Judgment Delivered on 3rd July 2020
Court:
In the Constitutional Court of Zambia, Holden at Lusaka (Constitutional
Jurisdiction)
Panel:
Chibomba, PC, Sitali, Mulenga, Mulembe, Munalula and Musatuke, JJ
Judgment
of the Court by: Chibomba, PC
Subject Matter: Constitutional Law –
Jurisdiction of the Constitutional Court in Zambia– Challenge to Proposed
Legislation in Zambia
Facts:
This case originated from the
initiation, signing, publication, and tabling of the Constitution of Zambia
(Amendment) Bill No. 10 of 2019 (Bill No. 10) before the National Assembly by
the Attorney General. The Petitioners, the Law Association of Zambia (LAZ) and
Chapter One Foundation Limited, questioned whether the process leading to the
introduction of Bill No. 10 complied with constitutional requirements for
amending the Constitution. They further questioned whether the decisions of the
President, Attorney General, and National Assembly to initiate, sign, and table
Bill No. 10 contravened constitutional provisions, specifically Articles 1(2),
8, 9, 61, 79, 90, 91, and 92. The Petitioners argued that the process was not
consultative or inclusive, did not take into account national values and
principles, and that the proposed amendments touched on the basic structure of
the Constitution.
Issues:
·
Whether the
Constitutional Court has jurisdiction to intervene when questions are raised on
the constitutionality of proposed legislation (Bill No. 10).
·
Whether the process
leading to Bill No. 10 was consultative and inclusive.
·
Whether the process
leading to Bill No. 10 took into account national values and principles.
·
Whether Bill No. 10
goes beyond mere refinement and touches on the basic structure of the
Constitution.
·
Whether the defence of
exclusive cognisance applies to the actions challenged by the Petitioners.
Holding:
The Constitutional Court held as
follows:
Jurisdiction
over Bills: The Court found that Article 128 of
the Constitution, which outlines the Court's jurisdiction, does not mention
bills or proposed legislation. The Court noted that the Technical Committee on
drafting the Zambian Constitution specifically considered and rejected giving
the Constitutional Court jurisdiction to hear matters challenging the
constitutionality of a bill, reasoning that a bill is not yet law.
Consultative
Process and National Values: The Court acknowledged
the Petitioners' arguments regarding the lack of a consultative and inclusive
process and the failure to consider national values and principles. However,
the Court stated that the Petitioners failed to challenge the National Dialogue
Forum (NDF) Act of 2019, which governed the process, at the appropriate time
under Article 128(3)(a). The Court also found no constitutional provision or
law cited by the Petitioners that mandated the specific consultative process
they advocated for.
Basic
Structure of the Constitution: The Court reiterated
its position that questions regarding whether a bill touches on the basic
structure of the Constitution require delving into the contents of the proposed
legislation, which is outside its jurisdiction. The Court referenced previous
Supreme Court decisions (e.g., Zambia Democratic Congress v Attorney General)
that historically declined to make pronouncements on allegations that proposed
amendments touch the basic structure of the Constitution because they are
proposed legislation.
Exclusive
Cognizance: The Court ruled that the defence of
exclusive cognizance (parliamentary privilege) was not available to the
Respondent in this case. The Court clarified that this defence only applies to
procedural or internal matters of Parliament, whereas the Petitioners'
allegations concerned breaches of various constitutional provisions by the
Legislature in the exercise of its mandate.
Orders
of the Court:
The two Petitions were dismissed for
lacking merit.
Each party was ordered to bear its own
costs.
Full Case: Here