LAW Association of Zambia (LAZ) president Eddie Mwitwa has told the Constitutional Court that the association was cheated by the Ministry of Justice that the motive of the National Dialogue Forum was to refine the Constitution yet the intention was to remodel it.
Meanwhile, the court has dismissed an application by LAZ to vary its orders for directions to allow it to refile the writ of subpoenas for justice minister Given Lubinda and Attorney General Likando Kalaluka, which it dismissed for the second time on November 11 for filing out of time.
Justice Mungeni Mulenga ruled that the court cannot allow LAZ to refile its writ of Subpoenas as it had the liberty to file applications before November 5.
In his testimony after the hearing of the main petition commenced, Mwitwa said the Constitutional (Amendment) Bill No.10 of 2019 if enacted into law would not be achieving the objective of refinining the Constitution as indicated by the Minister of justice, but would fundamentally alter the basic structure of the Constitution by increasing the powers of the executive, diluting the powers of the National Assembly and compromising the independence of the Judiciary.
He said a Constitutional amendment was not a private matter and should not be a secret but a public matter.
“LAZ was requested to make submissions to the Ministry of Justice. It was advised that the ministry was in the process of initiating the refinement of the Constitution as amended on January 5, 2016,” he said.
“Our understanding was that the NDF was going to refine the Constitution and not to substantially amend it. Our view was that the NDF was going to deal with the lacunas in the Constitution. We made submissions to the Minister of Justice pursuant to the request. We were among the delegates that campaigned for the referendum question to pass,” Mwitwa said.
He said LAZ was invited to participate in the National Dialogue Forum and that it sent two representatives to the forum.
Mwitwa said the 2016 amendments of the Constitution were preceded by the technical committee appointed by late President Micheal Sata.
He said the technical committee was more consultative as it went throughout the country and convened meetings with members of the public and invited them to make submissions on the proposed amendments.
Mwitwa told the court that consultation was done at national level unlike the NDF.
He said the constituents of the NDF were political parties with representatives in Parliament and invitations were extended to members of the public that made submissions to the minister in relation to the refinement of the Constitution.
The LAZ boss said the delegates were told not to disclose what was discussed at the forum.
He, howeve, said the NDF was considering three proposed amendments; the constitutional amendment Bill Act, the public order Act, and the electoral process Act.
He said LAZ did not have access to the documents.
“The resolutions of the NDF were not availed to the law association but I was aware of the proposals, among them, the returning of deputy ministers and the extension of the period in which to hear and determine the presidential election petition from 14 to 30 days,” Mwitwa said.
“LAZ did not take a position on the resolutions of the NDF as it was not availed to the association. The council of LAZ issued a statement on July 15 on the concerns that the association had on the Constitutional (Amendment) Bill No.10 of 2019”.
Mwitwa said that the concerns were in relation to the reintroduction of deputy ministers, coalition government, and adverse effects the Bill possed on the separation of powers and an increase in the powers of the executive arms of government.
Mwitwa said LAZ had indicated that it would seek the wisdom of the court to determine the constitutionality of the Bill.
He said LAZ did not submit to the select committee of the National Assembly because the time it was invited to make submissions, the petition was already before court on August 12 and the National Assembly was joined to the petition as third respondent challenging the legality of the Constitutional (Amendment) Bill No.10.
“LAZ resolved that it would not be appropriate to participate in the deliberations on the Bill at Parliament when it was challenging the decision to ammend the Constitution in the manner it was,” Mwitwa said
“The council was of the view that LAZ would not be considered serious to participate in the deliberations when we were challenging the amendment of the Bill in the manner it was. But we were criticised and we were told that we were being mischievous in challenging the Bill when we were part of the National Dialogue Forum.”
Mwitwa said the decision taken by President Edgar Lungu in particular to initiate the amendments to the Constitution violates Articles 1(2) 8, 9, and 90 of the Constitution, and the National Assembly in considering the enactment of the Bill was violating Article 61 of the Constitution.
Mwitwa submitted that the Constitution as amended in 2016 provides in Article 9 that the enactment or amendment of any legislation must take into account national values, the rule of law, democracy and good governance.
He added that in exercising the powers to amend the Constitution, the President must do so in a manner that protects and promotes the Constitution and ensures that the intended amendments benefit Zambians.
During cross-examination by Kalaluka, Mwitwa indicated that what validates consultation was that the Constitution as amended in 2016 had stipulated what the President, National Assembly and any other organ of the State must do in relation to the amendment of the Constitution.
He said no evidence was demonstrated that national values and principles were taken into account by the President and the National Assembly as stipulated in Article 8 of the Constitution and the State had not provided evidence in the affidavit.
Mwitwa challenged the state to show how the extension period of hearing the presidential petition from 14 to 30 days would promote Constitutional democracy, equity, good governance and the rule of law.
He charged that failure to show national values have not been taken into account by the State.
The LAZ boss refuted assertions by Kalaluka that the association failed to engage its representatives due to its failure to read the law.
He said the representatives of LAZ did not disclose what was discussed at the forum as they were not given a chance to express their personal views as their contribution would amount to giving a position of the Association.