The Law Association of Zambia and Ors v The Attorney General (2025/CCZ/0029) (16 December 2025) – ZambiaLII

IN THE CONSTITUTIONAL COURT FOR ZAMBIA 2025/CCZ/0029 AT THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: ARTICLE 1, 128 AND 267 OF THE CONSTITUTION OF ZAMBIA (1991, AS AMENDMENT IN 2016 (THE CONSTITUTION) IN THE MATTER OF: AN APPLICATION BEFORE A SINGLE JUDGE TO ABRIDGE THE TIME FOR THE ORDERS FOR DIRECTIONS IN THE MATTER OF: THE RULING OF THE HONOURABLE LADY JUSTICE M. M. am MAPANI-KAWIMBE DELIVERED IN CHAMBERS ON BETWEEN: THE LAW ASSOCIATION OF ZAMBIA NON-GOVERNMENTAL ORGANIZATION'S CO COMMITTEE FOR GENDER AND DEVELOPME REGISTERED TRUSTEES BISHOP ANDREW MWENDA (AS EXECUTIVE DIRECTOR 3RD APPLICANT OF THE EVANGELICAL FELLOWSHIP OF ZAMBIA) BISHOP EMMANUEL CHIKOYA (AS SECRETARY-GENERAL 4TH APPLICANT OF THE COUNCIL OF CHURCHES IN ZAMBIA) FATHER FRANCIS MUKOSA (AS SECRETARY GENERAL OF 5TH APPLICANT THE ZAMBIA CONFERENCE OF CATHOLIC BISHOPS) LCK FREEDOM FOUNDATION LIMITED 5TH APPLICANT AND THE ATTORNEY GENERAL RESPONDENT CORAM: Munalula- PC, Shilimi -DPC, Musaluke, Mulongoti and Mwandenga JJC on the 15th and 16th of December, 2025. For the Applicants: Ms L.C Kasonde of LCK Chambers and Mr. M. Bhatakati of Malisa and Partners For the Respondent: Mr D.M Kabesha SC-Attorney General, Mr. C Muchende SC-Solicitor General, Ms C. Mulenga Ag Principal State Advocate, Mr. C. Mulonda Deputy Chief State Advocate, Mr. N. Mwiya Principal State Advocate and Ms. M. Katolo Senior State Advocate RULING Cases referred to: 1. Potipher Tembo v Tasila Lungu and Electoral Commission of Zambia 2021 /CCZ/A 0040 2. Milingo Lungu v Attorney 2022/CCZ/006 3. Chali v Attorney General 2025/CCZ/0031 4. Munir Zulu and another v Attorney General 2025/CCZ/009 5. Mwanza and Makalu v Attorney General 2023/CCZ/005 Legislation referred to: The Constitutional of Zambia Chapter 1 of the Laws of Zambia (Amendment) Act No.2 of 2016 The Constitutional Court Rules Statutory Instrument No.37 of 2016 [1] The Ruling relates to two applications which we heard concurrently. First, we will consider the respondent's Notice of Motion (NOM) to Raise a Preliminary Issue on a Point of Law pursuant to Order 14A, Order 33 Rule (3) and Order 59 Rule 14 (12) of the Rules of the Supreme Court 1999 edition as read with Order 1 Rule 1, Order 9 Rule 20 of the Constitutional Court Rules (CCR) Statutory Instrument No.37 of 2016. -R2- [2] The preliminary issue seeks the Court's determination of the following questions regarding the applicant's NOM for a conseNatory order. 1. Whether the Notice of Motion is properly before this Honourable Court in light of this Court's decision in the case of Potipher Tembo v Tasi/a Lungu and Electoral Commission of Zambia -2021/CCZ/A004()(1 vis a vis: J (a) Whether a challenge against the decision of the single judge of this Honourable Court should be by way of appeal as opposed to a renewed application vide Article 129 (2) and (3) of the Constitution of Zambia as read together with Order 59 Rule 14 (12) of the Rules of the Supreme Court of England 1999 Edition (White Book) (b) Whether the Affidavit herein is identical to the one filed before the single judge on 20th November, 2025 supported by proceedings before the single judge and the decision of the said judge. -R3- 2. Whether this is not proper case for the NOM dated 3rd December, 2025 to be dismissed in limine with costs to the respondent, based on the outcome of the questions above. [3] The NOM to raise preliminary issue is supported by an affidavit sworn by Dr. Landilani Banda the Vice Chairperson of the Technical Committee to Draft Amendments to the Constitution of Zambia (Technical Committee). He deposed succinctly that the applicants' affidavit filed herein is identical to the one before the single judge and yet the applicants have raised new issues before the full Court. [4] The respondent also filed a list of authorities and skeleton arguments in support placing reliance on our decision in Potipher Tembo v Tasila Lungu and another<1 l that an appeal from any decision of a single judge must be made within 10 days in line with Order 59 Rule 14, by summons. The respondent cited several cases as the record shows to support the same argument. [5] During the hearing the respondent submitted that the applicants' affidavit in opposition sworn by Lungisani Zulu the president of the Law Association of Zambia (the first applicant herein) be expunged for containing prayers, conclusions and arguments. -R4- [6] In response the applicants relied on the affidavit in opposition sworn by the first applicant, skeleton arguments and a list of authorities. It was argued that the applicants' NOM for a conservatory order is properly before us in line with our decision in Milingo Lungu v Attorney(2l General where we upheld the respondent's argument that renewal before the full Court was the correct and permissible procedure. In oral submissions the applicants relied on our latest decision in Chali v Attorney General(3l where we upheld Milingo Lungu(2l on renewal. The applicant also contended that the respondent's affidavit in support of the preliminary issue is equally defective for the same reasons. [7] We have considered the affidavits evidence and the competing skeleton arguments by the parties. We are inclined to dismiss the respondent's NOM to raise preliminary issue. We recently held in Chali v Attorney General(3l that a renewal by filing a NOM in line with the CCR and section 9 of the Constitutional Court Act is the correct way of challenging the decision of a single judge on interlocutory applications and that the White Book is only resorted to where our laws/rules are silent on a matter. -RS- [8] In casu, the applicants have properly moved the Court challenging the decision of the single judge pursuant to Order 1 Rule 1 (1) and (2), Order IX Rule 20 (1) and Order X Rule 2 (1) and (2) which provide for interlocutory applications to be made by summons or notice of motion. The applicants are seeking a conservatory order which is an interlocutory application as they did before the single judge. We reiterate that recourse to the White Book should be had where there is a lacuna in our laws. We reiterate that we frown upon the filing of a motion on motion. With that said, we dismiss the respondent's NOM to raise a preliminary issue. [8] We now turn to the applicants NOM challenging the decision of the single judge declining to grant the conservatory order. According to the NOM the full Court should grant the conservatory relief, originally sought namely: ( a) A conservatory order maintaining the constitutional status quo ante, restraining the respondent and all persons acting under its authority from continuing, implementing or giving effect to: (i) the establishment, sittings, consultations, decisions or operations of the Technical Committee on Amendments to the Constitution -R6- appointed by the President of the Republic of Zambia on 2nd October 2025 (ii) the Terms of Reference issued to the Technical Committee on 20 October, 2025; and (iii) any action, measure or step in the constitutional amendment process undertaken through the Technical Committee, Pending the hearing and final determination of this Petition (b) A conservatory order suspending all ongoing sittings, deliberations, drafting, reporting, or decision-making activities of, or undertaken through the Technical Committee. (c) A direction that the foregoing shall operate as constitutional conservatory orders, not injunctions within the meaning of section 16 of the State Proceedings Act. [9] That the relief is sought on the ground that the continuation of the constitutional amendment process during the pendency of the Petition risks rendering the Petition nugatory, creating an irreversible fait accompli, undermining Article 1 and 2 of the Constitution and violates the binding principles in Munir Zulu and another v Attorney Generall4l. That in the premises the full Court -R7- should set aside the Ruling of the single judge and grant the conservatory order. [1 O] The applicants also filed a list of authorities and skeleton arguments in support of the application. It is argued mainly that in Mwanza and Makalu v Attorney Genera1<5 it was established that interim relief ) requires a prima facie case, risk of irreparable harm and public interest. That the single judge found that the applicants had established a prima facie case and as such they had demonstrated prospects of success of the Petition. As a result, we should grant the conservatory order ante. [11] The respondent opposed the applicants' renewal application via an affidavit in opposition sworn by Dr Landilani Banda. The essence is that the application has been inordinately delayed as it has been brought more than one month after the appointment of the Committee whose mandate is at the tail end with approximately 95% of its mandate having been executed. [12] In its skeleton arguments the respondent argued that the Petition has slim chance of success as the Committee has done most of its work. That the Court should not grant the interim relief as doing so would be inconsistent with our decisions that we frown upon -R8- undertaking academic exercises. Furthermore, that public interest would not be served if we grant the conservatory order sought by the applicants. [13] We have considered the application for conservatory order including the affidavits and arguments of the parties. We note that the Technical Committee which is at the centre of the Petition has concluded its work and submitted the report to the President. The applicants moved this Court too late in the day. There is therefore, nothing to conserve or stop the Committee from doing. We therefore dismiss the application for conservatory order. Each party to bear their own costs . ~ ...... ............ ........ ... ... ..... . M. M. Munalula (JSD) President Constitutional Court A. M. Shilimi M Deputy President Constitutional Court Constitu 10n urt Judge J. Z. Mulo oti M. Z. Mwande a Constitutional Court Judge Constitutional Cou J ge -R9-