THE Constitutional Court has declared that allowing the President to appoint a deputy chief to assume the role of a chief is against the principle of non-involvement of the presidency in the selection of chiefs.
Constitutional Court judge Palan Mulonda on behalf of justices Professor Margaret Munalula and Enock Mulembe declared that sections 3,4,5,6 and 7 of the chiefs Act being inconsistent with Article 165 of the Constitution as amended are unconstitutional and void and that they should be expunged from the statute book.
“We are of the view that to allow the President to appoint a deputy chief who for all intents and purposes would likely assume the role of a Chief goes against the principle of non-involvement of the presidency in the selection of chiefs,” justice Mulonda said. “We agree with the parties that section 6 runs afoul of Article 165(1) of the Constitution as amended and is therefore void”.
This is in a matter where Webby Mulubisha on behalf of chief Mwene Mutondo Mulubisha of the Nkoya people of Kaoma district in Western Province petitioned the court over the chiefs Act chapter 287 of the Zambian laws as amended by Act No.13 of 1994 for being inconsistent with Article 165 of the Constitution of Zambia (Amendment) Act No.2 of 2016.
Mulubisha who cited the Attorney General in the matter sought a declaration that section 3,4,5,6 and 7 of the chiefs Act chapter 287 are inconsistent with Article 165 of the Constitution of Zambia (Amendment) Act No.2 of 2016.
He further sought a declaration that section 3,4,5,6 and 7 of the chiefs Act are unconstitutional and therefore void.
According to the petition, Mulubisha said the institution of chieftaincy exists in accordance with culture, customs and traditions of the people to whom they apply and that to empower the President to appoint by statutory order, any person to the position of deputy chief as section 6 does is a violation of Article 165(1) of the amended Constitution.
Mulubisha argued that obtaining requirement for recognition under the chiefs Act is traceable to the Barotse native authority ordinance 1936 and the native authority ordinance 1936 respectively.
He said the pieces of legislation required the recognition of a person by the territorial governor in order for one to be a paramount chief, senior chief, chief or sub-chief with the exception of the Litunga of Barotseland as Western Province was then known.
Mulubisha said the ordinances provided for the withdrawal, revocation, suspension or varying of recognition accorded to chiefs and sub-chiefs and that the governor had power to institute an inquiry into any succession dispute concerning a chieftaincy.
He said the 1964 and 1973 constitutions were similar in many aspects except that under the 1973 constitution, the Litunga like the rest of the chiefs was subject to recognition by the President and that it was evident in Article 138 of the 1973 Constitution which defined the chief.
Mulubisha said the Constitution as amended had disrupted the status quo as Article 165 rejects the past legal order in relation to chiefs and the institution of chieftaincy as the status of chief was no longer dependent on the act of recognition by the President or any authority, but on the people to whom the office of chief applies.
“Article 165(2)(a) of the Constitution as amended prohibits Parliament from enacting any legislation that confers on a person or authority the right to recognise or withdraw the recognition of a chief,” Mulubisha said.
He further stated that section 7 was unconstitutional because it gave power to the President to stop a person whose recognition had been withdrawn or revoked from being within a certain area specified in a notice under his hand if the person present was prejudicial to the maintenance of public order in that area.
“Section 7 of the chiefs Act is inconsistent with Article 165(2)(b) of the Constitution as amended as it tends to derogate from the honour and dignity of the institution of chieftaincy,” Mulubisha said.
“The current legislation on chiefs is a product of colonial governance in Zambia as a territory.”
But Attorney General Likando Kalaluka argued that the powers outlined in sections 3,4,5,6, and 7 of the chiefs Act made the President the ultimate authority in giving legitimacy to any chieftaincy before the amendment of the Constitution in 2016.
He said the position had changed with the enactment of Article 165 which goes a step further than the repealed Article 127 of the 1991 Constitution before amendment.
“Because of the new constitutional order, the provisions of sections 3,4,5,6, and 7 of the chiefs Act are inconsistent with Article 165 of the Constitution as amended to the extent that they grant powers to a person or authority to recognize or withdraw recognition of chieftaincy,” said Kalaluka.
“When the provisions of an Act are inconsistent with the provisions of the Constitution, the court has power to declare those provisions of the Act unconstitutional and therefore null and void.”