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LAZ seeks ConCourt permission to subpoena Lubinda in Bill 10 case

THE Law Association of Zambia has bowed to the Constitutional Court’s requirement to seek its permission before issuing subpoenas to justice minister Given Lubinda and Attorney General Likando Kalaluka to testify in the matter where it is challenging the constitution amendment process.

This follows the court’s decision to set aside the subpoenas that were issued to Lubinda and Kalaluka in a matter where LAZ and Chapter One Foundation Limited are challenging the decision of the State to remodel Constitution (Amendment) Bill No.10 of 2019 as it contravenes the Constitution.

Constitutional Court judge Martin Musaluke in setting aside the Subpoenas ad Testficandum and Duces Tecum said the Law Association of Zambia did not seek leave of court to issue subpoenas to Lubinda and Kalaluka.

He said the purpose of seeking leave was to ensure that a party seeking to subpoena witnesses does not abuse their privilege to summon witnesses and for the court to examine whether the party had met the requirements before a subpoena could be issued but LAZ did not do so.

The association has now sought leave of the court to compel Lubinda and Kalaluka to aid its case by testifying in the matter at the hearing of the petition.

According to ex-parte summons for leave to issue subpoenas, LAZ asked court to command the witnesses to avail themselves and give evidence about what they knew concerning the Bill.

The lawyers’ body wants Lubinda to bring with him and produce reports, research materials, memoranda, write-ups or data in whatever form stored or any material whatsoever, generated before the Constitution of Zambia (Amendment) Bill No.10 of 2019 was drafted and published in the government gazette.

LAZ wants Lubinda to show the extent to which the Constitution, as amended on January 5, 2016, satisfied or failed to meet the mandate and terms of reference of the technical committee appointed by late president Michael Sata in November 16, 2011.

It wants Lubinda to give details of the challenges, problems or constraints faced by the State in the governance of the republic since the amendment of the Constitution on January 5, 2016.

LAZ wants the duo to particularise the extent to which the national values and principles of patriotism and national unity, democracy and constitutionalism, human dignity, equity, social justice, equality and non-discrimination, good governance and integrity and sustainable development set out in Article 8 of the Constitution in the decision by the respondents to alter the Constitution in the manner set out in the Bill.

It wants them to show how the decision to amend the Constitution as set out in the Bill would protect the Constitution and promote the democratic governance of the republic as required by Article 61 of the Constitution.

The association wants the two to explain how the decision to alter the Constitution in the manner set out in the Bill would promote the well-being and benefit of Zambians as required in Article 90 of the Constitution.

It wants them to show how the President’s decision to alter the Constitution in the manner set out in he Bill was consistent with the first respondent’s constitutional obligation under Article 91 of the Constitution to respect, uphold and safeguard the constitution b) safeguard sovereignty of the republic, c) respect the diversity of the different communities of Zambia, d) promote and protect the rights and freedoms of all persons in Zambia and e) uphold the rule of law and order.

In an affidavit in support of ex-parte summons for leave to issue subpoenas, LAZ president Eddie Mwitwa indicated that he had a reason to believe that materials ought to be generated in the form of reports, research materials, memoranda, write-ups of data in whatever form stored to justify the decision to alter the Constitution that was generated before the constitution of Zambia (Amendment) Bill No.10 of 2019.

Mwitwa said this had been the trend which had preceded all major constitutional developments and the materials in the process had been made available to he public.

“The Constitution under Article 18(9) commands this court to accord the petitioner a fair hearing of its petition and this can be achieved by compelling Mr Lubinda and Mr Kalaluka to attend court and give evidence on behalf of the petitioner. I believe that the process which culminated into the Constitution of Zambia (amendment) Bill No.10 of 2019 was undertaken under the patronage of Mr Lubinda and Mr Kalaluka,” Mwitwa
said.

In relation to Kalaluka, LAZ seeks leave of the court to issue the subpoena ad testificandum pursuant to section15 of the constitutional court Act to require him to give evidence on matters relevant to the petition-on behalf of the petitioner.

“Accordingly, I ask for an order for leave to an order for leave to issue a writ of subpoena ad testificandum directed to Mr Kalaluka and a combined writ of Subpoena ad Testficandum and Duces Tecum directed to Mr Lubinda commanding them wherever they may be to attend trial of this action and give evidence for LAZ.”

The matter comes up on November 12.

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