAKING AND ITS RELEVANCE TO ENSURING THAT A CONSTITUTION “STANDS THE TEST OF TIME": A ZAMBIAN TOWER OF BARBEL ?
This paper critically discusses the proposition that in the constitution making process, the stage of adoption is usually the most fundamental in ensuring the coming up with a constitution that would stand the test of time. This has become a central theme in any constitutional review process in Zambia. Underlying this proposition are assumptions about the technical and political significance of various stages of constitution making as a process and the endurance of constitutions. The paper critically discusses the view that while some process variables may protect the textual acceptability of a constitution, or its endogenous validity, constitutions are vulnerable from many internal design and external legal and political challenges to which the entire process of constitution making must do well to anticipate. Drawing on global experience, the paper suggests that whatever little evidence is available points to negation of prevailing optimistic view of constitution endurance.
CONSTITUTION MAKING AS A STAGED PROCESS
The quest for a popular ‘people-driven’ constitution has historically been both laborious and elusive for Zambia. According to Professor Hansungule, the country has one of the highest turnovers of constitution reviews in the Southern African Development Community (SADC) region, with six constitutional phases in its history since independence in 1964. It is contended that these six constitutional phases mostly lacked popular support and by extension popular legitimacy, making the nexus between constitution-making and civic participation especially at the adoption stage come under greater review in academic writing and popular media.
It may be useful to clarify two concepts used in this issue at hand and found in a text by Mulenga Besa (2011) when he writes, “The process of constitutional-making largely hinges on the mode used to adopt the draft constitution. It is this stage that determines whether a country would indeed have a constitution that would be accepted and stand the test of time…” A stage of adoption is more correctly understood as ‘regionally bounded episodes’. The stage of adoption is accessible conceptually therefore, when we put in "a time-frame” contextuality as episodic characterization. Episodes are sequences of change having a specifiable opening, trend of events and outcomes. This distinguishes it from “mode” of adoption, which refers to a systematization of action and understood generally as rule-resource sets of transformation/mediation as in the Latin formulation of modus procedendi  or manner of proceeding. Thus, the mode of adoption will refer to the manner of proceeding with the adoption. In constitution making terms, adoption in this regard refers to approval of any acts deemed relevant to the process including proposed provisions in the draft constitution.
Against this conceptual background, Besa has observed that the constituent assembly is one of the modes of adoption and writes, “A constituent assembly may be acclaimed to be the most democratic mode of adopting a constitution which would stand the test of time”. This acclamation rests on its composition by “independent people” and on “ownership and loyalty” to initial submissions the same people made. Suspending the inherent subjectivity in such a process, Besa further contrasts this with the National Constitution Conference (NCC) used in handling the Mung’omba draft constitution. The NCC forms an interesting case study of the process given its contested history and its contrast to Zambia’s current, equally contested CRC process.
The NCC process followed the aborted Third Term bid and concern on the lack of inclusiveness in the 1996 Constitution that many believed had been highjacked by Chiluba’s regime. It had a number of critical benchmarks. In December 2006, President Mwanawasa presented a 14-step roadmap for constitutional reform spreading over 258 weeks. However, in April 2007, following contentious debates, Civil Society headed by the Oasis Forum presented an alternative roadmap spreading over 71 weeks and by this act, created a deadlock in the process. In order to overcome this, political parties both inside and outside Parliament working under an independent platform, The Zambia Centre for Interparty Dialogue, proposed and started internal political consultations on the constitution impasse with the aim of establishing a compromise solution with the rank-and-file in the provinces. They proposed a Summit of Party Presidents, which took place on June 23, 2007. The Summit agreed to a work out a compromise roadmap under the ZCID auspices that government accepted. In July 2007, the Minister of Justice presented a draft NCC bill to stakeholders for input and by September 2007, Parliament enacted the NCC Act. On December 19 2007, Members of Parliament, representatives of political parties, local councilors, NGOs, professional bodies, traditional leaders, special individuals, the judiciary, state institutions, and the civil service were sworn in as members of the NCC. In April 2008, political parties jointly organized regional consultative platforms to discuss contentious issues. On August 19 2008, President Mwanawasa died and in September 2009, stakeholders pressured President Banda to extend the NCC mandate so that the 2011 elections would be conducted under the new constitution. He heavily resisted the pressure but when the Draft constitution without the Bill of Rights was taken to Parliament in 2010, it was defeated and therefore was unavailable for 2011 elections.
It is notable that Parliament accepted a draft bill prepared according to the ZCID proposal consisting of all political parties and presented to elected representatives of the people where the ruling party had no significant numerical dominance. At this point of the constitution making process, it would be debatable as to whether a popular will was not invested in the process of negotiating a roadmap and institutional modality for handling adoption. The possible answer would be that notwithstanding the role of Parliament, the Inquiries Act, used to trigger CRCs gives the President and his Cabinet undue influence in the process of constitution making. The NCC did not have legislative mandate and therefore its adopted Constitution document was either to be submitted to Parliament if no Bill of Rights articles were involved or taken to the referendum in part or in whole. The Catholic Church and later the NGOCC, a coalition of elite civil society organizations in Lusaka, nevertheless rejected this facility for adoption. Progressively, one opposition party, the Patriotic Front also withdrew its participation from the NCC process provoking a loss of political consensus that followed the initial Mulungushi Summit of all heads of political parties. The failure of amendments in Parliament, it could appear, did not prejudice the reluctant MMD government.
The NCC has been faulted based on the criteria for selecting membership to the Constitution Conference that was incorporated in the NCC Act of 2007. Besa writes about the NCC of 2007, “For purposes of adopting a constitution that would be accepted by the people as their document, the mode would be a perfect one. However, the biggest compromise in adopting a constitution in this way is its composition”. The NCC debates clearly brought out the position that rather than being the question solely of representativeness, uncertainty of bargain outcomes on substantive issues of constitution bargains such as the “Christian nation clause”; gender rights; sexual rights of minority groups; the electoral clause of 50+1 and reproductive rights such as abortion might have fractured the initial celebrated consensus.
In contrast to the NCC, we can briefly examine Zambia’s sixth Constitution Review process. In 2011, a slightly different process called the National Constitution Convention, which was a culmination of a multi-stage consultative process, and a better comparison than the NCC to the American Philadelphia Convention was undertaken. It used a new Draft Constitution compiled from previous proposed or actual constitutions. Most of the so-called contentious issues were clearly addressed and lobbied for at the lower level stages of District consultations and the PF government positions were challenged or easily defeated at Provincial Conventions by NGOs such as Caritas Zambia. Yet the working Draft used at the National Constitution Convention was not revised to reflect submission at earlier stages nor was there a systematic way of handling provincial-wide adoptions. Thus, almost five years later, uncertainty still lingers as the Grand Constitution Coalition of NGOs has challenged the PF government’s handling of the adoption process. Heated debates continue about roadmaps and the constitution making process, which started with nominated District convention delegates, and elected Provincial delegates who went to the National Constitution Convention appear to have suffered the same fate as the NCC. Two different processes appear to have given rise to similar outcomes. If not fundamentally the stage of adoption what other factors then can give rise to a legitimate and durable constitution?
WHAT MAKES A CONSTITUTION DURABLE?
Simson Mwale has argued the position that in matters of constitution making, process always protects content. The question is indeed, what aspects of the process may have relevance to the internal validity of the constitution, if by validity we mean that constitutions are designed to achieve their intended societal objectives? Considerable literature exists to address the question of the role of “originating power” in constitution making process. There are two major contentions. The first is one that allows a State government to originate and control the process of constitution making. Usually, this becomes inevitable where there already exists a constitution that, for various reasons, has become unacceptable or unworkable. The other argues for a “people-driven” constitution. Going by the Zambian example, this dialectic is relevant. The question is, who has the power to make a constitution and how does this affect process and durability?
On the power to make a constitution, the Nigerian constitutional lawyer B. O. Nwabueze has specifically said, “It is a power to constitute a frame of Government for a Community, and a Constitution is the means by which this is done. It is a primordial power, the ultimate mark of a people’s sovereignty”. The idea of a “people’s sovereignty” points to the view that the power to make a constitution lies with the people. The American constitution heralds this by its first sentence: “We the people”. The Philadelphia Convention was an assembly of delegates from twelve out of the thirteen states who were ready to form a federal union after the Independence Declaration of July 4, 1776. They subjected the constitution they had so carefully negotiated to a novel way of forming a government through consent of the governed. All the states had to ratify the new model of government. By this device of ratification, a people’s will was invested in a document that was principally written and negotiated by fifty-five state delegates and secured its veneration.
Hence, once the question of whose power it is to ‘create’ government is resolved, the first question revolves around the preferred way to form governments. In the American case, the Federalist papers argue, “it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” Two possibilities flow from this complex statement by the Federalist. It is either government can come into being by “reflection and choice”— that is, by some individuals consciously making a plan to which the people consent—or government can come into being by “accident and force”—that is, by chance and without consent.
While it has been taken for granted today that governments can only come into being by “making a plan to which people consent”, it was not always so and history since 1789 has not vindicated this view very much. Edmund Burke observed in contrast to the American “constitution plan” that “the English system was not formed upon a regular plan or with any unity of design . . .[It developed] in a great length of time and by a great variety of accidents . . .[Its parts] gradually, and almost insensibly accommodated themselves to each other. . . The very idea of the fabrication of a new government is enough to fill us with disgust and horror.” Burke saw the English system as an organic model. This is also the model on what is known to be the manner of development in biology. Nothing is planned, yet the result fits. Applying this idea by analogy to the formation of government, a political system evolves slowly by accidents and incremental adjustments, with customs and habits developing to support it. The people come to appreciate the resulting heritage or tradition, which adds another prop to preserve the system.
It is arguable whether the English organic or traditionalist model or the American rationalist model is preferred. The old age debate about rigid versus flexible constitutions, constitution reverence or not turns upon this distinction in constitution paradigms. What is at issue here is a dispute about doctrines. A doctrine is a firm conclusion put forward publicly as a rule intended to influence the course of events. It is a political instrument. The organic model probably rests on the logic that because so much destruction and fanaticism have resulted from attempts to remake government, it is best to promote the doctrine that good government results from accident. The synthetic or rationalist model counters with the logic that because so much folly, ignorance, and superstition embedded in tradition, it is best to support the doctrine that good government is established by reflection.
Reconciling these doctrines in the formulation of the terms of reference for constitution commissions has not been part of the elements that have been adequately addressed, for instance in the Zambian case. How for instance, can there be veneration to a constitution that has no appreciation of the founding of a nation or of founders? How can there be founding and founders without founders leaving behind an enduring fundamental law of the land? These questions are troubling and perhaps go to the core of the constitution problematic in Zambia. Our so-called Independence Freedom fighters left us with no enlightened doctrine of their struggle such that for children today, Zambia is just trying to become in existence, as the fundamental bargains that may have been reached in 1964 have no clear account. The Barotse issue is as fresh today as it was in 1964! Where then was Zambia’s founding?
We turn to the technical questions of durability. Assuming Zambia gets a “people-driven” constitution, what will ensure its durability? How relevant is the stage of adoption to durability? Thomas Ginsburg, Elkin Zachary and James Melton (2015) of the Universities of Chicago and Illinois have studied world constitutions examining the question of durability. They have observed that, “a successful constitution serves as a coordination device that renders its underlying political bargains self-enforcing, meaning that it must create a stage of equilibrium from which no party has an incentive to deviate.” Unlike a contract, there is no external guarantor to enforce a constitution. Ginsburg et al further observe that while constitution bargains inevitably results in winners and losers, the integrity of the equilibrium a constitution guarantees must be such that it will endure because the losers: (a) believe they are better off within the current constitution bargain than in taking a new chance in negotiating a new one and (b) are unable to overthrow existing constitutional order by means other than constitutional. At least four variables appear relevant to constitution design and endurance. Ginsburg et al point at the variable of specificity of the constitution document in anticipating relevant sources of pressures and dealing with them in the constitution text more fully. Specificity refers to the comprehensiveness and clarity with which the constitution document covers key issues that touch upon stakeholders in society within its text. This overcomes the problem of hidden agenda in the constitution bargain. It minimizes the problems of strategic behavior and one might anticipate that specificity would promote constitution durability. Specificity in a general manner involves not only the detail in the participation terms but also in the scope of the type of events, the constitution covers.
The second variable is that of inclusion. This addresses the reciprocal relationship between legitimacy of the constitution document and the system it gives rise to and constitution survival or durability. A hypothetical proposition would be that a constitution whose provisions are known and accepted will more likely be self-enforcing based on the importance of common knowledge. Inclusion in the entire process of producing a constitution will help ensure enforcement by national stakeholders. Survival according to Ginsburg et al view increases with public inclusion during both drafting and approval stages.
The third variable in examining constitution durability is adaptability. The proposition is that exogenous change puts pressure on constitution bargains. The ability of a constitution system to adapt to changes in its environment will determine whether it remains in equilibrium. The primary mechanism for adaptation involves provisions for formal amendment to the text. Secondary mechanisms involve informal amendments that results from interpretive changes of courts. Optimal adaptation results from the interaction of provision for formal amendment, some degree of rigidity and possibility of re-interpretation of the constitution.
The last and fourth variable Ginsburg et al identify is what they call structural attributes. This refers to those provisions that give rise to institutional capacity to promote stability by mitigating internal conflict amongst groups in society.
In their survey of world constitutions since 1789, Ginsburg et al have come up with startling findings, which largely unravel many myths related specifically to constitution design and constitution making in general. According to Ginsburg et al, on average, constitutions the world over since 1789, have had a mean lifespan of only 17 years! Ginsburg et al empirically show that one-half of the world constitutions are likely to be dead by age 18 and by age, 50 only 19% of global constitutions will survive. In Africa, the durability mean is only 10.2 years and 12.4 in Latin America and 15 % of Latin American and African constitution perish in the first year. In Europe, the mean is 32 years and 19 years in Asia. The American and a few European cases are thus exceptional to the high mortality rate of constitutions the world over. Ginsburg et al further show that the life span of constitution globally is declining from an average of 21 years before World War I to 12 years after the WW1. The Zambian constitution that is well over 18 years is in injury time. No doubt the calls for another, completely new constitution, is a clarion call within civil society organizations. On the variables examined, the Chicago researchers found that inclusion through participation in referenda for ratification do have effect on constitution endurance in democracies and not in dictatorships. They have observed that “This is intuitive: referenda in dictatorships do not genuinely confer legitimacy or facilitate collective enforcement of constitutional terms”. However, even in democracies, inclusion requires other intervening variables. They observed, “We find that constitutions written in democratizing times are more resilient when precipitating events are included in the model”. What then accounts for much of the incidence of constitution durability? The researchers isolated as “influential variables”, the devices of constitutional review and the ease of the amendment process, as significant variables in decreasing constitution mortality. This is in contrast to Zambian civil society sentiments. The inclination in to entrench as many rights as possible and make theme justiciable. Yet the Chicago researchers also observe that, “Adaptability, it appears, is crucial for constitutional survival”. It is a profound finding that in the case of amendment ease, for example, an easily amended constitution (one whose probability of amendment is one standard deviation above the mean) has a 70 percent chance of lasting until age 50 versus 13 percent for those whose amendment probability is estimated at one standard deviation below the mean.
What does this finding by researchers say about assumption underlying the doctrine of a constitution standing a test of time? Simply put, it says, unless you build in constitutions a degree of relative flexibility that does not undermine the integrity of whole constitution, the chance is high that such a constitution will collapse. It is an interesting point to note that despite a relative degree of rigidity in the American Constitution, there is only one sub-clause in Article 5 of the US constitution dealing with state suffrage and senatorial representation in Congress by states to which strict limitation of amendment apply. Finally, the US researchers found that constitutions that cover more topics are more durable than shorter ones, suggesting that specificity matters, although length of constitution alone does not seem to increase endurance. It appears that it is the qualitative nature of the provisions that count in specificity. Therefore, lumping a constitution with all and any conceivable right and entrenching this in a manner that avoids amendment would contradict the quest for “standing the test of time”.
In simple terms, many process issues could be relevant in the constitution making process. How fundamental the adoption stage is in relation to a constitution making and the constitution itself standing the test of time (endurance) should be assessed against the background of knowledge of the relative value of various technical design issues of specificity, inclusion, adaptability and structural mediation at different stages in constitution making as a process. This paper seems to suggest that, adoption is an activity that is recursive. What is adopted in the initial stage, including questions of what form the constitution making process is going to take, that is whether it will be by way of a full or partial constitution review resulting into a completely new constitution or amendments to an existing constitution are a significant part of the various stages in the constitution making process. In practice, the mode of adoption of a constitution just as the mode of amendment of an existing constitution are substantive issues in constitution making upon which popular opinion may be canvassed. It is important that constitution doctrines in the formulation of a constitution making process be clarified through a deliberative process. This would give rise to fundamental constitutional principles with which the process would be guided. Without a clear notion of constitution doctrine, the process that may follow would be haphazard and progressively fatal to constitution endurance. Zambians need to reflect deeply on this point.
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32. see also
 Besa M (2011) Constitution, Governance and Democracy Ndola: Mission Press p10-11
 Giddens, A (1984) The Constitution of Society Berkeley and Los Ageles: University of California Press p121-122
 Garner, B.A [ed] (2014) Black’s Law Dictionary, Thomson Reuters p1157
 M Brandt, J Cottrell, Y Ghai and A Regan, (2011) Constitution-making and reform: options for the process, Interpeace.
To be sure, the NCC process was designed by the Zambia Centre for Interparty Dialogue (ZCID). This author chaired ZCID.
 Motsamai, D (2014)
 This summit was highly celebrated as a break through against existing impasse in the Zambian media.
 Besa, M (2011) op cit p15
 Motsamai op cit
 The Justice Silungwe Technical Committee for Drafting a New Constitution was appointed by President Sata in 2011.
 Statement made by a consortium of CSOs at the public assembly on the Constitution held at the Freedom Statue, 4 October 2013.
 Elster, Jon. 1995. “Forces and Mechanisms in the Constitution-making Process.” Duke Law
Journal 45 (1995): 364–96.
 See L. Habasonda. Presidentialism and constitutionalism in Africa: ‘Third Term’ phenomenon/extension of tenure; the Zambian experience, at http://www.zesn.org.zw/docs/Presidentialism%20 and%20Constitutionalism%20in%20Africa%20_lee%20 Habasonda.ppt (last accessed Jan 27 2015).
 Nwabueze, B. O. 1974. Presidentialism in Commonwealth Africa. New York: St. Martin’s Press.
 Ceasar, J.W. (2014) The Constitution as Political Theory: Between Rationalism and Reverence. 2014 Berns Walter Constitutional Day Lecture. Washington D.C.: American Enterprise Institute. p3
Hamilton, A. Madison, J.and Jay, J. (2003), The Federalist Papers, ed. Clinton Rossiter , New York: Signet Classic, 25.
 Edmund Burke, “Reflections on the Revolution in France,” www.constitution.org/eb/rev_fran.htm.
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 Ginsburg et al pp7-8
 Linder, D (2014) WHAT IN THE CONSTITUTION CANNOT BE AMENDED. 23 Arizona Law Review 717 retrieved 19 April 2015.