When a Constitution Forgets: A theory of interpreting Zambia’s constitution
E. Munshya, LLM, MBA, M.Div.
Surprise, surprise. Now that we have read the new constitution we are quickly realising just how much of a blessing, and a controversy it has become. I would be surprised if a constitution did not evoke opposite emotions and everything in between. Beginning from the Grade 12 qualifications to the omission of deputy minister positions, a debate is raging about the true meaning of many articles and provisions in this amended constitution. The battle lines are drawn. Honourable Chishimba Kambwili is undertaking a tour of the country to find out what the people think about the new constitution. Kambwili wants to propose more amendments to the amended constitution after he receives the feedback from the country. Just how that actually works, nobody knows. Current deputy ministers are in some sort of a limbo. They really do not know what it means now that the 2016 constitution has no direct provision of their existence. Civil servants are equally confused. The constitution states that civil servants who want to run for political office must wait three years after they leave the public service to be eligible. His Excellency Emmanuel Mwamba, as an example, cannot run in the next elections due to this ban. Last week I offered my opinion on the Grade 12 qualification. My interpretation of the Grade 12 requirements is that it is actually just for show and practically means nothing much. In view of all these issues, how would the High Court or the Constitutional Court look at these and many other issues? Every constitution should be interpreted within the purview of a certain theory of interpretation. I present one such theory.
Common sense is the first key to constitutional interpretation. Before you go about turning pages of the constitutional text, ask your self a very basic question. Am I willing to use common sense in this task? Without common sense you can not understand, apply or let alone interpret the constitution or anything for that matter. Common sense is the first article of every constitution. It is the foundation that must undergird any constitution. Common sense is the first gift of God to humanity.
The second element is that the text of Zambian constitution must be interpreted within the ambit of general principles of constitutionalism even if they are unwritten. In common language, we refer to the letter and the spirit of the constitution. The letter is the text of the constitution itself, the spirit is a collection of years of mostly unwritten constitutional thinking that go with it. These principles are such ideas such as the separation of powers, the independence of the judiciary, and the rule of law. These should then take us to the next point.
The third element of constitutional interpretation in Zambia, is an important presumption: drafters of the written constitution cannot “intend” to insult the spirit of constitutionalism. Here is an example. Constitutionalism entails that the Republic of Zambia must subsist as a political democracy and every text in the constitution must be interpreted in ways that affirm this principle rather than undermine it. If the people of Milenge cannot have among them a Grade 12, the article in the constitution that requires Grade 12 certificates must be interpreted in ways that do not defeat the political subsistence of the Milenge District Council. The municipality must survive. If the drafters drafted into our constitution a Grade 12 requirement that is impossible of performance in Milenge, it is incumbent upon the interpreters of the constitution to cure such impossibility, by giving it creative meaning that gives effect to the bigger picture of political and democratic subsistence.
The fourth element might sound counter-intuitive in view of what I have stated above. The words and phrases in the constitution must be interpreted in their natural meaning. We must not add to the text what the text has not included. For example, we cannot impose deputy ministers into a constitution that has deliberately “forgotten” to include them. Deputy ministers are not an integral part of constitutionalism and neither can they be saved by the principles enunciated above. The 2016 constitution has ignored deputy ministers; we should take the text of the constitution as it is, in this regard. Should we then as suggested by Mr. Tuta Ngulube, go back to parliamentary debates to check for the intention of parliament? Answering this question will lead us to the next point.
Fifth, the intention of parliament can only be expressed in two ways: either through the written text, or through the general unwritten principles of constitutionalism. Parliament can never intend to betray constitutionalism; however, its direct intent can only be gleaned from the text of its legislation, not by the debates. It is no use to try and justify the office of deputy minister by going to the debates of parliament during the adoption of the constitution. The text of the 2016 constitution does not provide for deputy ministers. They are not part of the constitution. They cannot be justified as a principle of constitutionalism, so they should not exist in Zambia. President Lungu should fire all deputy ministers as they are in office unconstitutionally.
These principles and many others will be critical to how the Constitutional Court of Zambia interprets this new gift President Lungu has signed into law. Constitutional interpretation is an orgy of ideas. The principles enunciated above hope to be part of that orgy.
Citation: Munshya, E. (2016). When a Constitution Forgets: A theory of interpreting Zambia’s constitution. Elias Munshya Blog (wwweliasmunshya.org) (January 29, 2016)