CONSTITUTIONAL Lawyer John Sangwa State Counsel has explained that the ConCourt ruling delivered on Bill 10 last week does not give the document any new lease of life as that is simply a detailed version of the decision that was already delivered in 2019.
The Constitutional Court has reiterated its position of November 29, last year, that the petitions by the Law Association of Zambia (LAZ) and Chapter One Foundation Limited in which they were challenging government’s decision to alter the Constitution of Zambia through Bill 10, lack merit and stand dismissed.
Following the release of the detailed ruling, proponents of the Bill claimed that the ConCourt had thrown out all attempts to challenge its enactment, but Sangwa said it was important for people to understand that this was not a new decision.
“I think it is important to clarify to the people that this ruling has nothing to do with the matter that [Jack] Mwiimbu has taken before the ConCourt, seeking interpretation on whether the National Assembly can continue to debate this Bill. I can see people celebrating, saying that ConCourt has endorsed Bill 10, that is not correct,” Sangwa explained.
“If you remember, what happened is that when the court made a ruling on that matter where we represented LAZ, the ruling that was made was abridged version, meaning a summarised version, it was not the detailed ruling. But now they have issued the full ruling on the same matter. Basically there is nothing new and it does not change anything no the current debate about Bill 10. The question perhaps you may wish to ask is why did the ConCourt wait for that long to deliver that ruling, because this now plays into the narrative of the proponents of this Bill. Some people think the court has endorsed the Bill and dismissed any challenge before it, but that is not correct. So indeed it is strange that the court has decided to issue this ruling today when the case was decided upon last year.”
He assured citizens that there was still chance for Bill 10 to be challenged even after it is enacted.
“If anything people must know that the ruling that the court gave did not endorse Bill 10. What they said is that it was premature for us to challenge a Bill, they said ‘you must wait first for it to be passed into law, and then you can come back to challenge the law’, so if by any chance this Bill 10 goes through and is enacted, nothing stops us to go back to court and challenge it. We will go back and challenge this, and that’s what the court advised,” said Sangwa.
In November last year, the Constitutional Court in its abridged judgement threw out the petitions by LAZ and Chapter One Foundation Limited, challenging government’s decision to alter the Constitution of Zambia through Constitution (Amendment) Bill 10 of 2019, for lacking merit.
The court ruled that there was nothing in Article 128 or any other provision in the Constitution that gives it jurisdiction to question the contents of a Bill or to declare it unconstitutional.
And delivering a full majority judgement, Friday, Constitutional Court judge Enock Mulembe on behalf of five other ConCourt judges, reiterated that the court had no jurisdiction to delve into the contents of Bill 10 as such the petitions by LAZ and Chapter One lacked merit.
“We considered the prayers of the first petitioner and we are unable to grant them without our 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,” he said.
Justice Mulembe said the petitioners did not show to the court how the process of the amendment of the Constitution breached the law despite having claimed that the National Dialogue process was not consultative as it excluded some members of the public from participating in the process.
He said although Article 128 of the Constitution gives the court jurisdiction to hear the petition, it does not give it powers to question the content of the proposed Bill.
“We reiterate that the petitioners’ petitions have no merit and stand dismissed,” Justice Mulembe said before inviting Prof Munalula to deliver her dissenting full judgement.
In her dissenting judgement, Justice Professor Margaret Munalula noted that a Constitutional Court as a specialised court, is set up to protect the constitution which is the supreme law of the land.
She added that when there is an important constitutional question before it, a Constitutional Court cannot take refuge in precedent or technicalities nor shy away from making hard decisions that hold anyone and everyone including the court itself constitutionally accountable.
“This court is the guardian of the Constitution. Parliament cannot plead exclusive cognisance and separation of powers to avoid scrutiny of the courts as that would hinder this court’s ability to exercise its powers of review and protect the Constitution. Admittedly, the court must “tip toe” into and around the territory of Parliament and the law making process and it does so not to undermine the separation of powers and Parliament’s legislative independence, but to carry out its duty to ensure Parliament’s compliance with its constitutional obligations,” Prof Munalula said.
Prof Munalula said “having read the decision handed down however, I am unable to reconcile myself to the limits set by the court. So by this opinion, I choose a different path from that taken by my sisters and brothers.”
Justice Munalula said courts should not normally interfere in the performance of the functions of Parliament but added that they may do so where necessary.
“As I understand the regional jurisprudence, courts should not normally interfere in the performance of the functions of Parliament but they may do so where necessary. As long as a contravention has not been brought to the attention of the Court, the law making process may proceed unimpeded. However, once a complaint of some procedural impropriety is filed in court then the dynamics change,” she said.
“An alleged contravention of the Constitution compels the courts to investigate and establish whether indeed the alleged transgressor has failed to comply with the Constitution. Parliament and the constitutional court act in accordance with established civility and decorum towards each other. Parliament defers the relevant bill until the court has determined the matter. And the court acts timely and does its job not in a manner that usurps the powers of the lawmakers, but that protects the Constitution by ensuring that the law makers are acting appropriately.”
She noted that given that constitution amendment processes were not a regular affair, there was minimal disruption to the law-makers performance of their responsibilities.
In this matter, 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.
Chapter One Foundation Limited had also 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 did not comply with national values, principles and provisions of the Constitution.