Proposed constitutional amendments: Challenging dubious justifications and unrealistic roadmap
Prof. Cephas Lumina
IN MY first column in this newspaper on March 20, 2025, I argued that while the Constitution is a sacred document intended to be foundational and enduring, there are times when it is necessary to amend it to correct errors, address ineffective or unworkable provisions, respond to new ideas or changing societal needs, or reflect evolving values and principles. I also emphasized the importance of protecting the constitution from hasty or politically motivated amendments. This means that any proposed changes to the constitution must have a credible justification. A well-supported justification not only gives legitimacy to the amendment process but also serves as a safeguard against arbitrary or politically convenient changes that could undermine democratic stability.
It was therefore with a great sense of anticipation that I awaited the Minister of Justice, Princess Kasune’s ministerial statement on the proposed constitutional amendments, which she delivered in the National Assembly on March 26, 2025. Since then, there has been significant public debate surrounding the proposed amendments outlined in her statement. On March 28, 2025, the Law Association of Zambia (LAZ) issued a press release in response to the minister’s statement. LAZ emphasized the need for careful consideration and broader consultation on the proposed amendments, stating that the proposed roadmap was unrealistic, a sentiment I share.
In her statement, the minister reiterated the government’s commitment to establishing a constitutional order that would drive the political, economic, and social development of the country. She acknowledged the importance of ‘broad-based consensus’ among all Zambians for the Constitution reform agenda but noted that a comprehensive amendment to the Constitution would be costly and time-consuming. Therefore, the government planned to focus on addressing ‘non-contentious’ issues to fill the gaps in the Constitution. The minister announced that the identified non-contentious issues would be published in the Gazette thirty days before the introduction of the constitutional amendment bill in the National Assembly to facilitate wide and inclusive consensus-building. She then outlined the proposed amendments, all presumed to be ‘non-contentious’ issues.
The minister’s statement raises several issues, but I will focus on two: consensus and the ‘non-contention clauses.’ Firstly, the government claims to value broad-based consensus but argues that seeking consensus for constitutional amendments is costly and time-consuming. However, building consensus is crucial for successful constitutional amendments and requires inclusive deliberation, public engagement, and negotiation among various political actors. It is essential to develop mechanisms that promote open dialogue, incorporate input from political institutions, and respect the interests of both elites and the public. Generating consensus around proposed amendments is necessary, especially in a polarized environment, to ensure credibility and legitimacy. The thirty-day publication period for the proposed amendments is insufficient for meaningful consensus-building, given the complexity of the issues at hand. Additionally, proceeding with piecemeal amendments without consensus risks further polarization and undermines the constitutional reform process.
Secondly, it is difficult to speak of ‘non-contentious clauses’ in the absence of extensive consultation and public participation. It should be noted that non-contentious constitutional clauses refer to provisions in a constitution that are less likely to lead to disputes or legal battles. These clauses typically deal with procedural or technical aspects of governance that are widely accepted by political actors, reducing the potential for disagreements over their interpretation or implementation. They serve as the foundational elements of a constitution, representing the consensus reached during its creation. Non-contentious clauses are deliberately crafted to avoid ambiguity that could trigger legal or political conflicts, ensuring that governance functions smoothly according to established procedures rather than being subject to ongoing disputes.
In our Constitution, the ‘non-contentious clauses’ mainly cover aspects related to state identity (such as Zambia’s status as a sovereign republic) and the structure of state power (including the separation of powers and the principle of constitutional supremacy). These provisions have been generally accepted without much controversy by various stakeholders due to their crucial role in maintaining stability, continuity, and the rule of law in the country.
On the other hand, contentious clauses are those that touch on sensitive social and political issues, sparking debates and disagreements. Many of the proposed amendments fall into this category, including discussions on constituency boundaries, proportional representation, and the increase in the number of nominated members of parliament.
In essence, constituency delimitation involves defining the boundaries of electoral districts to allocate representation in a legislative body. The goal is to create balanced districts that respect natural or community boundaries and provide effective representation. However, this process presents challenges, including the risk of unintentional partisan bias. Even when conducted by independent commissions, technical decisions in delimitation can inadvertently favor one political party over another. Additionally, the complexity of drawing boundaries that reflect diverse interests, along with the use of algorithms and computer-assisted methods, raises concerns about transparency and consistency. Malapportionment, where constituencies have unequal electorate sizes, can also undermine the democratic principle of equal representation. This can lead to the marginalization of minority groups by concentrating or diluting their electoral influence.
The proposed increase in the number of nominated members of parliament is particularly contentious, with LAZ arguing that it would enhance the powers of the presidency. Article 69(1) of the Constitution grants the President the authority to nominate eight members of the National Assembly to ensure the inclusion of special interests, skills, or gender. By limiting the number of nominated members to eight, the Constitution ensures that most of the legislature consists of directly elected representatives. This separation maintains the democratic legitimacy of parliament by keeping the will of the electorate distinct from executive appointments. Elected members of parliament have a mandate from the public, while a limited number of nominees allow the President flexibility to bring in expertise or represent minority interests without disrupting the political balance. Restricting nominations prevents the executive from using appointment power to override election results, reducing the risk of political patronage or undue influence. This approach is consistent with practices in other countries where a small quota of executive nominees is permitted to maintain the representativeness of the parliament.
The minister also presented a proposed roadmap for ‘the enactment of the Constitution’ to the National Assembly, setting a timeline for the presentation of the constitutional amendment bill for third reading on 25 July 2025. However, the roadmap is unrealistic due to the contentious nature of some proposed amendments and the need for wide consensus building. Importantly, the urgency implied in the timeline is not justified by any pressing need for the amendments.
It is crucial to provide transparent and evidence-based justifications for constitutional amendments to maintain institutional legitimacy and public trust. Inadequate justifications for revisions can lead to legitimacy crises and decreased confidence in constitutional institutions, as seen in other African countries. An inclusive amendment process involving input from various stakeholders, including political parties and civil society, ensures that changes are based on collective values and evidence rather than narrow political interests. This participatory approach enhances the quality of the constitutional debate and reinforces the legitimacy of the amendments.
Finally, political parties must recognize that presenting amendments without solid justifications risks undermining their own legitimacy and the stability of the constitutional framework. Providing credible justifications for proposed amendments is essential for fostering legitimacy, accountability, and long-term stability in Zambia’s constitutional landscape. Unfortunately, the minister’s statement lacks credible justification for the proposed amendments and fails to demonstrate any urgency in enacting them.
____________
Cephas Lumina is a Professor of Constitutional and International Human Rights Law, an Advocate of the High Court of Zambia and a member of the United Nations Committee on the Rights of the Child. He teaches, among other university courses, Constitution-Making in Africa, Constitutional Law and Constitutional and Human Rights Litigation. Comments to: drclumina@yahoo.co.uk
