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 ?
KATELE
KALUMBA
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.[1]
It
may be useful to clarify two concepts used in this issue at hand and found in a
text by Mulenga Besa (2011)[2]
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’.[3] 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
[4] 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.[5]
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[6].
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.[7]
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.[8] 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”.[9]
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.[10]
In
contrast to the NCC, we can briefly examine Zambia’s sixth Constitution Review
process.[11] 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.[12]
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[13]
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.[14] 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.[15] 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”.[16]
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.[17]
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.”[18]
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.”[19]
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.[20]
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)[21]
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.”[22]
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[23],
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.[24] 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”.
CONCLUSION
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.
Chiengi,
April 2015
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see also
[2]
Besa M (2011) Constitution, Governance
and Democracy Ndola: Mission Press p10-11
[3]
Giddens, A (1984) The Constitution of
Society Berkeley and Los Ageles: University of California Press p121-122
[4]
Garner, B.A [ed] (2014) Black’s Law
Dictionary, Thomson Reuters p1157
[5] M Brandt, J Cottrell, Y Ghai and A Regan, (2011)
Constitution-making and reform: options for the process, Interpeace.
[6]To
be sure, the NCC process was designed by the Zambia Centre for Interparty
Dialogue (ZCID). This author chaired ZCID.
[7]
Motsamai, D (2014)
[8]
This summit was highly celebrated as a break through against existing impasse
in the Zambian media.
[9]
Besa, M (2011) op cit p15
[10]
Motsamai op cit
[11]
The Justice Silungwe Technical Committee for Drafting a New Constitution was
appointed by President Sata in 2011.
[12] Statement made by a consortium of CSOs at the public
assembly on the Constitution held at the Freedom Statue, 4 October 2013.
[13]
Mwale, S. (2006) Constitution Review: The Zambian
search for an Ideal Constitution. JCTR Bulletin. www.jctr.org.zm retrieval April 15,2015
[14] Elster,
Jon. 1995. “Forces and Mechanisms in the Constitution-making Process.” Duke
Law
Journal
45 (1995):
364–96.
[15] 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).
[16] Nwabueze,
B. O. 1974. Presidentialism in Commonwealth Africa. New York: St.
Martin’s Press.
[17] 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
[18]Hamilton, A. Madison, J.and Jay, J. (2003), The Federalist Papers,
ed. Clinton Rossiter , New York: Signet Classic, 25.
[20] Dubos,
R. (1965) Man Adapting New Haven:
Yale University Press. P 6-7
[21] Ginsburg,
T, Zachary,E and Melton,J. (2015) The Life Span of Written Constitutions,
(Cambridge U Press) at www.constitutionmaking.org. retrieved on 19th
April 2015
[22]
Ginsburg et al pp 6-7
[23] Ginsburg
et al pp7-8
[24] Linder, D (2014) WHAT IN THE CONSTITUTION CANNOT BE
AMENDED. 23 Arizona Law Review 717 retrieved 19 April 2015.
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