Daily Nation Newspaper

Patel court petition on govt loans dismissed

- By GRACE CHAILE LESOETSA

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.

 ??  ?? Mr Patel
Mr Patel

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