The Law Association of Zambia (LAZ) has insisted that the matter in which three politicians and two others are challenging its decision to sue President Edgar Lungu and the National Assembly for attempting to alter the Constitution through Bill 10 of 2019 should be thrown out.
LAZ has submitted the applicant’s argument that the Constitutional Court has jurisdiction to hear its matter stemming from Article 128 (1) (a) (b) (c) and (e) is misconceived as it is inviting the court to read words into the Constitution.
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 grounds 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.
However, the applicants submitted that the Constitutional Court has jurisdiction to hear its matter as it relates to the interpretation of the Constitution.
The five, therefore, asked the Court to dismiss with costs, a notice of motion by LAZ in which it is seeking an order to throw out their action.
But in its arguments in reply filed in the Constitutional Court, October 10, LAZ insisted that the matter should be dismissed with costs because its mode of commencement abrogates Article 128 (1) and (3) of the Constitution.
It contends that the questions raised by the applicants do not raise any constitutional issue for interpretation by the Constitutional Court, and as such, cannot be considered by the Court.
“We, therefore, submit that this matter is wrongly before this honourable court. We are of the firm view and submit that the arguments by the applicants that the honourable court has jurisdiction to preside over this matter is misconceived as it is inviting this court to read words into the Constitution,” LAZ stated.
It submitted that it was wrong for the applicants to invite the Court to hold that their action was on the interpretation of the Constitution based on the contents of one paragraph of the affidavit in support of the originating summons.
“It is trite law that the mode of commencement of an action is provided by the relevant statute and does not depend on the relief sought by a party to proceedings,” stated LAZ.
It also insisted that the correct mode of commencement should have been by way of petition and not originating summons.