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Published online by Cambridge University Press: 28 July 2009
In the leading South African case of The State v. Makwanyane and Mchunu, Ishmail Mohamed, J., (as he then was) with his characteristic eloquence observed that
“all Constitutions seek to articulate, with differing degrees of intensity and detail, the shared aspirations of a nation; the values which bind its people, and which discipline its government and its national institutions, the basic premises upon which judicial, legislative and executive power is to be wielded; the Constitutional limits and the conditions upon which that power is to be exercised, the national ethos which defines and regulates that exercise, and the moral and ethical direction which the nation has identified for its future” (at para. 262).
1 1995 (3) SA 391 (CC);Google Scholar 1995 (6) BCLR 665 (CC).Google Scholar
2 The Commission was named after its chairperson, a respected lawyer and veteran Cabinet Minister during the first and second republics.
3 A copy of the draft constitution was published in The Post, 16 May, 1995.
4 S. 79(3) of the Constitution of Zambia, 1991 provided, inter alia, that a bill for the alteration the Bill of Rights could not be passed unless before the first reading of the bill in the National Assembly it had been put to a national referendum.
5 As quoted by The Citizen, 21 June, 1996, Chiluba added: “the constitutional amendments recently came into force and the procedures followed were handled within the context of the provisions of the existing constitution, and everything provided for in the constitution was more than complied with.”
6 Kaunda, K.D., as quoted by the Zambia Daily Mail, 29 05, 1996. He vowed that henceforth Zambia was on fire “until they change that stupid law”.Google Scholar
7 The major donor nations led by the United Kingdom, the United States of America and the Scandinavian countries, gave an ultimatum to the Zambian government to restore good governance within seven days or forget foreign aid. The Sunday Mail, 2 June, 1996. They have gone on to freeze donor aid and balance of payments support.
8 As reported by the BBC Focus on Africa, 19–20 November, 1996.
9 The Post, 31 May, 1996. Opposition parties subsequently mounted a legal challenge to Chiluba's re-election on the grounds, inter alia, that he too did not qualify for the presidency because of allegedly Zairian ancestry. The Post, 10 February, 1997.
10 The Citizen, 21 June, 1996, at 21.
11 Ndulo, M., as quoted by The Post, 16 12, 1995.Google Scholar
12 Ibid.
13 Personal communication with a prominent Zambian whose anonymity I have decided to respect.
14 Ibid.
15 See for example art. 29 of the Constitution of Namibia. See also The Sunday Times (South Africa), 1 December, 1996, at 23 as per letter by H.E. J.M. Kabinga, High Commissioner of Zambia of the Republic of South Africa.
16 The Presidential Announcement was made on 25 February 1972. The Commission was formally appointed on 1 March, 1972, Statutory Instrument No. 46 of 1972.
17 Nwabueze, B.O., Presidentialism in Commonwealth Africa, New York, 1974, 127.Google Scholar
18 Report of the National Commission on the Establishment of a One-Party Participatory Democracy in Zambia. Lusaka, 1972, at para. 48.
19 Ibid., at para. 47. The Commission rejected a life presidency on the ground that it exposed the holder of the office and the country to many risks (para. 41).
20 Government White Paper on the Chona Commission Report, No. 1 of 1972. Lusaka, 1972, at 5.
21 See Report of the Mvunga Constitution Review Commission. Lusaka, 1991.
22 Mubako, S., “The Constitution of the Republic of Zambia”, mimeo, PA210/72/36, University of Zambia.Google Scholar
23 Ibid., at 16.
24 Shaw, M. N., International Law, 3rd ed. Cambridge, 1986.Google Scholar
25 PCIJ Reports. 1925 Ser B. No. 10 at 20.
26 United Nations, Economic and Social Council, Human Rights Committee, General Comment adopted by the Committee under Art. 40, para. 4 of the International Covenant on Civil and Political Rights. No. 25/57 Addendum, 27 August, 1996.
27 Phiri, Masantso, as quoted by The Post, 12 06, 1996.Google Scholar
28 Zambia Independence Act, 1964 13 & 14 Eliz 11 C 65; Zambia (Independence) Order-In-Council, 1964.
29 See The Post, 31 May, 1996, 7.
30 Ndulo, M., “Zambia at the crossroads”, as quoted by The Post, 16 12, 1995.Google Scholar
31 Ibid.