The cause of this discussion is to have a
rudimentary or passable understanding of how different countries resolve issues to do with sovereignty,
executive and judicial power. The space of an article might prove too lean for such a monumental
undertaking so few countries, the United States of America (USA), the Republic of South Africa (RSA),
Russia and Kenya at a distance, are observed. This first of three parts will focus solely on sovereignty.
Zambia will be used for reference. The easiest way to think of sovereignty is that it is the right to self-
determination exercised by nation states without the permission of another country. It is what gives
each state the freedom to exercise their electoral mandate through the institutions of governance,
commonly the executive, legislature and judiciary. Sovereignty is at once a confluence of national
identity, authority, consensus and the Constitution. One thing the 2016 Zambian Constitution made
obvious, more than other Constitutions, is that it plainly pointed to the people, the citizens, as
custodians of this great responsibility of sovereign power. In fact, Article 5 of the law proposes three
essential points about sovereignty in the local context: firstly, that it is vested in the people – as
mentioned above; secondly that sovereign power is conferred to state organs by the people; and that
any such power not conferred, is a privilege of the people; lastly, the people have the right to change
various laws through a referendum. To put it simpler, the existence of the state and its elected and
appointed officials is made possible through and by the consensus of the people. In addition, that
consent can be reversed or audited by the same people through the voting system. It is a Constitution
founded on people power, at least since August 1991 when the old Constitution was repealed to curtail
legal dictatorship. The Constitution, or law, is essential when discussing sovereignty because it tends to
define what sovereignty entails for different nations. Indeed, it projects a sense of national identity
more than other constitutional tenets. For example, Article 1 of the South African Constitution details
that their nation’s sovereignty is founded on, among others, human dignity, non-racial and non-sexist
values, human advancement and the supremacy of law. This text is reflective of South Africa’s history of
brutal oppression and the objective authority of the law over all citizens to ensure that legal segregation
never defines the country again. Most countries do not have the multi-racial and cultural complexion of
South Africa and the complications born from such a society. It makes sense, therefore, for sovereignty
to be reflected in value terms as an aspiration of a continued national bond in their context. Kenya’s
Constitution is closer to Zambia in that regard because it also deposits all sovereign power on the
people, who then delegate it to the state organs and its elected and appointed officials. Their Article 1
makes a distinction at parliamentary level so that it is representative of that country’s diversity. Of
course, each nation then describes the extent of its sovereignty. Very interestingly, most Constitutions
attend to sovereign power, its custodianship and matters of national identity in the first few articles of
their respective Constitutions. For the USA, what becomes obvious is the pre-eminence of its
institutions. For example, their Article 1 reads that ‘All legislative Powers herein granted shall be vested
in a Congress of the United States, which shall consist of a Senate and House of Representatives.’ It then
proceeds to define the composition of congress and how to ascend to congress through the electoral
system. This is slightly similar to South Africa in that the institution plus its purpose are more
pronounced and mentioned before the people. Observably, the institution is viewed as the pre-eminent
representation of national values which already reflect the will of the people. In short, the Constitutions
appear to anchor sovereignty on values than people, in general. Such systems could be reasoned to have
stronger institutions in some cases than those who readily identify people, than values, as a source of
sovereign power. The Russian Constitution (in Article 3) reads that ‘The bearer of sovereignty and the
sole source of power in the Russian Federation shall be its multinational people.’ This, again, takes
distance from the RSA and USA approaches. In the end, it comes back to sovereign power being
reflective of its own environment. For example, what works for the US may not augur well for Russia and
vice-versa. What appears to be essential liberal values in one Constitutional context could be less
important in another constitutional setting. Even for democracy, there must be a sense of embedded
value so that it is reflective of the will of the people in the domestic environment. Diverse societies in
countries like USA and South Africa are right to lean towards institutions so that expansive diversity has
a unitary point of reference. Each culture or race, if left alone, would create laws for their own existence
to the detriment of others – apartheid is an example. To conclude, I would propose that sovereignty is a
point of constitutional consensus of what a given nation stands for. The constitution of Zambia between
1972 to 1990 was silent on public interest so that it carried a singular will void of public interest. When
the nation became democratic, the august 1991 constituent opened the way so that public interest
remains the pre-eminent principle in our law.
Author
