The Constitutional Court has in its majority ruling declined the request by the Law Association of Zambia (LAZ) to restrain the National Assembly from continuing with the legislative process to enact the Constitutional (Amendment) Bill No.10 into law, pending determination of its petition.

But Constitutional Court judge professor Margaret Munalula said this is an exceptional case deserving an order of interim injunction against the State because LAZ would suffer irreparable harm if the process goes ahead.

The refusal to grant LAZ an injunction means the National Assembly will now proceed with its process to alter Constitution despite the court process.

In this matter, LAZ is challenging Constitutional Court judge Annie Sitali’s refusal to grant it an interim injunction restraining the National Assembly from continuing with the legislative process to enact the Constitutional (Amendment) Bill No.10 into law, pending determination of its petition where its challenging government’s attempt to alter the Constitution of Zambia through the same bill.

In the majority ruling read by constitutional court judge Enock Mulembe who sat with justices Prof Munalula and Martin Musaluke, the court ruled that LAZ would not suffer any irreparable harm if the government was allowed to go ahead with the process of Constitution (Amendment) Bill no 10 of 2019 pending the hearing and determination of the petition.

The matter was heard by Constitutional Court president Hilda Chibomba, Mungeni Mulenga and the said three judges but justice Chibomba and Mulenga were not available when the ruling was being delivered.

Justice Mulembe said the court’s firm view was that this was not an appropriate case in which the court should exercise it’s discretion to grant an injunctive relief as prayed.

He said LAZ had not sufficiently demonstrated how it will suffer irreparable harm.

“In the main matter, the petitioner is alleging breaches or contraventions of the constitution. The petitioner will have an opportunity to argue this position before this court. We hold that the petitioner does return his right to defend the constitution even without injunctive relief. We find no merit in the petitioners application and decline it’s request for an injunction to restrain the respondents,” justice Mulembe said.

But in her separate opinion, Justice Munalula said denial of the interim injunction would prevent LAZ an opportunity to defend the petition on its merit.

She said LAZ should have been granted an order of interim relief because it would suffer irreparable damage in an event that the process went ahead.

“I’m of the firm view that this court is well within it’s powers to grant an interim injunction until the main matter has been disposed of. It is clear to me that this is an exceptional case deserving of an order of interim injunction against the respondents. I do find that the petitioner will suffer irreparable harm if interim relief is not grant. I find that this is a proper case in which to grant an interim injunction as prayed,” justice Munalula said.

Earlier in the day, the court set aside the subpoenas on the Attorney General Likando Kalaluka and Minister of Justice Given Lubinda for being irregular.

Constitutional Court Martin Musaluke ruled on behalf of other judges that that the summons to subpoena Lubinda and Kalaluka were irregular because LAZ did not seek leave of the court before issuing the notice.

He said that it was important for the party seeking to subpoena someone to seek permission of the court to give the court an opportunity to examine and establish whether the party which was seeking to subpoena someone had met all the requirements for doing so.

The main petition will be heard on November 12, 2019.