FORMER Minister of Commerce, Trade and Industry Dipak Patel has argued that provisions of the Constitution requiring government to obtain prior approval from Parliament before contracting public debt have been in full effect since January 2016.

He has therefore, urged the Constitutional Court to grant him the reliefs he is seeking in a case where he has petitioned it over government’s failure to obtain prior approval from Parliament before approving and signing any debt agreements.

In his petition, Patel has cited the Minister of Finance and Attorney General as first and second respondents, seeking a declaration that the respondents’ failure to present all loans contracted and sought to be contracted on behalf of government which constitutes public debt to the National Assembly for prior approval, is in breach of the Constitution.

He also wants an order compelling the respondents to present to Parliament, within 14 days of the Judgment of the Court or within such other timeframe that the court may prescribe, a full and complete statement of the state of public debt contracted from 2016 to date including the terms and conditions of the loans.

Patel further wants an order directing that from the date of the Judgment, all public debt, whether local or foreign, sought to be contracted on behalf of the government must be presented to Parliament for prior approval.

He submitted that Zambia’s debt position was not known as the correct figures of how much debt had been contracted since 2016 had never been provided to the National Assembly or to the Public.

But in its response, the State denied claims that in the current scheme of the law, prior approval of the National Assembly was required before local or foreign debt may be contracted by government.

Solicitor General Abraham Mwansa submitted that there hasn’t been any failure, neglect or refusal by the Finance Minister to obtain prior approval from Parliament before approving and signing any debt agreements, as the law requiring the same hasn’t been enacted.

The State argued that section 21 of the Constitution of Zambia Act no 1 of 2016 entails that where an Act of Parliament was required to give effect to an article of the Constitution such as article 63 clause (2)(c) and (d) and article 207 clause (1) and (2) the article shall come into effect upon the publication of the Act of Parliament.

It added that the State did not need to present any bill for debate in Parliament for purposes of obtaining approval before procurement of a debt.

The State stated that the proper and correct legislation required and in use for purposes of procuring loans by government was the Loans and Guarantee (Authorization) Act Chapter 366 of the Laws of Zambia.

“This is until the provisions of the Constitution referred to above come into effect through an Act of Parliament. The Minister of Finance must proceed legally until Article 207 clause (1) and (2) of the Constitution, which must be read in tandem with Article 63 clause (2)(c) and (d) is given effect through an act of Parliament” it stated.

The State submitted that Section 3 and 7 of the Loans and Guarantees (Authorization) Act Chapter 366 of the Laws of Zambia does not require government to obtain any form of approval from the National Assembly as was being claimed.

But in his affidavit verifying his reply to the respondents’ answer filed yesterday, Patel through his lawyers from Messrs Malambo and Company and Messrs J & M advocates argued that there had indeed been failure, neglect and refusal by the respondents to obtain prior approval of the National Assembly before contracting public debt as the provisions of the Constitution requiring such approval had been in full effect since January 2016.

“Article 63 (2)(C) and 207 (1) of the Constitution relate to the matters stated in the affidavit under reply but the issue for determination in this claim is restricted to the failure by the respondents to obtain National Assembly approval prior to contracting public debt. There is no requirement for any new legislation to be enacted by Parliament in order to operationalize the impugned Articles and Article 207 in so far as it relates to public borrowing by the respondents on behalf of government because the said Articles are self operationalised and came into effect upon the enactment of the Constitution Amendment Act no 2 of 2016,” he stated.

Patel stated that the said Articles of the Constitution which were the subject of the claim were operationalised further by the operation of the law by the application of the pre-existing statutes dealing with contracting of public debt, the foremost being the Loans and Guarantees (Authorization) Act Chapter 366 of the Laws of Zambia.

He added that this was a fit and proper case for the court to grant the reliefs he was seeking in his petition.

And in his reply to the respondents answer, Patel stated that the respondents failure and refusal to adhere to and implement provisions of the Constitution had been entirely willful and deliberate in order to circumvent the law as established by the Constitution, and they thereby breached the Constitution by depriving the National Assembly of its right to assess and approve all public debt contracted from 2016 to date.