By Isaac Mwanza

Introduction

When the former Minister of Commerce Mr. Dipak Patel dragged the Government to court in relation to parliamentary oversight on debt contraction as provided in Article 63 of the Constitution of Zambia, a point of order was raised as to why Parliament should continue to debate Bill 10 which proposes alteration to the said article. The Speaker of the National Assembly ruled that the National Assembly will proceed with its debate on the Constitution of Zambia (Amendment) Bill 2019, NAB No. 10 despite the litigation which is before the court. The one question from the public is whether a judicial review or a petition before the courts can stop Parliament from tabling or debating the Bill.

Judicial Review and Parliamentary Process

From the outset, it must be noted that apart from Mr. Dipak Patel, Paramount Chiefs have sued the Government in relation to the payment of subsidies as per Article 165. Livingstone based magistrate, Benjamin Mwelwa, has also challenged adherence of political parties to Article 60 of the Constitution. Finally, this author has also dragged the Electoral Commission of Zambia to court in relation to rescinding of resignation by councillors, as per article 157 and 158. All these articles mentioned in these pending cases are subject to alteration by Bill 10. Interestingly, no one has asked the Speaker to stop debate of Bill 10 because these citizens petitioned the Court.

Zambia has a developed jurisprudence on the use of judicial review against decisions taken by Parliament. Any competent lawyer is aware of the landmark decision of the Supreme Court of Zambia in the case of Zambia Democratic Congress (ZADECO) v. Attorney General delivered on 11th November, 1999 and 13th January, 2000, which is binding on both the High Court and Court of Appeals. This article is meant to discuss this case and allow the readers to discern the parallels from it.

In brief, ZADECO had on April 26, 1996 obtained leave to apply for judicial review, asking the High Court to quash the decision by the President and his Cabinet to amend the present 1991 Constitution in the manner suggested in the Constitution of Zambia (Amendment) Bill No. 17 of 1996 (I will refer to this Bill as Bill 17) which was published in the Government Gazette as required by Article 79(2)(a) on February 23, 1996. In the alternative, ZADECO sought an order to prohibit, among others, the National Assembly from proceeding with the consideration, discussion, debate or the enactment of the said Bill into law. ZADECO also made a request that leaves granted should operate as a stay of proceedings.

In determining these matters, the High Court judge in the application for leave to apply for judicial review observed that the application was impeaching the right and authority of the National Assembly to carry out its legislative duties by way of debate on the proposed amendments to the Constitution of Zambia 1996. The High Court judge thus categorically stated that such reliefs as sought by ZADECO, to stop parliament from debating a bill before the House, could not be granted; “this is untenable in this jurisdiction,” said the High Court. The application was thus refused.

ZADECO appealed to the Supreme Court against the High Court’s refusal to halt consideration, debate or any other proceedings on Bill 17. The Supreme Court deliberated the appeal to determine whether the procedure of judicial review adopted was correct and whether there was a clear and sustainable cause of action at law as opposed to morality and politics which, as the learned trial judge observed, is not the court’s domain.

Firstly, the Supreme Court was shocked that the High Court, while correctly noting that it was untenable to impeach the National Assembly from going ahead with debate on the proposed legislation, the High Court Judge, nevertheless, went ahead to hear the application for judicial review in circumstances which he rightly held to be untenable.

The Supreme Court observed that the use of judicial review to stop parliamentary proceedings was untenable “because Order 53/14/19 of the 1999 edition of the White Book does not suggest that the remedy of judicial review is concerned with reviewing the legislative process or Acts of Parliament.” The Supreme Court observed that the Order itself (53/14/19) sets out the nature and scope of judicial review in the following terms-

“The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself”. “It is important to remember in every case that the purpose… [it] is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question”…

The Supreme Court has, in several cases, affirmed the position that the purpose of Judicial Review is not to provide an appeal procedure against decisions of public bodies, such as the Minister, on their merits, but rather to control the jurisdiction of public bodies by ensuring that they comply with their duties or by keeping them within the limits of their powers.

The Supreme Court went further to pronounce itself, that the legislative process cannot be arrested by commencing proceedings for judicial review.

As observed by the highest court of the land, on grounds of procedure alone, the application for judicial review as a way to halt consideration of the then Bill 17 was misconceived and ought to have failed ab initio.

The Supreme Court settled the outcome of the ZADECO appeal by referring to its earlier decision in Derrick Chitala v. Attorney-General (SCZ Judgment No. 14 of 1995) in which the court explained the general proposition in judicial review as lying against inferior courts and tribunals and against any persons or bodies which perform public duties or functions. The Court thus guided:

“The Constitution of Zambia itself gives Parliament power to make laws. By no stretch of any imagination can our Parliament be equated as an inferior tribunal or body when it is exercising its legislative powers although in appropriate cases, actions, but not by judicial review, can be commenced against it…”

Without doubt, it is settled law that the High Court of Zambia has Constitutional Jurisdiction to hear applications for judicial review in matters involving parliament as held in the case of Attorney General v. Speaker of the National Assembly and Dr. Ludwig Sondashi (SCZ Judgement No. 6 of 2003). Zambia’s jurisprudence also allows parliamentary Hansards to be brought into the record of the court for consideration when necessary and relevant to the matter in issue.

Readers may wish to know that when the High Court grants leave to commence judicial review in matters involving parliament, it does so with the full understanding of the purpose of judicial review as espoused by the Supreme Court in the case of Fredrick Jacob Titus Chiluba v. Attorney General (2003) Z.R. 153. The High Court does thus seek to have many questions answered, the key of which are:

1. Was the applicant for judicial review given fair treatment by the authority to which he has been subjected?
2. Is the applicant asking the Court to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question?
3. Is the application an appeal from the body concerned or does the applicant want the court to interfere in any way with the exercise of any power or discretion which has been conferred on that body?
4. Did the authority have the jurisdiction to make the decision it made or exercised, in a way which is not within that body’s jurisdiction or was the decision reasonable?

Conclusion

In Zambia, the law was settled law by the Supreme Court, to the effect that the legislative process cannot be arrested or halted by commencing proceedings for judicial review as determined in the ZADECO case. In 1996, consideration of Bill 17 was not halted by the application or hearing of the application for Judicial Review. In 1996, the Speaker of the National Assembly proceeded to allow the House to debate and enact amendments to the Constitution while the High Court was hearing an application for judicial review, and also while the Supreme Court was hearing the appeal.

This article has also demonstrated that Parliament is amenable to having its decisions and actions, reviewed by the High Court, but that this process is not concerned with the merits of the decision in respect of which the application for Judicial Review is made. Rather, it is concerned only with the decision-making process itself. The purpose of Judicial Review is to ensure that an individual is given fair treatment by the authority to which he has been subjected, but that it is not the purpose of judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.

The Court does not, on an application for Judicial Review, act as a “court of appeal,” from the decision of the Speaker to proceed with the legislative process, nor can the court interfere in any way with the exercise of any power or discretion by the Speaker which has been conferred on him by law, unless it has been exercised in a way which is not within Mr. Speaker’s or parliament’s jurisdiction, or if the decision is unreasonable.

This article has been authored to encourage fellow citizens to appreciate the rationale by which the Courts handle judicial review or petitions against decisions by Parliament. It does not in anyway, suggest that parliament cannot be sued; rather, this article demonstrates, as stated clearly by the Supreme Court, that the courts cannot stop or interfere with Parliament’s power or right to carry out its legislative duties as conferred upon it by the Constitution

By: Anthony Bwalya – UPND Member

I have to declare an interest from the onset: as a member of the United Party for National Development (UPND), my natural judgment informs me, on the balance of the political mood in the nation; as well as on the balance of all other available electoral data, any change of government in 2021 is most likely going to go the UPND way than any other opposition political party.

There are also indications, that it is possible for the biggest opposition political party to secure an outright victory against the ruling Patriotic Front (PF) because the injury caused by a corruption anchored leadership of the PF has hurt all of us, including the “13,000” mystery angels who secured the 50+1 for President Edgar Lungu and the PF in 2016.

So, it is fair to say, that in 2021, the PF will not be wrestling against the UPND. The PF will be up against a semblance of the 1991 and 2011 popular uprising motivated by the people’s owned desire to end politically motivated corruption, joblessness, poverty, correct personal taxation and public pension systems – both of which are hurting ordinary people, fixing the economy, a return to the rule of law and a total reclamation of our natural resources for the benefit of Zambians.

A people’s uprising is the strongest alliance ever.

But this is never a substitute for UNITY OF PURPOSE among and within the ranks of the opposition.

The opposition is the principal guardian and protector of the people’s collective interests, especially when faced with a wayward ruling regime such as the PF.

Thus, the purpose of any coming together by the opposition, should be for the primary objective of securing objective unanimity and agreement around the tone and general direction of public leadership in Zambia; as well as to tell the Zambian people that the opposition is firmly focussed on securing the national interest, ahead of partisan positions.

It, therefore, follows, that members of the opposition fraternity must resist the temptation of seeking to come together in an alliance for reasons of exerting and extracting political leverage; or indeed the drive to share high ranking political positions. If an alliance should be motivated by the foregoing, then we will have failed the Zambian people whose interests we are carrying on our shoulders.

The UPND is the opposition flagbearer in Zambian Politics at the moment. We must agree on this. BUT, this does not mean other opposition political parties are of no relevance or consequence.

Of course they are. And this is because we are all speaking for the liberation of our people against a self-absorbed PF regime.

But this is not the time for the opposition to be flexing political muscles at each other. We have to look at the realities of our fortunes as a people and recognise that we will all be damned if we play stupid and try to play Russian roulette with the lives of Zambians in the name of securing political advantages for our respective political parties ahead of 2021.

The 2021 general election does not belong to the opposition. It belongs to the Zambian people.

In terms of political advantage within the ranks of the opposition, the UPND has a very clear advantage and that is fact; and this advantage has been given to them by the Zambian people over several years of trusted, resilient, consistent and unflinching leadership.

But in order for this advantage to be meaningfully transformative in 2021, we need ALL other opposition political parties to stand with us without any conditions to it, except to deliver emancipation for our country.

Anything less than this, will play into the hands of the brutal PF regime and will potentially hand them the impetus to come charging at an indecisive, selfserving opposition arena and we will have betrayed our country and our people.

We cannot afford this.