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Sections 3-7 of Chiefs Act unconstitutional, rules ConCourtBy Zondiwe Mbewe on 2 Dec 2019
The Constitutional Court has declared sections 3, 4, 5, 6 and 7 of the Chiefs Acts to be inconsistent with Article 165 of the Constitution as amended, ruling that they are, therefore, unconstitutional and should be expunged from the statute book.
ConCourt Judge Palan Mulonda stated that allowing the President to appoint a deputy chief, who for all intents and purposes would likely assume the role of a chief, went against the principle of non-involvement of the Presidency in the selection of chiefs.
In this matter, chief Mwene Mutondo Mulubisha of the Nkoya people of Kaoma District in Western Province had petitioned the Constitutional Court for a declaration that sections 3, 4, 5, 6 and 7 of the Chiefs Act Chapter 287 of the laws of Zambia were inconsistent with Article 165 of the Constitution of Zambia (Amendment) Act No. 2 of 2016.
He further sought a declaration that section 3, 4, 5, 6 and 7 of the Chiefs Act were unconstitutional and, therefore, void as well as any other relief as may be just.
Mulubisha alleged that the Chiefs Act Chapter 287 of the laws of Zambia as amended by Act No. 13 of 1994 was inconsistent with Article 165 of the Constitution of Zambia (Amendment) Act No. 2 of 2016.
The brief background to the petition was that on January 5, 2016, the Constitution of Zambia, 1991, was amended by the Constitution of Zambia (Amendment) Act. No 2 of 2016.
The Constitution, as amended, introduced, among other provisions, Article 165, which provides that: (I) the institution of chieftaincy and traditional institutions are guaranteed and shall exist in accordance with the culture, customs and traditions of the people to whom they apply. (ii) Parliament shall not enact legislation, which confers on a person or authority the right to recognize or withdraw the recognition of a chief; or derogates from the honour and dignity of the institution of chieftaincy.
Following the enactment of the said constitutional provision, Mulubisha alleges that sections 3, 4, 5, 6 and 7 of the Chiefs Acts are inconsistent with Article 165 of the Constitution as amended.
Mulubisha submitted that the Constitution as amended has disrupted the status quo in that Article 165 rejects the past legal order in relation to chiefs and the institution of chieftaincy.
It was submitted that this was so because the status of a chief was no longer dependent on the Act of recognition by the President or any authority, but on the people to whom the office of chief applies.
Mulubisha submitted that Article 165 (2) (a) of the Constitution as amended, prohibits Parliament from enacting any legislation that confers on a person or authority the right to recognize or withdraw the recognition of a chief.
“That section 3 of the Act vests the President with the power to recognize, by statutory order, any person as Litunga of Western Province or any other office of the chief in that Province. Under section 4, the President has, after due inquiry, the power to withdraw recognition accorded to a person. Section 5, which gives the President the power to institute an inquiry into any question relating to recognition of a person as a chief. That section 5 is not only unconstitutional, but obsolete and, therefore, void,” Mulubisha stated.
“Section 6 violated Article 165 (1) of the Constitution as amended in so far as it guarantees the institution of chieftaincy and traditional institutions. Section 7 was unconstitutional in so far it gives power to the President to prohibit a person whose recognition had been withdrawn or revoked from being within a certain area specified in a notice under his hand if the person’s presence is prejudicial to the maintenance of public order in that area. Section 7 of the Chiefs Act is inconsistent with Article 165 (2) (b) of the Constitution as amended as it tends to derogate from the honour and dignity of the institution of chieftaincy.”
Mulubisha further submitted that the current legislation on chiefs was a product of colonial governance in Zambia as a territory.
But Attorney General Likando Kalaluka argued that the powers outlined in sections 3, 4, 5, 6 and 7 of the Chiefs Act made the President the ultimate authority in giving legitimacy to any chieftaincy before the amendment of the Constitution in 2016.
He added that the position had since changed with the enactment of Article 165, which goes a step further than the repealed Article 127 of the 1991 Constitution before amendment.
Kalaluka submitted that because of the new constitutional order, the provisions of sections 3, 4, 5, 6 and 7 of the Chiefs Act were inconsistent with Article 165 of the Constitution as amended to the extent that they grant powers to a person or authority to recognize or withdraw recognition of chieftaincy.
But delivering a judgement on behalf of judges Enock Mulembe and Professor Margaret Munalula, Justice Mulonda declared that sections 3, 4, 5, 6 and 7 of the Chiefs Act were inconsistent with Article 165 of the Constitution as amended and that they were, therefore, unconstitutional and void.
He ordered that they be expunged from the statute book.
“We are of the view that to allow the President to appoint a deputy chief, who for all intents and purposes would likely assume the role of a chief, goes against the principle of non-involvement of the Presidency in the selection of chiefs. We agree with the parties that section 6 runs afoul of Article 165 (1) of the Constitution as amended and is, therefore, void,” ruled Justice Mulonda.
“Sections 4 and 6 of the Chiefs Acts are void for their inconsistency with Article 165 of the Constitution as amended. That being the case, section 7 being premised on sections 4 and 6 equally becomes void.”
About Zondiwe Mbewe
Zondiwe has interest in writing political and current affairs on issues which affect every Zambians.
Email: zondiwe [at] diggers [dot] news
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