Legal Resources Foundation Limited v The Attorney General (2025/CCZ/0021) (11 December 2025) – ZambiaLII

Rl IN THE CONSTITUTIONAL COURT OF ZAMBIA 2025/CCZ/0021 HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: ARTICLES 1, 2, 18, 118, 128, 140, 173, 216, 219, 220, 259 and 267 OF THE CONSTITUTION OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016. IN THE MATTER OF: THE SUPERIOR COURTS (NUMBER OF JUDGES) ACT NO. 12 OF 2025 IN THE MATTER OF: THE CONSTITUTIONAL OBLIGATION TO ENSURE TRANSPARENT, MERIT-BASED, INCLUSIVE, AND ACCOUNTABLE APPOINTMENTS TO THE CONSTIUTIONAL COURT, THE SUPREME COURT, THE COURT OF APPEAL AND THE HIGH COURT. BETWEEN PETITIONER . 1 REPUBLIC Of ZAM8lA AND '1 CONST-ITUTI-ONA-L CO-URT O'f ZAMBIA THE ATTORNEY GENERAL t \ DEC 2025 RESPONDENT REGISTRY 1 p o BOX 50087, LUSAKA _j Before Justice A.M. Shilimi in Chambers on 2nd and 11th December 2025 For the Petitioner: Mr. S.T. Banda and Mr. C. Tchongwe of Messrs. Simeza Sangwa & Associates For the Respondent: Mr. M. Kabesha, SC, Attorney General, Mr. C. Mulonda, Deputy Chief State Advocate, Mr. N. Mwiya, Principal State Advocate and Mr. K. Sakachiva, State Advocate RULING R2 Cases referred to: 1. Milingo Lungu v Attorney General, 2022/CCZ/006 2. Isaac Mwanza and Maurice Makalu v Attorney General, 2023/CCZ/005 3. Gatirau Peter Munya v Dickson Mwenda Kathinji and Others, [2014] eKLR 4. Board of Management of Uhuru Secondary School v City Country Director of Education and Others, [2015] eKLR 5. Katiba Institute v Judicial Service Commission and Others, [2022] eKLR 6. Embassy Supermarket v Union Bank Zambia Limited (In Liquidation), SCZ No. 25 of2007 7. Nkumbula v The Attorney General, (1972) ZR 204 8. Ainsbury v Millington, [1997] 1WLR 379(HL) 9. Attorney General v Law Association of Zambia (2008) ZR 21 10. Michael Mbuyu Mutwana v Attorney General 2021/CCZ/0038 11. Steven Katuka and Law Association of Zambia v Ngosa Simbyakula and Others, 2016/CC/029 12. Bizwayo Nkunika v Lawrence Nyirenda 2019/CCZ/005 13. Law Association of Zambia and Six Others v Attorney General, 2025/CCZ/0029 14. Isaac Mwanza v National Assembly, Attorney General and Electoral Commission of Zambia, 2024/CCZ/0022 15. John Sangwa v Attorney General, 2021/CCZ/0035 16. Turnkey Properties v Lusaka West Development Ltd and Others, Legislation referred to: 1. The Constitution of Zambia Chapter 1 of the Laws of Zambia as amended by the Constitution of Zambia (Amendment) Act No. 2 of 2016. 2. The Constitutional Court Rules Statutory Instrument no. 37 of 2016 3. The Rules of the Supreme Court 1965, 1999 Edition (White Book) 1.0 Introduction 1.1 The Petitioner, Legal Resources Foundation Limited, filed an ex pa.rte summons and Affidavit in Support on 11th November 2025 for an Order for Interim Conservatory Relief pursuant to Article 128 of R3 the Constitution of Zambia, Chapter 1 of the Laws of Zambia as Amended by the Constitution of Zambia (Amendment) Act No. 2 of 2016 (the Constitution), Order 15 Rule 1 of the Constitutional Court Rules (the CCR) and the Constitutional Court's inherent jurisdiction. 1.2 The Order sought is aimed at staying proceedings relating to the shortlisting of names, submission of the shortlisted names to the President for appointment as judges and further steps such as ratification. The same are to be stayed pending the final determination of the petition. 1.3 I ordered that the application be heard inter parte and the Respondent filed an Affidavit in opposition on 21st November 2025. 2.0 The Petitioner's application. 2.1 The Affidavit in support was sworn by Chimwemwe Tchongwe in his capacity as an Advocate employed by the firm seized with conduct of the matter, Messrs Simeza, Sangwa and Associates. He deposed that despite the Petitioner's effort to get an undertaking from the Judicial Service Commission (the JSC) that the 2025 recruitment process of judges would not proceed until this petition has been determined by the Constitutional Court as per request letter produced as "CT", there has been no response from the JSC. That it is this state of affair that has necessitated the application. In the R4 deponent's view there was a continuing risk of the JSC proceeding with the recruitment process and rendering the petition nugatory. 2.2 In lengthy skeleton arguments in support of the application filed on 11th November, 2025, the Petitioner argued that the purpose of the application is to preseNe the subject matter of the petition pending its determination and to ensure that the petition is not rendered nugatory by the continuation of an impugned process. The immediate risk was expressed as being the possibility of the JSC submitting recommendations to the President and the further steps of appointment as well as ratification of appointments which would result in a fait accompli. It was argued that this would frustrate the jurisdiction of the Court, corrode constitutional guarantees of transparency and inclusivity and undermine the public confidence in the Judiciary. 2.3 The Petitioner argued that not only is its application founded on Articles 128(3)(b) and(c); 1(1) and (2); 2; 118(2)(a) and (c); 140; 173 and 267(1) of the Constitution, it has procedural and jurisprudential basis. 2.4 On procedural foundations, Orders IX rule 20(1) and X rule 2(1) and (2) of the CCR were cited as giving the Court power to issue protective interim measures and to craft orders designed to preseNe the subject matter of litigation, prevent abuse of process RS and to secure compliance with the constitutional obligations pending trial. 2.5 It was argued that the two Orders of the CCR codify the inherent jurisdiction of the Court to prevent its proceedings being rendered nugatory. 2.6 On jurisprudential foundation, the cases of Milingo Lungu v Attorney General1 Isaac Mwanza and Maurice Makalu v , Attorney General2 and Kenyan cases of Gatirau Peter Munya v Dickson Mwenda Kathinji and Others3 and Board of Management of Uhuru Secondary School v City Country Director of Education and Others4 and Katiba Institute v Judicial Service Commission and Others5 were cited. The Petitioner argued that the Court has acknowledged its power to use its protective powers of issuing conservatory orders in deserving cases. Further that this position accords with the regional jurisprudential consensus. 2. 7 Applying the four tests that warrant the grant of a conservatory order, the Petitioner argued that the petition, had met the first test of disclosing a prima facie case, that is, it had disclosed a serious constitutional issue supported by credible evidence. It was contended that this was a modest test which did not equate to proving the case to the requisite standard of proof. That at this stage R6 the court is concerned with whether there is enough substance in the petition to justify preserving the subject matter and not whether the petition will succeed. 2.8 Further on this test, the Petitioner contended that its petition is grounded in reality and not speculative. It went on to itemise the material facts and the alleged constitutional breaches disclosed in the petition. Distinguishing the case of Isaac Mwanza and Maurice Makalu v Attorney General2 in which a single judge of this Court refused to grant a conservatory order on the basis that the petition in that case had not revealed an arguable claim on account of it being speculative, contradictory, unsupported by evidence and seeking vague relief, the Petitioner argued that in the petition at hand, the Petitioner had specified the provisions of the Constitution alleged to have been breached. The petition at hand also seeks specific relief of restraining the respondents from making recommendations, appointments or ratifications flowing from interviews conducted in secret and preserving the full recruitment record for production under seal. 2.9 It was further argued that in the case at hand, the petition raised grave constitutional issues that had impact on the legitimacy, independence and credibility of the Judiciary. This, it was pressed elevated the case well above the threshold of arguability. R7 2.10 As regards the test of irreparable harm, it was contended that the purpose of interim relief sought is not merely to hold balance between the parties but to prevent injury of a kind that the law cannot later cure through damages or by retrospective orders. It was further argued on this test that if the harm threatened would leave the court with no effective remedy at the conclusion of trial, the risk is irreparable. Injury to constitutional values, institutional legitimacy and rule of law were said to all fall within irreparable harm. 2.11 The Petitioner further contended that not granting the conservatory order sought would lead to multiple forms of irreparable constitutional harm. As to the risk of fait accompli, it was advanced that once appointments of new judges goes through, it would be difficult to reverse the appointment after the appointees have taken on their duties. That this would render the petition largely nugatory in practice. 2.12 The second irreparable harm was said to be the erosion of judicial legitimacy. The Petitioner argued that the appointment of judges through an unconstitutional process corrodes public confidence in the Judiciary. 2.13 Irrevocable loss of constitutional values was advanced as the third form of irreparable harm. The constitutional guarantees of transparency, inclusivity, merit and accountability were said to be RS forward looking guarantees intended to guide the appointment process. If the process is allowed to proceed in breach of these obligations, the opportunity to vindicate them is permanently lost. 2.14 On the test of balance of convenience and public interest, the Petitioner argued that in considering this application, I must weigh the relative position of the parties to the petition and the wider societal interest in protecting the supremacy of the Constitution, preserving institutional integrity and preventing irreversible constitutional injury. That in carrying out this balancing exercise, much weight is to be given to the need to safeguarding the constitutional order. 2.15 It was added that my duty is to prevent irreversible harm to constitutional order, while ensuring that the parties' respective positions are fairly preserved pending full adjudication. In the Petitioner's view, the Respondents will suffer no prejudice as the interim orders do not permanently prevent them from discharging their constitutional mandates in the appointment process of judges. Further that a minimal inconvenience of pausing the recruitment process is negligible when compared to the constitutional values at stake. That to deny the relief sought would allow unconstitutional appointments to take root and erode public trust in the Judiciary which is an injury to the Republic. R9 2.16 The Petitioner went on to state that the people of Zambia are entitled to a Judiciary whose members are appointed through a process that is lawful, transparent, inclusive, and faithful to the Constitution. That state power in the sensitive domain of judicial appointments must be exercised in an open and trustworthy manner. 2.17 Dismissing the Respondent's position that recruitment should proceed without delay, the Petitioner stated that expediency cannot override the constitutional requirement to act lawfully and transparently. Constitutional compliance should prevail over administrative haste. 2.18 Lastly on the test relating to the relief sought being specific and tailored to prevent the constitutional mischief alleged, the Petitioner contended that it is not calling upon this court to indefinitely suspend the constitutional machinery of judicial appointments but to restrain the Respondent from taking irreversible steps, namely, recommendations, appointments and ratification until the Court pronounces itself on the constitutionality of the process. 2.19 It was posited that the relief sought is also proportionate as it restricts itself to post-interview stage of recruitment which has minimised disruption to the broader system of governance. Also pointed to as a favourable factor is the fact that the relief sought is time bound by the Court's own docket. RlO 2.20 The Petitioner also took time to submit on the principle of urgency in constitutional litigation. It posited that the quick progression of events surrounding the recruitment process of judges justified the expedited hearing and determination of the interim application. The Petitioner called for abridged timelines in respect of the scheduling of the motion and called on me to treat this matter with urgency. 3.0 The Respondent's response 3.1 The affidavit in opposition was sworn by Nalishebo lmataa in her capacity as the Chief Administrator of the Judiciary of Zambia. She stated that the JSC had conducted the on-going recruitment process of judges of the superior courts in line with the law. It was her testimony that it was in public interest that the JSC continue with the process. Further that the Petitioner had inordinately delayed in bringing the matter. at hand as the petition was filed eight (08) months after the advertisement of the on-going recruitment process. 3.2 The Respondent's skeleton arguments were centred around the tests that warrant the grant of conservatory relief. On the test of prima facie case, it was submitted that the petition had a slim chance of succeeding as the need for transparency in the recruitment process is not a constitutional requirement. This was stated on the basis of Article 140 and Article 173 of the Constitution which do not Rll impose a mandatory obligation on the JSC to publicise such internal processes. 3.3 The case of Isaac Mwanza and Maurice Makalu v The Attorney General2 was cited as enunciating that the procedural framework for appointment of judges remains underdeveloped and is not prescribed in any statute. 3.4 It was the Respondent's view that a prima facie case weighs in favour of allowing the JSC to proceed and complete its mandate as given under Article 220(2) (b) of the Constitution. That suspending ongoing recruitment process pending determination of the petition would amount to estopping the JSC from exercising its statutory power which would be contrary to the holding in the case of Embassy Supermarket v Union Bank Zambia Limited (In Liquidation)6 . 3.5 Going on to submit on public interest, the Respondent posited that the grant of conservatory orders sought would be prejudicial to public interest as defined in the case of Nkumbula v The Attorney GeneraF. 3.6 Lastly and as to the petition being an academic exercise on account of being brought late, the Respondent argued that this Court should not aid the Petitioner in tardy conduct by granting the relief sought. R12 3. 7 It was also submitted that as the work of the JSC was not final but culminated into recommendations to the Republican President, there was no live dispute to warrant a conseNatory order and the petition is an academic exercise. The cases of Ainsbury v Millington8 Attorney General v Law Association of Zambia9 and , Michael Mbuyu Mutwana v Attorney General10 were cited as authority for this Court's aversion for entertaining petitions that are academic exercises. 4.0 The Hearing 4.1 At the hearing of the application, Mr. Banda, on behalf of the Petitioner relied on the affidavit evidence and skeleton arguments filed in support of the application. He stated briefly that the Petitioner had met all the requirements for the grant of the conseNatory order. He prayed that the conseNatory order be granted in the light of the transparency and accountability provisions enshrined in the Constitution. 4.2 In response, the learned Attorney General, on behalf of the Respondent, submitted that the Respondent was opposed to the application and had filed affidavit evidence and skeleton arguments in opposition. He augmented by stating that for the Petitioner to R13 succeed, it had to satisfy the four-point framework as laid out in the case of Isaac Mwanza and Maurice Makalu v Attorney General2 . 4.3 With regards to the first principle required to be established on whether there is an arguable prima facie case with a likelihood of success, the Attorney General submitted that the case had slim chances of success as the JSC had conducted the ongoing recruitment in accordance with the law. Further, that while greater transparency may be desired as a matter of policy, it was not a constitutional requirement and that therefore, it cannot be said that the Constitution was breached. It was argued that Articles 140 and 173 of the Constitution do not impose a mandatory obligation to publicise internal proceedings of the JSC. 4.4 Submitting on the role of the JSC in the appointment process of Judges as provided in Article 220 (2)(b) of the Constitution, the Attorney General submitted that the JSC's role was to only make recommendations to the President. Further, that Zambia's system of appointing judges aligns with that of other Commonwealth countries with an unprescribed procedural framework. 4.5 It was also argued that the relief sought against the Respondent was speculative as the Petitioner refers to actions or omissions that are yet to take place. R14 4.6 With regards to the second principle on the existence of a real risk of prejudice likely to be suffered if the relief is not granted, the learned Attorney General argued that a prima facie case weighed in allowing the JSC to proceed and complete its mandate as set out in Article 220. That, this would avert a situation where the JSC is estopped from exercising its mandatory powers. The case of Embassy Supermarket v Union Bank of Zambia in Liquidation6 was cited in support of this submission. 4.7 On the principle of public interest, the learned Attorney General pointed out the huge backlog of cases that plagues the Judiciary and the need for more judges. That this had led to the government increasing the number of judges by amending the law. Further, that recruiting more judges to reduce case backlog is in public interest which overrides the interest of the Petitioner. 4.8 The Attorney General went on further to point out that the Petitioner had delayed in bringing the application for a conservatory order. This is especially in view of the fact that the work of the JSC is not final. That the JSC makes recommendations to the President who then submits the appointments to the National Assembly for ratification. He labelled the application as an academic and hypothetical application which should be frowned upon in keeping with the view of the full court in Michael Mbuyu Mutwena v Attorney General10 . RlS 4.9 Further, submitting on the second principle, Mr. Mulonda added by highlighting the cases of Steven Katuka and Law Association of Zambia v Ngosa Simbyakula and Others11 and Bizwayo Nkunika v Lawrence Nyirenda12 He submitted that Article 128(1)(b) of the . Constitution as read with Order 15 rule 1 of the CCR empowers the Court to make remedial orders where there has been a constitutional violation. He prayed that the application be dismissed with costs. 4.10 In further opposition to the application, Mr. Mwiya urged me to adopt the reasoning of my learned sister Kawimbe, JC in Law Association of Zambia and Six Others v Attorney General13 and refuse to grant the conservatory order as granting it would create new favourable conditions to the Petitioner. 4.11 Building on the argument that the role of the JSC is not final and that the Petitioner would not suffer irreparable injury if the conservatory order is not granted, Mr. Mwiya pointed out that at ratification stage, a citizen is allowed to comment on any subject being deliberated in the National Assembly and a select committee is tasked to scrutinize the appointment of judges. Article 88(2) of the Constitution and the National Assembly Standing Orders were cited. 4.12 Further, Mr. Mwiya, in concert with Mr. Sakachiva also urged me to consider the reasoning of my learned brother, Chisunka, JC in Isaac r. R16 Mwanza v National Assembly, Attorney General and Electoral Commission of Zambia14 . 4.13 In oral arguments in reply, Mr. Banda on behalf of the Petitioner submitted that the need for a prima facie arguable case to be demonstrated to warrant the grant of the conservatory order did not require proof beyond reasonable doubt but a demonstration that the application is not frivolous nor vexatious. That this test has been met in the application at hand as the Petitioner is asking the Court to consider whether the grant of the conservatory order will diminish constitutional values. 4.14 Responding to the issue of the application being speculative, Mr. Banda argued that the affidavit evidence showed that the petition was not speculative but intended to establish whether the process of recruiting judges kept to the principles of merit and inclusivity. That in a constitutional supremacy state, all acts ought to comply with constitutional tenets such as those set out in Articles 8 and 118 of the Constitution. This, it was said overrides the principle that prevents an authority from exercising a statutory duty. 4.15 On irreparable damage, it was argued that constitutional harm cannot be remedied. The conservatory order sought is meant to maintain the status of the process as it presently is and that the application was necessitated by the JSC who ignored the .. R17 undertaking sought by the Petitioner. That therefore, the delay, if any, had been occasioned by the JSC. Further that by seeking the conservatory order, the Petitioner sought to protect the sanctity of the Constitution. 4.16 Mr Tchongwe added that Article 8 of the Constitution mandates the due consideration of good governance and integrity in the exercise of authority. That this, extends to transparency which is part of the spirit of the Constitution. It was Mr. Tchongwe's argument that public interest lies with granting the conservatory order as it will uphold constitutional supremacy in line with the preamble of the Constitution. 4.17 On the issue of costs, Mr. Tchongwe stated that litigants should exercise their constitutional rights without the fear of being condemned in costs and this Court should only exercise the power of condemning in costs in exceptional cases as per Sangwa v Attorney General15 decision of this Court. 4.18 Mr. Tchongwe finally urged me to preserve the status quo by temporarily halting the ongoing recruitment process and preserve the subject matter in the petition so that it is fully and properly determined by the full Court. R18 5.0 Analysis and Determination 5.1 I have considered the affidavit evidence, written arguments and oral submissions by the parties. The fundamental issue for my determination is whether the Petitioner has proved its entitlement to a conservatory order. 5.2 A reading of the interim relief as specified in 1.2 above reveals that the current application before me seeks to prohibit the JSC from shortlisting of names of candidates for appointment as Judges to the Superior Courts, submission of the shortlisted names to the Republican President for appointment as judges and further steps such as ratification of the appointed judges by the National Assembly, until such a time that the petition as finally determined by the court. 5.3 I am alive to the fact that as a single judge of the Constitutional Court and only dealing with an interlocutory application, I am not vested with jurisdiction to hear constitutional disputes that can only be properly resolved at the hearing of the petition on the merits. In this respect, I wish to agree with the Supreme Court's proposition in the case of Turnkey Properties v Lusaka West Development Ltd and Others16 that it is improper for a court hearing an Interlocutory , application to make comments which may have the effect of pre empting the decision of the issues which are to be decided on the R19 merits at the main hearing of the matter. I will therefore confine myself to the relevant principles governing conservatory orders. 5.4 In the persuasive case of Gatirau Peter Munya v Dickson Mwenda Kathinji and 2 Others3 the Kenyan Supreme Court outlined the , principles governing the grant of conservatory orders as follows: (i) The existence of a prima facie or arguable case that is not frivolous; (ii) The likelihood, that unless the orders sought are granted, the Petition, should it ultimately succeed, would be rendered nugatory; (iii) The preserve of a public interest warranting the issuance of the conservatory orders; (iv) The requirement for the applicant to demonstrate that granting the conservatory order would promote constitutional values. 5.5 In the case of Isaac Mwanza and Maurice Makalu v The Attorney General2 this Court in considering an application for a conservatory , order considered the following four tests: (i) The need for the applicant to demonstrate an arguable prima facie case with a likelihood of success, and to show that in the absence of the conservatory orders, he is likely to suffer prejudice; (ii) Whether the grant or denial of the conservatory relief will enhance the constitutional values and objects of a specific right or freedom in the Bill of Rights; (iii) The Court should consider whether, if an interim conservatory order is not granted, the petition or its substratum will be rendered nugatory; and (iv) Whether the public interest will be served or prejudiced by a decision to exercise discretion to grant or deny a conservatory order. R20 5.6 In determining the application before me, I will carefully consider the principles outlined above and determine whether the conditions for a conservatory order have been satisfied by the Petitioner. 5.7 The first principle I will consider is whether the Petitioner has demonstrated an arguable prima facie case with a likelihood of success. As already alluded to, the Petitioner challenges the process of appointment of judges to the Superior Courts on account of inter a/ia alleged lack of a transparent and inclusive process and lack of a reflection of the plural character of Zambia. 5.8 This Court had occasion to determine the provisions relating to the appointment of judges to the Superior Courts in the case of Isaac Mwanza and Maurice Makalu v Attorney General2 and especially with regard to the issue of transparency. In light of the jurisprudence of this court concerning the process of appointment of judges, and without delving into the merits, it is my considered view that the Petitioner has failed to prove the existence of a prima facie case. Further, issues of merit based appointments and inclusivity in the absence of adduced evidence are at this stage speculative. 5.9 The next principle I will consider is whether the case would be rendered nugatory if the conservatory order is not granted. The Petitioner under this principle must show that there exists a real risk R21 of irreparable prejudice or harm if relief is not granted. It should be noted that the role of the JSC is to recommend names of judges for appointment to the Superior Courts to the Republican President. The recommendations are not binding. Should the President accept the recommendations and proceed to make the appointments, the names will be submitted to the National Assembly for ratification. It is impossible at this stage to determine the decisions of both the President and the National Assembly and ultimately legal harm to the Petitioner. 5.10 Further, and in the event that the appointed judges are ratified by the National Assembly and the petition succeeds, the appointments will be nullified by the Court. I therefore, do not see any irreparable prejudice or harm that may be occasioned to the Petitioner if the conservatory order is not granted and the petition succeeds. 5.11 The final principle I must consider is whether it is in public interest to grant the conservatory order. The Petitioner has in its petition acknowledged the severe situation of understaffing in the judiciary resulting in delayed justice contrary to the provisions of Article 118(2)(b) of the Constitution which provides that justice shall not be delayed. Delayed justice if not addressed timely will result in loss of confidence by the members of the public in its capacity to play its role. R22 5.12 It is my duty to balance any prejudice which might be suffered by the public if the conservatory order is granted and the Petition fails, against any prejudice which might be suffered by the Petitioner if the conservatory order is not granted and the Petition succeeds. 5.13 It is therefore my considered view that the interest of the public shall not be served if the conservatory order is granted. I do not see any prejudice that might be suffered by the Petitioner that outweighs the public interest. 5.14 Further and in view of the above stated, it is my further considered view that granting the conservatory order would not result in the promotion of constitutional values. 5.15 For these reasons stated, I find that this is not a proper case in which I can exercise my discretion to grant a conservatory order in favour of the Petitioner. I accordingly refuse to grant the Petitioner's application for an interim conservatory order and I order each party to bear own costs . =:?~ .......... j\~L .............. A. M. Shilimi Deputy President of the Constitutional Court