Kalaluka, Lubinda can’t testify, says SG

ATTORNEY-GENERAL Likando Kalaluka and Justice Minister Given Lubinda are under oath of office and can only testify before the Constitutional Court when they are authorised by the President, Solicitor General Abraham Mwansa told the court yesterday.

This is in a matter where the Law Association of Zambia (LAZ) has subpoenaed Mr Kalaluka and Mr Lubinda to give evidence on its behalf in relation to what they know about Constitution (Amendment) Bill 10 of 2019.

And in the main matter LAZ has dragged the President, Attorney General and the National Assembly to the Constitutional Court for attempting to alter the constitution through Constitution (Amendment) Bill 10 of 2019.

The LAZ as the petitioners alleged that the actions of the respondent’s was a violation of the current constitution.

Earlier, LAZ subpoenaed Mr Kalaluka and Mr Lubinda to appear at the hearing of the petition and give evidence to aid its case.

When the matter came up before seven judges of the court, Mr Mwansa said Mr Kalaluka and Mr Lubinda are not competent witnesses and cannot be compelled to give evidence unless authorised by the President to transmit any information that they have come across in the discharge of their official duties.

“The two are bound by the principal of confidentiality and they are not at liberty to disclose any information they come across in the course of their duty unless authorized by the President.

“Such authority ought to be in writing under the signature of the President and the power conferred in the President to allow any officer to give information remain within the discretion of the President,” Mr Mwansa said.

Mr Mwansa argued that the summons for subpoenas are irregular because they do not specify the documents that the witnesses are required to produce. He submitted that it was the first time in his practice that a party to the proceedings may be called by the opposing party to give evidence on their behalf.

Mr Mwansa wondered that since Mr Kalaluka was the respondent in the matter, what should happen to his case when he leaves the bar and is giving evidence in the witness box. Who would lead him?

And the Attorney General in augmenting Mr Mwansa’s argument submitted that the tendency of parties issuing subpoenas without leave will create an unprecedented practice where a party sues a party and ask the same defendant to come and aid their case.

He said it will create a bad picture on the court and an abuse of the court process.

Mr Kalaluka therefore asked the court to set aside the subpoenas for being improperly before court.

Meanwhile LAZ lawyer John Sangwa in opposition said the respondents had no right to challenge the subpoenas that because that right is reserved to the party summoned.

He said the motion to set aside the subpoenas should have been made by Mr Lubinda and Mr Kalaluka as the summoned person.

Mr Sangwa said Section 17 of the constitution gives the court the power to direct that a witness summoned be paid whatever expenses he or she has incurred in complying with the subpoena.