THE Lusaka High Court has refused to grant five Non-Governmental Organisations (NGOs) a conservatory order preventing the prosecution of people under the Cyber Security and Cyber Crimes Act pending determination of their petition.
Lusaka High Court Judge Catherine Lombe dismissed the application for a conservatory order as Article 28 of the Constitution does not provide for interim orders.
In this matter, five NGOs have petitioned the Lusaka High Court for a declaration that various provisions of the Cyber Security and Cyber Crimes Act were unconstitutional and needed to be struck off from the statute books.
The five NGOs who cited the Attorney General and the Director of Public Prosecutions (DPP) as respondents, argued that sections 11, 12, 29, 38, 40, 54, 59, 65, 69, 72 and 74 of the Act severely threaten the right to privacy, the freedom of expression, the right to freely impart and receive information, the freedom of conscience, the freedom of the media and the right to a fair trial.
The NGOs include; Chapter One Foundation Limited; Bloggers of Zambia Limited; Governance, Elections, Advocacy, Research Services (GEARS) Initiative; People’s Action for Accountability and Good Governance in Zambia; and Alliance for Community Action.
The NGOs had earlier applied for a conservatory order preventing the prosecution of people under the Act pending determination of their petition.
They submitted that there was a risk of Zambians being unjustly and illegally deprived of their rights if the provisions of the Cyber Security and Cyber Crimes Act are enforced before the court makes a decision.
But ruling on the application for a conservatory order, July 8, 2021, Judge Lombe stated that the specific order applied for did not exist in the statute book but had a sum effect of granting an injunction.
She noted that according to the current constitution, there was no place for interim orders when the enforcement of rights under articles 11 to 26 was sought.
“In view of the foregoing finding by the Supreme Court, I find that I am bound by the principle of stare decisi. As our constitution is currently worded, there is no place for interim (interlocutory) orders when the enforcement of rights under articles 11 to 26 is sought. The application before this court seeks to enforce rights under article 20. Therefore even by some stretch of jurisdiction under the state proceedings act, section 16, if I were persuaded to grant this conservatory order being sought, (which I am not) it would not be tenable due to limitations placed by the interpretation of article 28 by the Supreme court,” Judge Lombe stated.
“There was now no need to go and waste time to make pronouncements in the relief that was not tenable at law. In fact, the third holding of the case is in direct reference to the fact that interim orders are not available under article 28 of the Constitution.”
She found that since the High Court lacks the requisite jurisdiction to grant the conservatory order applied for by the petitioners, it would have been otiose for her to pursue the other application that had arisen in pursuance of the application.
“In view of the foregoing, the application for conservatory order is dismissed in its entirety as article 28 of the constitution does not provide for interim orders. Costs in the cause. Leave to appeal is granted,” stated Judge Lombe.
