JUDGEMENT in a matter where the Law Association of Zambia and Chapter One Foundation Limited are challenging government’s decision to remodel the Constitution of Zambia through Constitutional (Amendment) Bill No.10 of 2019 has been slated for tomorrow, November 29.
The Law Association of Zambia in this matter is seeking a declaration that the respondents’ decision to amend the constitution in the manner set in the Constitution of Zambia (Amendment) Bill No.10 of 2019 is illegal because it contravenes Articles 1(2),8,9,61,79,90,91,92, and 79 of the constitution.
LAZ is seeking an order (of certiorari) that the petition be allowed and the Constitution of Zambia (Amendment) Bill No.10 of 2019, which evidences the respondents’ decision to amend the constitution in the manner provided therein, be removed forthwith into the Constitutional Court for purposes of quashing.
It wants any other remedy the court might consider just in order to defend the constitution and resist or prevent its overthrow, suspension or illegal abrogation and costs of and occasioned by the petition be borne by the respondents.
LAZ is seeking an order that Minister of Justice Given Lubinda withdraws Bill 10 from the National Assembly because the process of its enactment and proposals do not comply with national values, principles and provisions of the constitution.
In its final submissions, LAZ, through its lawyer Jeffrey Chimankata, argued that the decisions that were made as evidenced by Bill No. 10 of 2019 do not show patriotism, national unity, constitutionalism, non-discrimination, democracy or good governance.
He said that according to the evidence that was laid before court by LAZ, it was clear that the decisions to remodel the Constitution were made outside article 8 of the Constitution.
Chimankanta argued that the decision to abolish several independent service commissions could not be said to have been done in compliance with Article 8 and 61 of the 2016 amended Constitution.
He stated that exercising legislative authority must done in a manner that protects the people.
He said whatever amendment that Parliament or government wanted to make must be in compliance with the safeguards as set out in various sections of the Constitution and that if not met, such proposed amendment was unconstitutional.
“You cannot amend just for the sake of it; there must be a problem. In deciding to amend the Constitution, have you taken into account the people’s well being? Are you upholding the principle of non-discrimination?” he asked.
“In short, the decisions evidenced by Bill No.10 seek to take away the benefits and rights vested in the people. And that’s the sole purpose of having safeguards within the constitution.”
Another LAZ lawyer, Luckson Mwamba, said the common thread between the National Assembly, the President and the Attorney General was that they were exercising their mandates.
He said the three of them were bound by the Constitution in Article 1(3) of the Constitution and the decision they make must be within the confines of the Constitution and that there was no going beyond.
Mwamba argued that if the decision was not within the confines of the Constitution or contravened a provision of the Constitution then that decision was illegal.
He implored the court to step in and stop that decision so that the Constitution is upheld.
Mwamba said the overwhelming evidence that had been laid before court showed that the decisions that had been challenged did not take into account the national values as enshrined in article eight of the Constitution.
“The proposal of a coalition government will mean that it is not the majority that’s selecting a President. How is it Constitutional if a President negotiated his way into office? Where is the democracy if a President is not elected into office? That is a slap on democracy,” he charged.
“When the President was taking his decision to initiate the Bill, when the Attorney General made the decision to sign the Bill and when Parliament took its decision to gazette the Bill, they did not take into consideration the national values.”
Mwamba said that the petitioners’ evidence before court was not challenged.
“The bottom line is that there has been a contravention of the Constitution by the President, the Attorney General and the National Assembly and this court must come in and stop that decision. Our prayer is that this is a fit and proper case for the court to grant the reliefs sought by LAZ because the Constitution has been abrogated by the decisions challenged,” said Mwamba.
And lawyer representing Chapter One Foundation Linda Kasonde argued that successive governments have tried and have succeeded in wrestling power from Zambians.
She said the fabric of democracy was hanging in the balance.
She said the Constitutional Court bench was the last in line in defending the Constitution.
Kasonde said the legislative authority of Parliament was not unlimited as Zambians were sovereign and legislative power derived from the people pursuant to Article 5 and 61 of the Constitution.
She argued that government does not have the ultimate power to decide to make fundamental changes to the Constitution without adequately consulting and seeking the permission of the Zambian people.
“The decisions, actions or measures by the Executive and the Legislature to amend the Constitution must be made in compliance with the Constitution and specifically in line with the national values and principles in Article 8,” she said.
“Any extensive change to the Constitution as proposed by Bill No.10 which have the effect of radically changing the character of the current Constitution require that Zambians adopt the contents of such a Bill before any such changes are made,” Kasonde said.
She said it was incumbent upon the government to allow Zambians to decide how they should be governed and this could only be done through a consultative process.
Kasonde argued that the National Dialogue Forum did not meet that standard as the most adequate, legitimate and democratic means was to hold a referendum before tabling the Bill before the National Assembly.
“The people of Zambia have a legitimate expectation that no fundamental changes would be made to the Constitution in view of the pronouncements made by the President and the Minister of Justice, that only minor changes would be made to the Constitution to enhance it’s clarity,” she said.
Kasonde said the court had the jurisdiction to determine an allegation that an action contravenes the Constitution of Zambia and that no man or woman is above the Constitution not Parliament or even the President.
But the State opposed the arguments by LAZ and Chapter One Foundation and asked the court to dismiss their petitions.
The State also urged the court to condemn the two petitioners to costs as they raised issues which the court had already pronounced itself upon.
Kalaluka argued that the acts complained of by the two petitioners did not amount to contravention of the Constitution as the same acts or measures were provided for by the Constitution itself.
He said the testimony of the association’s witness that there was no evidence at NDF, which showed that national values and principles were taken into account, was clearly misconceived.
Kalaluka said that the national values and principles only applied to the enactment of the law.
“The legislative authority is vested in Parliament. The NDF does not have the legislative authority, it was clearly a misconception to argue that the NDF did not have any evidence of applying the national values and principles. They don’t need to. Enactment or legislation of laws is a preserve only of Parliament and not of the NDF,” Kalaluka said.
“Our prayer, therefore, is that these petitions be dismissed and the petitioners condemned in costs.”
Meanwhile, the court dismissed an application by Chapter One Foundation for a conservatory order to stop the National Assembly from considering the legislative process of Constitutional (Amendment) Bill No.10 as the application was out of time.
But Justice Professor Margaret Munalula had a dissenting view that if it were up to her, she would have heard the application for a conservatory order in the interest of Justice as no prejudice would have been suffered by the state if it was heard.