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Judgment

IN THE CONSTITUTIONAL COURT OF ZAMBIA -2024/CCZ/0024 AT THE CONSTITUTIONAL REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) IN iHE MATTER OF: THE CONSTITUTION OF ZAMBIA {AMENDMENT) ACT, No.2 of 2016 IN THE MATTER OF ORDER IV RULE 1 OF THE CONSTITUTIONAL COURT RULES AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF ARTICLE 210 OF THE CONSTITUTION OF ZAMBIA {AMENDMENT) ACT No.2 of 2016 AND IN THE MATTER OF: THE TRANSACTION INVOLVING MOPANI COPPER MINES (MCM) AND INTERNATIONAL RESOURCES HOLDINGS ~QJ.\. .---~~:"'..:."!"~ :v .-1,i:11~1 , .. ~>Ji:'111 BETINEEN: \\ati1H!f!HIO~t Ull/iH 1;<11 ti.MA,>. MILES B\/1/AlY A SAMPA PETITiCNER AND RIH?1$Tt1Y 1 THE ATTORNEY GENERAL .___ P O_ BO_X ~0_00_7. L_VS .A.K..A.. . , 1&1 RESPONDENT ZCCM-IH INVESTMENT HOLDINGS LIMITED 2"0 RESPONDENT MOPANI COPPER MINES PLC 3rd RESPONDENT DELTA MINING L!MITED 4th RESPONDENT Coram: Munalula, PC, Shilim1, DPC. Musaluke, Chisunka, Mulongoti. Mwandenga and Mulife JJC on the 22'\d September, 411' November, 181h December, 2025 For the Petitioner: Mr. PK. Chibundi of Messrs. Mosha and Company Jl For the 1 Respondent: s! Mr. M. Muchende SC, Solicitor General appearing with Ms. C. Mulenga, Acting Chief State Advocate. Mr. C Mulonda, Deputy Chief State Advocate and Mr. V. Zulu, State Advocate of the Attorney General's Chambers. For the 2nd Respondent: Mr. M. Nchito SC appearing with Mr. C. Hamwela, Mr. G Malipilo and Mr. K. Sichinga from Messrs. Nchito & Nchito. For the 3rd Respondent: Mr. J. llunga appearing with Ms. B. Mulenga from llunga & Company and Ms. L. Chula and Mr. W. Mawere both in In-House Counsel. For the 4th Respondent: Mr. E.S. Silwamba SC appearing with Mr. J. Jalasi, Mr. L. Linyama and Mr. IN. Chinyemba from Messrs. Eric Silwamba Jalasi & Linyama Legal Practitioners and Mr. C. Chuula, Mr. J. Ngisi, Mr. M Mahenga and Mr. A. Akapelwa from Messrs. Chibesakunda and Company JUDGMENT Mwsndenga, JC delivered the Judgment of the Court. Cases referred to: 1. Salomon v A Salomon Company Limited [1897} AC 22 2. Madison Investments. Property and Authority Company ltd v Peter Kanyinji SCZ Selected Judgment No. 48 of 2018 3. Mutembo Nchito v A:torney General (2016/CC/0029) 4. Njoya ar.d Others v AHomey General and Others (2004) 4LRC 559 o. Milford Maambo and Others v the People (2017) 2 ZR 182 6. Anti-Corruption Commission v Serioes Limited SCZ 8/'199 of 2000 7. Steven Ka1uka and Law Association oi Zambia v The Attorney General and Ngosa Simbyakula and 63 Others 2016/CCZ/0011 8. Communicat1onsAuthority v Vodacom Zambia Limited SCZ Judgment No.21 of J2 9. Dunlop Pneumatic Tyre Co. Limited v Selfridge and Company Limited [1915! AC i 0. Lucky Mutambo v Attorney General 2023/CCZ/007 11. Bozy Simutanda (As Attorney General for H!s Royal Highness Chief Tafuna of the Tafuna Constiiutency) v Godfrey Kaoma (As Chief Mukupa Kaoma) 2020/CCZ/002 12. lkelenge Town Council v National Pension Scheme AL1lhority 2022/CCZ/0022 13. Bric Back Limited T/A Gamamwe Ranches v Neil Kirkpatrick 2020/CCZ/A002 14. Sean Tembo (suing in his capacity as party President of 1he Patriots for Economic Progress) v Electoral Commission of Zambia, Attorney General 2021/CCZ/0047 15. Dipak Patel v. Attorney General 2020/CCZ/0029 16. Helvering v Gregory 69 F.2d 809 (2d Cir. 1934} 17 Edwards v Canada (AG) (1930) AC 124 18. Bongopi v Chairman of the Council of State, Ciskei (1992) (3) SA 25 CK 19. Isaac Mwanza and Maurice Makalu v Attorney General 2023/CCZ/0054 20. Sean Tembo v Attorney General 2023/CCZ/0014 21. Dipak Patel V Minister of Finance 2020/CCZ/2021 22.Attorney General v Martin lvlusonda and Others 2018 ZMCC 14 23 Gervas Chansa v The Attorney General 2019/CCZ/004 24 Zambia Revenue Authority v Hitech Trading Company Limited SCZ Judgment No.40 of 2000 25. Gabriel IVlutava, Elizabeth Kwini and Mary Masyuki (the Joint Administrator of the Estate of Joseph M. lndo (Deceased) v the Managing Directer Kenya Ports Authority and the Kenya Ports Authority [2016) eKLR 26. Conservation Advocates Zambia Limited v Attorney-General 2023/CCZ/0018 27.Zambia National Commercial Bank Pie v Martin Muso11da and 58 Others 2018/CCZ/13 28.National \f\lestminster Bank pie v ln!e1nd Revenue Commissioners [1994)1 \NLR Legislation referred to: 1. The Constitution of Zambia Act. No. 1 of 2016 2. The Constit•Jtion of Zambia (Amendment) Act, No.2 of 20·16 3. The Constitutional Court Rules, 2016. Statutory Instrument No. 37 of 2016 4. The C~1mpanies Act No.10 of 2017 5. The Public Procurement Act, No 8 of 2020 6. The Mines and IVlinerals Development Act, 2015, Act No.11 of 2015 7. The High Court Rules, the High Court Act, Cap 27 of the Laws of Zambia J3 Other works referred to: 1. United Kingdom's Capital Gains Manual (published 12tt, March. 2016 and updated th on the 8ih July 2025, accessed on the 13 July 2025 at iltlps//www.qov.tJ~Lhmrcintemal-n1anuals!capital-gains-manual) 2. Black's Law Dictionary Bryan A Garner, Thomas Reuters, 2004. 9'h Edition 3. Gower and Davies Principles of Modern Company Law 2008, 8th Edition. Sweet and Maxwell, London Introduction sth [1 J The petition dated the 1 December, 2024 pertaining to this matter revolves around Article 210 of the Constitution of Zambia (Amendment) Act. No. 2 of 2016 (the Constitution) which provides for the sale, transfer or disposal of major state assets. The Article bestows upon the National Assembly power to approve the sale, transfer or disposal of major state assets. The manner of sale, transfer or disposal of the major state assets and the actual definition of major state assets are required, by the Article to be prescribed by an Act of Parliament. The required Acts of Parliament are yet to be promulgated. (2) Against this backdrop this judgment decides the petition which alleges the contravention of the Constitution on the following grounds: (a) That the transaction involving the acquisition of 51% shares in Mopani Copper Mines PLC (the 3,d Respondent) by Delta Mining th Limited (the 4 Respondent) (tho transaction hereunder) contravenes Article 210 of the Constitution; (b) That the transaction lacked transparency, public participation, and accountability thereby undermining the principles of good governance enshrined in the Constitution; and J4 { c} That the characterisation of the transaction as a mere subscription to shares, rather than a sate transaction is a deliberate attempt to circumvent constitutional safeguards. Parties [3] The Petitioner is one Miles Bwalya Sampa, a citizen of Zambia and a duly elected Member of Parliament for Matero Constituency in the Republic of Zambia. (4] The 1$1 Respondent is the Attorney General of the Republic of Zambia who is the Chief Legal Adviser of the Government of t11e Republic of Zambia (GRZ). nd [5J The 2 Respondent is the ZCCfvl Investment Holdings Pie (ZCCM-IH) which is a mining investment and ope;ations limited liability company incorporated under the laws of Zambia. rd [6] The 3 Respondent is a public limited company du!y incorporated under the laws of Zambia and carrying out mining activities in Kitwe and Mufulin,1 in the Copperbelt Province of Zambia. 1h [7} The 4 Respondent is a company incorporated under the laws of the United Arab Emirates and is a wholly owned subsidiary of International Resources Ho:dings RSC Limited (IRH) a company which is also incorporated under the laws of the United Arab Emirates. JS nd rd th [8] The 2 3 and 4 Respondents were added to these proceedings by , , the Court on its own motion, in keeping vvith the provisions of Order\/ rule 4(b) of the Constitutional Cou,i Rules, Statutory Instrument No. 37 of 2016 (the CCR) which provides that: The Court may, at ,my stage of the proceedings, upon or without the application of a party, and on such tarms as may appear just order: (a) ... (b) any parson who ought to have been joined, or whose presence before the Court may be necessary in order to enable it adjudicate upon and settle the matter, be added. The facts [9] The facts pertinent to this matter can be ascertained frorn the petition and the affidavit verifying the facts relating thereto dated 16111 December,2024, the 1s•, 2nd 3'd and 41 ,, Respondents' answers and affidavits in support of the answers dated 10111 January, 2025 and 14;11 july, 2025 respectively and the Petitioner's replies to the answers of the 1 st 2 nd 3 rd and 4:1> Respondents and the Petitioner's affidavits in , , reply to the affidavits in support of the answers of the 151 2"0 3rd and , , 4< Respondents respectively as well as the Court's record and matters wl1ich are in the public domain. (101 From the said documents and information, it is plainly evident that the rd petition concerns the 3 Respondent which prior to the year 2021 was JG a company whose shares were held by a subsidiary of Glencore International AG (Glencore) an international mining corporation and nd the 2 Respondent in the proportions of 90% and 10% respectively. [11] In or about 2021 Glencore exited the 3,c1 Respondent upon transferring its entire shareholding in the 3'0 Respondent to the 2nd Respondent nd whereby the 2 Respondent then became a 100% shareholder of the rd 3 Respondent. At the material time the 3,d Respondent had a debt burden amounting to approximately USO 1.5 billion which the 2°c Respondent inherited by virtue of assuming full ownership of the 3' Respondent. [ 12] In the light of this debt burden the 2"6 Respondent embarked on a competitive bidding process to identify a strategic investor to rd recapitalize the 3 Respondent. The 41 Respondent participated in the " process and was successful and thereafter 1t subscribed for 7, 181,633 newly issued shares in the 3rd Respondent. [13) Following the subscription of shares aforesaid the shareholding rd structure in the 3 Respondent was that the 41h Respondent had 51 % of the shares whereas the 2r.d Respondent had 49% shares. J7 [ 14] The transaction generated interest in the Parliament of the Republic of Zambia whereupon questions were asked about the transaction. In response to the questions the Minister of Mines and Minerals Development (the Minister) issued a ministerial statement in the Parliament on the 22nd November, 2024 about the transaction in general and more particularly on why parliamentary approval had not been sought and obtained for the transaction. In material respects the Minister stated that: Madam Speaker On tho issue as to why Parliament was not part of this transaction, the learned Attorney General guided that this transaction did not require to be brought before Parliament because of the following: • There was no sale, transfer or sale of a major state asset As defined by the Constitution, a "major state asset" includes a parastatal and equity (shares) held by the Government. In this case, Mopani was not and is still not a parastatal before and after the transaction. Further, government did not hold any equity (shares) in Mopani, as such governmont was not capable of selling shares. However, it is gratifying to note that the New Dawn Government under the leadership of President Hal<ainde Hichilema negotiated as part of the transaction with the investors and ZCCM-IH for government to reinstate the Golden share In Mopani. Madam SpP.aker What happened in this transaction, is t11at the investor IRH through its wholly owned subsidiary Delta Mining Limited subscrihed to investor shares in Mopani in exchange for its investment amounting to USD1 .1 billion. Let me reiterate that there has bee11 no shares taken away from J8 Government to go to the investor. It therefore cannot be said that government sold its shares in Mopani. Madam Speaker, I thank you. The reliefs [15J The Petitioner seeks reliefs couched in the following manner: (a) A declaration that the transaction involving Mopani and IRH contravenes Article 21 C of the Constitution of Zambia and is, therefore unconstitutional. The natural consequence of finding that an act is unconstitutional is that such an act is null and void. (b) A declaration that the Respondent, through the Honourable Minister of Mines and Minerals Development, acted in breach of Article 210 of the Constitution by failing to subject the transaction to parl1amentary approval. (c) An order nullifying the transaction for want of compliance with the constitutional requirement of parliamentary approval. (d) An order directing the Respondent to ensure that any future transactions involving major state assets comply strictly with the constitutional provision governing such transactions, -particularly those requiring parliamentary approval and public a.ccountc1bility. (e) Such further or other reliefs as the Honourabl~ Couit may da()m jl!St and equitable under the circumstances. The Petitioner's case [16] In the main the Petitioner seeks to chailenge the constitutionality and procedwal propriety of the transaction which according to the Petitioner contravened the mandatory provisions of Article 210 of the Constitution governing the sa!e, transfer, or disposal of "n1ajor state assets." J9 {17J The Petitioner contends that the guidance of the Attorney General, was fundamentally flawed in !aw and fact. According to the Petitioner the 2 Respondent, the entity through which the transaction was effected, was majority-owned by the GRZ through the Industrial Development Corporation (IDC), a wholly state-owned entity, which holds a controlling 60.28% shareholding in the 2"0 Respondent. (18) According to the Petitioner the equity held by the 2M Respondent qualifies as a "major state asset" and its assets, including its 49% shareholding in the 3rd Respondent fell squarely within the ambit of "1najor state assets" as envisaged under Article 210 of the Constitution. The 1st Respondent's case st on [19] The 1 Respondent filed its answer and affidavit in oprositio1~ the 10 January, 2025. The gist of the opposition is that the proper process h was followed in the transaction involving the 2nd Respondent and the 3 rd Respondent. The 1 1 Respondent states that there were no attempts s to circumvent constitutional safeguards and thus there was no contravention of Article 210 of the Constitution or any other provisions. The P Respondent clarified the transaction history by explair.,ing that JlO 2r." Respondent acquired Glencore's 90% shareholding in the 3, d Respondent in 2021, resulting in full ownership [20] It was explained that the original 6,900,000 shares held by the 2r,o Respondent, representing i 00%) ownership of 3'0 Respondent, were diluted to 49% following a shareholder-approved allotment of new shares. The 1 Respondent states that this dilution made it practical to si allot new shares lo the 4'1 Respondent increasing the total shares in •• the 3rd Respondent to 14,081,633. [21 J The 1 Respondent filed its list of authorities and skeleton arguments s; 1h on 18 February, 2025. The arguments were lengthy but we condense them into two heads, that is, whether the transaction was a safe, transfer or disposal of a major state 8sset under Ar1icfe 210 of the Constitution, and the operationalization of Article 210 in view of the definition of a ·'major state asset." The main argument being that the transaction involving the 3rd Respondent does not engage, much less breach Article 210 of the ConstitL1tion. (22] Under the first head, the primary contention vvas that the impugned transaction, the issuance and allotment of new shares in the 3' 1 Respondent to the 4th Respondent, was fundamentally Jll mischaracterised by the Petitioner. It was argued that this was not a disposal of state assets but a corporate capital-raising exercise, vvhich fell outside the ambit of A1ticle 2i0 of the Constitution for several interconnected reasons. st (23] The 1 Respondent elucidated on the doctrine of separate iegal personality and the status of the 3,d Respondent The 1st Respondent grounds its position in the foundationai corporate law principle established in the case of Salomon v A Salomon Company Limited.; This case enunciates the most profound and steady ,ule of corporate jurisprudence, establishing that: A company has a fegal personality separate and inde ,endent from the identity of its shareholders. f24 l The 1 st Respondent applied this doctrine to distinguish between the 2" d Respondent, a state institution, and the 3,c: Respondent, its ·subsidiary [25) Citing the case of Madison lnvestments, Property and Authority Company Umited v Peter Kanyinji2 decided by the Supreme Court st of Zambia, the 1 Respondent noted the court's guidance that: Indeed the basic notion of a corporate entity being distinct and separate from its owners provides a basis of the whole fabric of Company Law. .. The law takes the position that companies in a group are separate entities and are not agents of each other. !12 (26) Consequently, the 1st Respondent submitted that the 3'd Respondent was not a "Slate Institution" as defined in Article 266 of the Constitution, which includes "a cornpany in which t/Je Government or local authority has a controlling interest." It was argued that the Government's interest was held remotely through its stake in the 2nd Respondent, a separate legal shareholder. The 1st Respondent employed an analogy if the 2" d Respondent invested in a company like Facebook, Facebook would not be bound by constitutional provisions applicable to state institutions. That the same applied to the 3'0 Respondent, it cannot be said that the 3'd Respondent was a ''major state asset" merely because the 2 Respondent, a company in wl1ich Government had a stake, was a shareholder in the 3"1 Respondent. [27] Regarding the nature of the transaction, the 1st Respondent argued that the transaction's essence was "raising capitai''. a routine corporate activity governed by the Companies Act No. 10 of 2017 (the Companies Act), not a constitutional disposal It was submitted that section 149(1) of the Companies Act authorises a board of directors. subject to shareholder resolution, to allot shares. It was stressed that raising capital by issuance and allotment of new shares was not done by the shareholders but by the company itself through the Corporate J13 Governance Architecture. It was emphasized that the 2°d Respondent did not sale, transfer, or dispose of any of its 6,900,000 pre-existing shares. Instead, the 3' Respondent created and issued 7,181,633 new th shares to the 4 Respondent. That this issuance diluted the 2"'1 Respondent's percentage holding from 100°/o to 49% but did not involve any alienation of its original share block. [28) It was pointed out that the capital injection of USO 620 million from IRH was paid to the 3' 0 Respondent for its recapitalisation, not to the 2" Respondent as consideration for a sale. The 1s i Respondent highlighted that there was no evidence ihat tl1e 2"d Respondent received consideration in the impugned trans.action. Therefore, it was argued, that the transaction lacked the fundamental ha!lma_rks of a sale, such as a share purchase agreement, payment· of· property transfer tax, or a transfer of existing shares on the register, as ·outlined in section 188 of the Companies Act That as a result, it cannot be said that the Government or the 2nd Respondent sold its shares in the 3,ct Respondent. [29] The P Respondent went on to submit that no major state asset was involved in the said transaction. It was disputed that the 3•d Respondent or the shares in question constituted a "major state ·asset" as J14 envisioned by Article 210(3} of the Constitution. ft reiterated that the 3'0 Respondent was not a parastatal in which the Government held a direct controlling interest. Furthermore, the ·1st Respondent noted that prior to this transaction, the Government held no direct shares in the 3'' Respondent, and that a "golden s/Jare'' for the Republic of Zambia was actuaily created as a result of this deal. [30] Regarding the second head of the arguments on the operationalization of Article 2i0 of the Constitution, the 1st Respondent argued that even if the transaction were deemed relevant to A1iicle 210 of the Constitution, the constitutional provision was not yet legally operative and thus cannot be enforced by the court. Focus was placed on the phrase "as prescribed", which appears in both Article 210(2) a:1d (3) of the Constitution. It was submitted that Article 266 of the Constitution defined "as prescribed" to mean "provided for in an Act of Parliament." The 1s: Respondent stated that there had never been any law to operationalize A11icle 210 (2} and (3) of the Constitution in respect of disposal of ''major state assets." Ttiat in the absence of such an ,ti,ct of Parliament defining what constituted a "major .state asset" and prescribing the detailed process for its disposal. the 1~ , Respondent submitted that the provision ;-emained inchoate. [31] Citing the case of Mutembo Nchito v Attorney General\ where the cowt observed that legal changes must be orderly and structured to ensure smooth transition, the 1'1 Respondent argued that the judiciary cannot fill this legislative vacuum. That the court's role-was to interpret the law, not to create it. The Court's attention was drawn to section 6(2) of the Constitution of Zambia Act No. 1 of 2016, (Act No.1 of 2016} which mandates Parliament to amend existing laws to give effect to the Constitution. lt was argued that this Court can only enjoin the legislature lo heed the said duty. That therefore. there was currently no enforceable legal requirement tor parliamentary approval for the impugned transaction. (32) The 1 Respondent concluded that the petition was witl1out merit, the si transaction was a lawful corporate recapitalisation by the 3' Respondent, not a disposal of assets by a state institution and that the constitutional provision invoked was not operational The 1 st Respondent therefore, prayed that the Court should decline all reliefs sought by the Petitioner and dismiss the petition with costs being awarded to the Respondents. Jl6 The 2nd Respondent's case r. [33] The 2 c: Respondent filed its answer, list of authorities and skeleton arguments on the 14! July, 2025 opposing the petition We shall condense the grounds for opposing the petition into two. Firstly, that no major state assets were sold, transferred or disposed of in the transaction, nor was the 3rd Respondent a parastatal; and secondly that the transaction did not fall within the ambit of Article 21 O of the Constitution, and therefore. neither did it require parliamentary approval nor was it unconstitutional. [34) Concerning the first ground. it was submitted that Article 210 of tl1e Constitution was inapplicable to the transaction as GRZ did not hold rd any equity in the 3 Respondent. It was further submitted th,.,t thG 4"' Respondent subscribed for newly issued shares, as an injection of rd capital into the 3 Respondent Therefore, the transaction was not a sale, transfer or disposal of pre-existing equity (Government owned or otherwise). [35] It was submitted that it was important to distinguish the implications of a sale/transfer/disposal from the implications of a subscription for shares. In this regard the 2M Respondent cailed in aid the United Jl7 Kingdom's Capital Gains Manual (published on 121 March, 2016 and h updated on the 8th July 2025, accessed on the 13th July 2025 at https·//wvv1t-1.qov qk/hmrc-1nternal-rr@Dua!s/cf!.oital-gai~l}§D..Ual) which states: In commercial torms there is a very important distinction between a subscl'iption for shares and a purchas0 of shares. A subscription involves the issu~ of new shares by the company. The proceeds of the A subscription go to the company. purchase jnvolves the acquisition of shares that have already been issued. The proceeds of the sale belong to the seller of the shares. For example, in a privatisation the shares in the relevant concern say British Gas Pie, are in the first instance issued to the Government which then sells them to members of the public. The consideration paid by the public goes to the Government not to British Gas Pie. The company recoives only whatever the Governmont subscribes for shares when they are issued to it. By contrast. when a company raises capital for itself investors glVQ money (new r.onsiderationl directly to the company_or to its agent, in return the company issues new shares to the investors. (EMphas:s supplied by the 2nd Respondent.} [36] The 2·'6 Respondent, with the foregoing in mind submitted that the transactlon did not involve the sale, transfer or disposal of shares, State owned or otherwise. That tt,erefore, the State did not sell any of its assets to a buyer. or receive proceeds of a sale/transfer from a buyer or were any State assets disposed of. It was submitted that instead an investor subscribed for newiy issued shares in the 3"1 Jl8 Respondent and the proceeds of that subscription went directly into the 3rd Respondent as capital for its business activities [37] Further it was submitted that the 3rd Respondent was not a parastatal but was a distinct company, with its own legal personality. According to the 2nd Respondent a parastatal body was defined under section 3 of the Public Procurement Act, No. 8 of 2020 as follows: (a) A statutory corporation or body, or local authority or a company in which the government has a majority or controlling interest. [38] It was then submitted that the 3rd Respondent was not a statutory corporation or body or a local authorlty. That the 3:d Respondent retained its own management. board and commercial operations Therefore. the 3rd Respondent's shareholders did not include the State nor does the State manage its day-to-day affairs ancl decision 111,;l<ing. [39) Concerning the second ground. it was tersely submitted that the transaction did not fall within the requirement of Article 2 i 0 of the Constitution. It was the 2nd Respondent's position that Government assets were neither sold, transferred nor disposed of nor was the entity subject of the transaction a parastatal. [40] The 2nd Respondent concluded its skeleton arguments by praying that: Jl 9 (a) The transaction did not fall under Article 210 of the Constitution, as there was no sale. transfer or dis.o osaf of . a major state asset: (b) No pariiamentary approval was constitutionally required; and (c} The petition be dismissed with costs to the 2,·,o Respondent. The 3'" Respondent's case {41) The 3' Respondent opposes the petition. To this end it filed its ansvver to the petition, the affidavit opposing the Petitioner's affidavit aild list of authorities and skeleton arguments on the 14,h July, 2025. rd [42] The 3 Respondent's position, as is relevant to the petit!on, V.'as that rd the 3 Respondent was incorporated on the 10th February 2000 as a public limited company. At incorporation, the total authorised share capital was 200,000,001 out of which 6,210,000 shares '-Nere issued to Carlisa Investments Corporation (a subsidiary of Glencore} and 690,000 shares were issued to the 2r,a Respondent (43] Following negotiations and completion of a commercial agreement for a share subscription between the 2nd 3'0 and 41h Respondents and after , obtaining all required company approvals, the 3,c Respondent issued !20 issued and allotted 7,181,633 new shares (Investor Shares} to the 4th Respondent. [44) We condense the 3rd Respondent's arguments in opposition into two heads. The first one under the head of 'Article 210 and the alleged need for parliamentary approval". The second one under the head of ·The alleged sell. transfer or otherwise disposal of a state asset ' (45) Concerning the first head. the 3"J Respondent began its arguments by reproducing Article 210 of the Constitution. Article 210 of the Constitution provides that: {1} A State organ, State institution and other pufllic office shall procure goods or services, fn accordance with a system that is fair, equitable, transparent, competitive and cost effective as prescribad. (2) A major State asset shall be sold, transferred or otherwise disposad of, as proscribed, subject to the approv::il of the National Assembly signified by a vote of a least two-thirds of the Members of Parliament. (3) For purposes of this Article, "major State asset" includes a parastatal a!1d equity held by Government as prescribed. (Emphasis supplied by the 3rd Respondent) [46J Relying on the cases of Njoya and Others v Attorney General and Others4 and MIiford Maambo and Others v the People~ it was submitted that in interpreting the Constitution each provision must be construed so as to give effect to the ordinary meaning of the words. In this regard therefore, 1t was submitted that the words in Article 210 of J21 the Constitution ought to be given their plain and natural grammatic meaning. more so that there was no ambiguity. [47 ] The 3,d Respondent then isolated and identified the v,,ords in Art,cle 210 of the Constitution in issue as being "sold, transferred or disposed of." In this regard the 3rd Respondent then resorts to the Black's Law Dictionary 9th Edition at page 1451 where "safe' is defined as "the transfer of property or title for a price" and at page 1636 thereof where the word "transfer" is defined as 'to convey or remove fro;n one place or person to another; to pass or hand over from one person to another to specifically to change over the possession or control of. " [48] The 3rd Respondent concludes ,ts arguments under the first head by stating that it had been demonstrated in the 3rd Respondent's affidavit in opposition that the transaction did not result in the sale, transfer or disposal of any shares in the 3rd Respondent owned by GRZ or indeed the 2nd Respondent. According to the 3'd Respondent the 6,900,000 shares were still owned by the 2nd Respondent and have not been sold, transferred or otherwise dealt with and consequently, Article 210 of the Constitution cannot be invoked. The 3rd Respondent's position is therefore that. Article 2, 0 of the Constitution was inapplicable in this matter. J22 (49] Concerning the second head, the 3rd Respondent. submitted that the transaction was governed by the Companies Act as well as the company's constitutive documents. It was submitted that the transaction was not a sale of existing shares by the Government through the 2nd Respondent but a share subscription to newly issued shares by the 3rd Respondent to a third party. In this regard section 147 of the Companies Act was called in aid of this argument. Section 147 of the Companies Act provides that Subject to this Act and the articles of a company, the board of directors may, issue shares to any person and in any_numher as the board considers appropriato. {Emphasis supplied by the 3rd Respondent) [50} It was submitted that the 3rd Respondent, as a separate legal entity, independent of its shareholders, resolved to issue new shares in the year 2024 amounting to 7 181,633 thereby adding to the existing shares of 6.900,000 The net effect was therefore an increase in the total of issued shares to 14,081, 633 The newly issued shc1res were subscribed for by the 4u, Respondent. [51] It was submitted that a company was a distinct legal person, separate from its members and in this regard the 3rd Respondent called in aid a Supreme Court of Zambia case of Anti-Corruption Commission v Serioes Limited6 where it was said: J23 This follows the age-old principle of corporate personality as pronounced in the celebrated case of Salomon v Salomon and Company, which this Court has adopted with approval. We have stated in a plethora of cases that, a principle of the law which is now entrenched to require elaboration Is the corporate existence of a company as a distinct legal person. In the eyes of the law it (the Company) is a person distinct from Its members_. (Emphasis supplied by the 3rd Respondent) [52) Further in support of this entrenched principle, the 3rd Respondent called in aid a statement by the learned authors of Gower and Davies Principles of Modern Company Law, 8th Edition as follows· On incorporation, the corporate property belongs to the Company and the Members have no direct proprietary rights to It but merely their '..'..§.hares" in the l!ndertaking. (Emphasis supplied by the 3rd Respondent) [53] It was submitted that the act by the 3rd Respondent of issuing the new 7,181,633 shares which were subscribed for by the ,iin Respondent was an act of the company within its corporate capacity A:::c0rding to the 3rd Respondent, shares once issued. become part of the corporate capita! structure governed by the company·s Articles of Association. Further according to the 3r" Respondent, it was a notorious tact that inviting members of the public to buy shares was a preserve and characteristic of public limited companies. J24 (541 In concluding its arguments under the second head it was submitted that there was no necessity for parliamentary oversight or approval in the issuance of the shares to the 4th Respondent. [55} The 3'~ Respondent prayed that the petition be dismissed for lack of merit and costs be for the 3rd Respondent. The Respondent's case 4th [56] The 41h Respondent opposes the petition. To this end it filed its answer to the petition, the affidavit opposing the Petitioner's affidavit and list of authorities and lengthy arguments on the 14th July. 2025. The 4th Respondent argued its case under the following heads: (a) ·'Forum and Jurisdiction··; (b) "Arguments against reliefs "a'' and "b" in the petition'': (c} "A1guments against reliefs "c'', "d" and "e" in the petition"· (d) "Al1icfes 210(2) and (3) are not operational as there has been no law passed to de{Jne the scope of its application": (e ) "The transaction does not fall within tile ambit of Article 210 (2j and (3) of the Constitution.., [57] The 4•h Respondent begins its arguments under head "a" in earnest by identifying what it considers to be the primary question for deterrninat1on as being whether or not tt1ere was a contravention of Article 210 of the Constitution when the 2nd Respondent, the 3'd Respondent and the 4tt, Respondent entered into the transaction without undergoing any parliamentary approval process. [58] According to the 4t~ Respondent the key ingredient to determining the above question lies in conducting a very detailed ana!ysis and interpretation of Article 210 (2) and (3) and the Constitution as a whole. [59) Relying on the case of Steven Katuka and Law Association of Zambia v The Attorney General and Ngosa Simbyakula and 63 0thers ii was submitted that there were two issues for consideration: (a) That the literal approach be the starting point of interpretation of the Constitution and must only be diverged from where it would lead to absurdity; and (b} That in interpretation, a holistic interpretation of the Constitution must be applied to the whole Constitution and other constitutional provisions similar to the subject article. [60] Concerning reliefs ''a"' and "b" in the petition, it was submftted that the two reliefs were not properly before the Court. Firstly, because this case was not a proper case in whlch a declaratory relief could be granted Relying on the case of Communications Authority v Vodacom Zambia Limited it was submitted that a declaration was a discretionary remedy which was not to be granted as of right and that it should only be granted in clear cases. Accord1ng to the 4:h Respondent, in the case of Communications Authority8 it was stressed that such a rernedy would not issue where an alternative remedy exists or where the matter was more appropriatell1 addressed in another forum. [61 j According to the 4th Respondent it was not clear whether the transaction was a share subscription or sale and tt,erefore the Petitioner's case was not clear. Therefore, it was submitted that based on the case of Communications Authority8 the tvvo declarations should be declined. [62] Secondly that to the extent that relief "a" seeks a declaration to be made affecting a non-party to the transaction namely IRH it should on that score be dismissed. It was submitted that it is trite law that a parent company enjoys separate legal status from its subsidia,y in keeping with the landmark case of Salomon v A Salomon Company Limited.1 [63] This position according to the 4'11 Respondent. was further codified in section 16 of the Companies Act which expressly provides /hat a company has a legal personality separate from its shareholders. th Therefore, it was tl,e 4 Respondent's position that !RH as the parent JV company of the entity involved in the transaction, cannot be treated as a party to the transaction by mere association. [64) Further it was submitted that the doctrine of privity of contract as articulated in the case of Dunlop Pneumatic Tyre Company Limited v Selfridge & Company Limited9 dictated that only parties to a contract may enforce or be bound by its terms. It was submitted that IRH not being a party to the relevant contractual arrangements forming the basis of the impugned transaction, cannot be held liable or subject to deciaratory relief thereto. [65] Accordingly it was submitted that any declaratory re!ief sought against IRH woLild be legally incompetent and unenforceable. Consequent!y, therefore relief "a" shou:d indeed fail. [66J Thirdly in the present case, the core issue was whether the transaction constituted a share sale or share subscription, a determination rooted entirely in commercial law. According to the 4th Respondent in substance the dispute herein was a commercial dispute masquerading as a constitutional dispute. This Court it was submitted, exists solely to resolve constilutional legal issues. Therefore, it was submitted that reliefs "a" and "b" must fail. J28 [67) It was submitted that the Petitioner had an adequate and a!terr.ative remedy available by commencing proceedings before the High Cou11 which according to the 41 Respondent was the proper forum with the " requisite jurisdiction and technical competence to address such matters. [68) The 4ih Respondent goes on to proffer arguments on whether this Cou11 has jurisdiction to hear and determine this matter. In this regard it called in aid the cases of Lucky Mutambo v Attorney Genera110, Bozy Simutanda (as Attorney for His Royal Highness Chief Tafuna of the Tafu na Constitutency) v Godfrey Kaoma (as Chief Mukupa Kaoma) and lkelenge Town Councif v National Pension Scheme 13 th Authority .The 4 Respondent subrnitted that the jurisdiction of this Court was limited to constitutionai matters as defined by the Constitution itself. [69) !t was submitted that pursuant to Article 1( 5) and Article 128( 1) (a), (b) and (c) of the Constitution, this Cou1-t only had authority to entertain matters that involve the interpretation, violation, or contravention of the Constitution. It was submitted that as guided by this Court in the case of Bric Back Limited TIA Gamamwe Ranches v Neil Kirkpatrick13 and in the case of lke!ange Town Council v National Pension J29 Scheme Authority ' 2 this Court was a specialised forum, distinct from the ordinary courts, and exists to solely resolve constitutional legal issues. According to the Respondent for a matter to properly invoke 4ih this Court's jurisdiction, it must raise a constitutional question. th [70) The 4 Respondent submitted that in this matter there 'Nas no constitutional question presented. According to the 4th Respondent the question that sits and lies at the centre of the dispute was purely commercial in nature. It was pointed out that whereas ti1e Petitioner contended that it were shares tl1at were sold to the 4tr, Respondent, the th 4 Respondent was of the view that the transaction was a mere share subscription [71] It was therefore submitted that it was impossible to determine the issues in the petition vvithout first answering the central question of whether the transaction in question constituted a sh,:ire subscription or a share sale. This determination it was so submitted, was purely commercial in nature and does not call for the interpretation or enforcement of any provisions cf the Constitution. Therefore, this dispute according to the Respondent fell squarely within the 4ih jurisdiction and province of the High Court wnder Order 53 of the High Court Rules. The 41 Respondent opined that to entertain such a matter " J30 would be to stretch the jurisdiction of this Court beyond the clear limits set by Article 128 of the Constitution. [72] The 4 Respondent concluded its arguments against reliefs "a" and 'b" by stating that they must be dismissed because they do not raise any constitutional question. (73) Concerning reliefs "c", "'d" and "e" in the petition, the 411' Respondent dealt with relief "c" alone and dealt with reliefs "d" ancl "e" together. f74] Relying on the case of Sean Tembo (suing in his capacity as Party President of the Patriots for Economic Progress) v Electoral Commission of Zambia and the Attorney General14 where tl1e Court clarified that consiitutional obligations which require legislative implementation framework cannot be enforced in the absence of such enabling legislation, it was submitted that relief "c" should fail. It was submitted that in essence the transaction in question tool< place in the absence of clear legislative or regulatory frameworks fully operationalising Article 210 of the Constitution. (75] With regards to reliefs 'd" and "e", it was submitted that the same were speculative and not clear and therefore the Court shouid decline to orant them. ~ [76] Concerning the head dealing with 'Articles 210(2) and (3) are not operational as there has been no law passed to define the scope of its th application''. the 4 Respondent submitted that a plain reading of a Article 210 (2) and (3) of the Constitution will reveal that there was requirement for there to be further prescriptive legislation to guide on the scope of the said provisions. (77] After analysing legislation and cases that deal with interpretation of provisions that provide for prescriptive legislation the 4th Respondent submitted that it was ciear that where an Act or indeed the Constitution provides that something be "as prescri,')ed". there was need for further legislation to clarify or detail the scope of the said provision [78] ,4.ccording to the 411 ' Respondent in order for Article 210 of the Constitution to be properly interpreted there needed to be further legislation that guides as to the effect of the term "as prescribed". [79) It was submitted that the petition in the absence of any prescriptive legislation as required by Article 210 of the Constitution was clearly premature and specuiative and must be dismissed. [80) Concerning the head dealing with ''The transaction does not fall within the ambit of Article 210(2) and (3) of the Constitution', the 41h )32 Respondent dealt with it under two sub-heads namely (a) "That tliere was no sale, transfer or disposal of equity held by the 2nd Respondent as part of the transaction"; and (b) "2"d Respondent's shares in the 3,,:1 Respondent were not a major state asset for pwposes al' Articie 210 of the Constitution.,. [81) After explaining what the transaction was about, the 4 Respondent th submitted that the transaction did not involve any transfer or sale of any equity by the 2"" Respondent to the 41 Respondent nor was there " any disposal of equity by the 2nd Respondent. The transaction according to the 4u, Respondent invoived a direct injection of investment from the 4,h Respondent into the 3,d Respondent th {82] The 4 Respondent concluded its arguments under sub-head "a" by slating that the transaction fell outside the scope of Article 210 of the Constitution. {83] Concerning sub-head "b" it was submitted that shares held by the 2" d Respondent in the 3' Respondent were not a major state asset. In this th regard the 4 Respondent anchored its arguments on the words "equity held by !he Government" in Article 210 of the Constitution. J33 According to the 4,h Respondent the shareholding of the 3 rd Respondent included 6,900,000 shares held by the 2°,d Respondent. th (84) The 4 Respondent using principles relating to separate legal personality in company law debunks the Petitioner's contention that the shares helc! by the 2'1(1 Respondent in the 3,d Respondent amount to equity held by the Government on the basis that the majority shareholder in the 2•·d Respondent which is IDC (also a limited liability company) was wholly owned by the Government. th (85] The 4 Respondent concluded its arguments under sub-head "b" by stating that the transaction did not fall under the scope of a sale. transfer or disposal of a major state asset and thus the transaction fell outside Article 2·10 of the Constitution. th [86] The 4 Respondent prayed that the petition be dismissed and costs be awarded to the Respondents. The Petitioner's reply f87] The Petitioner fiied repiies to the 1s1 , 2°d• 3'0 and 411' Respondents' answers to the petition, affidavits in reply dated 23•d January, 2025 and nd 22 July 2025. In the reply, the Petitioner denied the F 1 and 2r•c Respondent's blanket denial of the transaction's constitutional J34 implications, asserting that it did not absolve 2nd Respondent of the need to demonstrate compliance with Article 210 of the Constitution. [88} In reply to the 1 Respondent's answer, the Petitioner advanced ti.,vo s! core arguments m rebuttal. First, it fundamentally rejected the characterization of the transaction as a mere capita!-raising "subscription" of new shares. The Petitioner asserts that the true nature of the deal was a saie and disposal of a major state asset, as evidenced by IRH's own publication stating it "acquired the 51% stake for the swn of $11 Billion Dollars." It was averred that the disposal of the 51 % equity stake from the 2°d Respondent, a state-owned entity, to a private investor inherently constituted a transfer of state assets, irrespective of the technical mechanism of share issuan< e and dilution. st That the 1 Responde11t's reliance on corporate separability was dismissed as a semantic ploy designed to obscure the substantive disposal of a state--controlled interest, which required parliamentary oversight. (89] The Petitioner grounded its constitutional challenge not on the status of the 3,,;; Respondent itself. but on the nature of the asset that was disposed of: the shares held by the 2nd Respondent. The Petitioner averred that the central issue was that the 2nd Respondent's 100°/o /35 shareholding, following Glencore's exit, constituted state assets by ° virtue of the 2 Respondent being a parastatal whose major shareholder was the Government-owned IDC. (90] It wcis the Petitioner's position that any disposal of this controlling interest, whether framed as a sale, transfer, or dilution, engaged the protections of Article 210 of the Constitution, mandating prior parliamentary approval. The Petitioner added that the failure to seek such approval rendered the transaction constituticnally flawed and voidable, and that the 1st Respondent had provided no credible evidence or legal justification to counter this fundamentAI breach. [91) The Petitioner maintained that the transaction required both ministerial consent and parliamentary approval. It was averred that the 3' d Respondent was a parastatal, as the GRZ holcis an inte1 est in it nd through the 2 Respondent, a state-controlled entity. The Petitioner further averred that the 2nd Respondent was majority-owned and controlied by the Government, operated as its investment arm, and reports to the Ministry of Finance. (92} In response to !he 3·0 Respondent's answer to the petition, the Petitioner denied the 3,<J Respondent's claim that all required approvals J36 were obtained and reiterated that Article 210 of the Constitution was applicable The Petitioner averred that the 2nd Respondent, through which the transaction was effected, was majority-owned by the Government via the IDC, a wholly state-owned entity Consequently, nd the assets held by the 2 Respondent, including its shareholding in the 3' Respondent, qualify as a ''major state asset" under Article 210 of the Constitution. While not disputing the genera! ability of a public company to issue shares, the Petitioner averred that when such a company was a major state asset the issuance must comply with constitutional mandates. The Petitioner denied that the grounds of the petition were unsound. [93] In response to the 411 Respondent the Petitioner ccur.tered the 4 ' th Respondent's challenge to his legal standing by asserting that Article 2 of the Constitution grants every person the right to deferid it, a duty intensified by his role as a Member of Parliament. The Petitioner firmly rejected tl1e notion that the matter was purely commercial and outside the Court's jurisdiction, arguing that the core issue was tl,e alleged violation of .l\rticle 210 of the Constitution, which was a quintessential constitutional question. II was further contended that the 4 1~ Respondent's status as a subsidiary does not shield it from !37 constitutional scrutiny, especially as it was a direct party 1n a transaction affecting a major state asset. [94) The Petitioner refuted the 4th Respondent's denial that a "disposal" occurred. It was averred that the transaction's substance, not its form as a subscription to new shares, was what mattered constitutionally The economic reality was a fundamental alteration of the state's interest, including the dilution of the 2nd Respondent's ownership from 100% to 49%, the transfer of control to a private entity, and the consequent loss of state econom,c sovereignty. This, the Petitioner averred, constituted a disposal under Artic!e 210 of the Constitution. The negotiation by the Government for a "golden share" post transaction was cited as a clear admission of this loss of control. [95) The Petitioner dismissed the 4th Respondent's defenses as legal!y untenable. The argument that Article 210 of the Constitution was not operational due to a lack of enabling legislation was rejected, with the Petitioner asserting that the constitutiona! provision was self-executing and its requirements were sufficiently clear. The defense of relying on assurances from the 1st Respondent or 2"0 Respondent was deemed insufficient, as constitutional compliance cannot be delegated or overridden by executive opinion. The plea of commercial necessity and /38 bona fide investor status was also rejected, with the Petitioner averrlng that such imperatives cannot justify circumventing non-derogable constitutional requirements. [96) Lastly, the Petitioner defended the remedies sought in the petition. The characterization of the petition as premature was denied, as the constitutional breach crystallized upon the transaction's execution without parliamentary approval. The request for nullification was presented as the appropriate remedy to restore lawful control and deter future evasion of constitutional mandates. The Petitioner concluded that the 411> Respondent's blanket denials were contradicted by the evidence, and the reliefs sought were necessary to uphold constitutional supremacy. {97) The Petitioner filed lists of authorities and arguments in reply to the 1q i, 2nd 3'0 and 4th Respondents arguments. I.Ne note that the contents of , the said arguments were similar therefore, we shall only prov;de a combined version of the same. [98] The Petitioner argued that the shares held by the 2nd Respondent 1n the 3rd Respondent constitute a "major state asset" under Article 210 of the Constitution. It was aroued that this was because the 2nd ~ .139 Respondent was a state-controtied parastatal entity, and its 100% ownership of the 3rd Respondent following Glencore's exit rendered tl1ose shares a state asset and that any transaction affecting this controlling interest therefore fell within the constitutional safeguard. [99] The Petitioner contended that the transaction was a sale or transfer of this major state asset, not a mere subscription for new shares. That the transfer of the 51 % stake to IRH resulted in a loss of state control, triggering the mandatory requirement for parliamentary approval under Article 210(2) of the Constitution. It was submitted that the 151 Respondent's characterization of the deal as a subscription was a misrepresentation aimed at circumventing this constitutional obligation. ( 100] The Petitioner assetied that the failure to obtain the required parliamentary approval, as unclerscored by the principles in Dipak Patel v Attorney Genera rendered the transaction unconstitutional. , procedurally irregular, and void. That the constitutional framework mandated !egis'at;ve oversight to prevent the arbitrary disposal of national assets. a requirement that was not fulfilled. [101] The Petitioner further asserted that the Court had proper jurisdiction under Article 128 of the Constitution to hear this matter. That the core issue was not the commercial nature of the share subscription but the constitutional question of whether the disposal of control over a major state asset without parliamentary approval contravened Article 210 of the Constitution It was submitted that this required a purposive interpretation of the Constitution, as established in the cases of Steven Katuka and Law Association of Zambia v The Attorney General and Ngosa Simbyakula and 63 Others7 and Milford Maambo & Others v The People.5 (102) ft was pointed out thai the doctnne of "substance over form" must be applied to assess the transaction's true effect. The Petitioner cited Helvering v Gregory16 , arguing that constitutional commands lose their force if evasion through clever structuring was permitted. That the substance of this transaction was the transfer and effective disposal of control over the 3'0 Respondent, a major state asset, which must be the basis for determin!ng constitutional compiiance, not its technical form as a share subscription. [103] It was contended that Article 210 of the Constitution was operative and did not require prescriptive legislation to be effective That a purposive J4l and not a literal interpretation must be employed, viewing the Constitution as a living document, as endorsed in the cases of Steven Katuka and Edwards v Canada.17 The Petitioner added that the phrase "sold, transferred or othe,wise disposed of" in Article 210(2) of the Constitution was deliberateiy expansive to capture any transactlo:i that had the effect of the state relinquishing ownership or control of a major state asset. (104) The Petitioner emphasized that the transaction constituted a disposal of a major state asset. It was submitted that the 2nd Respondent's rd equity in the 3 Respondent was diluted from 100% to 49%, ;esulting in a loss of majority ownership and control to the 41" Respondent. It was pointed out that the Government's subsequent negotiation to reinstate a "golden shen;;'' was an admission that control was ceded. rd Further, that the 3 Respondent qualified as a major state asset under Article 210(3} of the Constitution both as ''equity held by the Government" through the state-controlled 2nd Respondent and due to its strategic national significance (105) It was submitted that the separate legal personality of the 2"c Respondent should not shield the transaction from scrutiny and that the Government exercises 77.6% control over the 2nd Respondent J4.2 through the IOC, direct shareholding, and the National Pension Scheme Authority (NAPSA). Therefore. that the 2nd Respondent's assets constitute "equity l1eld by the Government." The transaction also breached section 66 of the Mines and Minerals Development Act (MMDA), which required ministerial approval and a tax clearance certificate for any transfer of or dealing in mining rights. Additionally. it was submitted that the transfer of control over the 3rd Respondent, a holder of large-scale mining licences, without fulfilling these statutory requirements compounds the constitutional violation and provides an mdependent ground for the transaction to be declared void. (106] It was argued that the 4°1 Respondent's characte(:?:ation of the transaction as an "investment"was a misrepresenta1ion. 1:1 substance. it transferred valuable state assets to foreign control, diluted state ownership, and circumvented constitutional safeguards It was argued that the appropriate remedy for breaches of both Article 210 of the Constitution and section 66 of the MMDA was for tl1e transaction to be declared void ab initio as recognized in the case of Milford Maambo & Others v The People.:; [107] It was the Petitioner's position that Article 210 of the Constitution embodied the fundamental constitutional principle of democratic J43 sovereignty over natural resources. That Zarnbia's mineral wealth was held in trust by the State for the peopie, and maJor disposals require parliamentary approval to ensure democratic oversight and accountability. That the transaction's structuring to avoid this scrutiny violates this core constitutional imperative. [108] The Petitioner concluded his arguments in reply by submitting that the transaction consiituted an egregious disposal of a major state asset without the constitutionally mandated parliamentary approval under Article 210 of the Constitution. The Petitioner urged the Court to uphold the principle of substance over form, declare the transaction void ab innio, and set it aside to preserve constitutional integrity, enforce statutory safeguards, and uphold pub!ic trust in the management of Zambia's natural resource wealth. The Hearing [109] On tlle 22nd September 2025 the hearing of the petition commenced with the Petitioner taking the Nltness stand and he produced his witness statement dated 31 ~ January, 2025 and other documents which were admitted upon there being no objection by the other parties. The Petitioner closed his case. The matter was then adjourned for cross-examination and continued trial, to a date to be communicated. [ 11 OJ In the witness statement the Petitioner essentially repeated most of the contents of the petition save to say that he stated that. 10. ZCCM-IH, through which the transaction was effected, is majority state-owned entity. The shareholding structure of ZCCM-IH is as follows: a) Industrial Development Corporation Limited; b) Ministry of Finance and National Planning, acting on behalf of the Government of the Republic of Zambia; c) National Pension Scheme Authority; d) Other Shareholders, 11. Given this shareholding structure, it is unequivocally clear that ZCCM-IH's assets, including its equity, constitute "major state assets" within th?. meaning of Article 210 of the Constitution. Consequently, the disposal of a controlling 51% stake in Mopani to IRH necessitated parliamentary approval which waa neither sought nor obtained. 12. The Respondent has sought to characterize the tran~action as a mere "subscription of shares." However, the true substance of the transaction reveals otherwise, IRH through-its subsidiary Delta Mining Limited, acquired a controlling stake in Mopani for a total consideration of US01.1 billion. [111) At the hearing of the matter on the 4th November, 2025 in a dramatic turn of events, the parties applied to the Court to dispense with the hearing and to determine the matter on the documents filed in Court. The application was granted. Needless to point out that the Petitioner's witness statement was not expunged from the record. J45 (112] Mr. Chibundi Counsel for the Petitioner made submissions on behalf of the Petitioner which are on the record and we shall therefore not reproduce them at length We shall only highlight some of the salient features of the submissions. [113] Counsel submitted that the Petitioner was before Court seeking redress for the alleged contravention of Article 210 of the Constitution in relation to the matter involving the transaction between the 3'd Respondent and IRH. The material facts were according to Counsel set out in an affidavit filed on the 16th December. 2024. [114] Counsel submitted that there was no doubt that under Article 210 of tl7e Constitution. the disposal of a State asset required Parliamentary approval and that at the material time the 3ru Respondrnt wa., 100% owned by the 2nd Respondent and was therefore an asset of the Government. [115] Counsel submitted that the dilution of shares held by the 2nd Respondent in the 3"1 Respondent and losing control of the Board fr0rr; 9 members to 3 members meant there was a Joss of control of the affairs of the 3'0 Respondent. J45 -- I 116} Counsel submitted that to buttress the fact that there was an acquisition was the fact that consideration was paid. [ 117] Counsel begged and moved on behalf of the Petitioner that the Court should carry out its duty and uphold the law and bind the Government to comply with the provisions of Article 210 of the Constitution which was meant to provide checks and balances. [118] According to Counsel, the excesses of the Executive can only be tamed by Parliament and this Court. And Parliament having been denied the chance to offer checks and balances, the duty now fell on the Court. [119] Counsel concluded his oral submissions by praying for costs because the Petitioner 'as a private citizen, has gone to great personal costs to ensure justice is done in this mat/el"' and also for an order to reverse the transaction. [120] Asked by the Court inter alia as to whether the Court had the power to nullify the transaction Counsel said that the Court had consequential power to do so. Prodded by the Court as to whether the Court had power to declare the transaction nu!I and void Counsel went on to submit that the purposive approach would suggest that if i!ie J-47 transaction was ,!legal then it cannot be allowed to stand and it would be void ab initio. (121] Mr. Muchende. SC the Solicitor General made submissions on behalf' of the 1$1 Respondent which are on the record and we shall therefore not reproduce them at length. \Ne shall only highlight sorne of the salient features of the submissions. The Solicitor General prefaced his submissions by stating that for the first time in the history of this Court, the Court was faced with a matter that collapses company law. corporate and transaction law and constitutional law into one case. [122) The Solicitor General submitted inter alia that the State differs wir.h the Petit,oner and opposes the petition and that the State would rely on the documents that were filed in opposition to the petition on the 10:1> January 2025 as well as the written skeleton arguments tiled on the 1811 February, 2025. ' [123] The Solicitor General nonetheless wished to augment on a point which according to him was central to the determination of this matter and yet not much attention had been paid to it The Solicitor General believed that if the Court answered that point there would be no need of going into company law and corporate and transaction law. ... {124] According to the Solicitor General the central point comes against the backdrop lhat until and unless the legislature were to pass a piece of legislation to give effect to Article 210(2) and (3) of the Constitution (because Article 266 of the Constitution provides that "prescribed'' means provided for in an Act of Parliament) those two Articles would not come into effect This according to the Solicitor General was because this entire case hinged on section 21 of Act No.1 of 2016. Section 21 aforesaid provides that Subject to section six, where an Act of Parliament is required to give effect to an Article of the Constitution as amended, that Article shall come into effect upon the publication of tho Act of Parlia.ment or such other date as may be prescribed by, or under the Act of Parliament. (125] Accordmg to the Solicitor General, Article 210 (2} and (3) of the Constitution were dependent on and 1Naiti11g fer an Act c.:f Parl!ament to bnng them into effect and that as of now there was no such Act of Parliament. [126] The Solicitor General went on to remind the Court, through some decided cases, on the duty of tl1e Court to interpret the words of the legislature as used. He reiterated the fact that until and unless the leg\slature passes pieces of legislation to give effect to Article 210 (2) and (3) of the Constitution. that Article does not come into effect because of the words "as prf:Jscribed." J49 [127J The Solicitor General implored the Court to associate itself with the case of Bongo pi v Chairman of the Council of State, Cisl<ei 16 which says: This court has always stated openly that it is not the rnak~r of laws. It will enforce the law as it finds it. To attempt to promote policies that are 11ot found in the Jaw itself or to prescribe what it believes to b~ the current public attitudes or standards in regard to th~se policies is not its function. [128] The Solicitor General also reminded the Court of the fact that this Court has in several cases declined to grant declaratory orders, of the kind requested by the Petitioner on account of the fact that there was no enabling law to grant such reliefs. Cases in point were those of !saac Mwanza and Maurice Makalu v Attorney General19 and Sean Tembo v Attorney General.20 (129] The Solicitor General submitted that reliefs (a),(b) and (c) must therefore fail and that with regards to any other relief, that the Court should enjoin the legislature to promulgate the piece of legislation to give effect to Articles 210(2) and (3) of the Constitution. [130] Mr. Nchito SC made brief submissions on behaif of the 2nd Respondent and in making his submissions 1n earnest, he begun by confessing that he had difficulties appreciating the fact that the issues brought by the Petitioner raised constituttona! questions. According to State Counsel J50 the issue before Court was purely one of commercial law and really turned on the understanding of share structures, share allotment and share transfers and that the underlying transaction was one of share allotment. [131) State Counsel concluded his submissions by stating that to the extent that it was not den red that there was nothing but a share allotment there was no constitutional issue which was caught up by Article 210 of the Constitution. f132] Mr. llunga made brief submissions on behalf of the 3,.,1 Respondent opposing the petition and stated that in doing so the 3' 6 Respondent had filed an answer, an affidavit in opposition and a list of authorities and skeleton arguments. 8ut that he nonetheless wanted to briefly touch on a few factual issues which in his view, did not fall within Article 210 of the Constitution. (133} According to Counsel, the 3,d Respondent was incorporated from inception as a public limited company and its authorised share capital was and remains 200 million shares. And that the shares in question were 7,181,633 which were newly issued by the company and do not fall within Article 210 of the Constitution. JS l [134j Counsel submitted that the issuance of new shares was in accordance with relevant law. [135] Counsel concluded his submissions by stating that the Petitioner had failed to show that there were shares that moved from the Government. He therefore prayed that the petition should be dismissed in its entirety. (136) Mr. Silwamba SC made submissions opposing the petition on behalf of the Respondent and he stated !hat the 4111 Respondent fried its 4th answer, affidavit in opposition and skeleton arguments which it intended to rely on. But that nonetheless he wished to augment the same briefly. [137] State Counsel submitted ;n agreeing with the Solicitor Gen"'ra1, that Article 210 of the Constitution as 1t stands today, was wantif)g in ful! operation in the absence of further legislation to fulfil what it terms "as prescribed." [138] State Counsel conceded that in his submissions before Court he had not mentioned section 2i of No.1 of 2016 but was quick tc state tt1at in the filed submissions he had referred to two cases namely Oipak Patel v Minister of Finance 15 and Attorney Genera! v Martin Musonda and Others22 where according to State Counsel, this Court 151. had occasion to pronounce itself and give guidance on the meaning of the word "prescribed" when used in Articles in the Constitution. [ 139) According to State Counsel, before this Court can venture into constitutional interpretation in this matter. it has to navigate the intricacies of company law. Therefore, it was submitted that the correct forum for the interrogation of the primary issue is not this forum This Court would be wanting in jurisdiction, as the Constitution had assigned that duty to the Commercial Division of the High Court to determine the arrangement of the allotment of shares. (140] State Counsel also submitied that the burden of proof was on the Petitioner to prove that indeed there was a sale. [141] State Counsel prayed that in the event that it was held that the petition was properly before the Court, it St)OUld nonetheless be dismissed because the Petitioner had failed to prove his case. [ 142] In reply Mr. Chibundi, informed the Court that on the 31 January, 2025 si the Petitioner had filed replies to the answers and affidavits in reply to the answer by the 2"0 to the 4:11 Respondents on the 2?ih Juiy, 2025. However, he nonetheless wished to briefly augment the Petitioner's reply. The arguments in reply are on the Court's record and as they do J53 not substantially add to the Petitioner's position, we do not ·think it necessary to summarise them in the judgment. Con side ration [143] We have considered the petition, the affidavit verifying facts in the petition and witness statement filed by the Petitioner, answers and affidavits in opposition and skeleton arguments by the Respondents and the Petitionei's affidavits in reply to the affidavits in opposition by the Respondents as well as replies by the Petitioner. \/Ve have also considered the oral submissions made at the hearing of the rnc.tter. We are grateful to parties for the written and oral submissions. [144] Despite the multifarious issues that the parties raised in their filed process, written and oral arguments, we are of the cc'riside,ed view that the central issues, that present themselves for our determination are the following (a) Whether the Court has the jurisdiction to hear and determine this matter? and (b) If the answer to question "a" be in the affirmative, whether the provisions of Article 210 of the Constitution apply to the transaction. JS4 [ 145] It now behoves us to determine whether the Court has jurisdiction to hear and determine this matter. In this regard it is trite that Article 128(1)(e) of the Constitut:on bestows on the Court jurisdiciion to determine whether or not a matter falls within the jurisdiction of the Court. AI1icle 128(1)(e} of the Constitution provides that: Subject to Article 28, the Constitutional Court has original jurisdiction to hear- (e) whether or not a matter falls within the jurisdiction of the Constitutional Court [146] In making such a determination the starting point is Article 1 (5) of the Constitution, whicl, provides that a matter relating to the Constitution shall be heard by this Court. Article 128(1 )(a) and (b) of the Constitution further provide that this Court has jurisdiction to hear a matter relating to the interpretation, violation or contravention of the Constitution. [147] It is therefore, clear that the jurisdiction of this Court is limited by the Constitution itself. In the case Bric Back Limited T/A Gamarnwe Ranches v Neil Kirkpatrick'3 wa said The Constitutional Court of Zambia is a specialised Court, set up to resolve only constitutional questions. In that sense, it is separated from the general court hierarchy under which matters move from lower courts up to the final court of appeal. This exemplifies what the learned author Andre Harding in the Fundamentals of Constitutional Law calls a centralised system as opposed to the diffused system. In the latter, a supreme court has general jurisdiction over civil and JSS criminal matters as well as constitutional issues. In our case, the Constitutional Court exists only for constitutional matters hence it is separate and additional to the Supreme Court which has general jurisdiction. In the Zambian court systems, all questions of general nature, including procedural questions, must proceed through the courts of general jurisdiction. [148] The jurisdiction of this Court is therefore limited to resolving constitutional issues or questions. [149] The definition of a constitutional question was given inter a/ta in !he case of Gervas Chansa v The Attorney General23 where we held that: A constitutional question is defined in the Blacks' law dictionary as a legal issue resolved by the interpretation of the Constit.uhon rathor than the statute. ( 150] Therefore, it is clear that a constitutional question is one tha\ can be resolved by the interpretation of the Constitution rather than a si.atute. Thus, where a petition does not invite the Court to resolve a matter without interpreting or resorting to the Constitution, the petitlon does not raise a constitutional question and would therefore be improper-ly before the Court. [ 151] The underlying question 1n this case, is whether the impugned transaction required par!iamentary approval :n keeping with Article 2'10 of the Constitution. Article 210 of the Constitution which also has !56 criminal matte/" as well as constitutional issues, In our case, the Constitutional Court exists only for constitu1ional matters h011c~ It is separate and additional to the Supreme Court which has general jurisdiction. In the Zambian court systems, all questions of general nature, including procedural questions, must proceed through the courts of general jurisdiction, [148] The jurisdiction of this Court is therefore limited to resolving constitutional issues or questions ( 149] The definition of a constitutional question was given inter alia m the case of Gervas Chansa v The Attorney General23 where we held that· A constitutional question is defined in the Blacks' law dictionary as a legal issue resolved by the interpretation of the Constitution rather than the statute. [150] Therefore, it is clear that a constitutional question is one that can be resolved by the lnterpretation of the Constitution rather than a statute. Thus, where a petition does not invite the Court to resolve a matter without interpreting or resorting to the Constitution, the petition does not raise a constitutional question and would therefore be improperly before the Court. [151] The underlying question in this case is whether the impugned transaction required parliamentary approval m keeping with Article 210 of the Constitution. Article 210 of the Constitution which also has J56 \ trappings of commerce and commGrc1ai and company law undertones for ease of reference provides that (1) A State organ, State institution and other public office shail procure goods or servtcos, in accordance with a system that is fair, equitable, transparent, competitive and cost effective. as prescribed. {2) A major State asset shall be sold, transferred or otherwise disposed of, as oresc..,::ied, subject to the approval of the National Assembly signified by a vote of a least two-thirds of the Members of Parliament. (3) for purposes of this Article, ·•major State asset" includes a parastatal and equit)' held by the Government, as prescribed. {Emphasis supplied) [1521 In order to resolve tne underlying question articulated m the preceding paragraph, ,t is incumbe"lt uoor t'1is Court tc consider as a matte( of necessity, tne nature of the impugned transaction before detomw,ing whether a constitutional issue prooerly arises in this matter. We are, however. of the v;ew that the nature of the transaction constitutes but a secondary issue in this petition. The prima:y issue remains that which has a!ready been 1cient.f1ed in the preceding paragraph. In ttie circt.mstances, the secondary isst:e is inextricably bound to the primary issue. Accordmg!y, the Court is able to address both issues concurrently. In our considered view, the ori"'lary 1ssJe raises a constitutional question which this Court must resolve m the discharge of its fundamental duty to uohold and viridicate the CorsUtution We ;57 ..... therefore hold that the position adopted ln the case of Bric Back Lin1ited TIA Gamamwe Ranches v Neil Kirkpatrick13 does not operate to preclude this Court from heanng and determinmg the petition [153] On the material before the Court. despite the Petitioner spiritedly, by his submissions championing the position inter a/ta that the impugned transaction was a share transfer, the Petitioner failed to provide cogent requisite evidence in this regard. Taking a leaf from the case of Zambia Revenue Authority v Hitech Trading Company Limited24 where it was netd (and we concur with the Supreme Court of Zambia) that arguments and submissions at the bar. spirited as they may be. cannot be a substitute for s•.vorn eviaence, we are firmly of the view that the position championed by the Petitioner cannot be upheid. On the contrary the Respondents particularly the 2r.d. 3rc and 41 Respondents " provided ev•dence tr.at shows or suggests that the transaction was a share suoscription and not a share transfer. The Petitioner did not dispute that evidence Below we wish to demonstrate this position. 1n [154] in an affidavit oppos!tion to the petition sworn by one Kakenenwa Muyangwa on behalf of the 2"0 Respondent filed on the 141 h July, 2025 evide1ce or the nature of the transaction was provided as follows: )58 4. That the transaction in question involved tha subscription by Delta Mining Limited ("Delta") to 7,181,633 newly allotted shares in Mopani, which shares were previously 1mallotted. 5. That following the exit of Glencore International AG from the 3'0 Respondent, the 2n~ Respondent acquired 100% shareholding in the 3rd Respondent following a transaction between the parties. 6. That the said share subscription was undertaken by the 2nd Respondent in an effort to recapitalise Mopani and comply with the minimum shareholder requirements under the law. [ 155] The Petitioner in his affidavrt in reply to the 2"d Respondent's affidavit in opposition afore-mentioned filed on the 22nd July, 2025 magnanimously deposed that: 4. Tile contents of paragraph 1 to 6 are not in dispute. [ 156] One Alick Gondwe on behalf of the 3'~ Respondent swcre and filed on'i41 July, 2025 an opposing affidavit where he mter alia deposed: h 9. That in March 2024, after obtaining all required company approvals MCM allotted and issued seven million one hundred and eighty-one thousand six hundred and thirty-three (7,181,633) shares ("Investor Shares'') to Delta Mining Limited ("Delta'') after successful share subscript.ion following negotiations and completion of a commercial agreement, among ZCCM IH, MCM and Delta (the "Transaction"), The Transaction was duly lodged with PACRA together with the amended Articles of Association of MCM indicating, among others, the newly subscribed, allotted and issued shares to Delta. There is now produced and shown to me marked "AG3"' a true copy of the Articles of Association of MCM lodged on the 1 gu, March 2024 (the Articles"}, J59 [157] The Petitioner in his affidavit in reply to the 3rd Respondent's opposing affidavit filed on 22nd July, 2025 magnanimously inter alia deposed: 9. That as alluded to in my Affidavit verifying facts, the transaction in March 2024 entai!od the allotment and issuance of 7,181,633 newly issued shares to Delta Mining Limited ("Delta") after company approvals. This altered the shareholding structure substantially, reducing ZCCM-IH's control from majority to minority. (158] One Antonio Henrique Marques Da Costa Mota on behalf of the 4th Respondent, swore and filed an affidavit m opposition to petition on 14th July, 2025 where he deposed inter alia: 13. That the Transaction invoived Delta committing to l1west up to USD1, 100,000,00 in MCM. This investment amount was to serve the purposes of injecting equity capital, settling loanr to third parties and issuing shareholder loans to MCM. 14. That the Transaction involved the parties entering into an ·., agreement whereby Delta would subscribe for. and MCM agr0ed · to allot and issue, investor shares to Delta. In accordance with the transaction, there was a recategorization of the shares in MCM as follows: a) The 6,900,000 ordinary shares held by ZCCM-IH were re classified as 6,900,000 Class B shares: b) An addition;;il 7,181,633 Class A shares were issued, which Delta would subscribe to; c) A further Class C shares woulti be issued and subscribed to by the Government of the Republic of Zambia (GRZ) through the Minister of Finance, ·15, That I am aware that MCM altered its share capital to give effect to the reclassifications. There is now produced and shown to me marked as exhibit"A HMDCM3" a true copy of the notice to alter capital. J60 16, That in further giving effect to the agreement 7,181,633 Class A Shares were allotted to Delta by MCM. There is now produced and shown to me marked as exhibit "AHMDCM4" a true copy of the notice of allotment of share capital, 17. That following from the above, the shareholding in MCM therefore currently stands as below. There is now µroduced and shown to me marked as exhibit "AHMOCMS" a true copy of a Patents and Companit'!s Registry printout of MCM. r· ·--··--·-···-----I- -. --- ! Shareholder name Shares held in Class of Shares MCM i I•--.. ·------- I ··--·-·-·-·-----·-·--·1 I y, Delta ·-- 181,633 ___ r Class A -------·-- ' ZCCM-IM_______ ' 6,900,000 ·---+Class 8 ·------ [ Minister of Finance.JI _________ Class C ________ _ [159] The Petitioner in response to the 41h Respondent's affidavit in opposition filed on 22 July, 2025 deposed magnanimot.:sly inter atia (but in some paragraphs not in clear terms): 11. That save for admitting paragraph 13 of tne Affidavit in - Opposition, I verily believe that the restn•ctlirinrj di11Jted govel'nment shareholding and amounts to a disposal of a major state asset, given that ZCCM-IH remains state controlled. I further believe that its recharacforization as a rescue investment does not exempt it from applicable · constitutional safoguards. 12. That the contents of paragraph 14 of the Affidavit in Opposition of the disputed(sicJ. I will aver that tlie asseiiion that the transaction was a "tnere subscription of sh&res" as alleged. l have been advised by my Advocates and I verily believe the same to be true that the reclassification of the ZCCM-IH's shares from ordinary to· Class B shares and the creation of new Class· A shares for Delta diluted ZCCM-I1-i's voting rights and economic inter&st in MCM and as such this constitutes a trai"isfer of control over a major state asset. 13. That the contents of paragraph 15 of the Affidavit in Opposition are not disputed save to state that it is my J6l believe [sic} that the said reclassification was calculated to avoid parliamentary scrutiny. 14. The contents of paragraph 16 of the Affidavit In Opposition are not disputed. 15. That a perusal of paragraph 17 of the Affidavit in Opposition show the current shareholding structure which is not disputed. I verily believe that the change in class of shares and the introduction of new shares resulted In a transfer of control. 16. That further to the above, I verily believe that the reduction of ZCCM-IH's shareholding from 100% to 49%, and the accompanying loss of control over MCM, reflects what in ordinary terms would be understood as a disposal, which in my further understanding as a long standing parliamentarian, ought to be subjected to parliamentary oversight. [160] From the above quoted excerpts it is plainly evident that with the concurrence of the Petitioner, the transaction was a subscription of shares. It is also plainly evident and not disputed by the Petitioner that the shares in question were issued by the 3rd Respondent (and not by the 2nd Respondent) and subscribed to by the 4th Respondent. Above all it ts also plainly evident and not disputed by the Petitioner that the shares in issue were not issued by the GRZ to the 4th Respondent. [161] The Petltioner seems to have been more concerned about the dilution of the 2"d Respondent's shareholding in the 3rd Respondent as well as the loss of control of the 2nd Respondent in the 3rd Respondent This position also stands out prominently in the Petitioner's written and oral JG2 arguments. Those concerns in our view. have no bearing whatsoever on the primary issue in this matter The concerns 111 our view are merely but a "smokescreen'· to hide the facl that the transaction was a share subscription If indeed the Petitioner were so minded. to seek redress for those concerns, he ought to have properly taken out process in the cou1i with general jurisdiction instead of mounting a constitutional challenge of the transaction. In this regard we wish to take a leaf from the case of Gabriel Mutava, Elizabeth Kwin i and Mary Masyuki (the Joint Administrator of the Estate of Joseph M. lndo (Deceased) v the Managing Director Kenya Ports Authority and the Kenya Ports Authority25 where the Court of Appea, of Kenya stated that The Constitution should not bo turned into a thorouQhfare for resolution of every kind of common grievance. [171] This position holds good even in Zambia. Common grievances should be litigated 1n courts with general jurisdiction. In the case of Conservation Advocates Zambia Limited v Attorney-General28 we stated that: [10.91 We ...e mphasize that it not within this Court's jurisdiction, as set out in Article 128 of ihe Constitution, to preside over litigation which remains withir. the purview of ordinary court: ... [172} In our view therefore, on the material before the Court and more so that the Petitioner does not dispute the nature of the transaction as we J6 l have demonstrated earlier on. we shall now consider the underlying constitutional question in the petition. The undsriying constitutional question as noted earlier. being whether the provisions of Article 210 of the Constitution apply to the transaction [ 173] The underlying question, we opine, cannot be properly dealt with by courts with general Jurisdiction because this Court is the only Court subject to the Constitution, that has the Jurisdiction to hear and determine a matter relating to the Constitution or inte(pretat1on of the Constitution or a violation or contravention of the Constitution In this regard therefore, we are firmly of the view that this matter is indeed properly before the Court. (1 7 We take cognizance of the Petitioner's contention that the transaction," . .[w]hether styled as a subscription to s/Jares or othe1wise. involved the disposition of a significant portion of eqwty m a company of strategic importance to the Zambia economy. This, therefore necessitated compliance witli the procedural safeguards and parltamentary oversight mandated under Article 210. ~ [175} The issue that we must resolve is therefore, whether the transaction ought to have been approved by parliament under A1ticle 210 of t11e Constitution. [176] In dealing with the issue at hand we start by stating that when interpretating the Constitution all relevant provisions bearing on the subject for interpretation should be considered together as a whole in order to give effect to the objective of the Constitution. Ti1erefore, the Constitution must be read as a whole so that none of the provisions of the Constitution should be segregated from other provisions touching on the matter which is the subject of interpretation. This principle was applied in the case Zambia National Commercial Bank Pie v Martin Musonda and 58 Others.•7 [ 177] In determining whether there is a mandatory requirement that the transaction should have been subject to parliamentary approval we have examined all the provisions of the Constitution which to1.1ch on this issue namely:-Articles 210, 266 and 272 of the Constitution. 'Ne have also examined section 21 of Act No.1 of 2016. [178] As we have already reproduced Article 210 of the Constitution in paragraphs 45 and 151, we shall r.ot rehash it here. J65 [ 179) In this case, can the shares that were issued and allotted to the 4:h Respondent in the 3rd Respondent be described as "equity held by Government' in the sense of Article 210(3) of the Constitution? [180) The Petitioner strenuously argued that the san,e were Government shares held through the 2nd Respondent. The Respondents on the other hand valiantly disputed this. According to the Respondents, the shares were newly issued by the 3r<J Respondent to the 41" Respondent as part of the subscription agreement to recapitalize the 3rd Respondent. Exhibit ''AHMOCM4" in the affidavit in opposition sworn by Antonio Henrique Marques Da Costa Mota on behalf of the 41h Respondent is the Notice of Allotment of Shares which indicates that the shares were issued and atlotted by the 310 Respor.dent to the 4:h Respondent under a recapitalisation p!an. The Petitioner in his affidavit in reply to that affidavit did not dispute this fact. We have dealt with this point in paragraphs 158 and 159. [181] Therefore it is cornrnon cause that the newly issued sl1afes were issued by the 3'<t Respondent and the sarne were allotted to the 4u Respondent. Before they were issued, they were part of the un;ssued shares of the authorized capital of the 3rd Respondent and were not owned by any anyone including the 2nd and 310 Respondents. The 3, d )66 ~espondert's interest m them was limited to the statutory power to issue them in accordance with ,ts Articles of .A.ssoc,at1of' al"\d the Companies Act. In this regard we agree with the ho1d:ng in the case of National Westminster Bank pie v Inland Revenue Commissioners26 that unissued shares are ;ncapable of ownership until allotted. [182] Tnerefore. tt cannot be said that the shares in q..iest;on were "equity held by Government" in the sense of A:1icle 210 (3) of the Constilution. Accordingly, the Petitioner's claim that Article 210 of the Constitution applies to the transaction has no limb to stand on. Ttie ending pomt on this issue is that Petitioner's case therefore collapses on its own inanition [i 83J in proceeding as we have done above we are "0t ob\ivious of the fact that the Petitioner spintedly submitted that the issuance and allotment of the shares to the 4th Respondent in the 3rd Respondent amounted to a dilution of the 100% sharehold:ng to 49% and the ensuing loss of control of the 3rd Respondent was a disposal of Government equity as wel! as the atterdant econom·c ramifications Our quick and short resporse would be that those would be issues that would best be resolved in a court of general jurisdiction and not tn this Court. )67 [184] Further, as we shall demonstrate hereunder, we opine that in any event Article 210 cf the Constitution in its current form does not apply in this matter. [185) Article 210 of the Constitution was drafted in such a manner that certain elements thereof were left to be prescribed Article 266 of the Constitution defines the word "presc,ibed" as meaning "provided for in Act of Parliament." [186] Article 272 of the Constitution in so far as it is relevant in this matter provides that: Parliament may enact legislation to give effect ~ an Arlicle.....2r~ provision in this Constitution which - (a} ... , {b) provides for a process_,.2.!:_procecture to be undertaken followed or prescribed; (c} ... (d) , (e) ••• t (f) deals with a spec;f!c subject-matter or general matter that would require to be legislated on in order to give effect to the Constitutio11; or (g) generally requires somethinR to be prescribed. (Emphasis supplied} [187j The provisions of Article 210 of the Constitution, upon which the Petitioner has anchored his petition, are clear and unambiguous. A literal interpretation of the Article will show that it confers on the J68 National Assembly power to approve by a vote of at least t\,vo-thirds of Members of Parliament, the sale, transfer or othervvise disposal of a major state asset. The catch however, is that tl,e Article does not provide for how the sale, transfer or disposal is supposed to be carried out and neither does it provide for a comprehensive and clear definition of what a "major state as$ef" is? [188) Regarding the sale, transfer or disposal, the Article provides that "A major State asset shail be sold, transferred or othenvise disposed of, as prescribed ... " This entails that the manner of sale, transfer or disposal should be set out in an Act of Parliament. [ 189) In a similar vein, the Article provides that "major state assets' 1:1cludes "a parastatal and equity held by the Government, as pre,cribed." Meaning that an Act of Parliament must be passed to provide for what a major state asset held by Government is? (190] As matters stand, it is common knowledge that the Acts of Parliament required unde1· Article 210 of the Constitution are yet to be promulgated. VVhat then is the effect of the non-promulgation of the required Acts on Article 210 of the Constitution? It seems to us that despite the Constitution corning into effect on the 51h January, 2016, Article 210 thereof has not yet come into effect. )69 [191] This position has support from Article 272 of the Constitution. Article 272(b), {f} and (g) of the Constitution provide for the promulgation of legislation to give effect to certain provisions in the Constitution by providing for a process or procedure to be undertaken, followed or prescribed or which deal with a specific subject-matter or general matter that would require to be legislated in order to give effect to the Constitution or generally requiring something to be prescribed. As we understand it, "giving effect" means to make something valid, operative, or real by putting it into practice It is therefore about implementing a plan, a decision or law to ensure it is carried out as intended. [192] After raking into cons:deration the excerpt frorn Bongopi v Chairman of the Council of State, Ciskei18 set out in paragraph 127 ws opine that Aiticle 210 of the Constitution is not self-executing. This is mainly because it explicitly requires Parliament to enact certain laws to deal with specific issues therein contained. :t is trite that non self-executing provisions are not capable of direct enforcement. [193) We further agree with the Solicitor General and Mr. Silwamba SC that section 21 of Act No.1 of 2016 applies to this matter. But in our view this matter does not wholly hinge on the said provision as suggested by the Solicitor General but it also hinges on Article 272 ot the Constitution. Mr. Chibundi and the other Counsel for the Respondents did not make any oral submissions on the provisions cf section 21 of Act No. i of the 2016. (1941 As we have already reproduced section 21 in paragraph 124, it is therefore not necessary to rehash it here. [195) A perusal of section 21 of Act No.1 of 2016 reveals that it is part of the broader transitional provisions in the Act which aim to ensure a smooth implementation of the Constitution. The section makes it clear that where an /-\ct of Parliament was or is required to give effect to a"i ,A.rticle in the Constitution, that Article shall come into effect upon the publication of the Act of Parliament or such other date a::, may be prescribed by or under the Act of Parliament. Absent such an Act of Parliament, Articie 210 of the Constitution is therefore not operational or in effect. [ 196) The bottom-line tl1erefore. is that on jointly reading Articles 210, 272 of the Constitution and section 2·r of Act No. 1 of 2016 we come to the ineluctable conclusion that the non-promulgation of legislation envisaged under Article 210 of the Constitution means that Article 210 J7l of the Constitution is indeed not yet in effect This invariably means that the Petitioner cannot invoke Article 210 of the Constitution to ground the petition. In the circumstances of this case therefore, there is no basis upon which we can grant a declaration that the transaction rd involving the 3 Respondent and IRH contravenes Article 210 of the Constitution and is therefore unconstitutional as well as a declaration t that the 1s Respondent through the Minister, acted in breach of Article 210 of the Constitution by failing to subject the transaction to parliamentary approval [197} The Petitioner also sought an order nullifying the transaction tor want of compliance with the constitutional requirement of parliamentary oversight and approval. Similarly, this relief must suffer. for the sarne reason, the same fate as the first two reliefs. (198J The Petitioner also sought an order directing the P1 Respondent to ensure that any future transaction involving major state assets comply strictly with the constitutional provisions governing such transactions, particularly those requiring pa,•liamentary approval and public accountability. This relief has no merit as it is purely speculative and/or premature. '72 [ 199] The Petitioner also sought such fu1ther or other reliefs that can be granted to him by the Court but since he is bound to entirely faiL there is no further or other relief that can conceivably be granted to him by the Court. (200] With the foregoing matters in mind, we find and hold that tt1e petition has no merit and it is therefore dismissed. But as it has raised important issues, we order that each party bear their respective own costs. [201] As we conclude, while noting, that the Solicitor General seemed to relish the fact that A1ticle 210 of the Constitution was not yet in operation, we must underscore that the intended purposes of Article 210 of ihe Constitution are both noble and profoundly beneficial to the public interest. So long as Article 210 of the Constit,1tion remains non-operational, its benefits will however never be realised. In effect, the continued non-operational status of Article 210 of the Constitution inadvertentiy strips the National Assembly of its intended constitutional oversight role, thereby enabling transactions that may be opaque and weakening safeguards over Zambia's national assets. [202] We accordingly enjoin the Attorney General to take to the National Assembly appropriate bills to ensure that Article 21 O of the Constitution J73 is brought Into operation. In similar vein, we enJ01n the National Assembly (of which the Petitioner is presently a member) to exercise its legislative authority to enact the necessary laws pursuant to Article 210 of the Constitution. Only then will the National Assembly be able to discharge its constitutional oversight function over the disposal of nationai assets, as envisaged by the framers of the Constitution. wi-=- -~) ~~ A.M. S~tiwM1t-10EPUTY PRESIDENT OF THE CONSTITUTIONAL COURT > ____j LtlW\m ~-· .. K. MULIFE CONSTITUTIONAL JUDGE CONSTITUTIONAL COURT JUDGE -----------------------·---- CONCURRING JUDGMENT Musaluke, JC, Concurring. Cases referred to: 1. Steven Katuka and another v The Attorney General and Others, CCZ Selected Judgment No. 29 of 2016 2. District of Cclumbia v Heller, 554 U.S. 570, 595 (2008) Legislation reforredJQ.;. The Constitution of Zambia Chapter 1 of the Laws of Zc:mbia as @mended by the Constitution of Zambia (Amendment) Act. No. 2 of 2016 Other sources; Bryan A Garner, ed. Black's Law Dictionary 10th ed. St. Paul. MN. ThornGon Reuters 2014 Barak, Aharon. Purposive Interpretation 1n law. Princeton University Press 2005 [203] I join the Majority's decision but write separately to explain wl1y in my view and in particular in this case before us, constitutional interpretation must be grounded in textualism rather than purposivism I will later, apply textual interpretation to the case at hand. I also write J75 separately to clarify an aspect of the MaJorit{s analysis that I believe may carry a clearer message if explained in my own words. [204] I, begin by arguing that the Constitution denves its authonty from the people who ratified its words. not from the abstract purposes later attributed to "t Accordingly my argument is tha' fidelity to the Constitution requires that judges adhere to the text as enacted a'.'lo not to shifting assessments of underlying purpose. The learned author Aharon Barak in his book; Purposive lnterpretation in Law, argues a~ page 277 that New textualism's approach to constitutional interpretation .,, ... does not seek to realise the intent of the framers, but rather to understand the Constitution as a reasonable rsader would understand it at the time of its founding, [205] In the case of Steven Katuka and Another v The Attorney General and Others 1 •Ne held trat the plain meaning of the text ln the Constitution snoulci be the first call in interpretation uriless an absura7ty arises then resort should be to purposive interpretation. [206} UKewise, m the United States of America case of Dlstrict of Columbia v He!ier2 Justice Scalia observed that the Constitution usays vvhat it , says ar;d does not say what it does not say" This 1s in line with the J76 principle that textualism prevents courts from expanding or contracting constitutional meaning according to personal or ideological preference. [207] Textuai interpretation therefore, anchors decisions in fixed language which allows citizens, lawmakers and lower courts to predict how the !aw will apply. This is the interpretative approach I will use in my concurring opinion so as to keep up with tl1e spirit that the Constitution's authority comes from the people who ratified its text More so, I believe there is no absurdity in !lie plain text used in Article 210 (2) of the Constitution for us to resort to purposivisn, [208! Hereunder is my textual interpretation of Article 210 (2) of the Constitution. [209] From my lmderstar1ding of the petition. it seeks a declaration that the transaction between the 2nd Respondent and International Resources Holding (!RH\ which resulted in IRH acqu1nng a 51% shareholding in 3,<1 Respondent was unconstitutional because it amounted to a disposal of a maJor State asset without the approval of the National Assembly, contrary to A1ticle 210(2) of the Constitution. [210} The Respondents on the otl1er hand deny the claim, contending that the transaction was not a disposal but a share subscription and .i77 allotment which increased the 3,d Respondent's share capital. They argue that no existing State asset was sold or transferred and therefore, no National Assembly apprcval was required. [211) The issue that arise from the factual matrix before me is whether or not the transaction in which lRH acquired 51%> of the shares in the 3 rd Respondent through a share subscription amounts to a disposal of a major State asset under Article 210 (2) of the Constitution. [212) I start by looking at the constitutional provision in contention to aid me determine the issue. Article 210 (2) of the Constitution is at the centre if the dispute before Court. It provides as follows A major State asset shall be sold, transferred or otherwise disposed of, as prescribed, subject to the approval of the National Assembly signified by a vote of at least two-thirds of the Members of Parliament. [213] The Constitution does not define the term 'disposed of.' The Majority opinion has ably dealt with this issue. Suffice to add that in its ordinary commercial sense, 'disposal' refers to the sale, transfer, or alienation of existing property or shares. [214] Evidence on record shows that the transaction in question involved the creation of new shares in the 3rd Respondent and their allotment to lRH in exchange for a capital injection. This in corporate terms would J78 constitute what is called "Private Placement." Evidence further shows that the 3rd Respondent issued new shares thereby increasing its authorized share capital, the 2nd Respondent remained a shareholder with 49% equity; the proceeds of the subscription were paid to the 3'0 Respondent not to the 2nd Respondent. {2 i 5] Wl1at I gather from the evidence before Court is that the 2nd Respondent is a public company. That the Government of the Republic of Zambia (GRZ) holds 85% of shares in the 2nd Respondent. That the 2nd Respondent is a vehicle the GRZ uses for its equity interests in mining companies. The GRZ through the 2nd Respondent holds 6,900,000 shares in the 3rd Respondent which were neither sold, transferred nor disposed of. These shares snll account for 49% equity in the 3rd Respondent. This leads to a conclusion that the State did not 'dispose· of any of Its asset in the Respondent within the textual 3ni meaning of Article 210 (2) of the Constitution. (216] From the corporate and commercial point of view, this transaction was a capital-raising measure, not a divestiture whose purpose was to attract investment and revive the 3rd Respondent's operations, not a sell of an existing State asset including shares. J79 (217] A distinction must be made here between divestiture and share allotment. Divestiture Is a process where a company gets rid of an asset or business unit. Black's Law Dictionary defines the term 'divest' to mean to rid of by selling and 'divestiture' as the loss or surrender of an asset. Share allotment on the other hand is the process of a company creating and issuing new shares to raise capital. In share allotment there 1s no getting rid or surrendering of a company's asset. [218) Textual reading of Article 210(2) of the Constitution is that it envisions a situation or applies only to disposal of existing major State assets. To extend it to include all forms of dilution of shareholding even where the State-owned enterprise voluntarily elects to raise capital, would unduly restrict iegit1mate commercial transactions by State-/)wned enterprises. I believe this 1s not the understanding of the text ,n Article 210(2) of the Constitution [219] This Court cannot by judicial flat, expand the scope of the term 'disposar as provided for in Article 210 (2) of the Constitution beyond what the Constitution expressly provides. To do so wouid substitute judicial opinion for legislative inten'. contrary to settled principles of constitutional interpretation J80 (220] My view is that the spirit of Article 210 (2) of the Constitution is to give the National Assembly an oversight role over the disposal of major State assets. it does not require parliamentary approval for every corporate transaction involving State enterprises (221 J It is a notorious fact that the 2nc1 Respondent operates as a commercial entity, incorporated under the Companies Ac\, with its own governance structures. Its board of directors lawfully approved the issuance of new shares and tile eventual allotment to IRH. This transaction was registered with the Registrar of Companies in accordance with corporate law. (222] \Nith that said. I find that the transaction to raise capital through issuance of new shares and subsequent allotment did not constitute a disposal of a major State asset within the meaning of Artrcle ;;~0{.2} of the Constitution. (223] I would have reached a different conclusion if the 6,900.000 shares held by the 211c Respondent in the 3rd Respondent were the ones divested (i.e , sold, transferred or disposed of) to IRH. Such a transaction would amount to the disposal of a major State asset, which, under Article 210 (2) of the Constitution. requires prior approval by the National Assembiy. J81 [224] In the premises and upon a careful evaluation of the pleadings, submissions and the applicable law, I concur with the Majority and find that the Petitioner has failed to establish any breach of the Constitution. [225} Accordingly, the petition is hereby dismissed for want of merit. Each party shall bear its own costs. ( M. CONSTITUTIONAL C URT JUDGE J82 Munalula, PC and Mulongoti, JC Dissenting: Cases referre.d to; l Bric Back Limited TIA Gamarnwe Ranches v Neil Kirkpatrick 2020/CCZ/A002 2. lkelenge Town Council v National Pension Scheme Authority 2022/CCZ/022 3 Lloyd Chembo v Attorney General 2017/CCZ/0011 4. Kayuni and others v Attorney General and others 2025/CCZ/001 5. Bowman lusambo v Attorney General 2023/CCZ/001 Legislation referred to: The Constitution of Zambia Chapter 1 of lhe laws of Zambia (Amendment) Act No 2 of2016 [226] We respectfully dissent. The cardinal issue the matter raises is whether there was a saie of a major StcJte asset without Parliamentary 8pproval. l<ey to this issue questions relating to the nature of the transaction between the 2nd to 4ih respondents and whether the 3rd respondent was a major state asset with Government having equity in it, come to the fore. [227) According to the majority settling these questions is within their jurisdiction. They have accordingiy found that the transaction m question was not a sate but share subscript1on/allotment. [228] The Constitution is not concerned about a share subscription as that is the concern of the Companies Act \!Ve are thus of the considered view J83 that this case stems frorr. a commercial transaction between companies, which as posited by the 4th respondent's counsel Mr. Si!wamba, State Counsel, is not in our purview. Furthermore, the case raises complex contentious issues which cannot be resolved through affidavit evidence alone. Some of the averments in the parties· affidavits required to be tested as to their veracity in cross examination. [229J We note that in finding that the transaction in question was a subscription of shares the majority relied on the various affidavits with glaring contradictions. By way of illustration at page 154 it is recorded that one Kakenenwa Muyangwa deposed on behalf of the 2nd respondent that following the exit of Glencore International AG from the 3, d nd Respondent the 2 Respondent acquired 100% shareholding in rd the 3 respondent following a transaction between the parties. That the said share subscription was undertaken by the 2" d Respondent in an effort to recapitalise Mopanl and comply with the minimum shareholder requirements under the iaw. [230] Questions arise as to the possibility of acqlIiring 100% shareholding and whether this is in line with the Companies Act. The petitioner also averred that: the reduction of ZCCM-IH shareholding from 100% to 49% and the accompanying loss of control of MCM, reflects what in ordinary terms would be understood as a disposal, which in my J84 further understanding as a long Parliamentarian, ought to be subjected to Parliamentary oversight. [231 J This goes to show that there is need for all the contentious issues in controversy to be subjected to trial before making findings of fact and for the Court to obtain clarity. Clearly, there are complex facts to be determined and technical terms to be authoritatively settled by a court properly seized with the matter. [232] To put matters in proper perspective we reproduce the provisions of Article 210 (2) and (3) which read: (2) A major state asset shall be sold, transferred or otherwise. disposed i,f, as prescribed, subject to the approval of the National Assemblv signified by a vote of at least two-thi~ of the Members ot Parliament. (3) For the purposes of this Article, "major State assat" includes a parastatal and eaujtv held by the Government, as i:,rescr!becf. (Emphasis added). [233) The provision is clear. The disposal falls under legislation and not the Constitution hence outside our purview [234] In our considered view Parliament's approval, arises only ir. circumstances in which there has been a disposal in some form of a major State asset, the question of whether and in what manner a disposal has taken place is not a constitutional question. J85 [235] ln addition we are of the firm view that the questions the Petition has brought to the fore are better resolved in the courts of general jurisdiction, specifically the High Court, through a trial. If during the conduct of trial, a constitutional question arises, then that trial court would be at liberty to refer the sarne to this Court in line with Article 128 (2) of the Constitution which provides: 'Subject to Article 28 where a question relating to the Constitution arises in a court, the person presiding in that court shall refer the question to the Constitutional Court.' The High Court can in fact apply Article 210 unless in its assessment the matter raises a constitutional question for this Court to answer then it should frame the question and refer the same to this Court. [236J We find it opportune to guide that at the stage of referring the constitutional question to this Court, the trial court should not concern itself with tlie mode of commencement as Article 128 (2) of the Constitution simply requires it to refer a constitutional question for this Court to determine, As such the trial court would stay the proceedings before it while the constitutional question is determined by this Court as we elucidated in Bowman Lusambo v Attorney General!5l. J86 [237] The mandate and jurisdiction of this Court is provided in Articles:1 (5) and 128 of the Constitution as follows 1 (5) A matter relating to this Constitution shall be heard by the Constitutional Court. 128 (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear- (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to the violation or contravention of this Constitution [238] Decisions of this Court abound where we have lucidly expressed the import of the two articles on jurisdiction of this court. They include Bric Back Limited TIA Gamamwe Ranches v Neil Kirkpatrick.'1 wherein we held that the Constitutional Court is a specialised Court set up to resolve on!y constitutional questions and that thougl; a relief is provided under the Constitution it does not oust the jurisdicticn of the Industrial Relations Court unless what is being sought :s the interpretation of a constitutional provision. [239] In lkelenge Town Council v National Pension Scheme Authority<2 > we held that tr1e Constitutional Cou1i is a specialised forum, distinct from the ordinary courts and was created to solely resolve constitutional questions. In Lloyd Chembo v Attorney Generaf!3 we > observed that: There is comity between the courts constituting the J.udiciary. This Court works hand in hand with other courts so that matters b&fore it J87 and before other courts are heard and determined in an orderly and efficient manner. The nature and status of this Court is such that it deals with direct violations of the Constitution. By virtue of Article 1 (5) a matter relating to the Constitution is heard by the Constitutional Court. The rest of the law 1s ad1,quately handled by other courts. It is therefore our considered view that the impugned Petition is not ripe for hearing as a constitutional violation before this Court. [240] More recently in Kayuni and others v Attorney General and others(4 l we held that ·we must also clarify that where a dispute, such as the present matter, turns on computation. qualification, or processing of pension benefits, it lies with the Industrial Relations Court. If a constitutional question arises in that court, it should then be referred to this Court in line with Article 128 (2) of the Constitution.' (241 J We reiterate our position that it was necessary to settle questions of fact and law in the rightful court in order to determine whether there was disposal, of a major state asset. after which the disposal would then be subject to Article 210. Furthermore, Article 128 (2) of the Constitution is instructive As a Court with jurisdiction only over the Constitution, it is not within our mandate to make determinations relating to commercial transactions. J88 [242] We equally wish to state in conclusion, that we are not in concurrence with the view of the majority that Article 210 is not operational because there has not been any Act prescribed and that the non-operational status of Article 210 in essence strips the National Assembly of its constitutional oversight role. (243] We are of the firm view that Parliamentary approval ,s not subject to prescription in an Act of Parliament. Article 210 (2) is clear as to the po1tion that needs to be prescribed. The portion reads "A major state asset shall be sold, transferred or otherwise disposed of as prescribed." What is a 'major State asset' is located in ordinary legislation and is in ti,e purview of the courts of general jurisdiction. The rest of Article 210 (2) that is ·'subject to the a1)proval of the N,-,tional Assembly signified by a vote of two-thirds of the members of Parliament"' does not ;equire to be prescribed 111 an Act of Parliament. It is a fait accompli. [2441 We are fortified in so finding by the framing of Article 210 (1) and (3) which are entirely the subject of legislation and read as follows: (1) A State organ, State institution and other public office shall procure goods or services, in accordance with a system that is fair. equit.abl8, transparent, competitiv0 and cost-(lffective, as prescribed. (3) For the purposes of this Article, "major State asset'' includes a parastatal and equity held by the Government, as prescribed. (Emphasis added). JS9 =------ - [245} Therefore, depending on the facts of each case, Article 210(2} is enforceable where it is not in dispute that the asset in question is a major State asset. [246] The framers clearly wanted to ensure the protection of public assets through Parliamentary oversight and this protection must never be overlooked where circumstances establish that the asset concerned is a major State asset. We should not by our interpretation of the Constitution water down the People's will and allow the Constitution to be defeated by the actions of the very constitutional functionaries intended to uphold it. [247] In sum, we would have dismissed the Petition on grounds elucidated herein. M.M. MUNALULA (,JSD} PRESIDENT OF THE CONSTITUTIONAL COURT ~bl{)y1{/h .~ J.Z. MULONGOTI CONSTITUTIONAL COURT JUDGE J90 DISSENTING JUDGMENT Chisunka, JC, Dissenting Cases referred to: 1. Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and 63 Others, CCZ Selected Judgment No. 31 of 2017 2. Milford Maambo & Oti1ers v The People, CCZ Selected Judgment No. 31 of 2017 3. Dan Pule v Attorney General, 2017/CCZ/004, Selected Judgment No. 60 or 2018 Legislation referred to: The Constitution of Zambia Chapter 1 of the Laws of Zambia as amender! by Act No. 2 of 2016 The Zambia Development Agency Act No. 11 c,! 200G (repealed) Introduction [248) I have had the benefit of reading the Judgment of the majority. l agree that the Petition herein raises a constitutional question and is properly before this Court. With the greaiest respect to my learned colleagues, I am, however, unable to agree with the conclusion they have reached or as regards the applicability Article 210 to the facts of this matter. [249) My divergence from the majority position stems from the interpretative approach adopted in addressing the matter before !his Court The majority have employed the literal approach, focusing strictly on the words of the Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by Act No. 2 of 2016 ("the Constitution"), and confining themselves to the ordinary meaning of the text, without reference to the broader spirit or purpose underlying it. [250) I take a different view. The task of this Court, as I conceive it, is to interpret and apply the Constitution broadiy and purposively, in order to give effect to its underlying values. i. therefore, favour the purposive approach, interpreting the Constitution in a manner that advances its objectives values and spirit. [251] The purposive approach has a firm constitutional foundation in Zarnbia It is expressly provided for under Article 267{1) of the Constitution and reinforced by Articles 1, 8 and 9. Read together, these provisions require that constitutional interpretation promote the Constitution's purposes and values, advance lluman rights, permit the development of the law and contribute to good governance. [252] Since 2016, this Court has developed a consistent interpretative philosophy. In interpreting the Constitution. it has emphasised giving effect to the spirit and purpose of the Constitution, promoting the values of democracy, the rule of law and human rights, while avoiding narrow or technical readings that defeat constitutional intent. This J92 Court, vested with exclusive jurisdiction to interpret the Constitution under Article 128, l1as consistently applied a purposive and holistic approach to preserve constitutional integrity (253] The purposive approach, therefore, is not. a matter of judicial preference but a constitutional obligation binding on this Cou:-t. The Constitution must be interpreted in a manner that promotes its underlying values of accountability, transparency and public participation in governance. This approach upholds the supremacy of the Constitution and advances democratic governance. [254] It is through this interpretative lens that I propose to consider the issues raised in this Petition. The Factual Background [255] The Petitioner cl1allenges the legality of the transaction entered into between ZCCM-lnvestment Holdings Pie, a Zambian State entity, (ZCCM-!H) and lnternationc1I Resources Holding (IRH}, a company incorporated in tt,e United Arab Emirates, whereby IRH, through its subsidiary Delta Mining Limited (Delta), acquired a 51'/o shareholding in Mopani Copper Mines Pie (Mopani) (hereafter "the Mopani--Delta transaction"}. )93 (256] The Petitioner contends that the Mopani - Delta transaction resulted in the disposal of a major State asset without prior parliamentary approval, contrary to A1ticle 210(2) of the Constitution The Respondents oppose the Petition, arguing that the transaction which increased Mopani's share capital, was a share subscription or allotment of new shares, and not a "disposal" of an existing maJor State asset within the meaning of Article 210(2). They argue that no existing State asset was sold or transferred, and therefore, no parliamentary approval was required. Issues for Determination [257] The central Issue for determination is. therefore, whether the allotment of shares in Mopani to Delta which reduced the Government's shareholding from 100% to 49% constitutes a disposal of a major State asset requiring prior parliamentary approval under Article 210(2) of the Constitution. The Constitutional Framework {258] Article 210 of the Constitution provides as follows: 210. ('!) A State organ, State institution and other public office shall procure goods or services, in accordance with a system that is fair, equitable, transparent, competitive and cost•effective, as prescribed. {2) A major State asset shall be sold, transferred or otherwise disposed of, as prescribed, subject to the approval of the National Assembly signified by a vote of at least tv,ro-thirds of the Members of Parliament (3) For the purposes of this Article, "major State asset" includes a parastatal and equity held by the Government, as prescribed. [259) This provision must be read alongside Articles 1, 8, 9 and 267 of the Constitution. Article 1 affirms the supremacy of the Constitution, declaring void any law that is inconsistent w:th it and making iliegal any act or omission that contravenes the Constitution. Ar1icle 8 enumerates national values and principles, including democracy, constitutionalism, good governance, integrity and sustainable development, while Article 9 mandates that these values apply to the interpretation of the Constitution. Article 267{ 1) express!y directs that the Constitution be interpreted· in a manner that promotes its purposes. values and principles and contributes to good governance. [260) ln Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and 63 Others 11 l, this Court held that constitutional provisions must not be read in isolation but as part of an integrated whole in order to achieve the objectives of the Constitution. [261} Similarly, in Milford Maambo & Others v The People :z,, this Court observed that while the literal approach requires giving words their ordinary meaning, it should yield to a purposive interpretation where a literal reading leads to absurdity. The Literal Approach and Its Absurdity [262] Applying the literal approach, Article 210(2) appears to require that the sale. transfer or disposal of a major State asset be effected "as prescribed" by an Act of Parliament and subject to prior parliamentary approval by a two-thirds majority. [263] On a literal reading, since no Act of Parliament currently prescribes the procedure for the sale or disposal of major State assets, the Mopani Delta transaction would not fall under Article 210(2), and thus no parliamentary approval would be required. (264] Such a conclusion, however, would render Article 210(2) ineffective. as its operation would depend entirely on Parliament's enactment of further legislation. In the absence of such legislation, the constitutional safeguard of parliamentary approval would be nuilified, contrary to the doctrine of constitutional supremacy. [265] I find this resuit manifestly absurd. It would mean that the Constitution's express requirement for parliamentary approvai could be avoided merely because Parliament has not enacted an enabling statute, thus rendering Article 210(2) pointless. I am not persuaded that ihe framers of the Constitution envisaged the requirement for parliamentary approval under Article 210(2) producing consequences that would undermine the effectiveness of the provision. [266] It is a settled principle of constitutional interpretation, that the framers of a constitution do not legislate in vain. A constitutional provision must therefore, be construed in a manner that gives it practical effect and avoids rendering it nugatory or illusory. Accordingly, l am averse to determining this matter on the basis of ihe literal approach. The Purposive Approach and Legislative Context [267] The purposive approach requires the Court to ascertain the true intention of the framers of the Constitution, considering its context, history, and the mischief it sought to remedy (Dan Pule and Others v Attorney General and Others (3J)_ [268] I take judicial notice that prior to 2022, the disposal of Government held shares was governed by Part V! of the Zambia Development Agency Act No. 11 of 2006 (the "ZDA Act" since repealed in 2022), which regulated the procedure for divesting Government interests. Under that Act the Board of the ZDA, in consuitation with the Minister responsible for Commerce, was responsible for the disposal of Government held shares. That Act recognised that t!1e offer of additional shares to the private sector, resulting in reduced Government shareholding, amounted to privatisation [269) Historically, a transaction such as the one in casu, where new shares were created and issued to tl1e private sector resulting in the dilution or reduction of the Government's Shareholding was regarded as a mode of Privatisation. Section 2 of the ZDA Act categorised the disposal of Government owned shares as privatisation Part VI of the ZDA Act provided for the modes through which the sale of Government owed assets could be achieved and thus included the "offer of additional · shares in a State-Owned Enterprise to reduce Government shareholding". [270] The ZDA Act was repealed and replaced by the Zambia Development Agency Act No. 17 of 2022, which did not retain the provisions dealing with the divestiture of shares held by the Government. [271) It should be noted, however, that at the time of the enactment of Article 210 of the Constitution in 2016, Part VI of the ZDA Act was still in operation. When the framers introduced Article 210 in 2016, they did so against this background intending to elevate the oversight requirement for the disposal of major State assets to constitutional status, ensuring that such transactions could not proceed without parliamentary scrutiny. Therefore, the argument that Article 210 has never been operationallsed is not correct and cannot be relied on. [272] The mischief tliat existed prior to the 2016 amendment was that tile Executive could dispose of major State assets without parliamentary involvement, thereby risking abuse of power. The constitutional remedy was to require parliamentary approval, thus inuoducing checks and balances. {273] The purpose of Article 210(2) and (3}, therefore, is to guarantee that the National Assembly, as a separate and independent organ of State, scrutinise and approve any transaction that results in the disposal or dilution of Government control over major State assets. lvticle 210 was enacted to prevent the secret or unilateral disposal or dilution of major state assets without parliamentary scrutiny The Parliamentary approval requirement does not need to be operationalised by subsidiary legislation. Application to the Present case (27 4) It is undisputed that prior to the Mopani - Delta transaction, ZCCM-IH owned 100% of Mopani's shares. Following the transaction, Delta acquired 51% ownership reducing the Government's effective interest J9} • to 49o/o. Control of Mopani thereby passed from the state to a private foreign entity. [275] Under Article 210(3) a "major Stale asset" includes "equity held by the Government". Since the Government holds a controliing interest in ZCCM-IH, its equity in Mopani held through ZCCM-IH, constitutes equity held by the Government within the meaning of Article 210(3). [276] I, therefore, find that the shares in Mopani were a major State asset. [277) The next question is whether the Mopani - Delta transaction amounted to a disposal of that asset. Although described as an "allotment" or "share subscription'', the effect of the transaction was that tile State lost majority control of l'vlopani. Interpretation and Analysis (a) On the rneaning of "Disposal" [278} The Majority take the view that no existing shares held by ZCCM-IH were sold or transferred therefore, the State did not "dispose" of any asset within the literal meaning of Article 210(2}. i take the view that the term "disposal", though not defined in lhe Constitution, must be interpreted purposively, under the clear principle that constitutions must be interpreted broadly and generous!y, to include any act by JlOO which the State loses ownership, control or beneficial interest in a major asset whether by sale. transfer, allotment, or other means. [279) 'Disposal', therefore, includes not oniy the sale or transfer of an asset. but any act that results in the State losing ownership or control of that asset. To interpret "disposal' narrowly would defeat tl1e very purpose of Article 210(2), which is to safeguard and ensure that all transactions that diminish State control of major assets are not alienated without parHamentary oversight. [280] As earlier alluded to in paragraphs 267 - 271 above. and consistent with Zambia's legislature history, share allotments that dilute Government ownership have always been treated as disposals of State assets. (b) On the nature of the transaction [281] According to the majority, Mopani issued new shares thereby increasing its authorised Capital and ZCCM-IH remained a shareholder with 49% equity and that the transaction was a capital raising measure not a divestiture. [282J The evidence before. this Cou11, however, is that: Prior to the transaction, ZCCM-IH owned 100% of Mopani's shares. Pursuant to the agreement, Mopani allotted new shares to IRH, resulting in IRH JlOl acquiring 51% ownership, and ZCCM-IH being reduced to 49%. As a consequence, control of Mopani shifted from the State to a private foreign investor. [283] Though styled as. a "share subscription", the substance of the transaction is that the State lost controlling interest in a major public mining enterprise as is demonstrated below. Article 210(3) also talks about equity. It reads: (3} For the purpose of this Article, "major State asset" includes a parastatal and equity held by the Government, as prescribed. The Concise oxford dictionary defines equity as ... value of share issued by a company [284] The ZCCM-IH financial statements for the year ended 31st December, 2023 exhibited at p.278 of the supplementary record (vclume I) show that ZCCM-IH consisted of 9 companies which include Mopani. of ZCCM-IH is a consortium companies owned by the Government. The statements for the year ended 31st December, 2024 exhibited at p.302 of the same record show that ZCCM-!H currently consists of 6 companies which no longer include Mopani. The report lists Mopani under "other interests". Clearly, this shows that apart from a loss of majority shareholding, there is also a loss of the assets and business. Effectively it means Mopani hes been disposed off. !102 {c) On whether At1icle 210(2) applies {285J The majority take the view that Article 210(2) applies only to disposals of existing major State assets and to extend it to include all forms of diluting of sharehording, even where the State voluntarily elects to raise capital would unduly restrict legitimate commercial transactions by State owned enterprises. (286] Applying the purposeful interpretation, however, I am of the firm view that the intention of Articie 210(2) is to require parliamentary oversight whenever the State's interest or control in a major asset is reduced or lost. In this respect, the form of the transaction - whether a sale, transfer, or allotment - is irrelevant if the effect is a loss of State control. [287] Accordingly the Mopani transaction, by transferring controBing interest to a private foreig1; entity, falls within the spirit and mischief that Artic!e 210(2) seeks to prevent Conclusion f288J I, therefore, find that: \ ' (a) The 51% shareholding in Mopani Copper Mines Pie acq ~red by J Delta constitutes a major State asset within the mean,ng of Article 210(2) and (3); and .....· :· i·.: ; f • ' / , (b) The Mopani-Delta transaction amounted to a disposal of tha(\1.,' •·1". ,ll . ·\ ~~ '! major State asset [289] In the premises, as the transaction was effected without prior ~ parliamentary approval of a two-thirds majority, I hold the view that the transaction contravened Article 210(2) of the Consiitution. [290] For the foregoing reasons l respectfully dissent. ----- M. K. CHISUNKA --:--"·--- CONSTITUTIONAL CO,,,,.U RT~ J!04

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