FeaturesHeadline News

INEQUALITY: A CONSTITUTIONAL PERSPECTIVE (PART 2)

By DARLINGTON CHILUBA

THE late Libyan leader Colonel Muammar M. Abu Minyar al-Gaddafi once opined in the 1990s that the flaw of democracy, or majoritarian rule, was the possible danger of neglecting the minority.

That the empowered majority tend to write or rewrite laws in their favour. Naturally, the rise of democracy during that period in Africa, Asia and Eastern Europe after years of brutal dictatorships easily dismissed this position as the fear of democracy.

After all, Libya did not ascribe to representative politics that changed leadership from top to bottom.  

The point being made then, was that it was possible to mislead the majority into making emotional electoral decisions that could impact how the law operated in future.

Majority decisions which were resultant of electoral victory had potential to incline to self-preservation above all, before attempting to include minority opinions. The end result is likely that any challenge to those hopes and ideals of the majority will read as threats to the nation and could be termed illegal or non-permissible.  

One practical example is the Kingdom of Saudi Arabia. Its constitution affirms, right at the beginning in Article 1 that the Constitution is the Holy Qur’an and the Prophet’s Sunnah (or traditions).

This means their text of law is divinely inspired and consequently void of human error. Since God (Allah) is perfect and his instructions infallible, it means that the constitution is perfect because it is not written by man but merely converted as law over a sovereign nation.

To oppose perfection, therefore, equates the opposition to being imperfect and fallible, a position that would have dire and telling consequences. 

To suggest inequality is to call the Qur’an and God imperfect. In this scenario, it is better to seek interpretation of law than accuse it of inequality.

For example, in 2019 women were finally allowed to drive in Saudi Arabia without a male companion after years of lobbying for interpretation of that law. Inequality can be optional at citizen level because conversion to Islam may be a personal choice than not. 

Part 2 of the Saudi constitution deals with the system of government that states that the government is monarchical and only the sons of the founder, King Abdul Aziz can ascend to the throne. The Qur’an was adopted as law by the founder of the Kingdom.

While this subject has enough content to write many a thesis, the point being elucidated is that this constitution is written for a specific people and nation, for their survival and comfort.

If one seeks to benefit from this law, they have to adhere to the law or seek interpretation in a way that does not undermine Allah – who is at the centre of their constitution. 

In Zambia, constitutional inequality has ignored its historical accuracy in terms of leadership and sought to focus, unreasonably, on religion.

Let us attend, first, to the perceived religious inequality per constitution. The declaration of Zambia as a Christian nation is more a living continuation to identify the nation with the perfect God than a hindrance to other beliefs.

The declaration does not create or legalise inequality on religious grounds because God is not a religion but a deity. It embodies and seeks to uphold the perfect nature of God who allows free will without suspending his laws and dictates; without condemnation but long suffering for correction to have its way.  

Secondly, the centre of power can be determined by the constitution as can be observed since 1964. Despite the first constitution stating who should be the first president of the independent nation, the most significant imposition of inequality on the constitution happened in 1973 with the introduction of the one-party state.

Power was legally reposed in an individual – the president. In that regard, only one citizen qualified to lead the country without challenge of tenure. All citizens were to be members of the ruling party to gain any economic or societal advantage.

There are copious notes on this matter and repetition will not suffice. It is nonetheless shocking how it is overlooked that citizens were made redundant and absent in their own nation. 

The 1991 Constitution was the first after the introduction of multi-partyism to legally renounce this most significant inequality in the distribution of power.

It removed power from being centred in an individual and distributed it to the three arms of government and the electorate. However, it is the 1996 Constitution that formalised and legalised the restoration of human rights, including subjecting the state and government to public interest.

These changes took place over a period of time to avoid reactive legislating. For example, the new government in 1991 won 125 of the 150 elected seats and had to rewrite parliamentary rules so that the former ruling party could be recognised as the official opposition; otherwise, they were below the threshold.

This, again demonstrated the need for equal representation at constituency level, irrespective of political party affiliation as was previously the case.   

The 1996 Constitution has been unfairly characterised as an attempt to exclude one citizen from contesting the highest office; instead of seeing it as an emancipated text in which the majority made decisions for the nation – something which was unheard of before 1991.

To say that the constitutional is void of inequality would be inaccurate. However, the constitutional template of 1996 cured the issue of legalised inequality by granting citizens the right to contest any perceived constitutional inequality.

That was the brilliance of liberalisation in this area. For in the discourse of constitutional inequality, there is no greater crime than to silence an entire nation while creating laws that favour only one individual.  

Back to top button