THE Constitutional Court has dismissed a matter in which governance activist Isaac Mwanza was challenging the constitutionality of swearing in nominated members of parliament before they could take oath in Parliament, among other issues.
According to the originating summons, Mwanza questioned whether, in terms of Article 81 of the Constitution, a person can legally be appointed to an office of minister and perform ministerial functions after the dissolution of Parliament and before its commencement.
But in a judgement read by Constitutional Court Judge Margaret Munalula, the court said it had no jurisdiction to consider any of the questions in the originating summons because they were questions about the constitutionality of specific actions brought under the guise of interpretation.
Judge Munalula said it was not enough to say that the matter was before court only for interpretation and nothing else.
“In our considered view, saying that a matter is before the court only for interpretation and nothing else is not enough. In order for this court to be properly moved by originating summons, the issues raised must be fit for interpretation of the Constitution only. The Court’s jurisdiction to interpret the Constitution is found in article 128(1)(a) read with the Constitutional Court Act no.8 of 2016 and the Constitutional Court rules, statutory instrument no.37 of 2016. The Constitution, the Act and the rules should be read as a whole in order to fully comprehend the Court’s power in interpreting the Constitution,” she said.
“Our finding is that the questions 1,2,3 are not framed in a neutral or general way. This is because the facts that give rise to them and which by his own admission prompted the applicant to move this court relate to specific actions taken by the Republican President (as a specific office) which resulted in the appointment of ministers to his cabinet. One of the Ministers is named and attributed with having performed ministerial functions prematurely. Furthermore, it is clear that the applicant disputes the constitutionality of the President’s actions as is evidenced from his arguments.”
She therefore dismissed the matter saying it was improperly before court.
“Again we are of the firm view that what is called for is not an exclusive interpretation of the Constitution, but a concrete interpretation tied to a determination as to whether the Constitution has been breached. It is our considered view that it is by petition that matters of constitutionality can be addressed. Questions 4,5 and 6 have therefore commenced the wrong mode. All the applicant’s questions having come by the wrong mode, we have no jurisdiction to consider any of them on their merits. It follows that the second limb of the respondent’s objections cannot be considered,” said Judge Munalula.
“It is our position that we have no jurisdiction to consider any of the questions in the originating summons. This is because they are questions about the constitutionality of specific actions brought under the guise of interpretation. Originating summons is therefore not the correct mode by which to move the court. That being the case, the matter is improperly before us and is dismissed.”
In this matter, Mwanza was seeking an interpretation on whether a person can legally be appointed to head a ministry established and or merged and also perform the functions of that office before approval by the National Assembly.
Mwanza further sought interpretation as to whether in terms of Article 69, as read together with Article 81, of the Constitution of Zambia, a person who has not been sworn in as a nominated MP can be sworn in as a Minister and perform ministerial functions and whether, in view of article 173(3) of the Constitution, the President or any other appointing authority can terminate the employment of public officers without just cause and due process.
He also wanted to know whether the President can institute, create or abolish a public office without the recommendation of the relevant service commission and whether a Presidential abolishment of an office in the public service with a substantive holder is constitutional, legal and valid.