The Technical Committee debate: Setting the record straight on law, logic, and constitutional integrity
By
Prof Cephas Lumina
WHEN legal scholars debate constitutional issues, citizens expect a contest of ideas—not a distortion of arguments. Yet Dr O’Brien Kaaba’s 7 November 2025 article in The Daily Nation and The Mast in “response” to my earlier pieces (“The unconstitutional ‘Technical Committee’: How the Executive is repackaging Bill 7 through illegality,” 23 October 2025, and “Reaffirming the case against the Technical Committee: Article 92 was never a blank cheque,” 30 October 2025) reads less like a reasoned rejoinder and more like an exercise in diversion. He misrepresents what I wrote, attributes to me views I never expressed, and then attacks those imagined positions with the confidence of a man who thinks he has defeated a phantom.
Constitutional debates shape how the country understands its highest law, so these mistakes must be addressed. The points Dr Kaaba raises are central to constitutionalism, the rule of law, and the limits of presidential power under Article 92.
What follows is not personal sparring but an attempt to bring clarity back to a discussion that risks being derailed by misplaced arguments and selective reasoning.
Clarifying a distortion: The “legally puzzling” claim
Dr Kaaba claims I made “the legally puzzling and self-negating argument that the terms of reference came after the Technical Committee was appointed,” but he does not explain why it is puzzling or self-negating. This misrepresents my argument.
My point was simple: reliable reports show the Committee started work before it received its terms of reference, which raises serious legal and ethical questions. Issuing those terms later by press release cannot fix that problem, because a press release is not a legal document.
I also questioned how members could be sworn in without a clear, published mandate defining their duties or reporting lines. These are legitimate constitutional questions, not the “puzzling” musings Dr Kaaba imagines. Calling them “puzzling” avoids real discussion rather than addressing them.
The strange “Austinian sense” detour
Equally odd is that Dr Kaaba relies on John Austin’s idea that disliking a law does not make it illegal, to suggest that my criticism is based on personal feelings about the law. This misses the point. My concern is not about liking or disliking the law, but about how it is applied.
I have not questioned the validity of Article 92, only its scope. To challenge interpretation is not to reject a provision. Constitutional scholars routinely debate meaning without descending into sentiment. By framing my analysis as emotional rather than legal, Dr Kaaba substitutes psychology for jurisprudence; a rhetorical ploy, not an argument.
More importantly, his “Austinian sense” detour shows a (self-serving) misunderstanding of how modern constitutional law works. Austin’s approach, which is based on simply following authority, has been replaced by a value-based method in today’s constitutional democracies. Now, legality depends on staying true to constitutional principles, not just following orders.
In Zambia, as in other Commonwealth countries, purposive interpretation is the standard. The Constitution should be read as a whole, considering its spirit, purpose, and democratic values. By using outdated positivism to defend executive power, Dr Kaaba relies on a philosophy that modern constitutional law has moved past.
Fighting ghosts: The Inquiries Act that I never mentioned
Before tackling substance, Dr Kaaba begins by accusing me of inconsistency—claiming that I “see nothing wrong” with presidential commissions under the Inquiries Act while denouncing the Technical Committee under Article 92 as unconstitutional. The problem is simple: I never mentioned the Inquiries Act in any of my writings.
By constructing a defence against a position I never took, Dr Kaaba succeeds only in debating himself. It is a classic red herring—diverting attention from the real issue: does Article 92 give the President the power to establish a body to lead constitutional reform? The Inquiries Act is irrelevant here. My point has always been that Article 92 is about executive functions (in simple terms, “running government”), not constitutional engineering.
In fighting the Inquiries Act ghost, Dr Kaaba avoids the main constitutional question. This diversion does not strengthen his argument; it exposes its weakness.
Mischief in misrepresentation: The myth of my ignorance
The most disappointing aspect of Dr Kaaba’s article is his claim that I “confuse” constitutional amendment with constitution-making. This claim would be laughable if it were not so cynical.
Dr Kaaba is well aware that I have taught the course “Constitution-Making in Africa” at the University of Lusaka for several years. In fact, he recently used my syllabus when he taught the course earlier this year, copying its content word-for-word, including the parts that explain the difference between constitution-making and constitutional amendment, and between constituent and constituted power. For him to now claim I cannot tell these apart is intellectual dishonesty.
To be clear, constitution-making involves the people’s original constituent power—the authority to create a new legal order. Constitutional amendment, by contrast, is an exercise of constituted power, delegated by the existing Constitution to modify but not remake it. I have never blurred that distinction. What I have insisted on, however, is that even this delegated power must respect the people’s constituent authority.
As Dr Kaaba should know, the line between amending and making a constitution is not always clear. Sometimes changes are so extensive or fundamental that they create a new constitution. His own criticism of Bill 7 shows he understands this, which confirms the very point he now argues against.
This view is reinforced by the Constitutional Court’s decision in Munir Zulu and Another v Attorney-General (2025), which affirmed that constitutional change must remain anchored in popular sovereignty: “The People are the owners of the decision to do away with a particular provision and to replace it with another.” The Court held that any alteration to the Constitution’s text or spirit must emanate from the people themselves.
To argue that constituent power becomes “dormant” after a constitution is adopted misreads both theory and precedent. Constituent power remains the standard for judging amendments. Ignoring this separates constitutional reform from the people and renders it an act of executive convenience rather than a matter of democratic legitimacy.
Article 92 and the art of selective reading
It is striking that Dr Kaaba, who has elsewhere championed purposive interpretation, abandons that method when it becomes inconvenient. In defending the Technical Committee, he opts for a narrow, literal reading of Article 92, as though the clause were a blank cheque for presidential creativity.
Purposive interpretation requires us to read provisions considering their text, context, and history. Article 92’s drafting history (see the Mung’omba Constitutional Review Commission and Silungwe Technical Committee Reports) shows it was designed to facilitate the ordinary administration of government—the appointment of envoys, advisers, and special representatives—not to authorise constitutional reform. By ignoring that history, Dr Kaaba collapses executive and constituent power into one undifferentiated authority, turning Article 92 into what the framers sought to avoid: a tool for executive overreach. That is neither purposive nor faithful interpretation; it is expedient interpretation, the kind that stretches text to fit a predetermined outcome.
Ironically, Dr Kaaba accuses me of failing to understand the “hierarchy of norms,” but it is his argument that flattens that hierarchy. He treats Article 92 as more important than Articles 1, 5, 8, 79, and 90, which protect the people’s sovereignty, the Constitution’s supremacy, and the rules for changing it. In constitutional law, context is important. A clause about running the government cannot override the rules for changing the Constitution itself.
Executive power is not a blank cheque
Dr Kaaba insists that the President’s decision to set up the Technical Committee was a mere exercise of executive discretion – “strong discretion,” as he calls it. He likens it to appointing advisers or forming task forces. But that analogy collapses once we recall the Committee’s mandate: to collect public views and propose constitutional amendments. That is not executive administration; it is constitutional engineering.
The Constitution separates powers to prevent this kind of overlap. Executive power under Article 92 is limited by the Constitution, while the power to amend or create the Constitution belongs to the people and Parliament under Article 79. The President cannot migrate between these domains by rebranding a constitutional reform process as “consultation.”
Even if we agreed with Dr. Kaaba that Article 92 allows advisory bodies, the Committee’s Terms of Reference, which were announced in a press release and mirror the rejected Bill 7, show a clear attempt to revive a failed amendment through executive action. Good intentions do not cure illegality.
Constituent power and the lesson of Munir Zulu
To grasp the flaw in Dr Kaaba’s reasoning, one need only revisit the Constitutional Court’s Munir Zulu decision. The Court confronted the question whether constitutional reform could proceed without meaningful public participation. It answered with an emphatic no, grounding its conclusion in the doctrine of constituent power: constitutional reform, whatever its form, must reflect the people’s continuing sovereignty. Any process bypassing that principle—through Parliament alone or executive discretion—offends the Constitution’s basic structure.
The Technical Committee, created through executive action and guided by Terms of Reference replicating Bill 7, sits outside those limits. It exemplifies what Munir Zulu warned against: executive repackaging of constitutional reform under the guise of consultation.
The real debate: Lawfulness precedes legitimacy
In the closing section of his article, Dr Kaaba urges readers to “look beyond legality” and focus instead on achieving comprehensive reform. That proposition is both illogical and dangerous. Legality is the foundation of legitimacy; a process born in illegality cannot yield a lawful or trusted outcome. To “look beyond legality” is to invite arbitrariness—to treat the Constitution as a menu rather than a mandate.
Even more troubling is his inconsistency. Just months ago, he described Bill 7—the very proposals now revived through the Technical Committee—as “deeply problematic and counterproductive.” Yet he now defends a process whose primary purpose is to resurrect those same proposals. By defending the mechanism designed to resuscitate what he once dismissed, he exposes a disquieting shift in principle: a willingness to criticise policy in abstraction but excuse it when cloaked in executive procedure.
The notion that good ends justify unconstitutional means has been the undoing of many nations. Constitutional reform is not about speed or convenience; it is about following the right process. Without proper process, even noble ambitions collapse into illegitimacy. If we abandon legality for expedience, we lose both constitutional integrity and the right to demand accountability from those who wield power.
A note on intellectual integrity
It is unfortunate that a discussion this important has been marred by personal insinuations. I take no pleasure in reminding readers that Dr Kaaba’s own scholarship elsewhere affirms the very principles he now abandons: purposive interpretation, constitutional supremacy, and popular participation. Yet when those principles constrain an Executive he supports, he suddenly finds comfort in literalism and more executive latitude.
Consistency is the lifeblood of intellectual credibility. Selective reasoning—purposive when convenient, literal when useful—diminishes the integrity of constitutional scholarship. As academics, our task is not to defend power but to clarify its limits.
Conclusion: Restoring constitutional clarity
The central question is not whether the President means well or whether the Technical Committee might produce helpful recommendations. The question is constitutional: does Article 92 give the President the power to establish a body to initiate or steer constitutional reform? The answer, based on the text, history, and legal decisions, is clearly no.
By introducing irrelevant issues such as the Inquiries Act, mischaracterising my arguments, and constructing straw men about “liking” the law or misunderstanding amendment theory, Dr Kaaba has built his case on sand. His reasoning confuses executive power with constituent authority, treats precedent as a substitute for legality, and confuses executive convenience with constitutional authority.
The Constitutional Court has already provided the compass in Munir Zulu: the people, not the Executive, are the ultimate custodians of constitutional change. Any process that sidelines them is illegitimate from inception. Fidelity to that principle is not obstructionism; it is patriotism.
In defending constitutional boundaries, we defend the Republic itself. The Technical Committee may proceed under the banner of consultation, but until it rests on lawful authority, it will remain what it began as—an executive overreach cloaked in technical jargon. Zambia deserves better: a constitutional process rooted in legality, transparency, and respect for the people whose sovereign power Article 92 cannot dilute.
