Zambian Constitutional History

The current study consists of a global overview of the various phases of the State of Zambia, as for the adoption, the application and the amendment of its formal Constitutions. Northern Rhodesia in a way was acquainted with the phenomenon of “constitutions”, granted by the UK. The constitutional history of the Republic of Zambia, into which the former protectorate was transformed in 1964, is divided in two periods, the post-independence period and the post-cold war one. These periods exemplify those of African constitutionalism, which is marked by various authoritarian regimes (1960-1980) and neo-constitutionalism (from 1990 to date). The constitutional history of the sovereign State of Zambia is also dominated by the figure of the President of Republic to such a pitch that even democratic forms of governance essentially have constituted more or less presidentialism. As for the British protectorate of Barotseland, it is no coincidence that it was incorporated in the Republic of Zambia with some privileges on the basis of the 1964 Barotseland Agreement (terminated in 1969), but with no clause in the 1964 Constitution.


Introduction
The political decolonization of African countries has been a very important process (Adamou, 2018), for which the doctrine has signalized that it was not accompanied by an economic decolonization (Gonidec, 1996). Anyway, one of those countries has been the current Republic of Zambia. Its previous name was "Northern Rhodesia'' (Lazos, 1979) whilst the geographical term "Rhodesia'' referred to a region generally comprising the areas that are today Zambia and Zimbabwe. From 1964 and on, it only referred to the former "Southern Rhodesia'', which was an unrecognized independent State from 1965 to 1979, with the control of white people over the economic life of the country (Lazos, 1979). Rhodesia was equivalent to the territory of the modern Republic of Zimbabwe.
Northern Rhodesia in a way was acquainted with the phenomenon of "constitutions'', granted by the UK. Besides, the constitutional State of Zambia had one of the world's fastest growing economies for the ten years up to 2014, although it had to settle the legal issue of repaying a very high public debt (Maniatis, 2018). The objective of the current study is to focus on the constitutional history of the Republic of Zambia till the application of the current version of the Constitution. In other words, it refers to the political and constitutional past of the Zambian State.

The 1964 Constitution (First Republic)
It has been noticed that Zambia was the first British colony to become a Republic immediately upon gaining independence (Kasonde, 2008). This remark is accurate but not absolutely, given that Cyprus became a Republic from scratch, when it was granted independence in 1960.
Accompanied by an Act of Independence by the British Parliament, the Zambia Independence Order's Schedule II set forth the Constitution of Zambia, recognizing explicitly Zambia as a sovereign Republic instead of the "former Protectorate of Northern Rhodesia'', from 24 October and on (Ndulo & Kent, 1996). It is no coincidence that in this Constitution there was no clause on the 1964 Barotseland Agreement, which was terminated by the central regime of the Republic of Zambia in 1969. As for the First Republic (1964)(1965)(1966)(1967)(1968)(1969)(1970)(1971)(1972), it was marked by serious religious and mainly political crises, such as the formal destruction of the old Kingdom of Barotseland (former British "protectorate within the protectorate'' of Northern Rhodesia) against the aforementioned Agreement. That development led to the marginalization of the ethnic group of Lozi, being endowed with a judicial process quite similar to the Western one.
The 1964 Constitution has raised criticism inter alia because like its colonial forbears it details the structure of government so minutely that it has about it the look of ordinary legislation. It adopted the Westminster model of people's representation and previewed a political regime in which the President of the Republic became the chief executive, to whom the powers of the colonial Governor passed largely intact.
More precisely, the Zambian state apparatus and its constitutional foundations are a direct legacy of British imperialism (Gould, 2015). The 1964 Constitution appeared, in its principles and orientations, identical to the Constitution of Northern Rhodesia at the end of the colonial period.
The UK recognized the political legitimization of the leader of the United National Independence Party (UNIP) and Primer Minister of the last government of Northern Rhodesia, Kenneth David Kaunda. Section 32 of the Constitution cited that he would be the first President and would be deemed to have assumed office at the coming into operation of this text. It is to clarify that Kaunda became the head of the State with no presidential election, in virtue of consensus of the political system of the country. Subsequent presidential elections were part of the process of election of members to the National Assembly. Every parliamentary candidate was obliged, at the time of his nomination, to declare which of the candidates in the election of President he supports and if he does not so, declare his nomination as a parliamentary candidate is void. In a similar way, appointment of ministers from among members of the National Assembly was vested in the President.
Throughout the first 26 years of independence, the presidency grew in stature at the expense of the other organs of the State (National Assembly, judiciary), it is no exaggeration to describe the powers of the President as enormous (Ndulo & Kent, 1996).
The Bill of Rights was extensive, including various civil rights, but no socio-economic rights were included (Kasonde, 2008). The provisions regarding non-discrimination in relation to race, sex and place of origin did not apply to customary law, thus marginalizing women in society.
Besides, a bill to amend the Constitution required the votes of not less than two-thirds of all of the members of the National Assembly, but an approval through referendum was also required, especially in case that the amendment had to do with any part of the Constitution relating to fundamental rights. This democratic condition was eliminated in 1969, fact that was later to facilitate the adoption of a one-party system of government (Ndulo & Kent, 1996).

The 1973 Constitution (Second Republic)
The era of the post-independence Constitution was characterized by a multiparty system and also by the appearance of sectionalism. In 1972, the government announced that it had decided to turn the country into a one-party State, in the interest of unity and economic development (Ndulo & Kent, 1996). The transformation of the political regime into a one-party rule was not a novelty in Africa, as neighboring Tanzania had already so proceeded. Taking partly account of the report of a constitutional review commission, the Zambian Constitution was replaced by another one, in 1973, which created a socialist, one-party State (Kasonde, 2008).
The Second Republic came into being on 25 August 1973 whilst the new constitutional text was considered as a truly Zambian document, as opposed to its predecessor, which was legislated into being by the British Parliament as part of the Zambian Independence Act that severed Zambia's connection to the British Crown and granted to it the independence (Ndulo & Kent, 1996). This development reinforced presidential rule in Zambia as the president became the key player on the political scene (International IDEA, 2019). By far the most significant feature of the 1973 Constitution was the declaration of Zambia as a one-party State whilst it became illegal to form or attempt to form any other political party or organization, and illegal to belong to any political party other than the UNIP (Ndulo & Kent, 1996).
The figure of the Prime Minister was added, introduced by the Constitution to be leader of government business in the Parliament. This development is just the opposite to what happened later in Turkey, which got rid of this governmental organ after 1.000 years of existence. From 2018 and on, the Republic of Turkey has been officially converted into an authentic presidential (non-parliamentary) regime and the figure of the prime minister was replaced by that of vice-president.
As for the consecration of human rights, it is surprising that the humanist social government did not provide for socio-economic rights, given its emphasis on human development (Kasonde, 2008). One notable improvement in the 1973 Constitution over its predecessor was the introduction of the Office of the Investigator General, being analogous to that of an ombudsman (Ndulo & Kent, 1996). This organ had jurisdiction to inquire into the conduct of any person in the public service with respect to the exercise of authority or abuse thereof. On the whole the President of the Republic followed its recommendations, which significantly were not political in character.

The 1991 Constitution (Third Republic)
Following the increasing hostility of the society towards the one-party regime, in combination with the change of political and constitutional paradigm in Eastern Europe and its impact in Africa, the regime amended the Constitution to permit formation of other parties and announced the prospective of further amendments of the Constitution. A new Constitution was agreed upon by all political parties, enacted by the Parliament on 2 August and approved by the President of the Republic on 29 August 1991 (Ndulo & Kent, 1996). Like its predecessor, it provided for the protection of fundamental rights and freedoms of the individual without getting rid of some limitations contained in the 1973 Constitution, as it was the case of potential discrimination based on customary law and resulting in disadvantaging of women. In the absence of time for a proper constitutional review, the 1991 Constitution was essentially a transitional document, designed to meet the needs of that time (International IDEA, 2019).
Besides, the regulation on a referendum for the amendment of constitutional dispositions on human rights, as incorporated in the 1964 Constitution, was reintroduced.
Although enacted by the Parliament, the 1991 Constitution was, as Constitutions in their nature must be, the product of compromise. It strengthened the separation of legislative, executive and judicial power and reduced the domination of the executive (Ndulo & Kent, 1996).
The constitutional change was combined shortly afterwards by the first political alternance in Zambian postcolonial history. On 31 October, Frederick Chiluba was elected President of the Republic by the people, as the new Constitution introduced the direct universal adult suffrage for presidential election, previewing that this election was to be held whenever the National Assembly was involved. Kaunda was defeated whilst the Movement for Multi-party Democracy (MMD), which emerged in the Second Republic, won 125 out of 150 seats in the National Assembly (Ndulo & Kent, 1996).

The 1996 version of the 1991 Constitution
According to its pre-election promise, MMD decided to replace the 1991 Constitution with another, that would be above partisan considerations and more human-rights friendly. A Constitutional Review Commission, chaired by Jon Mwanakatwe, was appointed in 1993 to prepare the new initiative. This organ decried the long-standing practice by which Zambian Constitutions have appeared as schedules to Acts of the Parliament, noting that this is a heritage of the colonial era when even the Independence Constitution was a schedule to a British Order-in-Council (Ndulo & Kent, 1996). It is also notable that the Mwanakatwe Commission rejected proposals for the consecration, in the Preamble, of the Christian character of Zambian Nation.
At least 70% of the Commission's recommendations were rejected by the government (Kasonde, 2008). Severe criticism was raised against both the amendment procedure and the substantial content of the adopted text. On the one hand, the Commission had strongly recommended adoption of a new constitution by means of a broadly-based constituent assembly and its subsequent amendment only with approval by the people through a national referendum (Ndulo & Kent, 1996). However, the government amended the 1991 Constitution through the enactment of the Constitution of Zambia (Amendment) Act, 1996, without any attempt to achieve consensus or compromise. Every part of the Constitution was repealed and replaced, with the unique exception of the Bill of Rights (Part III), which is very similar to the Bill of Rights of the 1964 Constitution. According to the doctrine, the aforementioned Act, even though it did not repeal the whole of the 1991 Constitution, introduced such significant changes as to render the resulting document a new Constitution (Ndulo & Kent, 1996). However, formally it is about the first amendment of the 1991 Constitution.
On the other hand, the amendments restricted the participation of Zambians in the electoral process because of the prohibition for a chief to be qualified for election as a member of the National Assembly as well as because of the attempt to bar former President Kaunda from standing for the presidency in the 1996 elections. More precisely, the 1996 version of the Constitution previewed that a candidate's parents must be born in Zambia whilst it was known that Kaunda's parents were born in the territory that is now Malawi.
Besides, criticism has been raised also in the matter of some civil rights, such as inter alia the freedom of religion. Against the above-mentioned recommendation of the Mwanakatwe Commission and over the objections of many of the churches, the government inserted in the preamble of the Constitution a provision to declare "the Republic a Christian Nation while upholding the right of every person to enjoy that person's freedom of conscience or religion''. The doctrine signalized that the concept of a preferred religion is antithetical to the equality of the people regarding their religious beliefs (Ndulo & Kent, 1996). Anyway, this formulation, being original against the previous Constitutions, was odd, because a Republic is not a nation adhering to a religion but a State, and significant, because essentially it transformed the secular character of the Constitution to a religious one.
It is remarkable that the Constitution did not specify which denomination of Christianity (for instance, Protestant or Roman Catholic) embodies the State whilst in practice Zambia is predominantly a Christian country. The vast majority of the citizens consist of Roman Catholics and Protestants but there is also the Orthodox denomination.

The 2003 Constitutional review process
The fact that the 1996 Constitution was an ambivalent text, being deprived of political legitimacy not only from the major party of the opposition, UNIP, but also from society, would result in a new attempt at comprehensive constitutional review in 2003 (International IDEA, 2019). The President Chiluba inaugurated a period of socio-economic growth and government decentralization and was succeeded by Levy Mwanawasa, chosen by him. The successor won the presidential election in 2001 and was President from January 2002 until his death, in August 2008. Among his political priorities were the fight against corruption and the increase of the standard of living.
He initiated Zambia's fourth review process, headed by the Wila Mung'omba Constitutional Review Commission. This development took place in 2003 against the background of severe criticism over previous rejection of the majority of the people's submissions (Kasonde, 2008).
Observers have pointed out that Zambia's numerous attempts to draft a lasting Constitution have been elusive largely due to lack of constitutional legitimacy for each process as the government in each case retained the power to reject or accept the recommendations of the people (International IDEA, 2019). In December 2005, the Commission produced a draft constitution and report. This organ received a considerable number of submissions being positive to the incorporation of justiciable socio-economic rights in the Bill of Rights. It is notable that this issue was championed particularly by the Church (Kasonde, 2008). Contrary to the point of view of its two predecessors, the Commission found that financial constraints were not an excuse for depriving the Zambian people of socio-economic rights. It noted that the group of social and political rights and the group of socio-economic rights were indivisible and interdependent, as it is the case of the freedom of expression that could not be adequately exercised without the right to education (Republic of Zambia, 2005).
As far as the rights of women are concerned, the Commission stated that a number of petitioners, including organizations representing the Women's Movement, wanted the principle of gender equality to be enshrined in the Bill of Rights, without any qualification. Petitioners on behalf of the Women's Movement emphasized that the Constitution should guarantee the enjoyment by women of fundamental rights and freedoms on an equal basis with men. They also called for consideration, in articulating these rights and freedoms, to be given to the special social, cultural, economic and physiological circumstances and roles of women. Some petitioners called for repeal of Article 23 of the Constitution in order to remove the element of discrimination against women. It was about a serious problem, on which the previous regime rejected recommendations of the Mwanakatwe Commission and, as a result, the doctrine had remarked that the freedom from discrimination, particularly against women, needed emphasis as for its protection (Ndulo & Kent, 1996).
It is notable that civil society was largely in favor of the Mung'omba Commission's recommendations (Kasonde, 2008). The draft constitution and report were seen as progressive, but the whole process was later suspended, despite the agreement to adopt the document through a Constituent Assembly (International IDEA, 2019).

The 2006 Constitutional review process
President Mwanawasa in December 2006 presented a lengthy 14-step roadmap for constitutional change spreading over 5 years (International IDEA, 2019). To justify this initiative, described as fifth constitutional review process, he signalized that since only the Parliament was empowered under the current constitution to adopt a new one, the existing text would have to be amended to provide for an alternative method, such as the agreed upon constituent assembly along with a previous referendum.
The civil society immediately accused the government of bad faith and lack of political will and in April 2007 presented an alternative roadmap, including 71 weeks, as it argued that there was no need to consider the old rules for the consecration of an entirely new constitutional framework. A compromise was achieved only in June 2007, when both parties agreed to a plan brokered by political parties under the auspices of the Zambian Centre for Interparty Dialogue. The proposed popular body could come up with a draft constitution that would be enacted by the Parliament and then be (partly) presented to Zambian citizens through a referendum procedure.
The members of the body, called "National Constitutional Conference'' (NCC) were to be nominated by the different interest groups instead of being elected. In August 2007 the NCC Bill had been adopted, mandating NCC to draft a new Constitution.
NCC had no legislative powers and was boycotted by the Catholic Church and the Patriotic Front (Chipalo, 2016). Patriotic Front is a political party, founded by Michael Sata as a breakaway party of MMD in 2001, after the President Chiluba nominated Mwanawasa as a presidential candidate for 2001 elections. The parties that participated in the Commission included MMD and United Party for National Development (UPND) whilst many dubious associations and churches were formed to join the NCC (Chipalo, 2016).
When the work of NCC would be concluded, that organ could (International IDEA, 2019): (1) Submit the entire draft constitution for submission to a national referendum, or (2) Submit the draft constitution to the National Assembly for enactment if it does not include any provisions in the Bill of Rights, or (3) Submit parts of the draft constitution to a national referendum and others to the National Assembly for enactment.
The draft constitution was presented to the Parliament for enactment and in a grotesque turn of events, UPND, which fully participated in preparing that text, did not approve it when the vote was called in the National Assembly (Chipalo, 2016).
When the aforementioned politician Sata became President in 2011, he proceeded to appoint a Technical Committee to redraft a new Constitution. Many people felt that the Committee was the sixth Constitutional Review Commission (Chipalo, 2016).
Concerns about Sata's health grew in 2014 and it was said that he no longer ran the government due to his condition, but the government denied that. When he died, Vice-President Dr. Guy Scott was named acting leader until an election, so he became the first white leader of a democratically elected Sub-Saharan African government.

The 2016 version of the 1991 Constitution
On assuming power in January 2015, sixth President Edgar Chagwa Lungu, coming from Patriotic Front, promised to deliver a new Constitution, to which he assented on 5 January 2016.
This text has been considered as very progressive as many, if not all, of the submissions that were made to the Mung'omba Constitutional Review Commission have been included, with the exception of the creation of the provincial parliaments, which, according to the same approach, would be too costly for the nation (Chipalo, 2016). Among the very good amendments, were mentioned the establishment of the Constitutional and Appeal Courts, dual citizenship and the pension law (Chipalo, 2016).
The opposition just complained about one clause, that of the requirement of a minimum academic qualification of Grade 12 for one citizen to become a Member of Parliament or Councilor. According to an opposite approach, the rest of the world continues to dominate Africa because they are busy seeking knowledge while Zambians are busy pulling themselves down (Chipalo, 2016). The Zambian nation, after fifty years of independence, aimed to improve the quality of services provided by public institutions and this could only happen when citizens vote into office people with the requisite qualifications and experience. Besides, some members of the Parliament had been sitting in Parliament for years without participating in debates because they could not understand what was being debated.
The current version of the 1991 Constitution did not interrupt the constitutional tradition of too detailed texts. It makes the step forward with the delicate question of religious belief as in the beginning of the preamble includes a new disposition, according to which the people of Zambia acknowledge the supremacy of God Almighty. This stereotype expression of Christianism is completed by the above-mentioned clause on the Christian character of the Nation of the Republic, as this identity is counterbalanced by the recognition of the freedom of religion, which is still consecrated in the Bill of Rights (Part III of the Constitution). However, the identity of the Republic as a Christian Nation is contradictory to the new mention of the Preamble, consisting in the multi-religious character of the Nation. The lack of cohesion and particularly the defect of conceptual repetitions are obvious in the main text, in which the Republic is characterized as a multi-religious State.
On 11 August 2016, Zambia held polls to elect the President of the Republic, members of parliament, mayors and councilors, alongside a failed referendum on changes to the Bill of Rights in the country's Constitution and replacement of the provision governing the amendment of the Constitution (Lumina, 2019). President Lungu managed to secure a narrow victory over the candidate of UPND, Hakainde Hichilema.

The 2019 Constitution Amendment Bill
In June 2019, the Constitution of Zambia (Amendment) Bill, No. 10 of 2019, was released and the people acquired the possibility to comment it. The Bill aims to amend the current version of the 1991 Constitution in significant respects, such as the institutionalization of Christian morality and ethics among the national values and principles, the possibilities for a "coalition'' government, and new electoral system for the legislature.
Obviously, one of the main aspects of the 2016 constitutional reforms was the attempt to constrain the powers of the President, particularly in relation to the appointment of key officeholders, whilst the proposed new reforms reverse many of these constraints (Lumina, 2019).
The amendment process includes no referendum, but it requires the support of twothirds of members of the National Assembly. Nevertheless, the main opposition party has the number to block the reforms, if it stays cohesive (Lumina, 2019).

Conclusion
The constitutional history of Zambia is very rich, let alone in a rather disproportional way to the duration of the post-independence period. It is also to point out that constitutional normativity of this former protectorate remains actual, particularly in view of the ongoing amendment process. It is indicative that the doctrine estimates that if adopted, the Constitution of Zambia (Amendment) Bill 2019 would potentially sow the seeds of constitutional and political crisis in the country (Lumina, 2019).
Anyway, the current analysis has reached to the following final remarks: 1. In the post-independence era, Zambia from scratch acquired a Constitution, locking out the 1964 Barotseland agreement because Kaunda did not really want to comply with its content, at least definitely. The Constitution was not made by the people but, at least formally, was a "granted Constitution'', namely officially granted by the UK. However, this term has to do with the offer of a Constitution by the monarch to the people in the framework of an already existent, sovereign State (Lauvaux, 2015). The Constitution was negotiated after the dissolution of the Federation of Rhodesia and Nyasaland by the British government, UNIP, the African National Congress, ANC and the whites (only National Progress Party) and, in substantial terms, was based on the Westminster model of governance (Chipalo, 2016). The 1964 Constitution followed the post-colonialism model of a democratic State. Till then, as signalized by the British Minister of State for Commonwealth Relations and for the Colonies in July 1964, with the exception of Cyprus, which was of course sui generis, all the territories of the UK had hitherto gone into independence with a monarchical form of government, and with the Queen represented by a Governor-General (HL, 1964). The UK was, therefore, breaking new ground in that, Zambia would move straight from its present status as a protectorate to that of an independent sovereign republic. Rather it should be seen as a realistic acceptance, right at the outset, of what many African countries had (already) found, after only a brief period of independence, the medium best adapted to their political aspirations. Anyway, the form of governance was not a case of parliamentary Republic, according to the Western model, but essentially, at least in the interior of the political powers of the State, consisted in almost a one-man authority; a new constitutional tradition emerged, personalized by the figure of the President of the Republic, which is not subject to the mechanism of proposals of confidence or censure by the Parliament, which are indispensable for the recognition of an authentic parliamentary system of governance. The 1964 Constitution avoided introducing a clear form of State, namely a parliamentary (non-presidential) Republic or a presidential (non-parliamentary) Republic. It institutionalized a blended form, consisting in a presidential Republic, being deprived of Prime Minister according to the stereotype of presidential regimes. Nevertheless, the presidential model was combined with some limitations, inspired by the model of parliamentary Republic, like the system of joint election of parliamentarians and the President.
2. Zambia did not abstain from the rule of political abnormality, let alone the dissolution of the old Kingdom of Barotseland. Its constitutional history is marked by a peaceful transition, being uncommon at least for the African context. That abnormality led to a protracted period of an authoritarian regime, of the party which already was endowed with the State power. The one-man authority (presidentialism) was completed by the one-party State (oligarchy). It is remarkable that this development exemplifies well the period of authoritarian governance in the comparative constitutional history of Africa, in the period 1960-1980(Senou, 2019. 3. As for the collapse of the one-party regime, the emergence of a democratic Republic based on a new, liberal Constitution exemplifies, once again, the African constitutional history, as in the 1990s began the movement of neo-constitutionalism, putting the stress on the better consecration of fundamental rights (Senou, 2019). However, the tradition of the one-man authority survived and so presidentialism moved from the authoritarian context to the democratic one to such a pitch that the unique President of the post-independence era attempted to keep being the leader, but in vain.
4. In the second, current period of neo-constitutionalism, presidentialism has been intense, like perhaps all the rest problems of constitutional context, such as lack in consecration of fundamental rights and "Byzantinism'' in the operation of the State, exemplified by the constitutional amendment process. In comparison with the first period of post-independence era, the difference was that the political system was saturated by the excessive changes of the Constitution and sometimes reached the other end, marked by parasitism and stubbornness. At least in the phase prior to the 2016 version of the Constitution, in practice the separation of powers between the judiciary on the one hand and the Executive and the Legislature on the other was still largely mythical, although Zambia had already, on paper, put in place the minimum accepted international standards for the independence and autonomy of the judiciary (Sakala, 2013). 5. Last but not least, the current era of neo-constitutionalism is characterized by a more or less intense political and constitutional interference of the Christian churches and the emergence of Christianism as an official component of the State, which keeps adopting Western cultural points of reference. In clear opposition to the international tendency to adopt the model of secular State, Zambia has gradually adopted the opposite model in its Constitution, which continues to be flexible (non-rigid) on the matter.