ATTORNEY General Likando Kalaluka has argued that the decision by President Edgar Lungu, himself and the National Assembly of Zambia to table Constitution Amendment Bill No.10 of 2019 before Parliament for alteration was in line with the Constitution.
Kalaluka has since asked the Constitutional Court to dismiss the petition by the Law Association of Zambia challenging government’s decision to amend the Constitution as the Court’s jurisdiction does not extend to hearing a petition on an allegation that a Bill which is proposed law contravenes the Constitution.
LAZ petitioned the Constitutional Court to issue an order quashing the the respondents’ decision to remodel the Constitution.
It is seeking a declaration that the respondents’ decision to change the Constitution was illegal as it contravenes Article 1 of the constitution.
The Law association also wants the court to render any order that it may consider just, in order to defend the constitution and resist its overthrow, suspension or illegal abrogation and that, the costs of and occasioned by the petition to be borne by the respondents.
According to skeleton arguments in support of a motion to dismiss the petition prepared by the Attorney General’s chambers and filed in court, the respondents argued that their public offices are mandated by the Constitution to initiate a Bill, sign it and table it for the first reading, therefore the assertions by LAZ that some Acts of the Constitution have been contravened is in fact alleging the Constitution has contravened itself.
Kalaluka said the cosntitution cannot contravene itself and there is no decision before court to warrant the invocation of the Constitutional Court’s jurisdiction to entertain the matter.
President Lungu, the Attorney General and the National Assembly who are respondents in the matter have raised three questions of law which they feel can lead to the dismissal of the case in its entirety.
The questions are whether an action, measure or decision taken pursuant to constitutional provisions can be said to contravene the Constitution.
The second question is whether the Constitutional Court has jurisdiction to hear and determine the petition under Article 128 (3)(6).
And the third question is whether the act, measure, or decision of performing the mandatory and constitutional functions or initiating bills as envisaged under Article 92 (2)(i), signing a Bill as envisaged under Article 177 and tabling a Bill for first reading on the floor of the National Assembly as provided for under Article 79 (2)(a) of the Constitution amounts or means amendment of the Constitution, an act which is the preserve of Parliament as per Article 79 (1) of the Constitution.
The Attorney General said that from the reading of Article 79, the President’s initiating a bill does not amount to amendment of the Constitution.
“The same is also true that by the Speaker of the National Assembly tabling a Bill for first reading does not amount to amendment of the Constitution. In the like manner, the petitioner argue that by the Attorney General signing the Bill as required by Article 177, then the Constitution has been amended,” he said.
Kalaluka further argued that LAZ cannot therefore, argued that by virtue of a decision by the respondents to do what was required of them by the Constitution which may lead to the amendment of the Constitution, the Constitution has been abrogated.
“This is because the actions of the respondents do not amount to an amendment in itself. What the President, Attorney General and National Assembly did was in line with the Constitution. Further, the said public offices are mandated by the Constitution to do so. Therefore, the allegations by the petitioner that so doing, the said acts, the Constitution has been contravened is in fact alleging that the Constitution contravenes itself,” Kalaluka said.
He indicated that it was not possible for such a situation to exist because the actions, measures or decisions taken are all mandatory and constitutional obligations that were done in accordance with the Constitution itself.
Kalaluka said the respondents’ mandate cannot be used as a basis for the petition and be a justification to invoke the jurisdiction of the court under Article 128 (3)(b) or any other clause.
Kalaluka charged that the Law Association of Zambia is aggrieved about the proposed Amendments to the Constitution and the gist of the petition by LAZ was to simply challenge the contents of the proposed legislation.
“The petition does not show any specific violations of the Constitution by the respondents in relation to the proposed amendment to the Constitution. We submit that this honourable court has no jurisdiction to adjudicate proposed amendments to the Constitution,” said the Attorney General.
The matter comes up on August 28, before Justice Anne Sitali./SM