THE Litunga of the Lozi speaking people of Western Province with three other paramount chiefs have petitioned the Constitutional Court over government’s decision to strip off chiefs of their salaries.
The Litunga together with Kalonga Gawa Undi of the Chewe and Nsenga people of Zambia, Malawi and Mozambique, Chitimukulu of the Bemba speaking people and Mpenzeni of the Ngoni have cited Attorney General seeking a declaration that every chief and deputy chief shall be paid for the purpose of enabling them to maintain the dignity and status of the office of the chief and discharge the functions of the offices of the chief under African customary law in a fit and proper manner.
The quartet want the court to determine that section 2 of the Chiefs Act in so far as it defines the word chief was unconstitutionl and therefore null and void.
The four are seeking a determination and declaration that the chiefly institutions of paramount chief, senior chief and other chiefs continue to exist and are guaranteed under article 165 (1) of Constitution of Zambia.
According to their petition, the Litunga and his counterparts said that on February 26 this year, the Ministry of Chiefs and Traditional Affairs in a letter a dressed to the permanent secretaries – in Western, North Western, Northern and Luapula provinces advised that following the Constitutional Court’s declaration in a mater involving Webby Mulubisha and the Attorney General that sections 3, 4, 5, 6 and 7 of the Chiefs Act to be inconsistent with article 165 of the Constitution and are therefore unconstitutional and void, there was no legal basis upon which a chief was to be paid.
They said the Ministry of Chiefs and Traditional Affairs said that in view of the foregoing, it had been directed that no new chief was eligible for payment of subsidies after the judgment of the court dated November 27 2019.
The Constitutional Court last year declared that allowing the President to appoint a deputy chief to assume the role of a Chief is against the principle of non-involvement of the presidency in the selection of chiefs.
Constitutional Court judge Palan Mulonda on behalf of justices Professor Margaret Munalula and Enock Mulembe declared that sections 3, 4, 5, 6 and 7 of the chiefs’ Act being inconsistent with Article 165 of the Constitution as amended were unconstitutional and void and that they should be expunged (removed) from the statute book.
“We are of the view that to allow the president to appoint a deputy chief who for all intents and purposes would likely assume the role of a chief goes against the principle of non-involvement of the presidency in the selection of chiefs,” justice Mulonda said.
“We agree with the parties that section 6 runs afoul of Article 165(1) of the Constitution as amended and is therefore void.”
This was in a matter where Mulubisha on behalf of chief Mwene Mutondo of the Nkoya people of Kaoma district in Western Province petitioned the court over the chiefs Act Chapter 287 of the Zambian Laws as amended by Act No.13 of 1994 for being inconsistent with Article 165 of the Constitution of Zambia (Amendment) Act No.2 of 2016.
Mulubisha sought a declaration that section 3, 4, 5, 6 and 7 of the chiefs Act chapter 287 were inconsistent with Article 165 of the Constitution of Zambia (Amendment) Act No.2 of 2016.
He further sought a declaration that section 3, 4, 5, 6 and 7 of the chiefs Act are unconstitutional and therefore void.
The Litunga and his counterparts said that the institution of chieftaincy and traditional institutions were guaranteed under the constitution and shall exist in accordance with the culture, customs and traditions of the people to whom they apply.
They said that according to article 167, a chief may own property in a personal capacity and enjoy privileges and benefits bestowed on the office of chief by or under culture, custom and tradition and attached to the office of chief as prescribed.
The litunga and his counterparts said that article one (1) and (2) provides that the constitution was the supreme law of Zambia and any other written law, customary and customary practice that was inconsistent with its provisions was void to the extent of inconsistency.
They said any act or omission that contravened it was illegal.
They stated that the position taken by the Ministry of Chiefs and Traditional Affairs was different not only with the provisions of Article 165, 166 and 167 of the constitution of Zambia but also the definition of “chief” in Article 266.
“Chiefs means person bestowed as chief and whilst derives allegiance from the fact of birth or descent in accordance with the customs, traditions, usage or consent of the people in a chiefdom,” the quartet said.
They said that Article 2 of the constitution says that very person has the right and duty to defend the constitution as well as resist or prevent a person from overthrowing, suspending or illegally abrogating the constitution.
And according to their individual affidavits in support of the petition, the four explained that from the time Article 165 of the constitution became operational, there has been scramble for chieftainship proven by declarations of illegal chiefs now claiming that they no longer need to be recognised by senior chiefs under article 165 of the Constitution.
“It is important for government to pay necessary subsidies to chiefs to enable them discharge their functions diligently and maintaining their dignity,” said the quartet.
The four now want the court to determine and declare that the traditional authority of the paramount chiefs to recognise, install and discipline, including dethronement of any of their subordinate chiefs in accordance with customary law shall continue to be exercised by them.
They want the court to determine and declare that when a paramount chief recognises or dethrones a subordinate chief in accordance with the traditional and customary practices and informs government accordingly, the State shall acknowledge and accord to such chief or, in the case of dethroning cease to accord to the chief, the owner and dignity befitting a chief.
The quartet further want a declaration that they have authority to continue to administer and resolve traditional matters according to customary law in their traditional courts.