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Constitutional Court throws out petition on Bill 10

The Constitutional Court of Zambia has dismissed the petition by the Law Association of Zambia (LAZ) and Chapter One Foundation running by former LAZ President Linda Kasonde for being prematurely before the Court and lack of merit.

Judge Mulembe delivered the majority Judgment of 6 Constitutional Court Judges which tossed out the petition while Judge Munalula delivered her minority views in favour of the petition.

Judge Mulembe said the Constitutional Court has no jurisdiction to hear a matter concerning a Bill which is a proposal or an intention to amend the law, endorsing the earlier decision of the Court of Appeal in the 1972 case of Nkumbula versus the Attorney General in which the Court stated that “it would be premature to come to Court before the Bill had been given its third reading.”

Judge Mulembe made clear the Court has powers to declare any provision of the law as unconstitutional and referred to the case of Godfrey Malembeka versus Attorney General in which the Court declared Sections 9(1)(e) and 47 of the Electoral Process Act as unconstitutional, null and void thereby allowing prisoners to vote in future elections.

The Court also referred to another case of Webby Mulubusha versus Attorney-General which declared the provisions of Sections 4, 6 and 7 of the Chiefs Act were declared null and void for being inconsistent with Article 165 of the Constitution.

On the question as to whether the Court has power to declare any provision of the Constitution as unconstitutional, the Court stood by the recent judgment delivered by the full bench in the case of Godfrey Miyanda versus the Attorney General in which it stated:

“While we recognise the possibility of this [Constitutional] Court to question the constitutionality of a constitutional amendment from the procedural standpoint, under the present constitutional framework, the Court cannot determine the constitutionality of an amendment based on the substantive considerations. An amendment become of the Constitution itself upon its passing.”

The Constitutional Court has also disagreed with the submissions by Chapter One Executive Director who is also lawyer of the organisation that the Constitution of Zambia has a basic structure which cannot be altered by Parliament.

The Attorney General had submitted that the question of the basic structure doctrine was already settled by the decision of the Constitutional Court in the Godfrey Miyanda as well as the Supreme Court case of Zambia Democracy Congress versus the Attorney General in which the Supreme Court held that the argument on the basic structure only exist in theory as Parliament has power to amend any parts of the Constitution provided procedure has been followed.

The Law Association of Zambia had told the Court that it was not challenging the content of the Constitution of Zambia Amendment Bill No. 10 but was merely challenging the decision by the President to initiate the Bill in accordance with the powers conferred on him by Article 92 of the Constitution. LAZ also challenged the signing of the Bill by the Attorney General for tabling in Parliament and the decision by the Parliament to perform its legislative functions of publishing the Bill and considering its enactment.

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