ConCourt has no powers to hear Bill 10 – Kalaluka

23rd August 2019

Local

FILE: former Attorney General Likando Kalaluka speaks during the official opening of the trade based anti-money laundering training at Pamodzi Hotel in Lusaka on August 13, 2019 - Picture by Tenson Mkhala

Local

FILE: former Attorney General Likando Kalaluka speaks during the official opening of the trade based anti-money laundering training at Pamodzi Hotel in Lusaka on August 13, 2019 - Picture by Tenson Mkhala

The Attorney General has asked the Constitutional Court to dismiss the Law Association of Zambia’s petition saying the ConCourt’s jurisdiction does not extend to hearing a petition on an allegation that a Bill, which is proposed law, contravenes the Constitution.

And the ConCourt has set August 28, at 09:00 hours, as the date of hearing in this matter.

Last week, the Law Association of Zambia (LAZ) dragged President Edgar Lungu, the Attorney General and the National Assembly to the ConCourt for attempting to illegally alter the Constitution of Zambia through Bill 10, 2019.

LAZ, which is being represented by Simeza, Sangwa and Associates, cited the President of the Republic of Zambia, the Attorney General and the National Assembly as first, second and third respondents respectively.

But in their skeleton arguments in support of notice of motion, Thursday, the Attorney General argued that the ConCourt could not pronounce itself on an allegation that a proposed law would contravene the Constitution.

“We humbly submit that Article 128 (3) (a) empowers the Constitutional Court to hear petitions on an allegation that an Act of Parliament or a Statutory Instrument contravenes the Constitution. The jurisdiction of the Constitutional Court does not extend to hearing a petition on an allegation that a Bill, which is proposed law, contravenes the Constitution,” read the arguments.

The Attorney General argued that LAZ had failed to pinpoint exactly how the Respondents had abrogated the law.

“We humbly submit that with regards the 1st question on the points of law raised; an examination of the Petition on record will show what it really is. The first part of the petition highlights the statutory obligations of the President of the Republic of Zambia, the office of the Attorney General and the National Assembly. Thereafter, the Petitioner makes reference to what is now being called ‘Decisions’ which are in fact steps which ought to be taken in proposing amendments to the Constitution and it is those steps that the Petitioner has presented to this honorable court as contraventions without pleading expressly how these acts amount to contravention of the Constitution,” read the arguments.

The Attorney General insisted that the ConCourt had no jurisdiction to adjudicate proposed constitutional amendments.

“We humbly submit that what the President of the Republic of Zambia, the Attorney General and the National Assembly did is in line with the Constitution. Further, the said public offices are mandated by the Constitution to do so. Therefore, the allegation by the Petitioner that by doing the said acts, the Constitution has been contravened is in fact alleging that the Constitution contravened itself. It is also our humble contention that it is not possible for such a situation to exist and this is because the actions, measures or decisions taken herein are all mandatory and Constitutional obligations that were done in accordance with the Constitution itself…In fact, we would go further to argue that seeing that the Constitution cannot contravene itself, there is no decision before this court to warrant the invocation of the court’s jurisdiction to entertain this matter,” read the arguments.

“We contend that the gist or essence of this petition is simply to challenge the contents of proposed legislation, that is, a Bill. Further, the petition has failed to show any specific violations of the Constitution by the Respondents in relation to the proposed amendments to the Constitution. We submit that this honorable court has no jurisdiction to adjudicate proposed amendments to the Constitution.”

The Attorney General argued that the President’s action of introducing the Bill before Parliament did not amount to amending the constitution and neither did the Speaker’s action of tabling it before the House for first reading.

“In the like manner, the Petitioner cannot argue that by the Attorney General signing the Bill as required by Article 177, then the Constitution has been amended,” read the arguments.

“Therefore, the Petitioner cannot allege that by virtue of a decision by the Respondents to do what is required of them by the Constitution which may lead to the amendment of the Constitution, the Constitution has been abrogated. This is because the actions of the Respondents do not amount to an amendment in itself. We humbly submit that based on the foregoing, this Petition be dismissed with costs to the Respondents.”