Three political party leaders and two others have sued the Law Association of Zambia (LAZ) in the Constitutional Court, seeking a declaration that its decision to sue President Edgar Lungu is illegal and contravenes Article 98 (1) of the Constitution, arguing that the Head of State enjoys immunity from civil proceedings.
Zambia Republican Party president Wright Musoma, New Congress Party president pastor Peter Chanda, Citizens Democratic Party president Robert Mwanza, Richard Mumba and Mwanalushi Mulemwa further want an interim order to stay proceedings in which LAZ has sued President Lungu, the Attorney General and the National Assembly for attempting to alter the Constitution of Zambia through the Constitution of Zambia (Amendment) Bill 10, 2019, pending determination of their matter.
They are further seeking an order declaring that LAZ’s decision to sue the National Assembly is illegal and contravenes Section 12 (1) of the State Proceedings Act, and therefore null and void.
The applicants are also seeking costs and an order of the court declaring that LAZ’s decision to sue President Lungu in total disregard of Article 1 Clause (1) and (2), Article 2 and 98 (1) of the Constitution, contravenes Section 13 (3) of the Legal Practitioners Act Chapter 30 of the Laws of Zambia and amounts to breach of LAZ members’ Oaths of State Counsel, Oath of Office and Oath of Allegiance under the said section.
In an affidavit in support of originating summons filed in the Constitutional Court, the applicants argued that the objectives of LAZ restrict the association in terms of suing as specified under Section 4 of the LAZ Act.
“That Section 3 of the LAZ Act establishes the association as a body corporate with perpetual succession and a common seal capable of suing and being sued subject to the provisions of the said Act. That it is further our understanding that LAZ can only sue subject to the LAZ Act,” read the affidavit.
The applicants contended that LAZ cannot sue President Lungu and the National Assembly.
They further contended that the National Assembly, as an organ of the State, could only be sued through the Attorney General pursuant to the provisions of Section 12(1) of the State Proceedings Act, Chapter 71 of the Laws of Zambia.
“We contend that instituting civil proceedings against the President of the Republic of Zambia is prohibited under Article 98(1) of the Constitution of Zambia. The action by LAZ to institute civil proceedings against the President is a breach and violation of the Constitution of Zambia under Article 98,” read the affidavit.
The applicants further contended that the President enjoyed immunity from civil proceedings whilst performing duties or in his private capacity, adding that the decision to sue him was an illegal act which offends Article 1 (2) of the Constitution.
They argued that LAZ, by instituting civil proceedings against the President, had elevated the LAZ Act above the Constitution, which was the Supreme Law of the Land and had created a legal conflict between the two statutes.
The applicants also argued that by suing the Head of State, LAZ’s actions amount to illegally abrogating the Constitution and inciting the public to be suing the President.
They further stated that by suing President Lungu, LAZ had illegally removed the Presidential immunity of the Head of State and Commander-in-Chief of the Armed Forces.
“That we seek the interpretation of the Constitutional provisions in the originating summons and the conduct and actions of LAZ whether the action of instituting civil proceedings against the President and the National Assembly breaches the Constitution and the State Proceedings Act and the Legal Practitioners Act,” read the affidavit.
Meanwhile, the Constitutional Court has set today (September 2, 2019) as the date for inter parte hearing of an application by LAZ to have the National Assembly restrained from considering the Constitution of Zambia (Amendment) Bill Number 10 of 2019 while the matter is still in court.