Mulenga Francis Fube and Anor v The Attorney General and Ors (2025/HP/1437) (28 January 2026) – ZambiaLII

\ AND IN THE MATTER OF: ARTICLE 92(2)(F) AND (I) OF THE CONSTITUTION OF ZAMBIA ACT NO. 2 OF IN THE MATTER OF: THE APPOINTMENT OF THE TECHNICAL COMMITTEE TO CONSULT THE PEOPLE AND DRAFT AMENDMENTS TO THE CONSTITUTION IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW BY MULLENGA FRANCIS FUBE AND MILES SAMPA BETWEEN: MULENGA FRANCIS FUBE I APPLICANT ST MILES BWA LY A SAMPA 2ND APPLICANT AND THE ATTORNEY GENERAL I RESPONDENT ST THE PRESIDENT OF THE REPUBLIC 2ND RESPONDENT OF ZAMBIA THE MINISTER OF JUSTICE 3RD RESPONDENT BEFORE THE HON. LADY JUSTICE. G. MILIMO- SALASINI AT LUSAKA IN CHAMBERS ON THE 28™ DAY OF JANUARY, 2026. For the and 2nd Applicant : Messrs Joseph Chirwa & 1st Company For the rt, 2N° and 3RD Respondent : The Attorney General R2 RULING CASES REFERRED TO: 1) The Attorney General v Nigel KalondeMutuna, Charles Kajimanga and Philip Musonda SCZ Appeal No. 88 of 2012 2) R v Inland Revenue Commissioners, Ex-parte National Federation of Self-Employed and Small Businesses(l982) 2 ALL ER 92 3) Padfield and Others v Minister of Agriculture Fisheries and Food and Others (1968) 1 ALLER 694 4) Munir Zulu and Another v The Attorney General 2025/CCZ/009 5) Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney General SCZ Judgment No. 14 of 1995 6) Nyampala Safaris and Others v Zambia Wildlife Authority and Others (2004) ZR49 7) Lieutenant Alick Bruce Makondo v The Attorney GeneraJ< > (Appeal 56 of2016) 8) North Western Co. Ltd. v Energy Regulations Board (HP 786 of2010) LEGISLATION REFERRED TO: i) The Rules of the Supreme Court of England ii) The Constitution of Zambia(Amendment) Act No. 2 of 2016 1.0 INTRODUCTION 1.1 This is a ruling on the applicants' application for leave for judicial review.By a Notice filed on 7th October 2025, pursuant to Order 53 (3) of the Rules of the Supreme Court of England, 1999 Edition, the Applicants seek the leave I I I R3 of this Court to commence judicial review proceedings. The Notice is supported by an affidavit and a List of Authorities and Skeleton Arguments. 2.0 At the outset, the applicants have wrongly cited the 2nd Respondent, who is immune from any court action while he holds the office of President according to Article 98(i) which states that; " 98(i) A person shall not institute or continue civil proceedings against the President or a person performing executive functions, as provided in Article 109, in respect of anything done or omitted to be done by the President or that person in their private capacity during the tenure of office of President" 2.1 I will however address the application in the interest ofj ustice. 3.0 NOTICE FOR LEAV E TO COMMENCE JUDICIAL REVIEW 3.1 The Notice for leave is to challenge the following action or decision: (i) The decisions made by Mr. Hakainde Hichilema, President of the Republic of Zambia on 2nd October 2025 to appoint a technical committee to consult the people and drat amendments to the Constitution (hereinafter referred to as "Technical Committee") whilst there is already present in the National Assembly, a Constitutional Amendment Bill, being Bill No. 7 of 2025 (hereinafter referred to as "Bill 7") 3.2 The reliefs sought are as follows: (a)An order of Certiorari to remove into this Honourable Court for the purposes of quashing the decision of the President of the Republic of Zambia to appoint a Technical Committee by way of making submissions on Bill 7, which is already present in the National Assembly, to an illegality and procedural impropriety thereof, and void ab initio (b)An order of injunction restraining the 2nd Respondent from swearing the said Technical Committee R4 (c) An order of injunction restraining the Technical Committee from embarking on the constitutional amendment exercise (d)An order of Mandamus directing the 3rd Respondent to withdraw Bill 7 in line with the judgment under cause number 2025/CCZ/009. (e) An order of Mandamus directing the Respondents to appoint a Technical Committee for the purposes of consulting the people on the development of a fresh Constitutional Amendment Bill. 3.3 The notice also states that the grounds upon which the said reliefs are being sought are: (i) Illegality (ii) Procedural Impropriety 4.0 AFFIDAVIT VERIFYING FACTS 4.1 The affidavit was deposed by the applicants, Mulenga Francis Fube and Miles Bwalya Sampa. They deposed that on 23rd May 2025, the 2ndrespondent caused to be published in the Government Gazette, Bill No. 7 of 2025, a constitutional amendment bill. That prior to the publishing of Bill No. 7 of 2025, on 1st April 2025, Munir Zulu and Celestine Mukandile petitioned the Constitutional Court under cause number 2025/CCZ/009 seeking amongst other reliefs, a declaration that the decision by the respondent to undertake a constitutional amendment process without undertaking wider consultation with the citizens of the Republic of Zambia directly or through their chosen representatives, is in breach of Articles 8 and 9 of the Constitution and thereby unconstitutional 4.2 They further deposed that on 1st July 2025, the Constitutional Court delivered its judgment declaring that the constitution amendment process was unconstitutional. In the judgment of the Constitutional Court, the Court directed the respondents to undertake prior wide consultation before the presentation of any constitutional amendment bill in parliament. RS It was stated that since the delivery of the Constitutional Court's judgment, the respondents have refused to comply with the judgment, in that Bill No. 7 of 2025 remains active for consideration in the National Assembly. 4.4 That on 2nd October 2025, 2nd respondent announced the appointment of a Technical Committee to consult the people and draft constitutional amendments to be contained in Bill No. 7 of 2025. That the decision by the 2nd respondent is illegal and in direct contravention of the Constitutional Court, which guided that the work of the committee on constitutional amendments is for the development of a fresh bill and not to adapt an already existing constitutional amendment bill, which has already been declared unconstitutional. Furthermore, prior to the establishment of the Technical Committee, the respondents failed to obtain prior input from the Zambian people regarding which independent experts would be the best candidates for appointment to the Technical Committee. That the failure by the respondents to obtain prior input from the members to be appointed to the technical committee has led to the establishment of the committee by the 2nd respondent, which is comprised of individuals who lack the necessary independence and expertise to undertake and spearhead a constitutional amendment process. 5.0 THE APPLICANTS' ARGUMENTS IN SUPPORT 5 .1 The applicants referred to Order 53 of the Rules of the Supreme Courtof England (RSC), stating that the Court is clothed with power and authority to be moved for judicial review of decisions made by public officers and institutions.Citing Order 53 Rule 3RSC, which states that no application for Judicial review shall be made unless leave of the Court has been obtained, it was submitted that the application for leave for judicial review is not concerned with the merits of the case but rather the question of the process of reaching the decisions being made. The applicants stated that they will R6 demonstrate that they have an arguable case requiring further investigations, hence the need for the Court to grant the application for judicial review. In support of the submission, the case of The Attorney General v Nigel KalondeMutuna, Charles Kajimanga and Philip Musonda(l>, where it was held that an applicant seeking leave for judicial review must satisfy the Court that the issues raised require further investigation. 5.2 In support of the application for leave, the applicants referred the Court to the case of R v Inland Revenue Commissioners, Ex-parte National Federation of Self-Employed and Small Businesses<2>, where it was held as follows: "The requirement that leave must be obtained is designed to prevent busy bodies who wish to waste the court's time with misguided or trivial complaints of administrative errors and to remove the uncertainty in which the public officers and authorities might be left as to whether to proceed with the administrative action while proceeding for judicial review." 5.3 The applicants submitted that the respondents are officers of public institutions and are therefore amenable to judicial review. In arguing on the illegality of the decision, the applicants referred to the case of Padfield and Others v Minister of Agriculture Fisheries and Food and Others<3>, where illegality was defined as follows: "Illegality includes a situation where an authority misconstrues its duties and that the exercise of discretionary powers for the purpose alien to that which it was granted is unlawful regardless of whether or not that purpose is in public interest." 5.4 The applicants referred to the 2nd respondent's functions and duties under Articles 91 and 92 of the Constitution, which clothe the 2nd respondent with authority to initiate bills for submission to the National Assembly. They R7 contended that the application relates to the decision made by the 2" respondent. It was argued that the appointment of the technical committee d is illegal and contrary to the guidance of the Constitutional Court in the Munir Zulu and Another v The Attorney Genera1<4>case. In addition, they submitted that the application stems from the Constitutional Court Judgment of Munir Zulu and Another v The Attorney General (supra), in which the Court held as follows: "Having considered the Constitution as a whole, in particular Articles 1,2,5,7,8,9,61,90,91,92 and 118, we have come to the inescapable conclusion that the Constitution amendment process cannot be initiated without the participation of the People of Zambia through wide consultations. In the absence of any evidence that the initial process undertaken by the Respondent meets the expectations of wide consultations with the People as stated above, we are of the firm view that the initiating process lacks legitimacy." 5.5 Arguing the grounds of procedural impropriety, the applicants referred to the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v The Attorney Genera1<5>,where the Court stated that procedural impropriety is one of the grounds in which the judicial review process can be effected. That the 2"drespondent's decision to refuse to appoint a technical committee to consult the people and draft amendments to the Constitution without consulting the applicants or any Zambian citizens, thereby denying the applicants procedural fairness in being heard as to which experts could be appointed to the technical committee, as dictated by the rules of natural justice. RS 6.0 LAW AND DETERMINATION 6.1 I have considered the application for leave for judicial review which has been brought pursuant to Order 53 Rule 3 of the Rules of the Supreme Court of England, 1999 Edition, which provides as follows: "No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule" 6.2 It is trite that the remedy of judicial review is concerned with the decision making process of a public authority and not the merits of the decision, as stated in Nyampala Safaris and others v Zambia Wildlife Authority and Others<6>.on the requirement for leave, the Supreme Court in Lieutenant Alick Bruce Makondo v The Attorney Generat<1>held as follows: " ..a t leave stage, an applicant has to demonstrate to the Court that he has a case fit for further investigation and, therefore, deserves a hearing of the substantive matter at inter partes stage. Applications for leave to apply for judicial review, thus, allow court to sieve cases and weed out frivolous, vexatious and hopeless applications, thereby keeping busy bodies and vexatious litigations outside the doors of the court." 6.3 A similar position on the requirement for leave to commence judicial proceedings is provided for in Order 53/14/21RSC, which states the requirement for obtaining leave as follows: (a) to e1iminate frivolous, vexatious or hopeless applications for judicial review without the need for a substantive inter partes judicial review hearing; and (b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case fit for further investigation at a full inter partes hearing". R9 The requirement fi b or O taining leave is therefore to eliminate frivolous . ' vexatmus or hopeless applications that are bound to fail at a substantive hearing. 6.5 It is important to state from the outset that while the applicants argue that Bill No. 7 was declared unconstitutional, the Constitutional Court in Munir Zulu and Another v The Attorney Genera1<4>did not hold as such. Rather, the Court found that the constitutional amendment process lacked legitimacy. 6.6 In casu, the applicants challenge the appointment of the technical committee tasked to consult on the Constitutional amendment process, whilst Bill No. 7 was before the National Assembly. They contend that the 2nd respondent did not appoint a technical committee to consult the people in drafting the constitutional amendments. 6. 7 The applicants submit that their application is premised on the case of Munir Zulu and Another v The Attorney General (supra). In that matter, the Constitutional Court urged the respondents to initiate a constitutional amendment process that was people-driven, led by an independent body of experts, and characterised by wide public consultations. In its judgment, the Court referred to the process previously undertaken by the Technical Committee Drafting the Zambian Constitution (TCDZC), noting that the Constitution of Zambia (Amendment) Act No. 2 of 2016, being the current Constitution, was the product of that initial process. The appointment of the Technical Committee in the present matter was a direct response to the said ' judgment, which called for broader and further consultations. Accordingly, I the 2nd respondent's decision to appoint a Technical Committee cannot be said to contravene the Constitutional Court's judgment, as alleged by the applicants. 6.8 In determining whether there is, on the face of it, an arguable case of iliegality, the applicants allege that the appointment of the Technical I RlO Committee was illegal. In the case of North Western Co. Ltd. v Energy ( Regulations Board<3 >, the Court explained what constitutes illegality by stating as follows: "Under the ground of 'illegality~ the Court seeks to establish whether a decision-maker has acted within the purview of the law that regulates his decision making power, and has consequently given proper effect to it. Thus, an administrative decision, or action is flawed and illegal, if it falls outside the parameters of the law that regulates the exercise of the power." 6.9 Based on the preceding, a decision is illegal if the decision-maker acts outside the scope or limits of the law governing their powers. However, the applicants failed to cite any statute or constitutional provision prescribing the manner in which the technical committee ought to be appointed, or demonstrating any non-compliance by the 2ndrespondent. The applicants instead rely on Articles 91(3) and 92(2)(i) of the Constitution, which empowers the President, in the exercise of executive authority, to initiate Bills for submission to and for consideration by the National Assembly. In their supporting affidavit, the applicants further allege that prior to the establishment of the Technical Committee, the respondents failed to obtain public input regarding the selection of independent experts suitable for appointment, and that this omission rendered the decision illegal. However, the applicants have not placed before the Court any authority establishing that members of a Technical Committee must be appointed only after wide public consultation. The applicants bore the responsibility of placing before the Court the authorities relied upon in support of their case, which responsibility they wholly failed to discharge. Therefore the applicants have not proved any illegality warranty further investigation. Rll 6.10 The next issue for determination is whether there was any procedural impropriety. In arguing the ground of procedural impropriety; the applicants contend that the members of the Technical Committee were appointed without wide public consultations. In Denick ChitaJa (Secretary of the Zambia Democratic Congress) v The Attorney Genera1' 5 the Supreme ', Court discussed whether there was procedural impropriety and stated as follows: "This aspect does not arise since the case is not concerned with the proceedings of an administrative tribunal at all. The Inquiries Act does not Jay down any procedural rules to be observed by the President once a report has been rendered to him. There was thus nothing fit to be referred for further inquiry at a full hearing under this ground." 6.11 In the Derrick Chitala case cited above, the question of procedural impropriety did not arise because the decision did not concern itself with the proceedings of an administrative tribunal. Similarly, this case is not concerned with the proceedings of an administrative tribunal. 6.12 In the same case, reference was made to Council of Civil Service Unions and others v Minister for the Civil Service, where Lord Diplock explained "procedural impropriety "as, rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. In the circumstances, the Constitution sets no procedural requirements for appointing members of the technical committee for constitutional amendments. The Court cannot consider whether the decision to appoint the technical committee complied with any procedural requirements as the same is not expressly prescribed by any statute or instrument conferring jurisdiction on the 2nd respondent to do so. The applicants further weakened their case by failing to identify or direct the Court to any specific procedures or provisions that were allegedly breached. R12 The absence of any prescribed procedural requirements means that there was no procedural impropriety. 6.13 On that basis, I find that this is not a case that is fit for further investigation. I accordingly decline to grant leave to commence judicial review proceedings and dismiss the matter. 6.14 Leave to appeal is granted. DATED TIDS zgm DAY OF JANUARY, 2026 REPUBLIC OF ZAMBIA HIGH COURT OF ZAMBIA A[! HON. G. MILIMO-SALAS 0 JAN 202~]4?i IDGH COURT JUDGE G M SALASINI, J PO BOX t'l0097, LUS,'\KA