Patel court petition on govt loans dismissed
THE Constitutional Court has ruled that there is no mandatory requirement in article 63 (2) (d) of the Constitution that the executive to submit all loans without exception to the National Assembly for its approval.
This is a matter where former Commence Minister Dipak Patel petitioned the Concourt that it is a constitutional requirement under Article 63(2)(d) that the National Assembly must approve all public debt.
He cited the Minister of Finance and the Attorney General as the respondents in the matter.
Mr Patel wanted the court to make a declaration that the contraction of debts by respondents without prior approval by the National Assembly was an illegal abrogation of the Constitution.
He contended that as a Zambian citizen and a tax payer, he is affected directly by any debts that the respondents authorize and sign on behalf of the government.
But Solicitor General Abraham Mwansa argued that section 3 and 7 of the loans and guarantee Authorisation Act number 366 of the laws of Zambia does not require government to obtain any form of approval from the National Assembly as claimed.
Mr Mwansa said section 21 of the constitution of Zambia Act Number 1 of 2016 entails that where an Act of Parliament is required to give effect to an article of the Constitution such as article 63 clause (2)(c) and (d) and article 207 clause (1) and (2) the article shall come into effect upon the publication of the Act of Parliament.
The Concourt in its majority judgement delivered yesterday said that Article 114 (1) (e) of the constitution gives Cabinet power to recommend to National Assembly for its approval the loans which should be contracted by the state as well as other State institutions or any other institutions .
Therefore, when the provisions of article 63(2)(d) and article 114(1)(e) are ready together, the Court said it was evident that Cabinet and the National Assembly have distinct roles which they play in the matter of public debt contractions .
Ms Justice Annie Sitali said that Cabinet’s role is restricted to recommending to National Assembly for its approval loans to be contracted by the State and does not confer it with the power to approve the contractions of loans by the State.
The Court said that article 207(1) (a) gives the Government power to raise a loan or grant on its own behalf or on behalf of other State organs or Institutions as prescribed.
However, article 207(1) stipulates that the details of how Government will raise loans or grants will be provided for in an Act of Parliament.
And that article 207 (2) further provides that the category, nature, other terms and conditions of a loan which will require the approval of the National Assembly before the loan agreement is executed will be set out in that act of Parliament .
The Court said that it was prudent for the framers of the constitution to leave the details of the nurture, other terms and conditions of a loan, grant or guarantee that require an approval by the National Assembly of the loan agreement before is executed to an act of Parliament.
“This is because loans enacted by parliament are dynamic and easier to change based on the current needs of the Zambian society ,” said the court.
It said that the provisions of article 63(2)(d) and article 207 (1) and (2) must be read together as reading the provisions of the two articles in isolation on each other would result in an erroneous interpretation of the objective of the framers of the constitution on public debt contraction .
‘‘It was evident that the framers of the constitution did not intend that every loan to be contracted on behalf of the Government will have to be submitted to National Assembly for its approval,” said the court.