Zambian review marred by frustration

Zambia’s Constitutional Review Process began with a lot of expectations and hope from the women’s movement in Zambia, but has ended up being a frustrating experience, according to activists in the country.

Some of the submissions made by the women were well captured in the Mung’omba Draft Constitution of 2005 but have been left out of the June 2010 Draft Constitution of Zambia Bill, 2010.

The SADC Protocol on Gender and Development in Article 4 provides that state parties shall by 2015 endeavour to enshrine gender equality and equity in their Constitutions and ensure that these rights are not compromised by any provisions, laws and practices.

From 2000 Zambia has been undergoing a Constitutional review to repeal the Constitution of Zambia Act, 1991. Every Constitutional review provides an opportunity to ensure that the provisions of the SADC Protocol, and indeed other standard-setting regional and international instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Union Charter on the Rights of Women in Africa, are included.

Some of the notable omissions include

a) Part III National values, principles, objectives and directive principles of state policy

b) Article II
This Article on socio-economic values, principles and objectives had in its sub section (h) provided that “the state shall recognise the significant role that women play in the socio-economic development of society”. The final draft has dropped this.

c) Part VI – Bill of rights
Article 80 of the 2005 draft had included 80(i) special measures for achieving gender equality “The Government shall take special measures aimed at achieving equality between women and men which measures shall not be construed as discrimination…”

(2) Special measures include (a) measures with respect to the participation of women in public and political life, access to justice, education, employment, health, acquisition of land, economic benefits, equality before the law, marriage and family relations and (b) measures for rural women to enjoy the civil and political rights and economic, social and cultural rights enshrined in the Constitution.

(3) Parliament shall enact legislation to ensure that the obligations of the Government contained in this Article are honoured.

(4) In this Article “women” includes girls
We were all hopeful that Parliament would have enacted the 50/50 legislation for women’s representation according to the SADC Protocol on Gender and Development; however this Article has also been lost in the final June 2010 draft.

In addition the June 2010 draft Constitution has included in the Civil and Political Rights in Article 40(i) the Right to life, which begins at conception and has implications on the Termination of Pregnancy Act, especially with regard to issues of choice by women, including those who want to terminate their pregnancies due to rape or being underage or just not being ready for the pregnancy.

The claw back clause that we had all hoped would be left out is back in the new draft while Article 48(i) provides protection from discrimination on grounds of race, tribe, sex, pregnancy, origin, colour, age, disability, religion, conscience, belief, political opinion, culture, language, birth or health, marital, ethnic, social or economic status.

(2) Clause (i) shall not apply to any law in so far as that law makes provision:
(d) With respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law.

More importantly the 2005 draft Constitution had factored the protection of women and further rights for women. Article 79(i) “Without derogating from any other provisions of this Constitution, women shall be protected against discrimination and are guaranteed the right to exercise and enjoy the rights enshrined in this Constitution on the basis of equality with men.”

(2) All laws customary or regulatory that permit or have the effect of discrimination against women are hereby declared void. In the final draft this aspect has been left out.

However, the draft Constitution also has some positive additions, such as the age of marriage has now been pegged at 18 years in line with the Convention on the Rights of the Child’s age of majority. It has also provided for equal rights in marriage, during the marriage and at the dissolution of marriage. Though Article 52(5) says marriage between persons of the same sex is prohibited.

It has also provided for the equality of both genders, 49(i) women and men have the right to equal treatment including the right to equal opportunities in cultural, political, economic and social activities.

(2) Women and men have equal rights to:
a) Inherit, have access to, own, use, administer and control land and other property;
b) Choose residence and domicile;
c) Choose a family name.
(3) Women and men have equal rights with respect to marriage.
(4) Any law, custom, culture or tradition that undermines the dignity, welfare, interest or status of women or men is prohibited.

50(i) All children, whether born in or outside wedlock, are equal before the law and have equal rights under this Constitution.

Overall, the final draft has been watered down to levels where the women’s movement feel cheated out of all the positive articles contained in the first draft, as well as the many submissions which they had made.