Zambia: Does Draft Constitution Guarantee Women’s Rights?
THE time is crucial for Zambians. Their decisions today will determine the years or perhaps decades ahead.
The country is drafting its new Constitution.
Zambians, especially women, should be more watchful as the choices made now will decide the kind of life they and their next generation will be living.
The Constitution Review Committee’s proposal to repeal gender discriminatory Article 23 should be welcomed whose clauses (4)(5) and (7) allowed for discrimination on the basis of custom and other traditional practices in areas of marriages, inheritance and death (burial rights).
The Committee has taken a step to repeal the Article 139 (13) that subsumed feminine gender in the masculine gender and rendered women invisible.
But there is more to be done for the women of Zambia.
Women must be provided full rights relating to their health and reproduction. The first draft of the Constitution provides contradictory provisions for the reproductive rights of women.
Article 52 states that without limiting any right or freedom guaranteed under the Bill of Rights, women have the right to reproductive health. But in Article 28 (1), the proposed draft says that a person has the right to life, which begins at conception.
Determining the point of fertilisation is medically-difficult and if assumed that life begins at conception, it would compromise the human rights of women.
These two articles contradict each other and if read with Article 317, the later can lead to restrictions as a result of which reproductive health services and procedures may become unconstitutional in Zambia.
Other African constitutions have provided women these rights too. In South Africa, for example, although the Constitution does not mention abortion, the two sections of the bill of rights give women these reproductive rights. Section 12(2) and section 27(1)(a) implicitly guarantee this right to women.
Constitutions of Tanzania and Uganda also accept the rights if the life of a woman is in danger. Kenyan Constitution approved in 2010 accords women this right in Article 43 (1) (a).
Zambia is also under international commitment to guarantee this right to women. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that Zambia ratified in 1985 provides that States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
The Constitution must also provide equality and non-discrimination as a non-derogable right. The first draft does not expressly mention equality or proscribe unfair discrimination as a non-derogable right. Article 69, relating to non-derogable rights and freedoms proposals does not mention equality or non-discrimination as a non-derogable right.
Other African constitutions have guaranteed provision of such equality among genders.
The constitution of South Africa expressly provides against unfair discrimination and counts it as a non-derogable right. Article 9 says there cannot be any discrimination on the grounds of race, colour, ethnic or social origin, sex, religion or language. This article is a part of the Table of Non-Derogable Rights.
In Malawi, according to Article 45.3 of the Constitution, women rights are non-derogable rights that are included in the Chapter IV. The Constitution does not provide for specific women representation in National Assembly and District Councils. Article 136 of the proposed draft that deals with the composition of the National Assembly does not specify any seats for women.
Although the initial draft ensures women representation in Parliamentary Service Commission, Judicial Service Commission, Provincial Assembly, it does not guarantee women representation in National Assembly and District Council.
The constitution is vague on women representation and it is possible that there will not be enough numbers in Parliament if the Constitution does not specifically provide for the seats for women. The proposed draft is also vague about women representation in the political parties.
The number of women in National Assembly has declined over the years. In the 2011 Elections, there were only 17 women elected as compared to 141 men that make for 10.76 percent of the total seats.
Zambia is a party to the Southern African Development Community (SADC) Declaration on Gender and Development (SADCGD (1997) which provides for, amongst other measures, the achievement by member States of a new minimum target of 50 percent women in politics and decision-making positions by 2005.
It is time to fulfil the commitment now.
Moreover, some Constitutions in Africa do ensure women representation in their Parliaments. The Constitution of Tanzania allows for reserved seats through its Article 66. 1(b) and Article 78.1. Ugandan Constitution also ensures women representation in Parliament for each district through Article 78(1) and one-third membership in its local governments through Article 180. The new Kenyan Constitution passed in 2010, through its Article 81 (b) of maintains a one third requirement for either gender in elective bodies giving women of Kenya at least 1/3 minimum in elective public bodies.
The proposed Zambian draft must also specifically include the right to be free from ‘gender- violence’. It does not mention gender violence expressly in the Bill of Rights.
Its Article related to security rights does not include ‘gender violence’. Although addition of “gender violence” was considered and reviewed by the Constitution Review Committee (mentioned in report on page 136,137), it was recommended that the provision should be maintained without addition.
Zambia is required by Convention on the Elimination of All Forms of Discrimination against Women to ensure measures to eliminate violence against women. Although CEDAW does not contain an explicit reference to violence against women, the CEDAW Committee has issued a General Recommendation (No. 12 eighth session, 1989) that states that violence directed against a woman recognised and addressed as discrimination under the convention.
The proposed draft interestingly, does not guarantee provision of socio-economic rights.
The language is vague is Article 61, which provides that Parliament shall enact legislation that provides measures, which are reasonable; to achieve the progressive realisation of the economic, social and cultural rights and in such matters, where the state cannot fulfil its duty, the constitution court cannot interfere. Zambia is under commitment to ensure provision of socio economic and cultural rights especially to women.
Article 3 of CEDAW says that States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women.
The making of the Constitution is a choice to decide about the future. The proposed draft should reflect the future goals and aspirations of Zambians, especially women.
Zambia also has this opportunity to fulfil its international commitments and follow the leading examples of other African constitutions. The making of this Constitution is a chance to rectify wrong notions embedded in customs, laws and mind-sets about women.
Zambians, especially women, should make the most of it.
* The author is a freelance journalist based in New York, United States currently pursuing a Masters Degree programme in International Law and Justice at Fordham University.