BILL 10 GOES AHEAD – COURT
…as LAZ, Chapter One Foundation petitions tossed out
THE
Constitutional Court has in the final judgement dismissed the petitions by the Law Association of Zambia (LAZ) and Chapter One Foundation that were challenging the Constitution amendment process of Bill No. 10 of 2019 that they lacked merit.
In reading the majority judgement on behalf of other judges, Justice Enock Mulembe reiterated that there was nothing in the Constitution that gives the Constitutional Court powers to question the process of a Bill or to declare it unconstitutional.
Other judges who heard the petitions were Constitutional Court president Hildah Chibomba, Annie Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke while Professor Justice Margret Munalula was dissenting.
“We reiterate our position in the abridged judgement and issue the following orders, the two petitions have no merit and they stand dismissed. The parties shall bear their own respective costs,” Judge Mulembe read.
“As can be seen from the provisions of Article 128, the Constitutional Court has very wide jurisdiction subject to Article 28. However, although this jurisdiction is extensive, it is still limited by the Constitution itself in Article 128. Therefore, as a creature of the Constitution, the Constitutional Court can only exercise the jurisdiction and power given to it by the Constitution,” read Justice Mulembe.
The court also said that Parliament enjoyed exclusive cognizance over its internal proceedings, hence the Constitutional Court cannot interfere with the conduct of the internal affairs of Parliament when it is exercising its constitutional mandate to legislate.
And Justice Munalula in giving her dissenting view to the majority judgement said the courts’ intervention in Parliamentary proceedings was necessary to ensure the Parliamentarians were acting in accordance with the Constitution as they legislate.
“Under the separation of powers doctrine each arm of Government including the judiciary (this court in particular) enjoys the freedom to do their work in accordance with the people’s aspirations as expressed in the Constitution. Parliament cannot plead exclusive cognizance and separation of powers to avoid the scrutiny of the courts as that would hinder this court’s ability to exercise its powers of review and protect the Constitution,” she said.
“Admittedly, the court must “tip toe” into and around the territory of Parliament and the law making process and it does so not to undermine the separation of powers and Parliament’s legislative independence but to carry out its duty to ensure Parliament’s compliance with its constitutional obligations,” she stated.
Justice Munalula said the Constitution is hopeful and it was incumbent on the Constitutional Court which holds the mandate to interpret and protect it to use all means constitutionally available to it to sustain that hope.
In this matter LAZ and Chapter One Foundation Limited had petitioned the Constitutional Court over the government’s decision to alter the constitution through Constitution (Amendment) Bill 10 of 2019.
The petitioners cited Attorney General Likando Kalaluka as the respondent in the matter.
LAZ petitioned the Constitutional Court to declare that the manner in which Government seeks to make changes is unconstitutional and illegal.
It alleged that the manner in which Government seeks to make changes to the constitution through Bill 10 was illegal and unconstitutional.
While Chapter One Foundation Limited was seeking an order that Minister of Justice Given Lubinda withdraws Bill 10 of 2019 from the National Assembly.
It wanted the Bill to be removed because the process of its enactment and proposals allegedly do not comply with national values, principles and provisions of the Constitution.
The state had argued that the Constitutional Court has no jurisdiction to hear a petition on allegations of the contravention of the Republican Constitution on proposed laws or bills.
It therefore, asked the court to dismiss the petition for want of jurisdiction.