… The case of Article 17 of the National Dialogue Bill, 2019
Jeff Mbewe
There is debate over Article 17 of the recently passed National Dialogue (Constitution, Electoral Process, Public Order and Political Parties) Bill, 2019.
The article in question criminises refusal to appear before the Forum or Committee provided under the National Dialogue Bill.
For avoidance of doubt, Article 17 states;
(1) A person commits an offence who, when required to attend before the Forum or before a committee or to produce any document or supply any information that is required by the
members—
(a) absents oneself from a meeting or sitting of the Forum or any committee without reasonable excuse and the permission of the Chairperson;
(b) refuses or fails, without sufficient cause, to produce any document or supply any information in the person’s possession or under the person’s control and mentioned or referred to in the notice served on the person; or
(c) knowingly gives false information to the members or to the members of a committee.
(2) A person convicted of an offence under subsection (1) is liable to a fine not exceeding fifty thousand penalty units or to imprisonment for a term not exceeding six months, or to both.
Some people have gotten excited with this piece of legislation, and hope that it will compel certain targeted individuals to appear before the committee or forum, against their wish.
However, the truth is the opposite.
The Constitution of Zambia is the supreme law of this country. Therefore, there is no any piece of law that reigns above it.
Article 1 of the Constitution of Zambia states;
- (1) This Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent
of the inconsistency.
(2) An act or omission that contravenes this Constitution is illegal.
(3) This Constitution shall bind all persons in Zambia, State organs and State institutions.
(4) The validity or legality of this Constitution is not subject to challenge by or before a State organ or other forum.
The supremacy of the constitution above all other laws is espoused by many cases decided on, before the Zambian Courts such as Wina and Others v Attorney General 1990 – 1992 Z.R 95 (H.C).
In this case, then Republican President Kenneth Kaunda at a press conference issued a directive that Government owned newspapers must not cover the Movement for Multiparty Democracy and its leaders.
The petitioners appealed to the court to quash Kaunda’s directive for violating Article 22 and 25 of the Constitution of Zambia, which guarantee freedom of expression of the people.
Today, a Bill has been passed that seek to force people to appear before the Forum even when they feel they should not be part of it.
Forcing people to attend the National Dialogue created forum or committee is similar to forcing a suspect before court, to answer questions asked to him or her by the prosecution even when such a person has the right to remain silent without answering anything.
Article 17 violates the Constitution of Zambia, which is the supreme law of this country. Therefore, those who will be asked to appear before the Forum or Committee established under the provision of the National Dialogue Bill but do not want to be part of this circus, cannot successfully be found guilty under Article 17 of the National Dialogue Bill, 2019 because it violates the Bill of Right enshrined in the constitution of Zambia.
Article 38 section 2 says no one shall be compelled to belong to any association. In this regard, no one shall be forced to be part of an association or organization they do not want to be part of.
The writer is a Law Student.
