By Masauso Mkwayaya.
In the
modern day administration of countries, many times arise, when decisions need
to be made that requires majority of a country’s population to have a direct
input.
And in most
countries that practice democracy, this is usually done through a general vote
by the electorate, on a single question which has been referred to them for a
direct decision.
This social
mechanism in getting to a particular outcome is known as a REFERENDUM.
A
referendum, usually offers the electorate a choice of accepting, or rejecting a
proposal which usually has a national interest connotation.
In other
countries, a referendum can simply be triggered by the collection of a
specified number of citizen’s signatures or by a three third majority vote, in
a National Assembly or Parliament.
Since
Independence, Zambia has only managed to hold two referendums.
The first
and only referendum which produced Government’s desired outcome was held 47
years ago.
Before that
referendum, the Zambian Law did not have any provisions to amend any part of
the constitution without going to a national referendum.
Arising from
that fact, a national referendum was held on June 17, 1969.
One of the
main objectives of that referendum was to amend the constitution, to include
provisions which would allow three thirds majority in the National Assembly to
alter non-contentious clauses of the Constitution without going to a
referendum.
69.5 percent of all eligible voters had
turned up to cast their ballot in the 1969 referendum.
And 85 percent of the total votes cast,
voted to modify the constitution.
Since the 1969 referendum, Zambians
spent the next 4 decades discussing issues surrounding the matter. The
discussions also included calls to hold a second referendum, but it never came
to fruition despite spending over 45 years of discussions.
Chairperson for the Grand Coalition for
a People- Driven Constitution, Sarah Longwe, told this blogger in an interview
that she was very sad that the referendum had failed.
“I feel so sad that the Bill of Rights
which we have been debating for many years failed,” she continued, saying
Zambians have been discussing the constitution since independence adding that
it’s a shame that the document could not pull through, “We have been discussing
this document for many years, we have a lot of material which we can use as we
seek to amend the Billi of Rights” Ms Longwe said.
However, many years after the first
referendum was held in 1969, Zambians through President Edgar Lungu managed to
secure themselves a referendum.
The country’s second referendum was held
on Thursday, August 11, 2016 alongside the 2016 general elections, a move
calculated to reduce the cost of holding the exercise.
The exercise was meant to get over seven
million Zambian’s to directly decide, “on whether they agreed to the
amendment to the constitution to enhance the Bill of Rights contained in Part
III, of the Constitution of Zambia, and to repeal and replace
Article 79 of the Constitution of Zambia?”
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| 2016 Gazetted Referendum Question . |
According to
the Referendum Act of Zambia, the proposal usually comes in form of a
question, framed in a manner which will require an electorate to
give no other answer other than YES, or NO.
The proposed changes to the Bill of
Rights included the amendments of the “Civil and Political Rights” and the
addition of “Economic, Social, Culture and Environmental Rights and Special
Rights”.
Many stakeholders tipped the 2016
proposed Bill of Rights as a very progressive piece of legislation.
But despite the proposed Bill of Rights
been viewed as a progressive document by many, it failed to garner enough votes
to guarantee its modification.
On August 19, 2016, Electoral Commission
of Zambia –ECZ- Chairperson Justice Esau Chulu, announced live on the Public
Service Broadcaster, ZNBC, that the referendum had failed because it failed to
meet the prescribed thresholds needed to guarantee its success.
For the referendum to pass ,a majority
‘YES’ vote was required together with a turnout of at -least 50 percent of
eligible voters. But that was NOT achieved, thereby rendering the exercise
unsuccessful .
Out of the 7 million 5 hundred and 28
thousand and 91 eligible voters, 3 million
3 hundred and 45 thousand, 4 hundred and 71 people, turned up to vote in the
referendum.
Of that number, 1 million 8 hundred and
52 thousand, 5 hundred and 59 people voted for a ‘YES’ vote. While 7 hundred
and 53 thousand, 5 hundred and 49 people voted for a NO vote.
The other 7 hundred and 39 thousand, 3
hundred and 63 votes were invalid.
And the Young African Leaders
Initiative-YALI- says it sad and painful to see the referendum fail, after
spending over 50 years of trying to secure it.
“This was the second time after Zambia
got its independence in 1964 that the country managed to go to a referendum,
and for the referendum to fail that way, I think it’s a huge missed opportunity.”
YALI President, Andrew Ntewewe said.
And the Law Association of Zambia- LAZ-
said they are pleased with the 2016 proposed Bill of Rights because it is an
expanded document with progressive law provisions.
Association Vice President, Eddie Mwitwa,
said LAZ is however disappointed that the Bill of Rights could NOT pull
through.
 |
| LAZ Vice President Eddie Mwitwa |
“As the Law Association of Zambia we are
obviously disappointed that the referendum failed, but at the same time we also
feel vindicated that what we had said prior to the referendum, to the effect
that we believed that the timing of the referendum was inappropriate has been
proved, we had advocated for the referendum to be held as a separate event away
from the elections.” Mr. Mwitwa said.
Mr. Mwitwa added that he is hopeful that
the right thing will be done.
“we hope that this is not the end of the
matter, we believe that as a country we still have time to do things right, it
was truly an expanded document .” Mr. Mwitwa added.
Since the announcement of the referendum
results on August 19, 2016, a lot of reasons have come out as to why the
document failed to secure requisite conditions to guarantee its alteration.
However, the Zambia Civic
Education Association feels the referendum failed, because it was forcefully
painted with a political brush which led the entire exercise to have a
political complexion.
“The referendum was politicized, a
referendum is different from other elections, it’s not really about losers and
winners, you don’t attach the winners and losers to people, but if you take
that issue to a political arena, you expect it to be politicized.” Zambia Civic Education, Executive Director,
Judith Mulenga said.
And Bishop John Mambo from the Church of
God in Zambia, who is also a member of the Grand Coalition on a People- Driven
Constitution, is of the impression that the referendum failed because the
Electoral Commission of Zambia –ECZ- allegedly failed to keep to its promise,
to have a separate stream for people who turned up to just vote in the
referendum in the August 11 General
The clergy man also said the referendum
failed because the contents of the Bill of Rights were allegedly not translated
in the 7 major local languages.
Meanwhile, the Young African Leaders
Initiative –YALI- is of the view that the referendum failed because a named
opposition Political Party is on record of campaigning against the referendum.
According to YALI, the failure by some Political
Parties to differentiate between national interest and partisan interest
steered some politicians to politicize the exercise.
On the hand Zambia Civic Education
Association revealed that the organization was geared to campaign for the
referendum ,but found it difficult to appear at rallies to carry out their
duties, for fear of been accused of siding with any Political Party.
“We were constrained, because if we, as
the Grand Coalition appeared at any Political rally, we would have been
misconstrued of supporting a particular party.” Miss. Mulenga said”.
And The Law Association of Zambia
largely attributes the failure of the referendum to lack of adequate
sensitization of the exercise.
The Associations says it was difficult
for people to vote for a YES or NO vote, because they were not aware of the
contents of the Bill of Rights.
Association Vice President Eddie Mwitwa
said in future authorities should also seriously consider translating
referendum campaign materials in all the 7 major local languages.
And
Chairperson of the Grand Coalition on a People –Driven constitution Sarah
Longwe feels holding of the referendum together with the General Elections
caused the relatively new phenomenon to be overshadowed.
 |
| NGOCC Board Chairperson Sarah Longwe. |
Miss Longwe
said Politicians were too busy campaigning for themselves and spent little time
talking about the referendum.
Notwithstanding
its failure to be adopted and added to the 2016 amended constitution, the 2016
proposed amended Bill of Rights still has progressive provisions, which
warrants the protection of various individual Rights and Freedoms.
These rights
and freedoms set out in the proposed Bill of Rights –are inherent in each
individual.
A Lusaka cleric, Bishop John Mambo
further noted that the failed Bill of Rights has robbed Zambians of an
Opportunity to hold their leaders accountable.
“It was something to keep us alert, it
was a hand book for all of us Zambians, it was a tool to hold all are leaders
accountable, and they would have also known that they were in office to serve.”
Bishop Mambo said.
The 2016 proposed Bill of Rights has
provisions that guarantee a person the right to access information held by the
State or another person which is lawfully required for the exercise or
protection of a right.
The State
shall not exercise control over or interfere with a person engaged in – in
broadcasting or the production or circulation of publications; or the
dissemination of information through any media.
And the Law
Association of Zambia-LAZ- feels the failure to amend the Bill of Rights, has
robbed the people of Zambia of an opportunity to have independent public media.
“From the
legal point of view, one thing we were very happy with as LAZ, is that our
colleagues in the media, the Bill of Rights was going to provide for the independence
of the media, your editorial content was going to be guaranteed, there should
have been no interference from anybody, whether it’s a government official, the
president or anyone.” Mr. Mwitwa said.
Furthermore,
the failed proposed Bill of Rights guarantees FREE education from kindergarten
to grade 12 as a right.
It also
guarantees young people access to gainful employment as a right, which must be
fulfilled and protected by the state.
But
the YALI observes that the failed referendum means that Free
Education and access to gainful employment is not a compulsory right.
This is
because education and employment are NOT considered as rights under the current
Bill of Rights, but are treated as mere privileges.
In spite of
the many reasons that led to the failed referendum, it is believed to have
robbed the Zambian people of an opportunity to give themselves a document to
enhance their individual rights; the million kwacha question that many
stakeholders might be asking is what NEXT?
“There needs to be consensus among
stakeholders, there needs to be a spirit of give and take, of listening and not
pretending you know it all…we need to agree as a people, once we agree
everything else we can surmount.” Executive Director at the Zambia Civic
Education Association, Judith Mulenga said.
 |
| ZCEA Executive Director. |
Miss Mulenga
added that the country needs to be united and agree on one thing before going
to a referendum.
“We can’t go
to the referendum divided, the Brexit was different, it was on one issue, on
one issue you can have for and against campaigners, its fine, but if you have
whole Bill, it needs a lot more thinking through.” Miss Mulenga added.
And the Law
Association of Zambia-LAZ- has challenged those who de-campaigned the 2016
referendum to avoid that route in future because a referendum is NOT a partisan
but national issue.
And the
Grand Coalition on a People- driven Constitution has suggested that Government
assembles a team of legal experts to rearrange technicalities surrounding the
Bill of Rights .
The coalition further suggests that this
should be accompanied by a road map on what route will be taken to have another
referendum as soon as possible.
However according to the Referendum Act,
the discretion to hold a national referendum is wholly vested in the Republican
President.
 |
| YALI President Andrew Ntewewe. |
Fully aware of that fact, the Young
African Leaders Initiative –YALI-has appealed to the Republican President,
EDGAR LUNGU, to forgo whatever happened in the recently held referendum and
organize another one before the 2021 elections.
The YALI feels President Lungu should
call for another referendum and make it his legacy.
Whether or not Zambia will host another
referendum waits to be seen, but one thing certain is that the people have a
major role to play in the progression of the country.
The power they carry through the ballot
cannot in any way be downplayed. After all, power to the people demands their
active participation in national matters mapping the social and economic
development of the country.
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