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The Constitutional Court Should Have Issued the Bill 10 Injunction

The Constitutional Court has refused the Law Association of Zambia’s application for an injunction regarding Bill 10. LAZ had applied that Parliament is stopped from debating or considering Bill 10 because the matter was in court. The Constitutional Court’s refusal to entertain this application is surprising. But shocking were the reasons the Honourable Justice Sitali gave when denying the injunction.

Justice Sitali was firm on the law. She clearly outlined the position of the law regarding injunctions. The issue though was how that law was to be applied to the facts at hand. The Constitutional Court is a specialised apex court. It cannot analyse issues as if it were a mere High Court. The analysis that should apply at the High Court can be wholly inadequate if used in the Constitutional Court. There is a reason why Zambia has a Constitutional Court which is to give judges an opportunity to specialise in constitutional jurisprudence and to enhance constitutionalism in Zambia. The injunction decision leaves much to be desired. It should make us ask the question: why should Zambia have a Constitutional Court if the court’s reasoning is just like that of a high court? We should never have established a specialised court if our honourable judges refused to think and act in conformity with the higher ethos of a constitutional court.

In the United Kingdom, Prime Minister Boris Johnson lost a critical court ruling when the Supreme Court ruled that the PM’s prorogation of Parliament was illegal and unconstitutional. There is some unanimity among constitutional scholars that the verdict was itself quite unprecedented. Under normal circumstances, the Court would not have interfered in a parliamentary matter. But the Court felt it had the duty to intervene because of the impact that such a prorogation was likely to have on the constitutional structure of the United Kingdom. The Court appears to have worked itself backwards. Britain’s leaving of the European Union was a matter that would fundamentally affect the constitutional structure of the countries in the United Kingdom. That being the case, it was prudent that BREXIT is subject to the scrutiny of parliament. Essentially then, the Court felt that a constitutional act must attract much more severe and closer inspection than ordinary acts. If the issue in Britain were just about eating snakes or fish, the Court would have been reluctant to intervene.

This brings us to the Zambian situation. Bill 10 is a Bill that if passed, will fundamentally affect the constitutional structure of the republic. The Bill, among other things, proposes that Parliament will have no supervisory role in the way the executive borrows money. Further, Bill 10 proposes to change the way Zambia elects its Parliament fundamentally. Regarding the independence of the courts, Bill 10 proposes that Zambian superior courts, such as the Constitutional Court, will not have a constitutionally set number of judges. The President and a simple majority in Parliament will decide how many judges will comprise the Court. This means that if a president is not happy with Constitutional Court judges, they can appoint one or two more to the bench who may do their bidding.

The enormity and the impact of Bill 10 on the constitutional structure of the Republic of Zambia requires much more scrutiny from our Constitutional Court. I am aware that this matter will be heard and is currently before the Court. However, even at injunction level, I expected that the Court was going to issue a temporary stop until the matter is resolved. The Court’s refusal to entertain an injunction will significantly undermine and prejudice, not just the Law Association of Zambia, but also the constitution itself. The Constitutional Court should have looked at itself to be the custodian of the constitution. It should have looked at the specific role it plays as the defender of the constitution and constitutionalism. Having a temporary pause on Parliament’s Bill 10 deliberations was not going to prejudice Parliament. Parliament would have picked up the issue at any time had the main decision gone its way. However, once Parliament passes Bill 10, there would be no constitutional remedy for the Court to reverse a new constitution.

The argument that Parliament has a sovereign right to amend the constitution is not tenable under the new constitutional mandate in Zambia. The constitution must be amended under the shadow of collaboration, consultation, solidarity, and cooperation. In this case, I need to adopt the University of Zambia’s submission to Parliament regarding Bill 10. UNZA is right. Parliament cannot just amend the constitution simply because it has the power to do so, without giving due regard to the process of open consultation and consensus from the people of Zambia. It is this particular consideration that Justice Sitali’s ruling wholly ignored. So if we may ask, under what circumstances would the courts act to stop illegal interference with the Zambian constitution? Will the Zambian courts be watching and stand by should Parliament choose to abolish term limits?

We encourage the people of Zambia to read for themselves Justice Sitali’s injunction ruling. We know that the primary matter is still before the honourable judges. But as far as the injunction is concerned, we disagree with the verdict. The ruling did not consider factors that a constitutional court must consider when constitutional matters come before it. Instead, the Court behaved, thought, and acted as if it were an ordinary superior court.

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