THE Constitutional Court has thrown out an application by three opposition political party leaders and two Lusaka residents who had asked it to dismiss the Law Association of Zambia motion to dismissed for irregularity their matter in which they sued it for petitioning the President and the National Assembly over their decision to alter the Constitution.
Constitutional Court judge Palan Mulonda said Article 128 (3) (b) of the constitution as amended, which LAZ used to raise the preliminary issue, does not provide a basis on which to raise a preliminary issue.
In this matter, the three PF surrogates, Wright Musoma, Peter Chanda, Robert Mwanza and two Lusaka residents, Richard Mumba and Mwanalushi Mulemwa, sued the Law Association of Zambia by way of originating summons, seeking an interim order to stay proceedings in which LAZ sued the President, Attorney General and the National Assembly over their decision to alter the constitution (Amendment) Bill No. 10) pending determination of their matter.
They want an order of declaration that LAZ’s decision to sue the National Assembly was illegal as it contravenes section 12 (1) of the state proceedings Act and therefore null and void.
The applicants further want a court order declaring that the decision by LAZ to sue the President in total disregard of Article 1 (1)(2) Article 2 and 98 (1) of the constitution, contravenes section 13 (3) of the legal practitioners Act chapter 30 of the Laws of Zambia and amounts to breach of LAZ members’ oaths of State counsel, oath of office and oath of allegiance under the said section.
LAZ asked the court to dismiss the petition with costs for being illegally before court.
The Association, through its lawyers Simeza, Sangwa and Associates, submitted that the applicants had contravened Article 128(3) of the Constitution and that the Constitutional Court had original and final jurisdiction in matters that related to the violation or contravention of the Constitution.
It said that since it was the foundation of the applicants’ case that there had been contraventions of the Constitution by LAZ, they should have moved the court by way of petition pursuant to Article 128 (3)(b) or (c) of the Constitution and not by originating summons.
However, Musoma and others argued that the Constitutional Court had jurisdiction to hear its matter as it related to the interpretation of the Constitution.
The five therefore asked the Court to dismiss with costs, a notice of motion by LAZ, which was brought under Article 128(3) b of the constitution as amended, which does not provide for motions and was not a rule of the Constitutional Court.
The applicants also contended that LAZ’s motion contravened the constitution as it ought to have commenced another action through a petition under article 128 (3) to challenge the their originating summons.
But ruling on the matter, judge Mulonda said that the court frowned upon the act of litigants raising motion upon motion.
Justice Mulonda said the first preliminary issue by the applicants succeeded only to the extent that Article 128 (3) does not provide for a motion.
” The second preliminary issue fails for the reason given above,” he said.
Judge Mulonda said the preliminary issue raised by Musoma and others could have been raised in their affidavit in opposition and skeleton arguments so as to give the court the opportunity to hear the petition in a timely manner.
He said “Our view is that Article 128(3)(6) does not provide for a motion and whether this contravenes the constitution as amended. It is also our view that this motion does not contravene the Constitution as the reference to Article 128(3) is curable.”
“We accordingly order that the respondents should take appropriate steps within 14 days from the ruling to cure the defect. In all the motion fails and stands dismissed,” said justice Mulonda.