Attorney General annoys Sangwa

TEMPERS flared before the Constitutional Court on Friday when Attorney General Likando Kalaluka criticised Constitutional lawyer John Sangwa State Counsel for raising motions over other motions when the court had earlier guided on practice and procedure in its rulings.

Before hearing of the motion by the State to dismiss the Law Association of Zambia’s petition on a point of law pursuant to Order 14A and 33 of the Supreme Court Rules before justices Hildah Chibomba, Ann Sitali, Mungeni Mulenga, Professor Margaret Munalula and Enock Mulembe, Sangwa, who is representing the law association sought guidance on how to proceed with his two motions.

Sangwa said LAZ had raised two motions asking the court to hear the petition in the absence of the respondents because they have not filed the answer to the petition and affidavit in opposition in line with the rules provided by the court.

He said the other motion was based in the ruling of September 26 where LAZ asked the court to set aside its ruling and rehear its motion.

But in his response, Kalaluka indicated that being the leader of the bar in Zambia, he was very disappointed that LAZ instructed its lawyer not only to disregard the court’s orders for directions but to constitutionally disregard the court’s guidance of raising a motion within another motion, when the single judge had directed that the court will hear the respondents motion.

“The petitioners (LAZ) have decided to instruct their counsel to disregard the court’s directions of practice and procedure. The court frowned on raising motions within motions but the petitioners have decided to do the same thing which the court earlier guided on, which is a total disregard of the court,” Kalaluka said.

” I am so disappointed and would like to express my displeasure because the body of lawyers which is expected to respect and protect the law can act in the manner they have done, of disregarding the directions of the court. I urge the court to take action and uphold the integrity of the court, the court should be given due respect.”

Kalaluka said his answer to the petitioners’ two new motions on whether or not they should be heard ahead of the State’s motion was that court needed to be consistent in its orders for directions and hear the State’s motion because it goes to the very root of the proceedings.

But in his response, Sangwa said that the comments by Kalaluka were unfortunate as members of the bar had the duty to respond to issues as they were presented and not personalise matters.

Sangwa said he had the right to raise preliminary issues within the law and if the Attorney General opted to attack his character, he should do so outside the court premises and not before court because he could not disrespect the Constitution, as he was among the people that defend it.

“My ladies and my Lords, I would like to bring to the attention of the court the unfortunate comments by the Attorney General that we have disrespected the court. We have a duty not to personalise issues but to respond as they are presented. If he wants to attack my standing before court, he should attack my character outside and not before court. If there are people that defend the Constitution, I am among them,” Sangwa said.

” I worship the Constitution and I respect the law, defence of the Constitution has been a hallmark in my entire practice of 30 years. I have the right to raise preliminary issues and motions in line with the Constitution, therefore attacking my standing before court is uncalled for.”

Sangwa added that asking the court to revisit its decision was in line with the law and he did not see how LAZ disrespected the court with its motions.

He said he was only seeking guidance because the court was independent and impartial and that the steps LAZ took were backed by law.

He said the issue to be addressed was “why the motion should not be raised and not to attack each others’ personality” because he was not seeking an order but guidance.

To cool the tempers, the court ruled that it would proceed to hear the Attorney General’s motion as indicated in the ruling of September 26.

Addressing the court, Kalaluka said Article 128(3)(b) does not envisage that the person who acts pursuant to the mandatory and substantive provisions of the constitution could be said to contravene the constitution.

He said such a position wass unattainable and it was not necessary to factually oppose the allegations by the petitioner as it fails on its own. Kalaluka said the State opted not to oppose it but raise a preliminary issue so that the court may dismiss the petition allegation without hearing it.

Kalaluka argued that according to the constitution, the Attorney General shall sign government bills presented to the National Assembly.

LAZ has contended that by signing the bills, the Attorney General breached Article 1(2) of the constitution.

“How does an Attorney General who signs a government Bill contravene the constitution? It’s for reason that we are saying that this matter should fail and should be dismissed at its early stage without requiring the State to either factually oppose or not oppose the allegations,” he said.

Kalaluka argued that if the petitioners were taking issue with the contents of the proposed Bill, the same should not be entertained as Zambian courts had settled that one could not impeach a Bill before it is enacted into law.

He said it was therefore premature to rush to court before a Bill goes through third reading.

He said the current constitution of Zambia does not envisage a situation where the court could be moved to impeach a Bill which was before Parliament.

“If such a jurisdiction is assumed before this court, attempts will be made to stop each and every Bill, rendering the functioning of a government and also make it impossible for the legislature to perform their function,” Kalaluka stated.

He prayed that the petition be dismissed with costs.

In his response, Sangwa said Order 14A and 33 Rule 7 on which the State has based its motion does not comply with the rules as they serve two different purposes.

He said it was not possible for the court to determine the matter on its merit because the respondents did not file the answer and affidavit to the petition.

“The three questions raised by the respondents are incompetently before court and the court cannot decide on them. We do not see how the issue of jurisdiction can be addressed without the answer to the petition,” he said.

He further wondered who would determine whether certain actions by the State were performed in the ambit of the constitution if the court had no jurisdiction to determine such matters.

Sangwa added that the law has not been settled on whether a Bill could not be impeached as the law had been changed.

In his response, Kalaluka insisted that the petition be dismissed because LAZ had not shown how performing an act as mandated by the Constitution contravenes the Constitution.

In its ruling, the court dismissed an application by the State to dismiss the petition by LAZ and ordered that the matter be heard on October 11.

The court said although the State’s application had merits, it would not state its reason to dismiss the application.

This is in a matter the Law Association of Zambia (LAZ) has sued President Lungu, Attorney General Likando Kalaluka, and the National Assembly challenging their decision to remodel the Constitution of Zambia through (Amendment) Bill No.10 of 2019 as it contravenes the Constitution.

Meanwhile, LAZ has asked ConCourt to set aside the ruling of a single judge date September 26 and re-open its decision to dismiss its application for an injunction to restrain President Edgar Lungu and others from altering the Constitution of Zambia through (Amendment) Bill No.10 of 2019.

Judge Ann Sitali on September 26 dismissed LAZ’s application for an injunction to restrain President Lungu, Kalaluka and the National Assembly from changing the Constitution through Bill No.10 on grounds that LAZ did not prove that it would suffer irreparable injury if the respondents were not restrained.

In its notice of motion to set aside the ruling of the court and to re-hear the petitioner’s motion, the law association said the Constitutional Court in the exercise of its adjudicative authority, which culminated in the ruling of September 26, 2019 violated article 119(1) of the Constitution, which provides that the judicial authority of the Republic vests in the courts, including the Constitutional Court, and must be exercised in accordance with the Constitution and other laws.

Sangwa said the law association’s motion was not fairly adjudicated upon and a great injustice had been occasioned to LAZ.

He stated that apart from asking the court to set aside its ruling of September 26 and hear the petitioner’s motion whilst respecting the provisions of Article 18(9), 118(1) and 119(1) of the Constitution, there was no way of securing redress as the decisions of the court were final and could not be reviewed by the Supreme Court.

Sangwa said there was no law, which prevents the Constitutional Court from revisiting its own decisions and even set it aside if need arose and reopen the matter.

He contended that the manner in which the court summed up the issues raised in the petitioner’s motion on which the ruling was based, does not constitute a true representation of the issues raised in the motion.

Sangwa indicated that there was no basis for the position that once the Constitutional Court had heard an application and delivered its judgment then that was the end of the matter.

He added that in certain circumstances, the Constitutional Court could re-open a case and revisit its decision.

“The Constitutional Court does not vest jurisdiction over interlocutory applications exclusively in the single judge of the court. Although the motion by the respondents was intended to finally decide the petition, the petitioner’s motion, which is the subject of the ruling of September 26, was interlocutory and it did not address the merit of the issues raised in the respondents’ motion,” said Sangwa. “For this reason, it remains interlocutory and the court has the authority to revisit it.”

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