LAZ asks ConCourt to throw out Musoma’s suit over Bill 10

The Law Association of Zambia (LAZ) has asked the Constitutional Court to dismiss a matter in which three politicians and two individuals have sued the association over its decision to drag President Edgar Lungu and the National Assembly to court for attempting to alter the Constitution of Zambia through Bill 10.

LAZ has argued that the matter should be dismissed with costs on the ground that it’s illegally before the Constitutional Court.

In this matter, Zambia Republican Party president Wright Musoma, Richard Mumba, New Congress Party president pastor Peter Chanda, Mwanalushi Mulemwa, and Citizens Democratic Party president Robert Mwanza commenced an action by way of originating summons and cited LAZ, seeking a declaration that its decision to sue President Edgar Lungu, is illegal and contravenes Article 98 (1) of the Constitution.

The applicants further want an interim order to stay proceedings in the said case.

They are also seeking, among other reliefs, 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.

But LAZ, through its lawyers from Simeza, Sangwa and Associates, has argued that the case has contravened Article 128(3) of the Constitution.

“Subject to Article 28, a person who alleges that – an Act of Parliament or statutory instrument; an action, measure or decision taken under law; or an act, omission, measure or decision by a person or an authority; contravenes this constitution, may petition the Constitutional Court for redress,” LAZ submitted.

It stated that the applicants had not complied with the said provision in moving the Constitutional Court.

LAZ further submitted that Musoma and others in moving the court, were bound to follow the provisions of the Constitution in so far as they relate to how the Constitutional Court could be moved.

It added that the need to comply with the Constitution extended even to the manner of moving the Constitutional Court as long as it was prescribed by the court.

“In this case, the applicants are bound to respect the Constitution in moving this court and it’s our position that they did not do so making this action illegal. In moving this court, the applicants contravened the provisions of Article 128 (3) of the Constitution,” LAZ argued.

It further argued that the Constitutional Court had original and final jurisdiction in matters that related to the violation or contravention of the Constitution.

“Whereas, Article 128(1) of the constitution deals with the jurisdiction of the Constitutional Court, Article 128(3) deals with the procedure for moving the court where one alleges: (a) that an Act of Parliament or Statutory Instruments;(b) an action, measure or decision taken under law or (c) an Act, omission, measure or decision by a person or an authority contravenes the Constitution. The Constitution requires the person who makes such a an allegation to petition the Constitutional Court for redress or remedy,” LAZ argued.

It submitted that since it was the foundation of the applicants’ case that there had been contraventions of the Constitution by LAZ, they should have moved the court by petition pursuant to Article 128 (3)(b) or (c) of the Constitution and not by originating summons.

“Their failure to move the court by petition is a contravention of the Constitution and therefore, the case before court against the respondent (LAZ) is illegally before court. The court cannot therefore, hear or decide it on the merit. By moving the court by originating summons, the applicants have contravened Article 128 (3) of the Constitution, section 8 (3) of the Constitutional Court Act and Order 4 Rule 1 of the Constitutional Court Rules,” LAZ submitted.

It prayed that the Originating Summons before court be dismissed on the ground that it was illegally before the Constitutional Court and that the applicants be condemned to pay costs of and occasioned by the proceedings.

The matter comes up for hearing on October 8, this year.

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