THE CONSTITUTION

Introduction

- A constitution is needed to regulate the behavior and activities of the

citizens.
- A constitution is the supreme law to which all other laws of a country
are subordinate.
- The word Supreme means greatest in importance. For Example; At
the family level, parents and children may come together and decide
to make rules for the home. Similarly, at school level, pupils can be
involved in making school rules through their representatives. In a
similar manner, a nation requires a Constitution to regulate peoples’
behavior. Therefore, a constitution is supreme and commands
respect, loyalty, obedience and confidence because citizens are
involved in its formulation.
- A constitution is a constituency (made up of) laws, customs, court
decisions and principles which defines and limits the authority,
rights and privileges of the citizens and the government.

- Customs are accepted traditions or habits of the people in a

society.`

Definition:

A constitution is a fundamental and legal framework by which a

society or institution is organized and governed.

Types of Constitutions
Constitutions can either be written or unwritten
- Written Constitution
A written constitution is one in which most of the provisions or contents are
documented in a single formal written instrument.
A written constitution is a set of rules that the citizens of a nation contribute
to, discuss and agree to be governed by it. Such a written document requires
that people should think carefully about what to include in it. A written
constitution is also flexible because it can be easily changed or amended by
the majority of the eligible citizens without calling for a referendum. The
constitution of Zambia falls under this category. Some of the countries in

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Africa with written constitutions are Malawi, South Africa, Namibia,
Tanzania and Botswana. Copies of the Zambian Constitution can be bought
from Government Printers in Lusaka or down loaded from the Government
website.

Advantages of A written constitution

- A Written constitution is clear and definite.
- A Written constitution is also stable and steady.
- Written constitutions are drawn up with great care
- A Written constitution is free from being manipulated by the
judiciary.
Disadvantages of A written constitution
- some written Constitutions are difficult to change.
- A written Constitution can be ambivalent as it does not give text
details.
- Unwritten Constitution
- unwritten constitution has most of its provisions not found in a single
document but in a collection of documents. It is a collection of
documents, statutes and traditional practices that are generally
accepted as governing the nation. The constitutions falling under this
category cannot be easily amended. An example of a country where
there is an unwritten constitution is Britain.
Advantages of unwritten constitution

- The unwritten constitution is good because it is easily adaptable to the

changing conditions in society.

- It can also be bent to meet national emergencies. After the

emergencies have been attended to, then they can get back to the old
form.

Disadvantages of unwritten constitution

- Unwritten constitutions are quite unstable.

- They can easily be manipulated by the judiciary and the government

of the day.
Format of a CONSTITUTION

Either a written or unwritten Constitution can either be flexible or rigid.

- Flexible Constitution
A flexible constitution is one that can be amended or changed by the

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 majority of the eligible citizens without calling for a referendum.

A good example is the Zambian constitution. The only part of the Zambian
constitution that is not flexible is the Bill of Rights because it requires a
referendum for it to be amended.

Advantages of a Flexible constitution

- The advantage of a flexible constitution is that it provides an excellent
mirror of the national mind.

• respond to the social, economic and political needs of the citizens.

• cater for the interest of various groups in society.
Disadvantages of a Flexible constitution
- a flexible constitution can be changed at the pleasure of each President
that comes to power.
- a flexible constitution may be unstable and cannot stand the test of
time.
- Rigid Constitution
A rigid constitution is a constitution that cannot easily be amended.
A rigid type of constitution is usually enacted by a different body which
has a higher status than ordinary laws. It can be altered or amended only
by special procedures. Examples of rigid constitutions are those of
Britain, the United States of America, Switzerland and Austria.

Advantages of a Rigid constitution

• A rigid constitution is stable and can stand the test of time (useful for
a long period of time).
Disadvantages of a Rigid constitution
Defence A Rigid Constitution is not representative of the people but a section of
of the people.
Constitut
ion
Structure and Content of the Zambian Constitution

The 2016 Constitution begins with a preamble which is an introduction to

the document. It outlines the aims and purposes of the constitution and
the government. The preamble states

Preamble: WE, THE PEOPLE OF ZAMBIA: ACKNOWLEDGE the supremacy of God

Almighty; DECLARE the Republic a Christian Nation while upholding a person’s
right to freedom of conscience, belief or religion; UPHOLD the human rights and
fundamental freedoms of every person; COMMIT ourselves to upholding the

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 principles of democracy and good governance; RESOLVE to ensure that our values
relating to family, morality, patriotism and justice are maintained and all
functions of the State are performed in our common interest; CONFIRM the equal
worth of women and men and their right to freely participate in, determine and
build a sustainable political, legal, economic and social order; RECOGNIZE AND
UPHOLD the multi-ethnic, multi-racial, multi-religious and multi-cultural character
of our Nation and our right to manage our affairs and resources sustainably in
a devolved system of governance; RESOLVE that Zambia shall remain a unitary,
multi-party and democratic sovereign State; rECOGNIZE AND HONOR the freedom
fighters who fought for the independence of our Nation in order to achieve
Repeal and liberty, justice and unity for the people of Zambia; AND DIRECT that all State organs
replacemen
t of Parts and State institutions abide by and respect our sovereign will; DO HEREBY SOLEMNLY
I and II
ADOPT AND GIVE TO OURSELVES THIS

Supremacy
CONSTITUTION:
of
Constituti
on

Continuous
effect of
Constituti
on

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Part Content Header

I SUPREMACY OF CONSTITUTION
THE NATIONAL VALUES, PRINCIPLES AND ECONOMIC
II
POLICIES

III BILL OF RIGHTS

IV Citizenship
Electoral Systems and Process
V

LEGISLATURE
VI

VII Executive Authority

JUDICIARY
VIII

IX GENERAL PRINCIPLES OF DEVOLVED

GOVERNANCE

X PROVINCES, DISTRICTS, WARDS AND PROVINCIAL

ADMINISTRATION

XI LOCAL GOVERNMENT

XII CHIEFTAINCY AND HOUSE OF CHIEFS

PUBLIC SERVICE
XIII

XIV PENSION BENEFIT

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XV DEFENSE AND NATIONAL SECURITY
PUBLIC FINANCE AND BUDGET
XVI

CENTRAL BANK
XVII

XVIII SERVICES, COMMISSIONS AND OTHER

INDEPENDENT OFFICES
LAND, ENVIRONMENT AND NATURAL RESOURCES
XIX

GENERAL PROVISIONS
XX

Constitution Making and Adoption Processes

The History of Constitution Making Process in Zambia.

The Constitution of Zambia is modelled along the Nigerian Constitution of
1963 which was based on the 1950 European Convention for the protection
of Human Rights and Freedoms. These rights, which were known as Neo-
Nigerian Rights, were incorporated into most African Commonwealth
countries such as Sierra-Leone, Malawi, Botswana, Kenya and Uganda.

On 24th October, 1964, Zambia inherited the Northern Rhodesia Self-

government Constitution of 1963. The provisions in this constitution were
primarily meant to safeguard the interests of white settlers. however, since
1964 Zambia has had several constitutional reviews to improve its
constitution.
- The first constitutional review process was the Chona Constitutional
Review Commission in 1972 which recommended the establishment of a
One Party Participatory Democracy. It outlawed the formation and existence
of any other political party apart from United National Independence Party
(UNIP). That was the beginning of the Second Republic. A constitution that
outlaws the formation of other political parties does not encourage free
electoral activity. For example, during the SECONDREPUBLIC, elections
were more of plebiscites in nature where Zambians voted either Yes or No
for a single presidential candidate. A plebiscite is a decision made upon a
political question by a vote of all qualified citizens.
- The second constitutional review process was the Mvunga
Constitutional Review Commission which recommended the amendment of

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the Second Republic Constitution to allow multipartism. The
recommendations were adopted by Parliament. this led to the return to
multipartism at the end of 1991. It also marked the beginning of the
THIRDREPUBLIC.
- The third constitutional review was the Mwanakatwe Constitutional
Review Commission of 1995. The main amendment that the review made
was the parentage of a person contesting to be the president of Zambia. The
review recommended that only persons whose both parents were Zambians
by birth would qualify to be candidates for presidency. This
recommendation was adopted by Parliament. Thus, the 1991 Constitution
remained intact apart from a few amendments made by the Mwanakatwe
Constitutional Review Commission.
- The fourth Constitutional review was the Mung’omba Constitutional
Review of 2005. The main recommendations of the commission include The
introduction of a 50% + 1 Vote clause, Presidential running mate,
constitutional court and prescribed poling day. However, due to lack of
political consensus among political parties and stake holders, the bill failed
to pass second reading in parliament.
- The fifth constitutional review was the National Technical
Committee) NTC) of 2011. The Technical Committee was established as a
committee of experts. The main recommendations that the Committee made
were the introduction of a 50% + 1 Vote clause, Presidential running mate,
constitutional court, prescribed poling day, among others. however, on a
historical note, the constitution was finally adopted by parliament in 2015,
and asented to, by the president in 2016, January 5.
- The sixth constitutional review was the National Dialogue Forum)
NDF) of 2019. The main aim was to AMEND the Constitution of Zambia so as
to:
(a) revise the Preamble in order to reaffirm the Christian
character of Zambia;
(b) revise the principles and values of the Constitution;
(c) revise the electoral system for elections to the National
Assembly;
(d) revise the period for dissolution of the National Assembly;
(e) revise the period of hearing and determination of a
presidential election petition;
(f) revise the manner of election of mayor and council
chairperson;
(g) establish the office of deputy minister;
(h) revise the composition of the Cabinet;
(i) revise the provisions relating to the establishment of
commissions;
(j) revise the provisions relating to the payment of pension
benefits and retention on the payroll;
(k) provide for the membership of Members of Parliament in
councils;
(l) establish the Drug Enforcement Commission as the Anti
Drugs, Economic and Financial Crimes Agency and redefine its function as a

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 national security service;
(m) revise the functions of the Public Protector;
(n) revise the functions of the Bank of Zambia;
(o) revise the functions of the Auditor-General:
(p) revise the position of the solicitor general to deputy attorney general.
on the other hand, just like the recommendations of the Mung’omba
commission, due to lack of political consensus among political parties and
stake holders, the bill failed to pass second reading in parliament in 2021.
Constitution Making Process
The constitution making process differs from country to country. In some
countries, the formulation of a constitution is done by a body of
representatives who are drawn from a cross section of a society with varying
views, traditions and beliefs. Just like the constitution making process, The
mode of adoption equally, varies from country to country.
Unfortunately, constitutions may not always be respected by all citizens. For
example, after a military coup d’état the army may suspend the existing
constitution, even within political party’s constitutions may not be respected
by all members. For example, in 1978, the UNIP constitution was amended
to bar certain popular candidates from standing against the incumbent
president of the party.
Similarly, in 2001, the MMD government under President Chiluba
attempted to amend the Constitution of Zambia to allow the incumbent
president to stand for a third term of office. This was not successful.
The Mwanakatwe Constitutional Review Commission recommended that
Presidential candidate should receive more than 50% of the votes cast to be
declared the winner. Unfortunately, this was not done. Instead, a simple
majority win or a first - past - the - post clause was inserted in to the
Constitution. The clause meant that a person who receives the highest
number of the total votes cast was to be declared as the winner and to have
been duly elected as president, even if it is by one vote more than the other
candidate he or she is declared the winner. The 2005 Mung’omba
Constitutional Review also strongly recommended that a presidential
candidate should receive more than 50% of the votes cast.
It is, therefore, the duty of every citizen to ensure that the constitution
responds to the people’s aspirations and stands the test of time. This means
that the constitution should not be changed frequently. It should take care of
the aspirations of future generations. A constitution that does not stand the
test of time brings negative consequences such as the following:
• Expensive Constitution making processes are very expensive
especially for the Highly Indebted Poor Countries such as Zambia.
• Constitutions which do not meet their aspirations.
• Unstable government which leads to economic stagnation.
• Constitutions which are not respected.

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Therefore, it is very important that every citizen in a country participates in
the constitution making and constitution adoption processes.
(a) Constitution Adoption Process

There are two methods which are popularly used in the adoption of the
constitution. One way of adopting a constitution is through a constituent
assembly. This is a body of representatives elected to formulate or change
the constitution of a country. Representatives are drawn from the churches,
learning institutions, trade unions, the civil society, student bodies and
special interest groups. The most important thing is that every citizen
regardless of gender, religion, ethnicity, creed, age and sex identifies with
the interests being expressed by a member or members of the Constituent
Assembly. Countries such as the United States of America, India, Namibia,
Uganda, South Africa and Ethiopia adopted their constitutions through this
method. The adoption of the constitution by a constituent assembly is more
representative than by parliament. It is independent and free from the control
of government or any person.
The other method of adopting the constitution is the adoption by parliament.
It is initiated by the executive wing of government. The President appoints
the Constitutional Review Commission (CRC) to collect views from
citizens. The
CRC makes recommendations to the government. The government presents
the recommendations of the constitutional review commission to the
Parliament for adoption. The recommendations are debated and adopted by
at least two-thirds of the Members of Parliament. Sometimes some
recommendations are rejected by parliament.
- To amend is to add to, remove or make changes to the original set of rules.
Alternatively, a national referendum may be required to amend a constitution.
- A referendum is a process in which the citizens are asked to express their opinion
through a vote on a ballot question either to accept or reject a particular proposal. This
may result in the adoption of a new constitution or a constitutional amendment.

Characteristics of a good Constitution

A good constitution must:

• be clear. The language used in the document must not be too
technical. Ordinary citizens other than lawyers should also
understand it.
• be neither too rigid to prevent change nor too flexible to encourage

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 tampering with the basic principles.
• be stable and stand the test of time (useful for a long period of time).
It must not be changed at the pleasure of each President that comes
to power.
• respond to the social, economic and political needs of the citizens.
• cater for the interest of various groups in society.
• preserve the environment.
• protect the rights of the citizens.

The Importance of the Constitution

A Constitution is important because it:

• promotes and protects the rule of law.
• sets out the composition and functions of the wings of government.
• safeguards the fundamental rights and freedoms of citizens
• is owned and guarded by the citizens.
• ensures democratic governance.
• Facilitates the fulfilment of the individuals’ potential.
•

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