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Judge misjoins Lungu from COF’ Correctional Services case

THE Constitutional Court has struck out President Edgar Lungu as a party from the matter in which Chapter One Foundation Limited has petitioned him for assenting to the correctional service bill No.35 of 2021 when his parliamentary mandate expired following the dissolution of Parliament.

Justice Judy Mulongoti has since replaced President Lungu with Attorney General Likando Kalaluka, who has been joined as the respondent in the matter.

“I’ve therefore inclined to grant the application for misjoinder and joinder as prayed. I am of the considered view that the proceedings in this matter should have been instituted against the Attorney General pursuant to Article 177(5)(c) of the constitution and section 12 of the state proceedings Act,” judge Mulongoti said. “This does not in any way entail that the President cannot be questioned in the discharge of his functions.”

Chapter One Foundation wants a conservatory order staying the operation of the Zambia correctional service Act no.35 of 2021 and restoring the prisons Act chapter 97 of the Zambian laws pending determination of the petition.

It wants a declaration that to the extent that the Zambia correctional service bill no.35 of 2021 was assented to by the President after the dissolution of Parliament on May 13, 2021, the Zambia correctional service Act no.37 of 2021 was not law enacted by Parliament of Zambia therefore it was null and void.

COF is further seeking an order of certiorari that the Zambia correctional service Act no.37 of 2021 be quashed.

Josiah Simachela, a chief state advocate in the Attorney General’s Chambers, asked the court to remove President Lungu from the matter because he enjoys immunity and cannot be sued.

In an affidavit in support of combined summons for joinder of a party to proceedings and for misjoinder of party, Simachela said the President had been sued for performing his duties in his capacity as President.

“All civil matters ought to be brought against the Attorney General, the intended second respondent. President Lungu being a public officer has been wrongly joined to the proceedings as no civil action can be instituted or continued against a person occupying the office of President,” said Simachela.

Chapter One Foundation in opposing the state’s application for misjoinder and joinder argued that the relief it was seeking was not against President Lugu but against the bill, which must be quashed on the premise that it was ultra vires the Constitution.

It said the contention was the legality of the signing of the Zambia correctional service Act no.35 of 2021 after the dissolution of the Parliament on May 13, 2021.

It said although the Attorney General seeks to be joined to the proceedings as the second respondent, he seeks to be the sole respondent in place of the President.

Chapter One Foundation said Article 98(1) of the Constitution had been misapprehended by the Attorney General and the argument that the President was a public officer was misplaced and without any legal foundation.

“Article 98(1) of the Constitution does not abolish but merely suspends the right of any person to continue civil proceedings against the President in respect of anything done or omitted to be done by the President in his private capacity during the tenure of office as President,” COF said.

It argued that the case had nothing to do with the Head of State in his personal capacity but what he did in his official capacity as President of the Republic of Zambia.

“The issues in contention in this case are therefore not subject to article 98 of the Constitution. The case before court is not civil or criminal, which is covered under article 119(2)(a) of the Constitution. It is constitutional in that it comes within the ambit of article 119(2)(b) of the constitution since it relates to the exercise of the authority vested in the President by the Constitution,” said COF.

Judge Mulongoti ruled that Article 177(5)(c) and section 12 referred to civil proceedings and was inapplicable in a matter, which is constitutional as constitutional matters were not civil in nature.

“In light of the foregoing, the application for joinder and misjoinder is granted as prayed. Consequently, the President is misjoined as the respondent and the Attorney General is joined as a respondent in his place. Each party to bear own costs,” said judge Mulongoti.

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