THE Constitutional Court has reiterated its position of November 29, 2019, that the petitions by the Law Association of Zambia (LAZ) and Chapter One Foundation Limited in which they were challenging government’s decision to alter the Constitution of Zambia through Bill 10, lack merit and stand dismissed.

But in her dissenting judgement, Justice Professor Margaret Munalula noted that a Constitutional Court, as a specialised court, is set up to protect the constitution which is the supreme law of the land.

She added that when there is an important constitutional question before it, a ConCourt cannot take refuge in precedent or technicalities nor shy away from making hard decisions that hold anyone and everyone including the court itself constitutionally accountable.

“This court is the guardian of the Constitution. Parliament cannot plead exclusive cognizance and separation of powers to avoid scrutiny of the courts as that would hinder this court’s ability to exercise its powers of review and protect the Constitution. 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,” Prof Munalula said.

In November last year, the Constitutional Court in its abridged judgement threw out the petitions by LAZ and Chapter One Foundation Limited, challenging government’s decision to alter the Constitution of Zambia through Constitution (Amendment) Bill 10 of 2019, for lacking merit.

The court ruled that there was nothing in Article 128 or any other provision in the Constitution that gives it jurisdiction to question the contents of a Bill or to declare it unconstitutional.

And delivering a full majority judgement, Friday, Constitutional Court judge Enock Mulembe on behalf of five other ConCourt judges, reiterated that the court had no jurisdiction to delve into the contents of Bill 10 and as such, the petitions by LAZ and Chapter One lacked merit.

“We considered the prayers of the first petitioner and we are unable to grant them without our delving into the Bill and its contents. It is a roundabout way of asking us to delve into the Bill which we cannot do because we do not have jurisdiction. The prayer is therefore declined,” he said.

Justice Mulembe said the petitioners did not show to the court how the process of the amendment of the Constitution breached the law despite having claimed that the National Dialogue process was not consultative as it excluded some members of the public from participating in the process.

He said although Article 128 of the Constitution gives the court jurisdiction to hear the petition, it does not give it powers to question the content of the proposed Bill.

“We reiterate that the petitioners’ petitions have no merit and stand dismissed,” Justice Mulembe said before inviting Prof Munalula to deliver her dissenting full judgement.

In her dissenting judgement, Prof Munalula said “having read the decision handed down however, I am unable to reconcile myself to the limits set by the court. So by this opinion, I choose a different path from that taken by my sisters and brothers.”

Justice Munalula said courts should not normally interfere in the performance of the functions of Parliament but added that they may do so where necessary.

“As I understand the regional jurisprudence, courts should not normally interfere in the performance of the functions of Parliament but they may do so where necessary. As long as a contravention has not been brought to the attention of the Court, the law making process may proceed unimpeded. However, once a complaint of some procedural impropriety is filed in court then the dynamics change,” she said.

“An alleged contravention of the Constitution compels the courts to investigate and establish whether indeed the alleged transgressor has failed to comply with the Constitution. Parliament and the constitutional court act in accordance with established civility and decorum towards each other. Parliament defers the relevant bill until the court has determined the matter. And the court acts timely and does its job not in a manner that usurps the powers of the lawmakers, but that protects the Constitution by ensuring that the law makers are acting appropriately.”

In this matter, Chapter One Foundation Limited had petitioned the Constitutional Court for an order that Minister of Justice Given Lubinda withdraws Bill 10 from the National Assembly, saying the process of its enactment and the proposals did not comply with national values, principles and provisions of the Constitution.

It further wanted the court to make a declaration that the President, Lubinda and the Attorney General, acted illegally by initiating legislation that did not comply with the national values and principles as provided in the Constitution.

Chapter One Foundation also wanted the court to make a declaratory order that the government cannot fundamentally alter the nature of the Constitution contrary to the will expressed by the people without duly consulting them.

On the other hand, LAZ was seeking a declaration that government’s decision to the extent to which it seeks to amend the Constitution in the manner set in Bill No. 10 of 2019, is illegal because it contravenes Articles 1(2), 8, 9, 61, 79, 90,91, 92 and 79 of the Constitution.

The petitioners cited Attorney General Likando Kalaluka as the respondent in the matter.