Jun 26, 2012

Constitution Review: Part III

For this upcoming Saturday, June 30 our discussion will air live at 6 a.m. PST, 9 a.m. EST, 13 hrs GMT, 15 hrs CAT. These are the provisions we will be discussing: 

Equality before the law
45. All persons are equal before the law and have the right to equal protection and benefit of the law.

Access and right to Justice 

47. (1) A person has the right to access justice.
(2) A person has the right to have any dispute resolved and decided timely and to have a fair hearing before a court or, where appropriate, any other independent and impartial tribunal.
(3) Where a person has any claim or judgment against the State –
(a) the claim may be instituted by proceedings against the State; and (b) the judgment may be enforced by execution against the State, after one year of the delivery of the judgment. (4) The State shall be liable in tort to the same extent as a private person of full age and capacity. (5) A court shall not order any security for costs on matters of public interest litigation.

Rights of suspects and arrested persons 

48. Subject to Article 68, a person who is a suspect, arrested or detained for allegedly committing an offence has the right –
Rights of suspects and arrested persons
(a) to remain silent;
(b) to be informed in a language which that person understands of the –
(i) right to remain silent; and
(ii) consequences of remaining silent;

(c) to be informed, as soon as reasonably practicable, of the reasons for the arrest or detention–
(i) in a language which that person understands;
(ii) in the case of a visually impaired person, in Braille;
(iii) in the case of a deaf person, in sign language; or
(iv) in such other appropriate means of communication as may be prescribed by or under an Act of Parliament;

(d) not to be compelled to make any confession or admission;
(e) to be held separately from persons who are serving a sentence;
(f) to be brought before a court –
(i) within forty-eight hours after being arrested or detained, or to be released on bond or bail;
(ii) not later than the end of the first court day after the expiry of the forty-eight hours, if the forty-eight hours expire outside ordinary court hours, or to be released on bond;
(iii) on a day that is not an ordinary court day, or to be released on bond;
(iv) as speedily as possible, if that person is arrested or detained far from a court, or to be released on bond or bail;
(v) to be tried within ninety days or where appropriate, to be released on bond or bail; or (vi) which shall have the power to determine whether or not bail should be granted, either unconditionally or subject to reasonable conditions; and

(g) to be released on bond or bail, pending trial, on reasonable conditions, unless there are compelling reasons to the contrary, as determined by the court.

Rights of persons detained and in custody

49. (1) A person shall not be detained without being charged and tried, except during a war, public emergency or threatened state of public emergency.

(2) A person who is held in custody, whether sentenced or not, retains all that person’s rights and freedoms under this Constitution, except to the extent that a right or freedom is incompatible with the fact of being in custody.
(3) A person who is detained or held in custody is entitled to petition for a writ of habeas corpus. (4) Parliament shall enact legislation that-
(a) provides for the humane treatment of persons detained, held in custody or imprisoned;
(b) takes into account the relevant international human rights instruments on the rights of persons detained or in custody; and
(c) provides for the regulation of the prison system, its operation and maintenance.

Fair Trial

50. (1) An accused person has the right to a fair trial which includes the right –
(a) to be presumed innocent until the contrary is proved;

(b) to be informed, as soon as is reasonably practicable, of the charge with sufficient details to answer the charge-
(i) in a language which that person understands;
(ii) in the case of a visually impaired person, in Braille;
(iii) in the case of a deaf person, in sign language; or
(iv) in such other appropriate form of communication as may be prescribed by or under an Act of Parliament;

(c) to have adequate time and facilities to prepare a defence;

(d) to be present when being tried, unless the conduct or presence of the accused person makes it impossible for the trial to proceed;

(e) to have the trial commenced and concluded and judgment given without unreasonable delay;

(f) to compensation for wrongful detention or imprisonment;
(g) to choose, and be represented by, a legal practitioner and to be informed of this right before taking plea;

(h) to have a legal practitioner assigned to the accused person by the State and at public expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(i) to remain silent during the trial and not to testify during the proceedings;

(j) to adduce and challenge evidence;

(k) not to have illegally obtained evidence admissible in the trial;

(l) not to be compelled to give self-incriminating evidence;

(m) not to be compelled to make any confession or admission;

(n) to have, without payment, the assistance of an interpreter if the accused person cannot understand the language used at the trial, and in the case of a deaf person, a sign language interpreter;

(o) not to be charged, tried or convicted for an act or omission that was not, at the time it was committed or omitted, an offence under any other law;

(p) not to be tried for an offence in respect of an act or omission for which that person had previously been acquitted or convicted;

(q) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for an offence has been changed between the time that offence was committed and the time of sentencing; and

(r) of appeal to, or review by, a higher court.

(2) Where this Article requires information to be given to a person, that information shall be given-
(a) in a language which that person understands;
(b) in the case of a visually impaired person, in Braille;
(c) in the case of a deaf person, in sign language; or
(d) in such other appropriate form of communication as may be prescribed by or under an Act of Parliament.

(3) An accused person charged with an offence is entitled, on request, at any stage of the trial, to a copy of the record of the proceedings of the trial.

(4) A person who is convicted of a criminal offence is entitled, on request, to a copy of the record of the proceedings of the trial, within fourteen days after it has been transcribed.

(5) A person who is convicted of a criminal offence and whose appeal has been dismissed by the highest court to which that person is entitled to appeal, may petition the Supreme Court for a new trial if new and compelling evidence has become available.

(6) Where there is compelling evidence that a person, who has been convicted by a court, may be innocent of an offence, the State may petition the Supreme Court for it to examine such evidence and make a determination as to whether that person was guilty of the offence.

(7) The entry of a nolle prosequi is not an acquittal.
(8) Where a person in respect of whom a nolle prosequi has been entered is not charged on the same facts within twelve months of the entry of the nolle prosequi, the charge shall be void from the date on which that person was charged.

Jun 25, 2012

Podcast: Constitution Review pt II

Here’s the podcast from part II of our constitution review discussion on Zambia Blog Talk Radio. Enjoy!  


 

Jun 18, 2012

Constitution Review: Part II


For this upcoming Saturday, please note that our programming has a different start time. We will air live at 6 a.m. PST, 9 a.m. EST, 13 hrs GMT, 15 hrs CAT. I'm currently working to firm up plans for guest appearances with two locally based media practitioners to help drive the discussion. Stay tuned...

These are the provisions we will be discussing:

Freedom of expression

36. (1) A person has the right to freedom of expression which includes -
(a) freedom to hold an opinion;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity;
(d) academic freedom; and
(e) freedom of scientific research.

(2) Clause (1) does not extend to -
(a) propaganda for war;Freedom of expression
(b) incitement to violence;
(c) advocacy of hatred that -
(i) vilifies or disparages others or incites harm; or
(ii) is based on any prohibited ground of discrimination specified in this Constitution; or
(d) any other unlawful purpose.

(3) In the exercise of the right to freedom of expression, a person shall respect the rights and reputations of others.

Access to Information

37. (1) A citizen has the right of access to-
(a) information held by the State; and
(b) information that is held by another person; which is lawfully required for the exercise or protection of any right or freedom.

(2) A person has the right to demand the correction of untrue or misleading information recorded or published with respect to that person.

(3) The State has the obligation to publicise any information that is in the public interest or affects the welfare of the Nation.

Freedom of Media

38. (1) Freedom and independence of electronic, print and other types of media is guaranteed. 
(2) The State shall not-
(a) exercise control over, or interfere with, any person engaged in broadcasting, the production or circulation of any publication or the dissemination of information by any medium; or
(b) penalise any person for any opinion or the content of any broadcast, publication or dissemination.

(3) Broadcasting and other electronic media shall be subject to licensing procedures that are –
(a) necessary to regulate signals and signal distribution; and
(b) free from political or commercial interference.

(4) All State-owned media shall-
(a) be free to determine independently the editorial content of their broadcasts or communications;
(b) be independent and impartial; and
(c) afford fair opportunity for the presentation of divergent views and dissenting opinions.

(5) Parliament shall enact legislation to give effect to clause

Access to media

79. (1) A political party, an independent candidate and a person contesting for councillorship shall have equitable access to public and private media generally and during election campaigns.
(2) Parliament shall enact legislation to give effect to this Article.


Podcast: Constitution Review pt I

Below is the podcast for our first Constitution Review show on Zambia Blog Talk Radio. I'm happy to hear your thoughts on how to improve the next four segments. 




Jun 15, 2012

Constitution Review: Part I

Below are the provisions slated for in depth discussion during tomorrow's show on Zambia Blog Talk Radio, hosted by yours truly. 

The segment will air at 8 a.m. PST, 11 a.m. EST, 15 hrs GMT, 17 hrs CAT. 

Protection from discrimination

27. (1) A person has the right not to be discriminated against, directly or indirectly, on any grounds including birth, race, sex, origin, colour, age, disability, religion, conscience, belief, culture, language, pregnancy, health, marital, ethnic, tribal, social or economic status.

(2) Subject to clause (3), a law shall not make any provision that is discriminatory either of itself or in its effect.

(3) Any law or measure that provides affirmative action, in respect of any group of persons or sector of the society, in order to address discrimination based on birth, race, sex, origin, colour, age, disability, religion, conscience, belief, culture, language, pregnancy, health, marital, ethnic, tribal, social or economic status, shall not be construed as discrimination.

Right to life

28. (1) A person has, subject to clauses (2) and (3), the right to life, which begins at conception.

(2) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or any other law.

(3) A person may be deprived of life if that person has been convicted of a capital offence and sentenced to death.

(4) A person who is sentenced to death has the right to seek a pardon or commutation of the sentence.

(5) A court shall not impose a sentence of death on a convict –

(a) who is pregnant;

(b) who is a child; or

(c) where there are extenuating circumstances relating to the commission of the crime.

(6) A person shall not be regarded as having intentionally deprived another person of that person’s life if the other person dies as a result of the application of force to such extent as is reasonably justifiable -

(a) for the defence of property or any person from violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection, mutiny or as a result of war; or

(d) in order to prevent the commission by that person of an offence.

Protection from inhuman treatment

30. A person shall not be subjected to torture, cruel, inhuman or degrading punishment or other like treatment.

Freedom of religion and conscience

35. (1) A person has the right to freedom of conscience, religion, thought, belief and opinion.
(2) A person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, observance, practice or teaching.

(3) Clause (2) does not extend to-

(a) anti-Christian teaching and practice;
(b) propaganda to incite religious wars; and
(c) any conduct that infringes the enjoyment of religious freedoms by others.

(4) A religious community shall be entitled, at its own expense, to establish, maintain and manage educational institutions, facilities and programmes for, and to provide religious instruction to, members of that community.

(5) Religious observance and instruction may be conducted at State or State-aided institutions as long as –

(a) the facilities for that religious observance and instruction at that institution are made available on an equitable basis, having regard to the beliefs of the population served by that institution; and
(b) attendance, observance or instruction is voluntary.

(6) A person shall not be deprived of access to any institution, employment or facility, or the enjoyment of any right or freedom because of that individual’s religious beliefs.

 (7) A person shall not be compelled –

(a) to take an oath that is contrary to that individual’s religion or belief or that involves expressing a belief that the individual does not hold;
(b) to take an oath in a manner that is contrary to that individual’s religion or belief;
(c) to receive instruction in a religion that is not that individual’s religion or to attend a ceremony or observance of that religion;
(d) by a public body or public officer to disclose that individual’s religious conviction or belief; or (e) to do any other act that is contrary to that individual’s religion or belief.

Jun 12, 2012

Constitution Review: Let's do it!

It was announced this past weekend that the public review period for the 1st draft constitution has been extended to July 20. As I mentioned in my previous post, public engagement has been woefully low and since it’s not simply enough to identify a problem without proposing a solution, I have a new mini project.

Starting this upcoming Saturday, June 16, I will be hosting an hour long programme on Zambia Blog Talk Radio focused on highlighting various key provisions in this draft document. It is my intent to engage various subject matter experts to come on the show to help drive the discussions to ensure that we are speaking from a point of knowledge and not ignorance.

The show segment will air at 8 a.m. PST, 11 a.m. EST, 15 hrs GMT, and 17 hrs CAT. The live stream will be found here; I’ll also be sure to upload the podcasts.

If you’re interested in participating please see my initial draft schedule below, so you can read ahead and come prepared for robust conversations. Please provide feedback, as this schedule is flexible depending on demand. 


June 16

Part V BILL OF RIGHTS
Civil and Political Rights
Article 27 Protection from discrimination
Article 28 Right to life
Article 30 Protection from inhuman treatment
Article 35 Freedom of religion and conscience

June 23
Part V BILL OF RIGHTS
Civil and Political Rights
Article 36 Freedom of Expression
Article 37 Access to information
Article 38 Freedom of Media

Part VI Representation of the People
Article 79 Access to media (for political parties)

June 30

Part V BILL OF RIGHTS
Civil and Political Rights
Article 45 Equality before the law
Article 47 Access and right to Justice
Article 48 Rights of suspects and arrested persons
Article 49 Rights of persons detained and in custody
Article 50 Fair Trial

July 7 
Part V BILL OF RIGHTS
Civil and Political Rights
Article 51 Equality of both Genders
Article 52 Further rights for women
Article 54 Family
Article 55 Children

July 14
PART VI
REPRESENTATION OF THE PEOPLE
Electoral Systems and Process
Article 88 Legislation on political parties
PART VII
EXECUTIVE
Executive Power
Article 97 Election of President
Article 107 and 108 Vice-President   
Article 120 Ministers
PART VIII
LEGISLATURE
Legislative Function
Article 137 Qualifications for Members of Parliament
Article 160 Right to petition and make comments
Article 161 Public access and participation 

Jun 2, 2012

Are people engaged?

I have a bad feeling about the latest round of constitutional review. Beyond the initial buzz when the 1st draft was released on April 30, there isn’t a lot of conversation taking place that I can hear. Through Zambia Blog Talk Radio we engaged the committee spokesperson, Simon Kabanda, to share information about outreach, alternate formats available, submission guidelines, etc. This certainly piqued my personal interest.


Mr Kabanda was later quoted in local media bemoaning the slow trickle of submissions from the public and urging people to engage more vigorously in discussion on the document. At this time it’s difficult to say how far and wide the document has been made available, but I do know that the promised local language translations are not available and this is definitely a disadvantage for people who do not read English. We need people to be talking about this and fired up about what provisions they feel are the most important to them and for the country at large.

What worries me further about the whole process is the lack of a legal framework. The committee working on this review and drafting process, just like its predecessors, was appointed by the President, and they report directly to him. What happens then if he does not like certain provisions, what power would the committee have to put the wishes of the people above his? There isn’t a clear road map or even a budget allocated to this initiative, which to me spells further doom. Things as basic as how to conduct a referendum aren't even clearly stated. Are Zambians ready for another ill conceived process that will gobble up billions for a document that will go nowhere?

I have always wondered why we don’t put our efforts towards constitutional amendments targeting specific parts of the law that need revamping. This would cost less and would not continually stall bringing our laws up to speed with today’s current reality. Has this option been put on the table or are we so wed to the idea that entire constitution needs to be rewritten?

Anyway, I’ll do my part and submit my comments based on what I’ve read and understood. I will also add my voice to call for a clearer roadmap of the process in an attempt to course correct before it’s too late.