THE Bill of Rights should be simplified, packaged in easy-to-chew statements and spread everywhere — even on billboards, fliers and leaflets.
In the time left, the Electoral Commission should round up legal minds to dissect the language of learned and spread the Bill by all means to enable ordinary people to understand what the referendum will be all about.
There still is a little space to get all community radio stations to discuss crucial snippets of this proposed Bill in the same way that candidates are being interviewed for their electability. The Commission can manage to do at least that.
If the Bill is not debated, not scrutinized, not assessed in some detail, the Zambia that shall come out of the August 11 referendum shall be miserably beyond recognition.
We will start the discussion here:
Article 11 is supposed to be the ‘gatekeeper’ of the Bill of Rights, providing a sense of checks and balances against the intrusion of homosexual rights, incest rights, adultery rights, bestiality rights, abortion rights and other trendy isms from the West. But is it?
Article 11 (c) says, “The rights and freedoms which are consistent with this Constitution but not expressly provided for, except those that are repugnant to the morals and values of the people of Zambia.”
Two question marks arise from the outset.
Firstly, what are those ‘rights and freedoms which are consistent with this Constitution but not expressly provided for’?
Is a Constitution not supposed to ‘expressly provide for’ all rights and freedoms in clear terms, just as it should define punishable civil and criminal offences in clear terms?
Are there any hidden rights and freedoms waiting to be unveiled at the wrong time and place after August 11?
Secondly, that is the meaning of ‘except those that are repugnant to the morals and values of the people of Zambia?’
The term ‘repugnant’ is a matter of opinion, and it can be shut down on the basis that one man’s poison is another man’s cup of tea. The buffer that Article 11 should provide in this matter falls off because ‘repugnant’ can be turned left or right to favour the introduction of alien interests.
This provision should be strengthened or supported by the inclusion of a section that clearly states what rights and freedoms cannot find solace in the Zambian Constitution.
Article 13 (1) is a problematic provision. Clause (1) says, “Where legislation does not give effect to a right or freedom, the Constitutional Court shall develop human rights jurisprudence.”
In South Africa, it was the Constitutional Court that on December 1, 2005 extended the common-law definition of marriage to include same-sex spouses on the basis that the country’s constitution guaranteed equal protection to all citizens regardless of sexual orientation.
The court gave Parliament one year to level humps and bumps of inequality in marriage laws, and on November 14, 2006 the National Assembly passed a law permitting same sex marriages.
The matter started in 2002 when a lesbian couple Marie Fourie and Cecelia Bonthuys lodged an application to have their union recognized in the Pretoria High Court and recorded as a valid marriage at the Department of Home Affairs.
The Zambian Constitutional Court is a double-edged axe that needs proper definition so that it does not drag the republic into a bottomless black hole.
There has been a precedent here: In April 2012, a total of 115 gay couples caused a scene when they went to the Lusaka Civic Centre to register gay marriages contrary to the Marriages Act Cap 50.
They were turned away instead of being arrested in keeping with the law, meaning that the one who simply turned them away broke the law instead of bringing them to book.
Article 20 (2) cannot in a Christian Nation context be allowed to stand. It reads, “A person has the right, individually or in community with others, publicly or privately, to manifest any religion or belief through worship, observance, practice or teaching, including the observance of a day of worship.”
‘Any religion or belief’ permits ‘any’ religious belief that uses human sacrifice, involves sex orgies, consumes human blood, involves self-flagellation or self-torture, or promotes abuse of banned narcotics.
This article has gone to great lengths to protect what is done ‘privately’ if at all that activity cannot be done ‘publicly’ as stated.
Behold the language of Article 20 (3) which says, “Clause (2) does not extend to conduct or statements that infringe the enjoyment of freedom of conscience, belief and religion by others or that may incite religious wars.”
Does Article 20 (3) means therefore that no one shall question the beliefs or activities of any religion, in a multi-religious setting? If a religious group is seen to be intolerant, violent, suicidal, sexual indulgent, sexually perverted, drug abusive, improperly secretive or Satanic, should the group be let alone because of this provision?
Article 23 (1) says, “Subject to clause (3), the freedom and independence of electronic, broadcasting, print and other forms of media is guaranteed.”
This needs explanation because ‘guaranteed’ does not say who is giving the guarantee and to what extent.
The history of the media in Zambia shows that media rights and freedoms have always been guaranteed constitutionally while at the same time always been tampered with by successive governments and ruling parties. What is this ‘guarantee’?
Appearing under Further and Special Rights, Article 47 (1) and (2) state: “The State shall recognize and protect the family as the natural and fundamental unit of society and the necessary basis of the social order. A person who is nineteen years of age or older has the right to choose a spouse of the opposite sex and marry.”
As clear and progressive as this article is, it needs to extend the borders of its meanings. We are at a point where ‘the family’ needs direct and explicit definition. For example, ‘the family’ necessarily should be defined to be ‘a biological male father and a biological female mother and their biological offspring.’
Ludicrous as this may seem, note that on February 13, 2014, Facebook published 58 gender options for users.
While ‘male’ and ‘female’ have for centuries sufficed for you to identify yourself, it is now possible for you to opt for pronouns ‘him’, ‘her’ or ‘their’.
In this gay freedoms age, such options are making it possible for persons shunning their natural sexuality to present themselves as agender, androgyne, gender non-conforming, gender variant, genderqueer, intersex, male to female, neither, neutrois, binary, pangender, trans male, trans female, trans person, trans gender and even two-spirit. The list might have stretched beyond 58 as of today.
Two-spirit appeals to those individuals who have an ‘alter ego’ or alternative persona within themselves, which performs through them in public scenarios. That ‘alter ego’ is a demon, and that classification among gender options tells you how far into the outer wilderness this mentality is stretching.
Therefore if there are 58 options on the global social market, our Constitution cannot merely and ordinarily talk about ‘family’ and ‘the opposite sex’ when meanings have become extremely fluid.
Mind you, Africa alone has more than 400 million mobile phone subscribers and its market is larger than North America’s. Africa took the lead in the global shift from fixed to mobile telephones, notes a report by the UN International Telecommunications Union (ITU).
Add to that, there are two billion people online worldwide—and 100 million of those are in Africa—drinking in new ideas about what human sexuality ought to be.
That means legal and constitutional thinking in this country must take such dynamics into account so that delicate and unseen loopholes—microscopic to our minds but as massive as black holes to schemers beyond our borders—do not become our undoing tomorrow.
This contention does not mean there are no gays and transgender and two-spirit persons in Zambia; the point is to accord our society a chance to handle this matter culturally, morally and spiritually within a controllable space and within a manageable environment.
Who will help who should the laws have to bend to shelter all things unthinkable, merely because donor partners have already stampeded towards unlimited freedoms?
And if it is true that ours is a sovereign republic, we should be seen to mind our foundations and tell other nations to mind theirs.
Indeed, as the Bible asks in Psalm 11:3, “If the foundations are destroyed, what can the righteous do?” The Scriptures do not answer that question, meaning that if a nation reaches such a stage of loss, there is nothing that even the righteous can do.
Therefore we have on our hands a battle for our foundations on our hands.
It is in this sense that the Referendum should have been allowed to stand on its own, in its own right, so that voters do not cast their votes in terms of the political parties and their candidates.
The truth is plain and simple: The average supporter of the ruling party is bound to think that a Yes vote for the Bill of the Rights is the same as voting for the Patriotic Front; and a No vote is a vote against the party.
The same reasoning will extend to supporters of other presidential, parliamentary, mayoral and councillorship candidates.
That immediately takes away half of the voters’ discernment and objectivity towards the Bill of Rights, even if a No vote does not mean one is anti-PF, or that a Yes vote means one is pro-PF.
It can be proposed here that in the future, Zambia needs sufficient time and knowledge to venture into any landmark constitutional innovation.
One major proof that speed works to our disadvantage is the requirement that every candidate to an elective office must hold a Grade 12 certificate as a minimum academic qualification: within days after its enactment following the presidential assent of the new Constitution, parliamentarians rose against it.
Whether we are well prepared for a Bill of Rights, in the proposed form or in principle, is also in question. Evidence is there that even in the developed hemisphere, a Bill of Rights is not commonly perceived to be advantageous for a nation.
For instance, the Centre for Policy Development of Australia on March 26, 2006 published an article by Anthony Mason who said the main arguments for a Bill of Rights were that it would bring Australia into line with the rest of the world; and it would protect basic individual rights from interference by political (legislative and executive) interference.
Other advantages were principled judicial decision-making would replace political compromise; and government and administrative decision-making, on policy and other issues, would necessarily have close regard to basic individual rights.
But he also produced arguments against a Bill of Rights, which were: The majority will should prevail, whatever the circumstances; there is no need to provide further protection for basic rights; a Bill of Rights is foreign to our traditions; a Bill of Rights gives too much power to the judges; and a Bill of Rights will or may add to costs.
He said: “A constitutionally entrenched Bill would certainly give more power to judges than they have. It would enable the judges to override Parliament. But a statute-based Bill, which I favour, would not have that result; it would leave the judges with their ordinary role of interpreting the laws made by Parliament, but in the light of the Bill of Rights.
“A Bill of Rights in this form can be changed by Parliament. Parliament also has the capacity, by specific and clear language at any time, to override or qualify statutory rights. But if Parliament takes this course, it must confront the impact of its proposed law on the rights protected by the Bill and deal with that impact specifically. It can’t simply sweep the question under the carpet or exclude or qualify the rights by vague and general words.”
Notably, he argued: “Finally, a Bill of Rights should be confined to selected basic civil and political rights, such as freedom of expression, as New Zealand has done. It should not extend to social and economic rights, which are extremely controversial and essentially matters suited to political rather than judicial judgment.”
Given that the history of the Bill of Rights is the intent to protect ‘minorities,’ and today ‘minorities’ means many morally and culturally difficult things, the boulder is in our court.
Of course the August 11 shall not be the referendum to end all referenda, but the Republic of Zambia will in future be far better served if all governance interest groups start labouring to ensure that everyone in the entire Zambian polity gets the grips of legal and constitutional matters.