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State attempting to escape accountability – Chapter One Foundation

CHAPTER One Foundation says the State’s submissions to the Constitutional Court that development of bills cannot be challenged is an attempt to escape accountability and an invitation to the court to accept a concept that certain State actions that are not governed by law and cannot be challenged in a court of law.

Chapter One Foundation says the motion by the Attorney General to dismiss its petition on a point of law pursuant to Order 14 A and 33 Rule 7 of the Supreme Court Rules should be dismissed with costs because it is wrongly before court.

The NGO says the Constitution of Zambia (Amendment) Bill No.10 of 2019 was not drafted by the “Zambian” people as claimed by the Attorney General but by the Ministry of Justice or such other State institution or organ as mandated by law.

“Drafting was at the instance of the President who was fulfilling his Constitutional mandate of initiating legislation,” Chapter One Foundation submitted.

This is in a matter where Chapter One Foundation Limited has petitioned the Constitutional Court seeking an order that Minister of Justice, Given Lubinda, withdraws Bill 10 from the National Assembly as the process of its enactment and proposals do not comply with national values, principals and provisions of the Constitution.

Attorney General Likando Kalaluka had argued that it was premature to argue that national values and principles have not been adhered to by altering the Constitution (Amendment) Bill No.10 of 2019.

Kalaluka asked the court to dismiss the petition by Chapter One Foundation as the contents of the constitution (Amendment) Bill No.10 of 2019 were submissions from Zambians, which were their will.

Kalaluka sought a determination whether; I) an action or decision taken pursuant to constitutional provisions could be said to contravene the constitution; II) Whether the Constitutional Court has jurisdiction to hear and determine the petition under Article 128(3) (b)? III) Whether the act or decision of performing the mandatory and constitutional function of initiating Bills as envisaged under Article 92 (2) (I), signing a bill and tabling a bill for first reading on the floor of parliament as provided for under Article 79 (2) (a) of the constitution means amendment of the constitution, an act which is the preserve of parliament as per Article 79 (1) of the constitution.”

The Attorney General indicated that the jurisdiction of the Constitutional Court does not extend to hearing a petition on an allegations that a bill, which was proposed law, contravenes the constitution.

However, in its skeleton arguments in opposition to notice of motion to raise preliminary points of law to dismiss the matter Chapter One Foundation chairperson Fr Cleophas Lungu said the application to have its petition dismissed was wrongly before court and should be dismissed.

Fr Lungu said the questions of law submitted by the respondent fail to meet criteria set out in Order 14A of the Rules of the Supreme Court.

He said the submissions filed by the State in support of the notice of motion do not show how the questions of law submitted by the respondent meet the criteria required by Order 14A of the White Bok for the court to consider.

Chapter One Foundation indicated that its petition seeks to determine the extent to which the response fulfilled their constitutional responsibilities and obligations.

It charged that the question presented before court by Kalaluka was an attempt by the State to dictate and determine the petitioner’s cause, as the court had jurisdiction to hear matters under Article 128(3)(b) which was not disputed by either party.

The NGO contended that the decisions and actions taken by the State in the process of enacting legislation ought to comply with values and principles stipulated in the constitution, and where such decisions, actions and measures are allegedly done without due regard to the values and principles the court is obligated to hear the matter.

“The constitutional responsibility should not be used by the respondent as a substitute for judicial accountability. The fact that powers are given by the Constitution does not mean that such powers are exercised and cannot be subjected to judicial review,” Fr Lungu said.

He further stated that the President and the National Assembly had no right to exercise legislative authority where it does not meet the mandatory standard set in Article 61.

He stated that any initiation, approving, signing and consideration of a Bill without applying the values and principles of the Constitution was unlawful and unconstitutional.

“As the petition presents important questions on the exercise of constitutional authority and the execution of constitutional duties, it is not one that warrants the use of the court’s discretionary authority as the petition is not hopeless, vexatious or frivolous” said Fr Lungu.

“It is the petitioner’s humble submission that this application be dismissed with costs to be borne by the respondents.”

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