What does a “people driven” constitution mean? Every politician in Zambia says it means a constitution that reflects the will and aspirations of “the people”. Some important points:
1. There is no such thing as the “will of the people”. Only individuals have aspirations and wills. Any constitution that aims to reflect this abstract unreal idea of a “collective will” necessarily ends in a majority vote either by referendum or elected representatives. Such a vote will go against the wishes of many people therefore the idea of a “people driven” constitution is meaningless and moot.
2. The “will of the people” (which means the opinion of the majority of the people) is not necessarily correct. For example, the “people” may decide that terrorists should be allowed to operate within the country (Lebanon, Palestine, Afghanistan, Somalia) or they may decide that Communism should be the system of government used (Cuba, USSR, China). Majority views cannot be the standard to measure how a constitution should be framed.
3. The American consitution was drafted by a small group of men who used the original Articles of Confederation that were also drafted by less than 20 people. The draft had a strong philosophical foundation based on the writings of the European philosophers Montesquieu and John Locke. Locke, the 13th century English Philosopher wrote extensively on rights. The draft was debated, amended and signed. Today it has lasted over 200 years with less than 30 amendmends. It is not perfect but it has worked incredibly well.
4. The Constitutional Review Commission reports cannot form the basis of a constitution either, since they reflect the views of a small number of submissions compared to the whole population (point made by Chanda Chisala). So far, the 4 commisions have just been tools for the ruling government to set their agenda.
5. A good constitution should focus on individual (or natural) rights. Individual rights govern action in a social context and are non-coercive. This disqualifies the Economic, Social and Cultural “Rights” (Third generation rights) because they impose (by force) a burden on richer citizens to subsidise poorer ones.
6. The quickest and cheapest method of making a constitution is to use the American one as a template and adapt it slightly, keeping rights supreme. All the strong arguments were made in 1776 by the American forefathers and human nature has not changed since then.
7. Without sound political philosophy, you can never produce a good constitution. It is not about what “the people” want. It is about what is right.