LAZ asks ConCourt to dismiss AG’s petition on Bill 10

10th September 2019

Courts

Former Law Association of Zambia president Eddie Mwitwa speaks at a public discussion forum organized by News Diggers! In partnership with the Open Society Initiative for Southern Africa (OSISA) AT Southern Sun Hotel on September 11, 2018 – Picture by Tenson Mkhala

Courts

Former Law Association of Zambia president Eddie Mwitwa speaks at a public discussion forum organized by News Diggers! In partnership with the Open Society Initiative for Southern Africa (OSISA) AT Southern Sun Hotel on September 11, 2018 – Picture by Tenson Mkhala

The Law Association of Zambia (LAZ) has asked the Constitutional Court to dismiss with costs an application by Attorney General Likando Kalaluka to have the petition in which LAZ is challenging the Amendment of Bill No 10 thrown out.

But the Attorney General has asked the ConCourt to dismiss, with costs, an application by LAZ to grant them an interim injunction restraining Parliament from continuing with Bill 10 proceedings.

This is the matter in which LAZ has dragged President Edgar Lungu, the Attorney General and the National Assembly to the Constitutional Court for attempting to alter the Constitution of Zambia through Bill No. 10 of 2019.

LAZ has petitioned the court seeking, among other reliefs, a declaration that the respondents’ decision to the extent to which it seeks to amend the Constitution in the manner set in the Constitution (Amendment) 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.

Last month, LAZ also applied for an order of interim injunction to restrain the National Assembly from continuing with the legislative process to enact the Constitutional (Amendment) Bill No.10 into law, pending determination of the petition.

But the Attorney General had asked the court to dismiss the petition saying the jurisdiction of the Constitutional Court does not extend to hearing a matter on an allegation that a Bill, which is proposed law, contravenes the Constitution.

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

The Attorney General further wants the court to determine whether or not an action taken pursuant to constitutional provisions could be said to contravene the Constitution and whether the Constitutional Court has jurisdiction to hear and determine the petition under article 128(3)(b), among others.

But in its arguments in support of the notice of motion to dismiss the respondents motion for irregularity filed in the Constitutional Court, September 6, LAZ stated that after having sight of the respondent’s motion, it came to a conclusion that it was fatally flawed to the point that LAZ could not respond to it on the merit.

“We have therefore opted to apply to have the same dismissed for irregularity. It is our position that the respondents’ motion seeking to have these three issues heard and decided by the court is irregular in that it does not satisfy the requirements of orders 14A and 33 of the rules of the Supreme Court, it must therefore be dismissed,” read the arguments.

LAZ stated that the respondents’ motion did not contain a reference to the order or rule number or authority under which it was made.

It argued that the three questions before court were settled by the respondents in their right without the involvement of the court or LAZ.

“The consideration of the issues raised by the respondents is therefore not tenable under Order 33 of the Rules of the Supreme. We accordingly pray that the respondents’ motion be dismissed with costs to the petitioner,” it argued.

And in a notice to dismiss the respondents’ motion for irregularity, LAZ submitted that before hearing the respondents arguments pursuant to order 14 A and order 33 of the rules of the Supreme Court 1995, for the determination of certain questions of law on September 17, 2019, the court would be moved by counsel on behalf of LAZ for an order that the respondent’s motion be dismissed for irregularity.

It argued that this was because orders 14A and 33 of the rules of the Supreme Court relied upon by the respondents do not apply to proceedings before the Constitutional Court.

LAZ added that further or in the alternative, orders 14A and 33 of the rules of the Supreme Court do not apply to proceedings by or against the State.

It further stated that the respondents had not satisfied the requirements for the determination of the questions of law under order 14A of the rules of the Supreme Court and further or in the alternative, the respondents had not satisfied the requirements for the determination of the questions raised under order 33 of the rules of the Supreme Court.

But the Attorney General has asked the ConCourt to dismiss LAZ’s application for interim injunction, arguing that the law association’s reasoning is flawed on the matter.

“What emerges from the proceeding discussion is this: the sub judice rule is not absolute. The question whether a particular matter is subjudice is to be decided by the Speaker on the merits of the case,” read the Attorney General’s skeleton arguments in opposition to LAZ’s application for interim injunction.

“We humbly submit that in view of the foregoing, this application be dismissed with costs to the Respondents.”