ZAMBIA TRIES TO SNEAK THROUGH CONSTITUTIONAL

C O N F I D E N T I A L SECTION 01 OF 02 LUSAKA 000118 SIPDIS STATE FOR AF/S LAYLWARD E.O. 12958: DECL: 12/31/2020 TAGS: PGOV ZA SUBJECT: ZAMBIA TRIES TO SNEAK THROUGH CONSTITUTIONAL REFORM BEFORE 2011 ELECTIONS REF: A. 08 LUSAKA 840 ¶B. 08 LUSAKA 738 Classified By: Ambassador Donald E. Booth for reasons 1.4 (b,d) ¶1. (C) Summary: Zambia's National Constitutional Conference (NCC),which has been sitting at intervals since January 2008, likely will conclude its deliberations by the end of April. The Zambian government (GRZ) still has much work to do to enact a new constitution, and although it may seek parliamentary approval of a new or amended constitution this year, it is questionable whether it will be ratified before the 2011 general elections. To date, the NCC has cost the GRZ over USD 20.2 million with few accomplishments to show for it. Its draft constitution differs little from the current one other than clauses that appear to benefit the ruling Movement for Multiparty Democracy (MMD). Given public criticism of the rising costs and lengthy deliberations of the NCC, the GRZ may try to amend the current constitution with the clauses approved by the plenary, or enact the new constitution without the controversial provisions. End summary. ¶2. (SBU) Approximately 600 NCC members met intermittently in committees since January 2008 and produced reports on various constitutional issues that were presented to the plenary session for adoption. The plenary will resume meeting in April, after the current parliamentary sitting. The NCC is expected to submit in August its draft constitution for review by the Minister of Justice (MOJ),who may then submit it for national referendum before referring it to the National Assembly for approval. ¶3. (SBU) By law, the new constitution must go to referendum if it contains changes to the Bill of Rights, if the plenary fails to agree on certain provisions, or if the NCC or MOJ decides it should. Cost constraints and political interest prompted the GRZ to introduce to the National Assembly on February 24 a proposed amendment to the NCC Act expediting the dissemination and adoption of the new constitution. If it passes (as is likely since a simple majority is required), the NCC would present its draft (without the controversial clauses) on March 19 to the National Assembly for approval, which requires a two-thirds majority. This would enable the GRZ to ignore the referendum. If this fails, the GRZ may also try to amend Zambia's current constitution to include new clauses adopted by the NCC. However, the GRZ lacks a two-thirds majority in the National Assembly needed to either enact or reform the constitution, and attempts to circumvent the referendum could alienate badly needed support from opposition parties. ¶4. (C) Although the GRZ has spent over USD 20.2 million to date on the NCC, the body has made little substantive progress (ref A),and its plodding and oft delayed work has all but prevented the adoption of a new constitution before the 2011 presidential, parliamentary, and local elections. Its working draft differs little from the 1996 constitution now in effect. The NCC has, to date, added the following new provisions to the draft constitution: -- A presidential candidate must have a university degree from an accredited institution (a thinly veiled attempt to exclude the MMD's main rival, the Patriotic Front's Michael Sata); -- A former president's immunity from prosecution should be restored once his/her case has been cleared by a court of law (a nod to President Chiluba, whose support President Banda has been soliciting for the next election); -- The National Assembly has been empowered to enact legislation for the establishment of an independent body to regulate broadcasting of the electronic media in the interest of the public; -- Same sex marriages are prohibited (homosexuality is already illegal in Zambia); -- The National Assembly has been empowered to initiate the removal of the President on grounds of incapacity; and -- The number of National Assembly seats has been increased from 158 to 280 (more 'jobs for the boys' means each MP of the relatively powerless parliament will represent less than 45,000 Zambians, compared to a U.S. congressman, who represents almost 700,000 Americans). ¶5. (SBU) The NCC rejected the following recommendations from a 2007 draft constitution: -- A clause permitting candidates to run vice presidential running mates (rather than selecting one after the election, as is now the case); LUSAKA 00000118 002 OF 002 -- A clause that would have guaranteed citizens the right of access to information held by the GRZ (supporting the GRZ's resistance to passing a Freedom of Information bill); -- A clause that would have allowed political parties to merge (again, a direct blow to the possible merger of the opposition PF and UPND parties); and -- A clause that would have given the National Assembly oversight on accrual of loans and debts. ¶6. (C) The NCC also referred the following issues to national referendum for voters to decide: -- The 50-percent-plus-one threshold for a presidential candidate to win election (the rejection of which is thought to be in MMD's favor, as it won by very slim plurality in the last election against several other candidates) (ref B); -- Whether the executive or legislature should create new ministries and increase the number of ministers and their deputies; and -- Whether incumbent MPs must vacate their seats when they join another political party or if their party joins a political pact. ¶7. (C) Comment: Given that the NCC has stretched out for twice the time envisioned in its authorizing legislation, and the public is crying foul over the rising costs, the GRZ may try to amend the current constitution with the clauses approved by the plenary, or enact the new constitution without the controversial provisions (possibly delaying the referendum on the controversial pieces until after the next election). The fact is, however, that the NCC, heavily stacked with MMD supporters (partly due to a boycott by the main opposition PF party),has approved only those provisions in the MMD's interest and rejected those that favored the opposition. Even a new constitution, if it ever emerges, cannot help but be a partisan document that benefits the ruling MMD and fails to strengthen Zambia's fledgling democracy. BOOTH