We’ve no jurisdiction over Bill 10, rules ConCourt

Attorney General Likando Kalaluka (l) and Isaac Mwanza (c) at Supreme Court during the Bill 10 case on November 21, 2019 - Picture by Tenson Mkhala

There is nothing in Article 128 or any other provision in the Constitution that gives this court jurisdiction to question the contents of a Bill or to declare it unconstitutional, the Constitutional Court has ruled.

The court has therefore thrown out the petitions by the Law Association of Zambia (LAZ) and Chapter One Foundation Limited which were challenging government’s decision to alter the Constitution of Zambia through constitution (Amendment) Bill 10 of 2019, for lacking merit.

But Judge Munalula dissented to the majority judgement and said her opinion would be delivered immediately after the judgment of the majority.

Reading the majority judgement on behalf of other judges, Friday, justice Enock Mulembe said although the Constitutional Court had a very wide jurisdiction, the jurisdiction was still limited by the Constitution itself in Article 128 and could only exercise it based on the power given to it by the same Constitution.

He added that there was nothing in Article 128 or any other provision in the Constitution that gave the court jurisdiction to question the contents of a Bill or to declare it unconstitutional.

“It is clear from the provisions of Article 128(3)(b) that the Constitutional Court has jurisdiction to hear a matter concerning an allegation and an action, measure or decision taken under the law which contravenes the Constitution. However, the question is, does the court have jurisdiction to hear a matter that alleges that a Bill contravenes the Constitution as alleged in this case by Chapter One Foundation?” he asked.

“As can be seen from the provisions of Article 128, the Constitutional Court has very wide jurisdiction. But however, although this jurisdiction is extensive, it is still limited by the Constitution itself in Article 128. Therefore, as a creature of the Constitution, the Constitutional Court can only exercise the jurisdiction based on the power given to it by the Constitution. Therefore the question that follows is whether the Constitutional Court has jurisdiction to hear and determine an allegation that a Bill proposed to amend the Constitution contravenes any provision of the Constitution as has been argued by Ms [Linda] Kasonde. There is nothing in Article 128 or any other provision in the Constitution that gives this court jurisdiction to question the contents of a Bill or to declare it unconstitutional.”

Justice Mulembe said in as much as the court sympathized with the reliefs sought by Chapter One Foundation, the remedies were not available to it because the court did not have jurisdiction.

“In the nineth prayer, the second petitioner (Chapter One Foundation) prays for a declaratory order that government cannot fundamentally alter the Constitution without consulting the people of Zambia. In as much as we sympathize with the position the second petitioner finds itself in, that remedy is not available because this court does not have jurisdiction,” he said.

And on the reliefs sought by LAZ, justice Mulembe said it was clear that the association was asking it to delve into the contents of the Bill when it had no power to do so.

The court therefore dismissed both petitions for being unmeritorious.

“Coming to the first petitioner’s (LAZ) case, its first prayer is for a declaration that the President, National Assembly and Attorney General’s decision to the extent that it seeks to amend the Constitution in the manner set out in Bill no. 10, is illegal on grounds that it contravenes Articles 1(2), 8, 9, 61, 79, 90,91, 92 of the Constitution. It is clear that what LAZ is asking us to do is to delve into Bill 10. We have already stated that Article 128 (3)(b) gives this court jurisdiction, however, this jurisdiction does not extend to questioning the contents of the Bill,” said justice Mulembe.

“We have considered the prayers of the first petitioner and we are unable to grant without us delving into the Bill and its contents. It is a roundabout way of asking us to delve into the Bill, which we cannot do because we do not have jurisdiction. The prayer is therefore declined.”

But Justice Munalula dissented to the judgement although her opinion was not read out in open court.

In this matter, Chapter One Foundation Limited had petitioned the Constitutional Court for an order that Minister of Justice Given Lubinda withdraws Bill 10 from the National Assembly, saying the process of its enactment and the proposals do not comply with national values, principals and provisions of the Constitution.

It further wanted the court to make a declaration that the President, Lubinda and the Attorney General, acted illegally by initiating legislation that did not comply with the national values and principles as provided in the Constitution.

Chapter One Foundation also wanted the court to make a declaratory order that government cannot fundamentally alter the nature of the Constitution contrary to the will expressed by the people without duly consulting them.

On the other hand, LAZ was seeking a declaration that government’s decision to the extent to which it seeks to amend the Constitution in the manner set in 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.

The petitioners cited Attorney General Likando Kalaluka as the respondent in the matter.

Seven Constitutional Court judges headed by court president Hilda Chibomba sat to hear the matter during trial.

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