Amend Defence Act now - Court

LUSAKA High Court District Registrar Mwaaka Mikalile says there is urgent need to have a second look at the Defence Act, Chapter 106 of the Laws of Zambia.

Ms. Mikalile says she agrees that Regulation 10A of the Act tramples on military personnel’s rights and is contrary to the Universal Declaration of Human Rights that everyone has the right to an effective remedy by national tribunals for acts violating rights granted him by the Constitution or by law.

She said this when she dismissed a case in which two dismissed Zambia Army employees Lieutenant Colonel Jack Mbewe and Lieutenant Colonel Gezani Mwanza sued the Attorney General on grounds that their dismissal from service was null and void.

The two were dismissed under Regulation 10A of the Defence (Regular Forces officers egulations of 1960.

The Regulation 10A provides that (1) The President may, upon recommendation of the Commander, cancel and order his removal from office if he is satisfied that such officer is inefficient or unsuitable to remain in the Regular Force or that the conduct of such officer is likely to bring discredit upon the Defence.

(2)Any person whose commission has been cancelled by the President under the provisions of subsection (1) shall forthwith be dismissed from the Defence Force.

(3) Any decision of the President to cancel the ommission of an officer under subsection (1) shall be final and shall not be questioned in any proceedings whatsoever.

In her ruling dated August 13, 2019, Ms. Mikalile said: “In the light of this authority, I am inclined, though with a heavy heart, to hold that Regulation 10A ousts this Court’s jurisdiction. Contrary to the plaintiffs’ counsel’s assertion, Regulation 10A does not separate the decision of the President from that of the Army Commander. The President’s decision is based on recommendation of the Army Commander whether unlawful or wrongful and that decision cannot be questioned by a court.

“I agree with the plaintiffs that this provision tramples on their rights and is contrary to the Universal Declaration of Human Rights that everyone has the right to an effective remedy by the competent national tribunals for acts violating rights granted him by the Constitution or by law. I can only echo words of the High Court that there is urgent need to have a second look at the Defence Act, Chapter 106.”

The two plaintiffs also sought an order and or declaration that they were unfairly and wrongfully discharged from the Zambia Army, an order for damages for the alleged unfair and wrongful discharge; and an order that they be reinstated and were entitled to and or ought to be entitled to continue working under the Zambia Army in their respective ranks and appointments.