ISSN 1027-7862 ZAMBIA LAW JOURNAL The Zambia* Constitution and tl Principles of Constitutional Autochthony and Supremacy C. Anyan< The State Security Act Vs Open Society: Does a Democracy Need Secrets? AW.Chandaida Refashioning the Legal Geography of the Quistclose Trust K. Mwenda The Criminal Process in Juvenile Courts in Zambia E. Simaluwani • 3ase Comment DJL RECENT JUDICIAL DECISIONS RECENT LEGISLATION The University of Zambia EDITORIAL BOARD General Editor Ngosa Simbyakula Chief Editor Alfred W.Chanda Associate Editor Larry N. McGill Members Patrick Matibini, John Sangwa, Amelia Pio Young Assistant Editor Christopher Bwalya, UNZA Press Notes to Contributors 1. Manuscripts should be submitted in triplicate, typed, with double spacing on one side of the page only. Contributors should also submit their complete manuscript on diskette, preferably in Microsoft Word 6.0 format. 2. Authors of manuscripts that are published in the Journal receive two copies of the Journal free of charge. 3. Manuscripts should be sent to: The Chief Editor Zambia Law Journal University of Zambia, School of Law P.O. Box 32379 Lusaka, Zambia 4. The Chief Editor can also be contacted by e-mail at: [email protected]. When possible, contributors should provide an e-mail address where they can be reached. Subscriptions Subscribers who are residents outside Zambia should send subscriptions to: Dr A. Milner Law Reports International Trinity College Oxford 1X1 3 BH England e-mail: [email protected] Published by the University of Zambia Press, P.O. Box 32379, Lusaka, Zambia. Typeset and designed by the University of Zambia Press, Lusaka, Zambia. THE SCHOOL OF LAW DEAN: R.N. Simbyakula, SJD Wis., LLM, LLB, DiplCivEngZambia, AHCZ ASSISTANT DEAN (POSTGRAD): E. Simaluwani, PhD Lond., LLM Simon Fraser, LLB Zambia, AHCZ ASSISTANT DEAN (UNDERGRAD): A.W. Chanda, JSD, LLM Yale, LLM, LLB Zambia, Diploma in Hum. Rights Lund, AHCZ ADMINISTRATIVE ASSISTANT TO THE DEAN: S. Mwape, BA Zambia Academic Staff: Associate Professor: C. Anyangwe, PhD, LLM Lond., LLB Yaounde Senior Lecturers: M.B. Kamuwanga, SJD, LLM Wis., LLB Zambia, AHCZ R.N. Simbyakula, SJD Wis., LLM, LLB, DiplCivEng Zambia, AHCZ F. Nga'ndu, PhD London, LLM NY, LLB Zambia A.W. Chanda, JSD, LLM Yale, LLM, LLB Zambia, Diploma in Hum. Rights Lund, AHCZ Lecturers: D.A. Banda, LLM Lond., MLE Aberdeen, LLB Zambia T.K. Mabula, PhD Lond., LLM Harv., LLB Zambia, AHCZ P. Matibini, LLM, LLB Zambia, AHCZ E. Mulembe, LLM Lund., LLB Zambia, AHCZ M. Munalula, LLM Zambia, MA ISS-The Hague, LLB Zambia, AHCZ J.P. Sangwa, LLM, LLB Zambia, AHCZ E. Simaluwani, PhD Lond., LLM Simon Fraser, LLB Zambia, AHCZ L.N. McGill, JD Cornell, B A Louisville K. Chanda, LLM Lond., LLM, LLB Zam£/a, AHCZ Special Research Fellow: N. Mukelabai, LLM, LLB Zambia, AHCZ Staff Development Fellows: L. Kalinde, LLB Zambia, AHCZ A. Ngenda, LLB Zambia, AHCZ F. Mudenda, LLB Zambia, AHCZ © 1997 The University of Zambia Published by the University of Zambia Press P.O. Box 32379 Lusaka, Zambia ISSN 1027 - 7862 Volume 29 1997 ZAMBIA LAW JOURNAL ARTICLES Page The Zambian Constitution and the Principles of Constitutional Autochthony and Supremancy 1 The State Security Act Vs Open Society: Does a Democracy Need Secrets? 33 Refashioning the Legal Geography of the Quistclose Trust 48 The Criminal Process in Juvenile Courts in Zambia 71 CASE COMMENT 89 RECENT JUDICIAL DECISIONS 96 RECENT LEGISLATION 113 THE ZAMBIAN CONSTITUTION AND THE PRINCIPLES OF CONSTITUTIONAL AUTOCHTHONY AND SUPREMACY By Carlson Anyangwe* Summary This article discusses, in relation to the Constitution of the Republic of Zambia, the principles of constitutional autochthony and the supremacy of the constitution. The article contends that the Zambian Constitution is substantively, but probably not procedurally autochthonous. It also argues that the concept of parliamentary sovereignty in the sense of Parliament being 'sovereign' and legislation by it being inviolable has no place under Zambia's Constitution. It further argues that the Constitution, being the supreme law of the land, lowers above all norms, persons, authorities and institutions in the State and is unsufferable of any legislation inconsistent with it. The article opens with an introduction which notes the fact of constitutional instability in the African continent and gives a synopsis of the genesis and drafting style of Zambia's fourth Constitution in thirty- two years. The main body of the article focuses on the following matters: legal continuity; autochthony; legitimacy; the subordination of all persons, institutions and legislation to the Constitution; the juridical status of the preamble and the justiciability of its provisions. By way of conclusion, the article briefly refers to three topical matters that recent African constitutions now appear to be paying closer attention to, namely, chieftaincy, the opposition and alteration of the Constitution. I INTRODUCTION With the next millenium just around the corner, governance in Africa is basically still by trial-and-error methods; accession to political power is still very much by bullet rather than by ballot; single-party hegemony is by no means dead and buried; and governments continue to be unstable, political systems precarious and constitutions transient. A, Constitutional instability in Africa Since the 1960s when most countries in Africa achieved independence there has been a remarkable output of national constitutions in almost every state in the continent. The tragedy, though, is that most of these * LLB (Yaounde), Diplome de Droit Compare (Strasbourg), LLM (London), PhD (London), Associate Professor of Law, School of Law, University of Zambia. 2 THE ZAMBIAN CONSTITUTION constitutions tend to be seriously deficient in quality and in meeting the legitimate expectations of the people for which they are drafted. More often than not, they correspond to the particular taste of succeeding political regimes. Introduced and adopted at fairly short intervals, they are always short-lived. The result is chronic constitutional instability in the continent. Generally drafted by a political coterie, in a hurry, upon a calculation of exigencies, without meaningful public participation and without even consultation with other major stakeholders, many of these so-called constitutions are often a mere collection of rules of convenience administered by each ephemeral regime. They never really constitute the legal basis of the states themselves. Aware of the precarity of his own power and the fleeting nature of his own regime, each succeeding head of state never bothers to produce a durable constitution. Consequently, the basic law of many an African state has become a precarious document that inevitably perishes with the particular regime which introduced it. B. Zambia's fourth Constitution in thirty-two years l. Genesis In 1991, Zambia reverted to political pluralism, thereby ending a 17-year one-party interregnum that began in 1972. Multiparty democratic elections organised in the country in October 1991 were won by the newly formed Movement for Multiparty Democracy (MMD) political party. The MMD Government came to power pledging, inter alia, to put in place a constitution which would be above partisan considerations and reflect high goals of national interest. On 22 November 1993, in exercise of the powers under the Inquiries Act, Chapter 181 of the Laws of Zambia, the Zambian President, Mr FTJ Chiluba, appointed a commission to review the Constitution of Zambia. The commission, which became known as the Mwanakatwe Constitutional Review Commission, was gazetted under Statutory Instrument No. 151 of 1993 as amended by Statutory Instrument No. 173 of 1993. The technique of a constitutional review commission is not new. Zambia had had constitutional review commissions before: the Chona Commission in 1972 and the Mvunga Commission only as recently as 1990. However, the innovation in the Mwanakatwe Commission lay in the wide scope of its terms of reference. These were sufficiently broad and generous to accommodate all shades of opinion aimed at securing individual liberty and advancing the cause of an open, free and democratic society. The Commission was granted power to make reference to the constitutions of other countries, that is, to borrow therefrom. The Commission was also granted liberty to make recommendations on the THE ZAMBIAN CONSTITUTION 3 substance and mode of adoption of the Constitution. These terms of reference were clearly wider than those that had been given by the ousted UNIP Government to either the Chona or Mvunga Commissions. The Mwanakatwe Commission was given this broad mandate to enable it to consider provisions which would help the country create an open, transparent and democratic society and a constitution that would 'stand the test of time.' The Commission travelled extensively throughout Zambia between March and September 1994 and conducted forty-six public sittings in all the nine provinces of the country, attracting a total of roughly 1000 petitioners.1 In June 1995, the Commission submitted its Report to Government,2 which studied it and published its reaction thereto a few months later3. Then there followed another period of heated public debate on the Report and Government's White Paper on it. Eventually, in February 1996 those of the Commission's recommendations which were pleasing and acceptable to the Government were incorporated in a Bill 'to amend the Constitution of Zambia.' The Bill sailed through the National Assembly without a hitch. It was enacted as the 'Constitution of Zambia (Amendment) Act No. 18 of 1996' and was promulgated by the Republican President. In legal theory, therefore, the Government did not abrogate but merely amended the 1991 Constitution. In reality, only Part III of the 1991 Constitution survived repeal. Every other part, including the Preamble, was repealed and then replaced. In fact, the last four parts of the 1991 Constitution (Parts VI, VII, VIII and IX) were repealed and nine parts (Part VI to XIV) substituted therefor. Thus, whereas the original 1991 Constitution had nine parts, its amended version has fourteen.