A look at issues surrounding Bill of Rights
…The tenuousness of Zambia’s Bill of Rights and how to fix it without committing national suicide
By Prof Munyonzwe Hamalengwa, PhD
THE much acclaimed Bill of Rights in Zambia’s Constitution which purportedly bestows Zambians with fire-sure constitutional rights do not actually exist as fundamental rights, they are tenuous and can be taken away one at a time at appropriate times in the course of litigation by the government of the day. For proof of this, read each article in the Bill of Rights and you will find that every article has a claw back provision within it that takes back entirely what you thought were your guaranteed rights. This is not hidden, you are cautioned that your allegedly guaranteed rights, ride on thin ice and you are vulnerable.
During litigation on these allegedly guaranteed rights, every Attorney General will remind every litigant and the court that all allegedly guaranteed rights have limitations and are not absolute. The Bill of Rights let alone the entire Constitution of Zambia has not been read by the majority of the people, including judges, lawyers, law lecturers, law students and the general public. The current reproduction of Constitution Act No. 2 of 2016 (The Constitution) published at Government Printers doesn’t even carry the Bill of Rights. It is skipped. Thus even if you wanted to study the current Constitution after securing a copy, you won’t find the most important Articles contained in the Bill of Rights as they are not reproduced therein. Further the Constitution and the Bill of Rights, as a separate document when you chance it, are not translated into vernacular languages further limiting their accessibility to the majority of Zambians.
Surprisingly the Constitution is the most talked about legal regime in Zambia, yet the Constitution is the least read legal document by the majority of those who discuss it. Most people append their submissions on the Constitution based on their politics, theirs are political arguments and not constitutional arguments. Some argue in good faith believing that their Constitution gives them absolute rights not knowing that their Constitution claws back whatever guaranteed rights have been given. In fact the Constitution is shy of giving guaranteed rights.
I do not want to give the impression that Zambians have no Constitutional rights because they clawed back. Zambians have guaranteed rights but these are clawed back and we must be aware of that hidden trap as we enjoy these rights and we must be prepared to defend them from being clawed back by the government in the course of litigation and at all times we must defend them against government invasion.
There will be amendments to the Constitution under the current new government like all other governments have done or tried to do. The work of the new government is already cut out for them. They will discover that most constitutions of the world do not guarantee absolute rights but the way some of the these constitutions are designed offer more transparency and confidence that the rights though limited offer more protection-proof cocoon than their Zambian counterparts. All stake holders must read the American Constitution and the Bill of Rights; the Canadian Constitution and the Canadian Charter of Rights of Freedoms; the South African Constitution; the Kenyan Constitution; the UN Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the African Charter on Human and People’s Rights and a string of such other documents. The framework for a great uncluttered Zambian Constitution will tumble out of reading these and other documents. In addition previous Constitutional Review Commissions have already done commendable ground work and the ground need not be re-ploughed as the gems of a great Zambian Constitution have already been unearthed and polished.
The American Constitution declares in several Articles that Congress shall not do this or that. That is a safer way of guaranteeing some rights. The Canadian Charter of Rights in Section 1 tells the citizens that there is a way that their rights can be limited in a free and Democratic society and any attempts to limit the guaranteed rights must be consonant with the tenets of a free and Democratic society. This is a heavy burden on the government to meet. It cannot be done willy-nilly. One of the great aspects of the Canadian Charter of Rights and Freedoms is that it specifies what are legal rights, what are fundamental rights and what are equality rights and the framework under which they could be interfered with under justification. The Charter which is a very short uncluttered document can be carried in a pocket and can be pasted on the wall in every office and is translated in the two official languages of English and French.
I am not suggesting that the American or Canadian constitutions are perfect. They are not. They most times hide under the cover of “national security”; “state secrets” “political questions doctrines” “state immunity” and other strategies. I referred to them merely for Comparative purposes and that there are other ways of guaranteeing that rights cannot easily be taken away, that the state ought to bear a heavier burden when clawing back guaranteed rights.
Nor am I stating that there should be no limits to guaranteed rights. Rights that are guaranteed must not portend for a suicide pact. In your household you don’t let your children destroy what holds the household together under the guise of protecting the children’s guaranteed rights.
The baseline is what are the best practical and reasonable international best practices of living up to respecting and protecting the guaranteed constitutional rights without committing national suicide. The question cannot be answered without going back to the first principle which is: what kind of executive, legislature and judiciary does the country have. Elections outcomes matter because they determine what kind of executive, legislature and judiciary a country will have and whether guaranteed rights will be respected and protected. And this is a highly contested terrain.
Professor Munyonzwe Hamalengwa teaches Comparative Constitutional Law, Constitutional Law and Public International Law.
