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ZAMBIANS HAVE LOST, SAYS LAZ…as Constitutional Court throws out Bill 10 petitions

LAW Association of Zambia president Eddie Mwitwa says the Constitution (Amendment) Bill No. 10 petition loss is not for LAZ but for the people of Zambia.

Meanwhile, Constitutional Court judge Professor Margret Munalula has dissented the decision of the majority on the bench that the Constitutional Court has no authority under Article 128 of the Republican Constitution to question the contents of a Bill or declare it unconstitutional.

The Constitutional Court has struck out the petitions by LAZ and Chapter One Foundation which were challenging the state’s decision to remodel the Constitution through Constitution (Amendment) Bill No.10 for lack of merit.

LAZ sought 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.

It wanted 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 Constitution for purposes of quashing.

LAZ also wanted any other remedy the court may 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.

The petitioner in its petition said that the decision by the respondents to alter the Constitution by repealing with re-enactment and repealing without re-enactment of Articles 176,183,184 of the Constitution will result in the abolition of several independent service commissions as it seeks to increase the powers of the President on the public service and will undermine good governance.

LAZ also indicated that the decision by the respondents to change the Constitution by repealing Articles 103,186,189,213 and 214 of the Constitution seeks to take way the benefits and rights vested in people and seeks to undermine the concept of the rule of law and constitutionalism.

Meanwhile, Chapter one Foundation sought 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.

The NGO also sought a declaration that all institutions involved in the enactment of the Constitution uphold the national values and principles.

The state in its answer to the petitions said that the constitutional mandate of the court was to consider the constitutionality of the law, in the form of an Act of parliament or statutory instrument and not proposed law in the form of the Bill which is merely a proposed law in the form of a Bill.

The state indicated that LAZ which is a statutory body of lawyers and knew or ought to have known that it could not invoke the court’s jurisdiction to challenge an Act of parliament under Article 128(3)(a) of the Constitution because what it really sought to challenge was proposed law and therefore opted to portray the constitutionally prescribed mandates of the of the Republican President, the Attorney General and the National Assembly in the legislative process as decisions, so as to move the court under Article 128(3)(b).

Delivering an abridged judgement on the matter justice Enock Mulembe on behalf of the full bench, excluding Prof Munalula who had a different view, said the court has the mandate to interpret the Constitution or determine an allegation that an action, decision or measure contravenes the law.

” The Constitutional Court has a wide jurisdiction to interpret the Constitution but it is limited by the Constitution itself in Article 128 as this court’s jurisdiction is subject to Article 28 of the Constitution,” said justice Mulembe.

He emphasized that inasmuch as the court sympathises with Chapter One Foundation that the people of Zambia need to be included and consulted when amending the Constitution, the court has no authority to question the contents of a Bill or declare it unconstitutional under Article 128 of the Constitution.

The court however noted that other reliefs prayed for by LAZ and Chapter One Foundation was a roundabout of its jurisdiction as they required it to delve into the contents of Bill no.10 but it could not as the power to amend the Constitution was vested on the legislature.

Reacting to the judgement, Mwitwa was dismayed that the judgment was not in the petitioners’ favour but that he would respect the decision of the court.

“This loss is not for the Law Association of Zambia but the people of Zambia. We were not doing this for anyone’s interest but on behalf of the people of Zambia,” Mwitwa said.

Asked if the petitioners were fairly treated, Mwitwa said, “We (LAZ) were allowed to present evidence before court but we would have loved to have more time and Chapter One would equally have loved to produce their evidence via video link but unfortunately that was not the case. This is the end of the road for our petition but the process in Parliament hasn’t come to an end. There is second reading coming up and there is a requirement for 75 per cent MPs to respond in favour of the Bill”.

He urged the citizenry to engage their members of parliament to ensure that they defended the Constitution.
“We call on members of parliament to listen to the voices of the Zambians that have spoken in relation to this Bill to do what is in the interest of the people of Zambia,” said Mwitwa.

“We appeal to MPs both in the ruling PF and the opposition not to make decisions with a selfish interest but look beyond the impact of this Bill both in the present and in future. This Bill needs to be stopped and Parliament should put an end to it.”

And Linda Kasonde, of Chapter One Foundation, charged that Bill No.10 was detrimental to the democracy of Zambia.

“The fight continues, this Bill is detrimental to the democracy and justice in this country. It is incumbent for every citizen to do its part and rise against this Bill” said Kasonde.

But Solicitor General Abraham Mwansa said the court had set a good precedence because it was good law as it gives legal practitioners jurisprudence to rely on in future because a Bill cannot be challenged as it is proposed law.

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