Constitional Law Cases
Constitional Law Cases
2016/JCC/84
Christine Mulundika and Others v The People (1995) ZR; **** The appellant challenged the
constitutionality of certain provisions of the Public Order Act Cap 104, especially section 5(4)
that stipulates that any person requires a permit to hold a peaceful assembly of which an absence
of a permit is criminalized in section 7. This was alleged to contravene the fundamental freedoms
and rights guaranteed by arts 20 and 21 of the Constitution. A subsidiary challenge related to the
exemption of certain office-holders from the need to obtain a permit which is discriminatory in
regards to article 23.
Upon appeal, the SUPREME COURT HELD that Sectionx 5(4) of the Public Order Act
Cap 104 contravenes arts 20 and 21 of the Constitution and is null and void as the right to
assemble and speak is too important to be conditioned upon subsection 4 as conceived and first
drafted in 1953.
Further, it was agreed that the learned judge of The High Court judge was on firm ground when
he held that to strike down the requirement for a permit would leave a vacuum in the law and
would conduce to chaos and anarchy. In any event, the exemption attached to the offices
tabulated and it is unrealistic for the rest of the citizenry, even if they be opposition politicians, to
expect persons charged with executive and governmental functions and duties not to be accorded
treatment which facilities the performance of their governmental function.
Thomas Mumba v The Attorney General(1984) ZR 38 *** the appellant was standing trial in
subordinate court for an offence under the CORRUPT PRACTICES ACT SECTION53(1). If
an accused elected to say something, had to say it on oath only (thus excluding the option
tomalice an unsworn statement). the defense submitted that the provision where in contravention
(an action which offends against a law, treaty or other ruling) of ARTICLE 20 (7) OF THE
CONSTITUTION. It was referred to under ARTICLES 29(3) OF THE CONSTITUTION
CONSTITUTION MAKING
David Ndii and Others v Attorney General Petition no. 282 of 2020 (mandatory
reading)*** the Petition dated 16th September, 2020 raise substantial questions of law under
Clauses (3) (b) and (d) of Article 165 of The Constitution of Kenya and referred to the Chief
Justice for assignment of an uneven number of Judges, being not less than three to hear it. The
court identified the following five issues for determination:
i. Whether this Court has jurisdiction to deal with the Petition and the application as
they seek to challenge the validity and legality of the Constitution;
HELD: The High Court is seized of the jurisdiction to deal with the Petition
ii. Whether the Petition and the application are in justiciable for want of readiness;
the law places an obligation upon a Petitioner to demonstrate with some
degree of precision the right, fundamental freedom or the part of the Constitution it
alleges has been violated or is threatened with violation, the manner or evidence of
violation or threatened violation and the relief it seeks for that violation or threat to
violation.
iii. Whether the Petition and the application seek an Advisory Opinion from the High
Court;
this issue may as well be dealt with alongside the first one.
iv. Whether a certification should issue for empanelment of an expanded bench. **** for
a case to be certified as one involving a matter of general public importance, the intending
appellant must satisfy the Court that the issue to be canvassed on appeal is one the
determination of which transcends the circumstances of the particular case, and has a
significant bearing on the public interest. The applicant must show that there is a state of
uncertainty in the law. The matter to be certified must fall within the terms of Article 165 (3)
(b) or (d) of the Constitution; The applicant has an obligation to identify and concisely set out
the specific substantial question or questions of law which he or she attributes to the matter
for which the certification is sought
HELD: It is hereby certified that the Petition dated 16th September, 2020 raises
substantial questions of law as to warrant an expanded bench of the High Court.
OTHER HOLDINGS: The Preliminary Objection dated 29th September, 2020, the
Preliminary Objection dated 2nd October, 2020 and the undated Preliminary Objection
be and are hereby struck out with no order as to costs.
This matter is hereby referred to the Honourable The Chief Justice of the Republic of
Kenya to assign an uneven number of Judges, in terms of Article 165(4) of the
Constitution, to deal further.
Law Association of Zambia and Chapter One Foundation Limited v Attorney General
2019/CCZ/0013/14 ***** Petitioners questioned whether the way the amendment Bill no 10
met the requirements for constitution amendment in Zambia, that is, whether it was
CONSTITUTIONAL (The manner in which it was brought before parliament) and WHETHER
THE BILL CONTRAVENED the constitution. The key issue was to determine whether the
concourt has the jurisdiction to intervene in matters of the constitutionality of a proposed
legislation. The petitioners were not challenging the contents of the bill but the actions of the
respondent (procedures taken). It was evident that although there were some reliefs prayed for,
that seek the quashing /withdrawal of Bill No. 10, this in itself is insufficient to render the
Petitions a ruse to challenge the said Bill. Constitutional Court held that it lacked jurisdiction
to review Bills as it only had jurisdiction to review Acts of Parliament. The Court reasoned
that the provision only refers to Acts and not Bills. Article 128 gives the ConCourt
jurisdiction to review a decision, action or measure for compliance with the constitutional
requirements without any limitation as to what type of process is involved. Intervention is
necessary not only in order for the other Organs to function effectively within the constitutional
limits but also for the Court to as be effective in fulfilling its constitutional mandate. The
Constitutional Court dismissed the petition. It arrived at its conclusion mainly on the basis of
Article 128(3) of the Constitution.
Pamela Towela Sambo and O’Brien Kaaba, “Law Association of Zambia and Chapter One
Foundation limited v Attorney General,”Saipar Case Review Volume 3 Issue 1, 2020 ***
The decision to let government proceed with the process of amending the Constitution,
disregarding binding constitutional obligations has a deleterious effect on the rule of law and
constitutionalism as it sends a clear message to the ruling elite that they may get away with
anything. If the Government becomes a law-breaker, it breeds contempt for the law; it
invites every man to become a law unto himself; it invites anarchy.
Ndulo M and Beyani C, Amidst Conversations with the Deaf: The Struggle for a
Legitimate and Democratic Constitution in Zambia
http://saipar.org/wp-content/uploads/2013/09/Ndulo-and-Beyani_Amidst-Conversations-
with-the-Deaf-The-Struggle-for-a-Legitimate-and-Democratic-Constitution-in-Zambia.pdf
**** concerns the how politicians hijack the constitutional making process in order to
concentrate control powers on themselves. Brings to light the Mungomba CRC whose
report recommended that the constitution be adopted through a constituent assembly but
President Mwanawasa opted that it be done through a National Constitution Conference as
he was bent on controlling the constitution process to ensure it was to his liking. The draft
however failed to gain parliamentary population needed to amend the constitution. In
2011, without consulting anyone outside his government, President Sata announced a new
process. This was to be done with an expert committee and the president appointed all the
members of the Committee without consultation with Parliament or other stake holders,
and set the terms of reference for the team again without consultation. Again, this indicates
the presidents attempt to control the process to his liking.
Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and
63 Others Selected Judgment Number 19 of 2016.
DISSOLUTION OF PARLIAMENT
Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and
63 Others Selected Judgment No. 29 of 2016
O’Brien Kaaba and Pamela Towela Sambo, “Chishimba Kambwili v Attorney General” Saipar
Case Review, Volume 3 Issue 1.
CASES
The People v The Speaker of the National Assembly RM Nabulyato Ex Parte Harry Mwaanga
Nkumbula (1970) ZR 97
Attorney General and the Movement for Multiparty Democracy v Lewanika and Others (1993-
1994) ZR 164
Fred M’Membe, Lucy Sichone and Bright Mwape v Attorney General and the Speaker of the
National Assembly SCZ No. 4 of 1996
Attorney General v the Speaker of the National Assembly and Ludwig Sondashi SCZ No. 6 of
2003
Fred M’membe and Bright Mwape v the Speaker of the National Assembly, the Commissioner of
Prisons and the Attorney General 1996/HCJ/X
Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and
63 Others Selected Judgment No. 29 of 2016
JUDICIARY
Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019 Attorney General v
Nigel Kalonde Mutuna, Charles Kajimanga and Philip Musonda (Appeal No.088 2012
Godfrey Miyanda v Mathew Chaila (Judge of the High Court) (1985) ZR 193
Sebastian Saizi Zulu v The People (1991) (SCZ No. 7 of 1991) ZR – test or question from
here
Rev. Tegerepay Gusta and Elias v The People (1988) (SCZ No. 29 of 1988) ZR
The Attorney General and Another v The People SCZ Judgment No. 34 of 1999
ELECTORAL SYSTEM
Godfrey Malembeka (Suing as Executive Director of Prisons Care and Counseling Association)
v Attorney General and The Electoral Commission of Zambia 2016/CC/0013 Selected Judgment
Number 34 of 2017
Hakiande Hichilema and Geoffrey Bwalya Mwamba v Edgar Lungu and Others 2016
Hakainde Hichilema and Another V Edgar Lungu and others 2016/CC/0031 Ruling No.33 of
2016
Godfrey Malembeka (Suing as Executive Director of Prisons Care and Counselling Association)
v Attorney General and Electoral Commission of Zambia No 34 of 2017
Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR 140
Sebastian Saizi Zulu and Rodger Chongwe v Attorney General and Nikuv Computers Limited
SCZ Judgment No. 8/75 of 1996
Arnold Keith August and Another v The Electoral Commission and Others Constitutional Court
of South Africa Case CCT8/99