July 14,
2025
What
should be the role of the courts in a constitutional amendment process? Should
courts have the power to block a constitutional amendment process? Those are the questions the Constitutional
Court had to grapple with in the case of Munir Zulu and Celestine Mukandila
v. Attorney General
2025/CCZ/009. It was not the first time the
Zambian judiciary was asked to intervene in the constitution amendment or constitution-making
process. While the Courts have in all past similar cases declined the
invitation, in the current case, the Court gladly took the opportunity to
assert its role in the constitutional reform process.
The petitioners in this case challenged the
constitutionality of the constitution-making process that was embarked on by
the government, premised on announcements by the President and the Minister of
Justice, as it lacked a wide public consultative process. The petitioners also
sought of the Court to overturn its position in the earlier case of Law
Association of Zambia and Chapter One Foundation Limited v. Attorney General 2019/CCZ/0013/0014 in which the petitioners sought the
intervention of the Constitutional Court to halt the Constitution of Zambia (Amendment) Bill No 10 of 2019 (Bill 10).
The
case is significant as it is the first time the Zambian Judiciary is stepping
into the constitution amendment process and asserting that it has the power to
enforce constitutional norms in the process. This is, therefore, an extremely
significant legal development. On the other hand, the judgment lacks analytical
precision, fails to draw a distinction between constituent and constituted
power, and inadvertently drastically lowers the threshold for crafting a
legitimate constitution. I start by highlighting the positive aspects of the
judgment, before I return to indicate what I consider its weaknesses.
First,
the judges showed remarkable courage to take a position clearly not aligned
with that of the executive in the constitution amendment process in order to protect
the current constitution from being amended for short-term political goals.
This contrasts sharply with the entrenched past timidity and indifference of
courts on the issue of constitution amendment or constitution making. The
judiciary was, on several occasions, in the cases of Nkumbula
v. Attorney General (1972) ZR 111 (HC); Nkumbula v. Attorney General (1972) ZR
204 (CA); Derrick Chitala (Suing as Secretary General of ZDC) v. Attorney
General (1995-1997) ZR 91; and Law Association of Zambia and Chapter One
Foundation Limited v. Attorney General
2019/CCZ/0013/14, asked to intervene to foster constitutionalism in
the constitution-making process and safeguard the constitution. Yet in all
these cases, the courts choose to stay aloof and leave the constitution at the
mercy of partisan interests. From this perspective, the judiciary has always
been interwoven with other branches of government in arresting the growth of
constitutionalism. It has often been part of the problem and a willing
participant in undermining democratic constitution-building, and not a guardian
of the constitution. As a result, the Zambian judiciary has been an apt
fit of Odinkalu’s observation that “the first
generation of constitutions and bills of rights in common law Africa was destroyed
not much by the intolerance of the executive as by the enthusiastic abdication
of judicial responsibilities by the judges.” By overturning this history of
indifference, the judges, to paraphrase Fombad, proved that they are no longer
timorous souls but boisterous, bold spirits committed to the growth of
constitutionalism. In a book
published in 2020, Supreme Court judge (now Chief Justice), Mumba Malila,
lamented about jurisprudence expressed in cases such as the Nkumbula ones
and expressed hope that “in present times similar cases would be decided with
completely different considerations in mind.” That hope has been given life in
the Munir Zulu case.
Second,
the Court’s combined interpretation of Articles
2 and 128 (3)(c) to the effect that it has jurisdiction to superintend the
constitutionality of the conduct of the executive the pre-Bill stage is
generally supportive, but only to the extent that it is applying constitutional
norms while respecting separation of powers. Putting aside the issue of the
amendment power of the legislature for a while (which is discussed further
below), it appears that the petitioners did not argue that
Parliament had no power to amend the Constitution. Rather, the contention was
that the manner the pre-Bill reforms were carried out was in violation of
several express and implied constitutional values and principles that bind both
the executive and the legislature. Focusing only on this narrow point, the
position of the Court is correct that it is clothed with the power to enforce
constitutional norms even at this stage. The position, however, should be
nuanced. This is because when the Constitution imposes obligations on organs of
the state and the concerned organs do not perform their role in line with the
stated obligations, the Courts have a duty to intervene to enforce the
constitutional obligations. All constitutional power must be accountable under
the constitution. The South African Constitutional Court, for example, in the
case of Doctors for Life International v. The Speaker of the
National Assembly and Others, for example, held that
once a question is raised about the manner in which the legislature exercises
its power, that triggers the Court’s interpretive role as it is vested with
power to interpret the Constitution. The interpretive approach taken by the
Constitutional Court under Article 128, therefore, appears correct.
The
case of Doctors for Life International v. The Speaker of the
National Assembly and Others is also instructive on how
the Constitutional Court could have developed the jurisprudence further in view
of the doctrine of separation of powers in order to set a threshold for
ripeness of matters for adjudication before it. In this matter, the Court had
to determine if it had the power to nullify a Bill which had not yet become law
and also, assuming the Court had no such power, if it could provide declaratory
relief where the legislature disregarded constitutional obligations in drafting
a Bill, although not yet law. With
regard to the first issue, the Court held that it is more appropriate to review
an Act of Parliament and not a Bill in order to respect the principle of
separation of powers and to avoid prescribing to Parliament how it should
perform its role. However, with regard to how Parliament exercised that power
in the legislative process, the Court took the view that the Constitution binds
all entities and organs of the state. Therefore, if the legislature or
executive, in the legislative process, violated constitutional norms, the Court
could intervene to enforce constitutional obligations. The Court categorically
held:
“But under our
constitutional democracy, the Constitution is the supreme law. It is binding on all branches of government,
and no less on Parliament. When it
exercises its legislative authority, Parliament must act in accordance with,
and within the limits of, the Constitution, and the supremacy of the
Constitution requires that the obligations imposed by it must be
fulfilled. Courts are required by the
Constitution to ensure that all branches of government act within the law and
fulfil their constitutional obligations.
This Court has been given the responsibility of being the ultimate
guardian of the Constitution and its values.”
However, in the Zambian
context, there are provisions of the Constitution that suggest that the Court
can intervene with the legislative process if what is intended could lead to
the violation of basic norms of the Constitution. Article 2 of the
Constitution, for example, empowers every citizen to prevent violations of the
Constitution. It states: ‘Every person has the right and duty to— (a) defend
this Constitution; and (b) resist or prevent a person from overthrowing,
suspending or illegally abrogating this Constitution.’ The use of the word
“prevent” under Article 2(b) suggests that one does not have to wait until the
action is completed (in this case, the enactment of a Bill into law). From this
perspective, the court made the right decision that it has the power to
adjudicate the pre-Bill process. But considering the significance of the
doctrine of separation of powers, the Court should have gone further to develop
the jurisprudence to indicate the threshold that removes matters from within
the internal realm of each arm of government to warrant its interference in
order to enforce constitutional norms.
Despite the laudability of the Constitutional
Court judgment, it also has inherent weaknesses that negate its importance.
First, the Constitutional Court either decided to deliberately distort history or acted out of gross ignorance of the constitutional history of the country when it asserted that all past constitutional amendments were framed through a public participatory process (led by either a commission of inquiry or a technical committee). Here is what the Constitutional Court stated in its own words:
“A structured and wide consultative process at inception is evident in the unique constitutional history and development of this country. We take judicial notice that past attempted or successful constitutional amendment processes have been conducted by independent/expert bodies and that their output consisted of public documentation of the consultation process, such as a green paper or constitutional review commission report complete with intended draft provisions.”
It
is based on this view that the Court concluded that the current amendment
process was inconsistent with established national practice and hence
unconstitutional.
However,
the position asserted by the Court in the above quotation is factually incorrect,
and it appears that the Court, despite having a dedicated pool of research
advocates, succumbed to unresearched popular views about the country only
having had four or five constitutional amendments. This is at variance with the
truth, as there have been several more constitutional amendments, and most of
them did not include a public process beyond what is prescribed under Article
79 of the Constitution.
Examples
of constitutional amendments that did not have a public consultative process
beyond that stipulated in Article
79 are legion. These include the Constitution
(Amendment) Act No. 5 of 1969 which abolished the Barotseland Agreement as
it provided that the Barotseland Agreement shall “…cease to have effect, and
all rights (whether vested or otherwise), liabilities and obligations thereupon
shall lapse;” the Constitution
(Amendment) Act No. 44
of 1970 which renamed Barotseland as Western
Province (in fact in 1970 alone, there were three constitutional amendments,
that is, Constitution (Amendment)
Act No.
44 of 1970, Constitution
(Amendment) Act No 58 of 1970 and Constitution (Amendment) Act No. 12 of 1970)
and Constitution of Zambia (Amendment)
Act No. 20 of 2009
aligning the government financial year with the Gregorian calendar year. It
might surprise the Court to even know that the initial change to the one-party
rule was in 1972 (and not in 1973 as is popularly known) and was made by an
amendment to the Constitution without a wider public process. The 1973
constitution, based on the Chona commission report, was fait accompli.
Second,
the Court distinguished the current case from its decision in the Bill 10
judgment. As already noted above, the Court drew two bases for the distinction.
First, that in the Bill 10
Judgment, the challenge revolved around the constitutionality of a Bill, that is,
the Constitution of Zambia (Amendment)
Bill No 10 of 2019. Second that the petitioners in that case challenged the
constitutionality of the process leading to the tabling of Bill 10. According
to the Constitutional Court, the Bill 10 judgment is acceptable because the constitution-making
process then was chaperoned by an Act of Parliament, the National Dialogue Forum Act. The distinction was, therefore, that
there was no guiding legislation and that the challenge raised related to the
pre-Bill stage of framing the constitutional amendment. It dismissed the claim
that its earlier case was per incuriam. This position is troubling on many
fronts. First, the Court appears to have misread its Bill 10 judgment in order
to make it sound that the case had not raised ‘process’ rights with regard to
constitution making. Contrary to the assertion of the Court, the Bill 10
petition called on the Court to decide on the basis of the values and
principles enshrined in the Constitution and not just the narrow issues of
compliance with Article 79. In fact, there was no dispute about the competence of the
legislature regarding Article 79.
Of more interest, however, is the fact that in the Bill 10 Judgment, the Constitutional Court dismissed the petition on the grounds that it lacked jurisdiction. The Court came to this conclusion on the basis of Article 128(3) of the Constitution, which states:
“Subject to Article 28, a person who alleges that— (a) an Act of Parliament or statutory instrument; (b) an action, measure or decision taken under law; or (c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress.”
The
Constitutional Court, based on this provision, held that it is only clothed
with jurisdiction to review Acts of Parliament and not Bills, as the provision
does not expressly mention Bills. The Court felt buttressed by the drafting
history of the Constitution, whereby the express provision clothing the court
with jurisdiction to review Bills was deleted in the draft Constitution and
never made it into law.
By
not facing its earlier decision head-on, the Constitutional Court created the
anomalous situation where it considers that it has jurisdiction to interrogate
pre-Bill conduct, but once that conduct manifests itself in a Bill, its
jurisdiction mysteriously vanishes. In the circumstances, without the Court
reversing itself from the Bill 10 judgment, it would anomalously entail that
the Court has no jurisdiction to question Bill 7. It is a disingenuous position
and a jurisprudential anomaly that the Court needs to correct in future
decisions.
The third problem with the position taken by
the Constitutional Court is that, by making past constitutional review
commissions the measuring rod of what is acceptable, the Court unknowingly
significantly lowered the threshold for consensus-driven and ‘independent’ constitution-making.
Part of the problem why the country’s constitutional order has not yet been settled because all past constitution-making processes have been executive-driven, using the model of constitution review commissions. As Professor Melvin Mbao correctly observed,
“In the case of Zambia, previous constitutional projects have been dominated by the executive. Successive governments have used the Inquiries Act to appoint Constitutional Review Commissions. The terms of reference were determined by the President, reserving to the government the power to accept and reject any or all recommendations, etc, made by the Commission.”
Therefore,
contrary to the views of the Constitutional Court, constitution review
commissions have been part and parcel of the problem and not the solution. The
deeply troubling one-party constitution of 1973 was accomplished via this
mechanism. The threshold set by the Constitutional Court has no normative
threshold or content. The President only needs to set up a commission or
technical committee to consult the people and, therefore, meets the
constitutional requirements for the pre-Bill process. Once this is done, the
ensuing content does not seem to matter, or at least the Court set no standard
by which to judge the content.
The
final issue demonstrates the lack of analytical precision by the Court as it
failed to draw a distinction between the concepts of constituent and constituted
power. The Court asserted that constituent power resides in the people and that
the people as a constituent power are the direct source of the constitution,
and therefore, it is only the people that can frame constitutional amendments
through an exercise of their sovereign power. Hence, the need to always have a
wide consultative process whenever amending the constitution. Because of this,
the Court thought that Article
79, the amendment clause in the Constitution, was merely formalistic. To fulfil
its view, the Court held that “The only way to properly protect the
constitution is to take every amendment process through a wide
consultative process with the people, at inception.”
This
is incorrect and not supported by constitutional practice or theory anywhere
else. As already noted above, there have already been several constitutional
amendments in the history of the country that never had a wide public process.
The confusion in the judgment arises from the failure to distinguish between
constituent and constituted power and the assigned or proper role of each in
constitutional design. Constituent
power is the power to establish the constitutional order of a nation. It is
original and unmediated, at least in terms of logical grounding. As Professor Yaniv Roznai has observed,
constituent power is original power that is “exercised in a legal vacuum,
whether in the establishment of the first constitution of a new State or the
repeal of the existing constitutional order, for instance, with regime change.
It acts outside the forms, procedures, and limits established by the
constitution.” Once the constitution is established, constituent power retreats
and becomes dormant as its task is established, and all public power is
henceforth exercised under the constitution. On the other hand, the power
exercised under the constitution is constituted power and includes the power to
amend the constitution. Constituted power is legal power derived from or
delegated under the constitution. Based on this distinction, only an exercise of
constituent power should result in a change of the constitution or a
substantial part of it. All reforms or alterations that go to the substance of
the constitution should be reserved to the people as the constituent power.
However, amendment power is delegated and is properly exercised by those upon
whom it is conferred without any need to invoke or stir constituent power. The
exercise of constituted power (amendment power), however, is not intended to
change the substance of the constitution but merely the text. As Prof Richard
Albert notes, “The procedures of constitutional amendment give lawmakers and
the people a way to rid their constitution of an observed fault or to update it
without having to write an altogether new constitution.”
The power of amendment is, therefore,
preservative and not destructive of the Constitution. It is intended to
maintain its existence while adjusting it to the needs of the time without
changing its core or substance. Prof Roznai aptly summarises the nature of this
power: “The amendment process is designed for the textual change of
constitutional provisions, but not of fundamental political decisions that form
the substance of the constitution: The authority to amend the constitution …
means that other constitutional provisions can substitute for individual or
multiple ones. They may do so, however, only under the presupposition that the
identity and continuity of the constitution as an entirety is preserved … The
authority for constitutional amendment contains only the grant of authority to
undertake changes, additions, extensions, deletions, etc., in constitutional
provisions that preserve the constitution itself. It is not the authority to
change the particular basis of this jurisdiction for constitutional revisions.”
Once this distinction is drawn and
understood, it becomes clear that Article 79 of the constitution clothes the legislature with constituted
and not constituent power. It is, therefore, incorrect to assert, as did the
Constitutional Court, that Article 79 is a mere formalistic clog in the exercise of constituent
power. The test should rather have been whether the proposed changes went to
the substance or core of the constitution, which would trigger constituent
power, or if the proposed changes were simply ironing creases, which would have
been within the full competence of the legislature to accomplish under Article 79. That is the approach some
countries that have adopted the basic structure doctrine have taken. For
example, in the case of Njoya v. Attorney General (2005), the
Kenyan High Court rejected the claim that the amendment power under the Constitution
includes the power to make those changes that amount to the replacement of the
Constitution. It indicated that the amendment “plainly means that Parliament
may amend, repeal and replace as many provisions as desired provided the
document retains its character as the existing Constitution,” and that
“alteration of the Constitution does not involve the
substitution thereof with a new one or the destruction of the identity or
existence of the Constitution altered.” It should, however, be noted that the
Kenyan Supreme Court in the case of Attorney General and Others v. David Ndii and Others
Petition No 12 of 2021 rejected the application
of the basic structure doctrine to Kenya as the 2010 Kenyan constitution had
enshrined sufficient safeguards from the arbitrary constitutional changes.
It
follows then that the holding of the Court that every intended amendment requires
resort to constituent power is grossly mistaken and a failure to distinguish
two interrelated concepts of constituent and constituted power in
constitutional law.
Dr. O’Brien Kaaba is a lecturer in law at the University of Zambia and a senior research fellow at the Southern African Institute for Policy and Research (SAIPAR).