ConCourt cannot bow to Parliament – judge Munalula

THE Constitutional Court has ruled that that though Parliament enjoys exclusive cognisance over its internal proceedings, the said authority is not absolute as the court can intervene in its legislative process to ensure that it operates within the limitations of the law.

In dismissing the petition by the Law Association of Zambia and Chapter One Foundation challenging the government decision to remodel the Constitution through Constitutional (Amendment) Bill 10 of 2019, the court said the argument by the State that it (the court) could not interfere with the conduct of the internal affairs of Parliament when exercising its mandate to legislate ‘was faulty as] the authority conferred on Parliament with regards to exclusive cognisance was not absolute.

Meanwhile, in her dissenting judgment Professor Margaret Munalula said that the Constitutional Court cannot take refuge in precedent or technicalities or shy away from making hard decisions at anyone and everyone including the court itself constitutionally accountable.

In this matter, LAZ sought a declaration that the state’s decision to amend the constitution in the manner set out 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 it.

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.

And 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.

But 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.

Justice Enock Mulembe, who delivered a full judgment on the matter on behalf of president Hildah Chibomba, Ann Sitali, Mungeni Mulenga, Plan Mulonda and Martin Musaluke said that courts have the constitutional mandate to scrutinise Acts of parliament where it was alleged that the National Assembly in exercise of its mandate had breached or exceeded its powers.

” Although the Constitution gives the national assembly powers to regulate its own procedure and to make standing orders for the conduct of its business, that power is not absolute as Zambian courts have the constitutional mandate to scrutinise the Acts of the legislature where it is alleged that the legislature in exercise of its mandate has breached or exceeded its powers as conferred by the Constitution,” judge Mulembe said.

He said where the allegation that various provisions of the Constitution had been breached as pleaded and argued by LAZ and Chapter One Foundation does not touch the procedural or internal affairs of Parliament, the defense of exclusive cognisance is not available to the State.

The court reiterated its position in its abridged judgment that it had no jurisdiction to determine a petition which challenges a Bill as it was proposed legislation that has not yet been enacted.

“A Bill containing only proposals for amending the Constitution or the Constitution of Zambia Act would not be open to challenge for its constitutionality before the Constitutional Court even if Article 131 of the draft Constitution had been adopted,” judge Mulembe said.

He ruled that Article 128(3) of the Constitution does not confer jurisdiction on the Constitutional Court to hear and determine a matter seeking to challenge a Bill for its constitutionality as no provision for challenging a Bill or proposed legislation was expressly made in Article 128 or elsewhere.

Judge Mulembe said it was incumbent on the court to ensure that Parliament does not fall outside the confines of the amendment process when exercising its power of amending the Constitution as Parliament’s amendment power was limited in scope, according to Article 79.

The court said LAZ and Chapter One Foundation have not show how the actions taken in initiating, signing and tabling of Constitutional (Amendment) Bill no.10 of 2019 as defined in Article 79 of the Constitution had been breached at the current stage of the process.

Judge Mulembe said the court was unable to determine the legality of Bill 10 without delving into its contents as it was a roundabout way of asking it to delve into the Bill which it cannot do because it does not have jurisdiction.

“Unless it is shown that the process leading to the tabling of Bill no.10 offends the mandatory formalities prescribed in Article 79, this Court cannot intervene in the basis of Article 128(3)(b) of the Constitution,” he said.

“We reiterate our position in the abridged judgment that the petitions by LAZ and Chapter One Foundation have no merit and they stand dismissed.”

In her dissenting judgment, justice Prof Munalula said, “I choose a different path from that taken by my sisters and brothers. The Constitution as amended in 2016 instituted a new Constitutional order quite different from what prevailed in the past. In my considered view, the court has not gone far enough in executing its mandate in this case.”

She said Parliament should exercise its legislative authority in a manner that protects national principles and values and protect the constitution during the process of amendment.

She said article 79 cannot adequately protect the amendment process hence the need to supplement it with the mandatory constitutional values and principles should be considered to ensure not just the legality but also the legitimacy of amendments to the constitution.

On the argument that Article 128 of the constitution does not allow the court to determine the legality of proposed law, she said the court’s role is to verify whether the conditions for alteration provided for in the constitution is fulfilled.

“The Constitutional Court as a specialised court is set up to protect the constitution which is the supreme law of the land as it acts as the sole or final arbiter in matters to do with the constitution and resolve constitutional questions which are too important to be left without an answer or remedy,” she said.

“When there is an important constitutional question before it, the Constitutional Court cannot take refuge in precedent or technicalities or shy away from making hard decisions at anyone and everyone including the court itself constitutionally accountable.”

Prof Munalula said that Constitutional Court judges were required to answer questions relating to specifically legal battles and the court if faced with any constitutional questions, should be prepared to push the boundaries to the outer limits of its constitutional mandates.

Justice Munalula noted that there was no provision in the constitution that says that the Constitutional Court cannot consider a proposed law at any stage and the time in which it should be brought to court.

She stated that as gatekeepers of constitutionalism, the courts were constantly on guard to prevent and mitigate harm to the Constitution because such harm might not only be irreversible but also dangerous to the legal, political and social fabric of the nation.

“The court is the guardian of the constitution and parliament cannot plead exclusive cognisance and separation of powers to avoid the scrutiny of the courts as it would hinder the court’s ability to exercise its powers of review and protect the constitution,” she said.
Prof Munalula stated that Constitution Court cannot bow to Parliament as doing so undermines its own duty to protect the constitution as the court’s intervention strengthens the comity that the three organs of government share by interpreting and clarifying the constitution where a question arises.

She stated that the court’s intervention was not unlawful as the intervention was necessary not only for the other organs to function effectively within the constitutional limits but also for the court to be effective in fulfilling its own constitutional mandate.

“The argument of exclusive cognisance and separation of powers raised in relation to Parliament appear to be false as Parliament is placed in the constitutional order and must comply with the constitutional procedure. The supremacy of the constitution and its protection provides a solid platform upon which the court should intervene to ensure compliance, thus such an intervention does not undermine the separation of powers but builds constitutionalism,” judge Munalula said.

She added that Parliament derived its authority from the people and was tasked with the legislative mandate and must therefore protect the constitution and promote democratic governance.

“The constitution is hopeful, and it is incumbent on this courts which holds the mandate to interpret and to protect it to use all means constitutionally available to sustain that hope,” said justice Munalula.

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