Peter Sinkamba v Hildah Chibomba, Mungeni Mulenga, Ann Sitali,Margaret Munalul and Palan Mulonda

2016/JCC/84

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019

SUPREMACY OF THE CONSTITUTION

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

HELD*** THERE CAN BE NO IMPLIED AMNEDMENT OF THE CONSTITUTION

AN ACCUSED PERSON CHARGED UNDER THE CORRUPT PRACTICES ACT

CANNOT BE COMELLED TO GIVE EVIDENCE ON OATH IF HE ELECTS TO MAKE AN
UNSWORN STATEMENT. Further it was held that section 53(10 of the corrupt practices Act
is unconstitutional and therefore null and void and it should be served from the Act. An accused
his person in a criminal trial cannot be compelled to give evidence If he wants to say
something in defense

CONSTITUTION MAKING

Derrick Chitala (Suing as Secretary General of ZDC) v Attorney General (1995-1997) ZR

91;*** The President, Acting under s.2 of the Inquiries Act, Cap 1981, appointed a Commission
to be chaired by the learned John Mwanakatwe. the Commission formulated a draft constitution
most of whose provisions of the government refused to accept. The Commission had
recommended that the Constitution be adopted by a constituent assembly and national
referendum but the government instead drafted a constitution sent and it to Parliament for
enactment and subsequent adoption. The appellant, in an effort to challenge the government's
decision, sought to leave to apply for judicial review of the goverment's decision to have the
Constitution adopted by parliament. The High Court denied leave and the appellant appealed to
the Supreme Court. The Supreme Court equally dismissed the case stating that the Inquiries
Act does not lay down any procedural rules to be observed by the President once a report
has been rendered to him.

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.

v. The joinder application

HELD: To be considered by the multi-judge bench

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.

Nkumbula v Attorney General*** the judiciary abdicated(quit) its mandate to defend

constitutionalism, effectively handing unchecked power to the state to rewrite the
Constitution capriciously (changes suddenly), resulting into the one-party state.

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.

Writers suggest a new way of adopting a constitution;

1. no more review commissions to collect views of the public.

2. a Committee of Experts of no more than 9 persons to review the previous
constitutional proposals and lead the process of making a new constitution for
Zambia.
3. The Committee to be appointed by the President subject to ratification by
Parliament.
4. The draft Constitution should be submitted to a select Committee of Members
of Parliament for reaction.
5. the process must be subject to reasonable time frames which should be clearly
stipulated and made known.
Ndulo M, Zambia’s Unfulfilled Struggle for a New Constitution: Comments on the 2016
Constitution http://saipar.org/wp-content/uploads/2016/04/SAIPAR_Discussion-Paper_No-
1_April-2016.pdf *****

IMMUNITY OF THE PRESIDENT

Godfrey Miyanda v Attorney General SCZ Judgment No. 9 of 2009

VACATION OF CABINENT OFFICE

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

POWER AND PRIVILEGES

O’Brien Kaaba and Pamela Towela Sambo, “Chishimba Kambwili v Attorney General” Saipar
Case Review, Volume 3 Issue 1.

CASES

Chishimba Kambwili v Attorney General 2019/CC/009

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

In Re Akashambatwa Mbikusita Lewanika 2002/HN/123

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

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

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 The High Court (1984) ZR 62

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

Elias Kundiona v The People (1993-1994) ZR 59

The Attorney General and Another v The People SCZ Judgment No. 34 of 1999

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019

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

Scott v Mwanakatwe Appeal No. 14 of 2016

Paul John Firmino Lusaka v John Cheelo (1979) ZR 99 (HC).

Hakiande Hichilema and Geoffrey Bwalya Mwamba v Edgar Lungu and Others 2016

Sibongile Zulu v Electoral Commission of Zambia and Attorney General 2016/HB/24

Hakainde Hichilema and Another V Edgar Lungu and others 2016/CC/0031 Ruling No.33 of
2016

Hakainde Hichilema and Another v Edgar Lungu and Others 2016/CC/0034

Mailon Mushala and Moses Rindai Chisamba (2008) 1ZR 113

Godfrey Malembeka (Suing as Executive Director of Prisons Care and Counselling Association)
v Attorney General and Electoral Commission of Zambia No 34 of 2017

Nkumbula and Kapwepwe v The Attorney General (1978) ZR 267

Samuel Miyanda v Samuel Handahu 1994/SCZ/6

Akashambatwa Mbikusita Lewanika, Hicuunga Evaristo Kambaila, Dean Namulya Mung’omba,

Ebastian Saizi Zulu and Jennifer Mwaba v Fredrick Jacob Titus Chiluba (1998) Z. R. 49

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

Josephat Mlewa v Eric Wightman (1995-1997) ZR 171

Batuke Imenda v Alex C Luhila SCZ Appeal No. 5 of 2003

Arnold Keith August and Another v The Electoral Commission and Others Constitutional Court
of South Africa Case CCT8/99

Scott v Mwanakatwe 2016/HP/EP0039

Mwanakatwe v Scott Appeal No. 14 of 2016 (Selected Judgment No. 50 of 2018