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Paramount chiefs ask ConCourt to declare Section 2 of the chiefs Act unconstitutional

THE Litunga of the Lozi speaking people of Western Province and three other paramount chiefs have asked the Constitutional Court to remove Section 2 of the chiefs Act from the statute book as it is unconstitutional and void insofar as it defines the word ‘Chief’.

The paramount chiefs say the definition of the word ‘chief’ in section 2 of the chiefs’ Act is inconsistent with Article 266 of the constitution.

This is in a matter where Lubosi Imwiko together with Kalonga Gawa Undi of the Chewa and Nsenga people of Zambia, Malawi and Mozambique, Chitimukulu of the Bemba and Mpenzeni of the Ngoni of Eastern Province have petitioned the Constitutional Court seeking a declaration that the traditional authority of the paramount chiefs to recognise, install and discipline, including dethronement of any of their subordinate chiefs in accordance with customary law, shall continue to be exercised by them.

The four, who have cited the Attorney General in the matter, are seeking a determination and declaration that the chiefly institutions of paramount chief, senior chief and other chiefs continue to exist and are guaranteed under article 165 (1) of Constitution of Zambia.

They are also challenging the decision by government to remove chiefs from their payroll.

In their final submissions, the paramount chiefs have argued that while the provision of the constitution traces the legitimacy of chieftaincy to the culture, customs and traditions of the people to whom they apply, the chiefs Act traces legitimacy to recognition by the President.

The chiefs said the definition of ‘chief’ in Article 266 of the constitution reflects the removal of the requirement for recognition of chiefs by the President or any other person.

“Article 266 has accordingly supplanted section 2 of the chiefs Act insofar as the same defines the term chief,” said the Litunga and others.

The quartet submitted that the Ministry of Chiefs and Traditional Affairs, including other state institutions, were bound by the definition of ‘chief’ in line with Article 266 of the constitution and might not withhold any privileges or benefits to chiefs on the definition in the chief’s Act.

The chiefs said on February 26, 2020, the Ministry of Chiefs and Traditional Affairs stripped off salaries for new chiefs, a position which was against the provisions of the law and African Customary law.

“It is our submission that the selection, installation, discipline and dethronement of chiefs have their source in African customary law and not in the chiefs Act or indeed any statute,” they said.

The chiefs prayed that the corporate status of chieftaincies in Zambia together with the incidence of perpetual succession were upheld.

“Having endeavoured to persuade this court of the unconstitutional conduct on the part of the state it is our prayer that the petition is upheld and the relief sought is granted as prayed,” submitted the paramount chiefs.

The Litunga and his counterparts, in their petition, said that Article 165 (1) of the Constitution Act No.2 of 2016, said the institution of chieftaincy and traditional institutions were guaranteed and shall exist in accordance with the culture, customs and traditions of the people to whom they apply.

They said that according to article 167, a chief might own property in a personal capacity and enjoy privileges and benefits bestowed on the office of chief by or under culture, custom and tradition and attached to the office of chief as prescribed.

The Litunga and his counterparts said that article one (1) and (2) provides that the constitution is the supreme law of Zambia and any other written law, customary law and customary practice that was inconsistent with its provisions was void to the extent of inconsistency.
They argued that any act or omission that contravened it was illegal.

They stated that the position taken by the Ministry of Chiefs and Traditional Affairs was different not only with the provisions of Article 165, 166 and 167 of the constitution of Zambia but also the definition of “chief” in Article 266.

“Chiefs” means a person bestowed as chief and derives allegiance from the fact of birth or descent in accordance with the customs, traditions, usage or consent of the people in a chiefdom,” the quartet said.

They said that Article 2 of the constitution says that very person has the right and duty to defend the constitution as well as resist or prevent a person from overthrowing, suspending or illegally abrogating the constitution.

The four explained that from the time Article 165 of the constitution became operational, there had been scramble for chieftainship proven by declarations of illegal chiefs now claiming that they no longer need to be recognised by senior chiefs under article 165 of the Constitution.
“It is important for government to pay necessary subsidies to chiefs to enable them discharge their functions diligently and maintaining their dignity,” they said.

In his answer to the petition, Attorney General Likando Kalaluka said the Litunga and his counterparts were entitled to the reliefs sought that the traditional authority of the paramount chiefs to recognise, install and discipline, including dethronement of any of their subordinate chiefs in accordance with customary law shall, continue to be exercised by them.

The state confirmed that Section 8 of the chiefs Act was not declared unconstitutional and void by the Constitutional Court in the case of Webby Mulubisha Vs the Attorney General therefore the four paramount chiefs are entitled to the reliefs sought.

“The petitioners are entitled to the reliefs sought save for costs as the petition raises serious Constitutional issues and the said costs should be in the cause and for the reasons that the same issues raised were canvassed in the Webby Mulubisha V Attorney General judgment,” said Kalaluka.

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