LAZ has indicated that the Constitutional Court through the single judge seriously misdirected itself when it held that the association will retain its rights to defend the Constitution in the main matter when it refused to grant it an injunction restraining the President and others from changing the Constitution.
In its grounds of appeal to the full bench of the court against the ruling of the single judge of the court dated September 24, Law Association of Zambia (LAZ) said justice Ann Sitali misdirected herself when she held that the petitioner would not suffer irreparable injuries if the National Assembly and the President were not restrained because it would still retain its right to defend the constitution in the main matter.
LAZ is challenging justice Sitali’s decision to dismiss its application for an injunction restraining President Edgar Lungu, the Attorney General from considering Constitutional (Amendment) Bill No.10 of 2019 pending determination of its petition against the respondents.
On September 24, judge Sitali dismissed the application for injunction saying LAZ would not suffer incurable damages if the National Assembly was not restrained.
Justice Sitali ruled that LAZ did not prove that it would suffer irreparable injury.
She said the fear by LAZ that the Bill would be enacted rendering its petition academic and that it would not exercise its rights to defend the constitution does not assist the petitioner to prove the argument that unless an interim injunction is granted it would suffer irreparable injury that could not be atoned by an award of damages.
Judge Sitali said LAZ could not argue that unless an injunction was granted in its favour, it suffering irreparable damage could not be atoned because it spurned the invitation to submit written representations and to appear before the select committee on the implications of the Bill.
“The case is not appropriate for me to exercise my discretion and grant interim relief in the form of an interim injunction,” judge Sitali said.
“The application for an interim injunction pending determination of the petition is therefore declined and is accordingly dismissed.”
LAZ in its appeal arguments against the ruling of the single judge stated that the court misdirected itself when it held that it did not prove that it would suffer any damages if the injunction was not granted.
It said the lower court misdirected itself in law and fact when it refused to restrain the National Assembly and the President from considering constitutional amendment Bill No. 10 of 2019.
“The single judge misdirected herself on a point of law when she refused to grant the interim injunction on the premise that the appellant had failed to prove that it will suffer irreparable injury if the injunction is not granted as prayed,” LAZ said.
The law association indicated that in the absence of an injunction, the respondents would go ahead and implement their decision to amend the constitution in the manner stated in the constitution of Zambia (Amendment) Bill No.10 of 2019 and in the process reducing the determination of the issues raised in its petition to an academic exercise.
LAZ averred that in its petition, it outlined the impact of the decision to amend the constitution in the manner provided for in the said Bill.
“In fact, in the petition, the petitioner has outlined the impact on the Republic if the respondents are not restrained and allowed to implement their decision. There is no way or means of mitigating those loses financially that will be occasioned to the citizens that will be affected if the Bill becomes law,” the petitioner said.
LAZ contended that in dismissing the application for injunction, the court ignored such arguments.
It said there was no basis for the court to conclude that even if the injunction was not granted, the association would still be able to enjoy its right to defend the constitution.
LAZ indicated that it was not enough for the lower court to make a statement of fact without providing the basis for the same.
“The court should have explained how the petitioner would still be in a position to defend the constitution in the absence of an injunction. It is not enough for the court to hold that LAZ will retain its rights to defend the Constitution in the main matter. We humbly submit that this was a serious misdirection,” the petitioner said.
LAZ further indicated that the power of the National Assembly and the President to amend the constitution was not in dispute but the court was only being asked to postpone the implementation of the decision until the petition was determined.
“This is temporary restraint on the implementation to alter the constitution as set out in the Bill,” LAZ contended.
It further insisted that the court grants it an injunction that would subsist (remain in force) until determination of its petition.