The three political party leaders and two others challenging Law Association of Zambia (LAZ)’s decision to sue President Edgar Lungu and the National Assembly for attempting to alter the Constitution through Bill 10 of 2019 have submitted that the Constitutional Court has jurisdiction to hear their matter as it relates to the interpretation of the Constitution.
The five have, therefore, asked the Constitutional Court to dismiss with costs a notice of motion by the Law Association of Zambia (LAZ) in which it is seeking an order to throw out their action.
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 Lungu is illegal and contravenes Article 98 (1) of the Constitution.
The applicants 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 Bill 10, 2019, pending determination of their matter.
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 had asked the Court to dismiss the applicants’ matter with costs on the ground that it is illegally before the Constitutional Court.
LAZ, through its lawyers Simeza, Sangwa and Associates, submitted that the case had contravened Article 128 (3) of the Constitution and further argued that the Constitutional Court had original and final jurisdiction in matters that related to the violation or contravention of the Constitution.
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.
But in skeleton arguments in opposition to LAZ’s notice of motion to dismiss the action filed in the Constitutional Court, the applicants argued that the Court had jurisdiction to hear the originating summons as it relates to the interpretation of the Constitution.
It, therefore, asked the Court to dismiss LAZ’s notice of motion.
“It is our humble prayer to this honourable court that the application that was commenced by LAZ by way of notice of motion for an order dismissing the applicant’s action, be dismissed with costs to the applicants,” the applicants stated.
They contended that their action was done in accordance with the law and that there was nothing illegal about their mode of commencement by way of originating summons.
The applicants submitted that they were before court for the interpretation of the Constitution in relation to the legal action taken by LAZ against President Lungu and the National Assembly.
They observed that LAZ was relying on Article 128 (3) in charging that the applicants should have commenced the action through a petition.
The applicants, however, submitted that Article 128 (3) does not provide the mode of commencement of the petition and contended that the word ‘petition’ in the said article and section 8(3) of the Constitutional Court Act No. 8 of 2016 was used as a verb to mean ‘a person may seek redress from the Constitutional Court.’
“The foregoing provisions do not in themselves provide the mode of commencement,” they argued.
The applicants further argued that the reliefs being sought by them cannot determine the mode of commencement, adding that the “fundamental issue herein was the court’s interpretation of the questions set out in the originating summons”.
They submitted that they had fully complied with the provisions of Order IV of the Constitutional Court rules, specifically Order IV rule number two and Order IV rule 4(5), which respectively provide that “a matter relating to the interpretation of the Constitution shall be commenced by originating summons…”