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LAZ asks ConCourt to dismiss State’s motion against its petition

THE Law Association of Zambia has urged the Constitutional Court to dismiss Attorney General Likando Kalaluka’s motion to dismiss its petition on point of law for irregularity.

LAZ has asked the court to dismiss the respondent’s motion and direct them to file their answer to the petition and Affidavit in opposition in line with the Constitutional Court rules.

“The respondents have not met the requirements of Order 33 Rule 3 of the rules of the Supreme Court,” LAZ submitted.

In this matter, LAZ is challenging President Edgar Lungu, Attorney General Likando Kalaluka and the National Assembly’s decision to amend the Constitution through Bill No. 10 of 2019 as the proposed law contravenes the Constitution.

Kalaluka had argued that the decision by President 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 and urged the court to dismiss the petition.

According to skeleton arguments in support of a motion to dismiss the petition, the respondents argued that their public offices were 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 was in fact alleging the Constitution had contravened itself.

Kalaluka said the constitution could not contravene itself and there was no decision before court to warrant the invocation of the Constitutional Court’s jurisdiction to entertain the matter.

However, LAZ said the argument by the respondents that the Constitutional Court could not contravene itself was not in response to the petitioner’s motion, but to the substance of the petition, which had not yet been scheduled for hearing.

LAZ said the interpretation of Order 77 Rule 7 of the Supreme Court given by the respondents was not in accordance with the provisions of Article 118(1) of the Constitution in that it would not stop the petitioner from making an application under Order 14A of the Rules of the Supreme Court against the State and allow to make a similar application against the respondent.

“The correct position is that neither the State nor the petitioner can make an application pursuant to Order 14A of the Rules of the Supreme Court in a matter by or against the State.

LAZ said President Lungu, the Attorney General and the National Assembly had raised three questions of law which they feel could 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.

LAZ said the three questions advanced by the respondents do not raise jurisdictional issues but substantive issues of law which go to the merit of its case and which cannot be determined in a summarised manner pursuant to the provisions of Order 14A or 33 of the Rules of the Supreme Court.

“We have no idea as to the Constitutional provisions being referred to pursuant to which the said decision, action or measures were taken or the provisions of the Constitution which are alleged to have been contravened,” LAZ stated.

LAZ contended that a jurisdictional issue was not about the parties but about the competence of the adjudicative body to inquire into the matter presented before it.

The issues raised by the respondents in their motion had nothing to do with the jurisdiction of the court but the merit of the petition.

“The respondents expect all the three issues to be decided in their favour but they don’t address the court on what will happen if one or two of the three issues do not succeed,” LAZ stated.

LAZ stated that the argument by Kalaluka that the actions, measure or decisions taken were all mandatory and constitutional obligations that were done in accordance with the Constitution itself; the defendants ought to have stated in their answer that the exercise of their powers vested in them by Articles 79,92(2) and 177 of the Constitution were mandatory if such was their defense or justification for their actions.

LAZ maintained that its position was that the respondents contravened the Constitution and the issue could not be decided in the absence of an answer to the petition and affidavit in opposition.

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