Amb. Dr. Elias Munshya

By E. Munshya, LLM, MBA, MDIV

Where should Zambians go to enforce the Bill of Rights? Should it be the Constitutional Court (ConCourt)? Or the High Court? Or can Zambians go to both? Why can’t both the High Court and the Constitutional Court have concurrent jurisdiction? The rulings coming from the ConCourt seems to suggest that they do not want to have anything to do with the Bill of Rights. They are reading the current constitution too strictly. Honestly, we cannot have a divided jurisdiction where someone who has a constitutional question that engages the Bill of Rights will have to go to the High Court instead of receiving help from one court. I believe though that the ConCourt should assume jurisdiction over the Bill of Rights. It is the right thing to do.

The Zambian Bill of Rights is part of our constitution. It is the entrenched part of the constitution. Constitutional entrenchment is some kind of legal fiction, basically, stating that of all the constitutional provisions, the Bill of Rights is more deeply buried and much more difficult to amend. Whereas parliament can amend all the other parts of the constitution, a referendum is needed to change or amend the Bill of Rights. A referendum is needed so that there is direct input of the electorate into the entrenchment of the Bill of Rights. The Bill of Rights assures citizens of fundamental human rights such as the freedom of assembly, association and conscience. It also safeguards several fundamental rights such as the right to be heard and the protection from unreasonable search and seizure.

When at the beginning of the year 2016, President Edgar Lungu signed the 2016 amendments to the 1991 Constitution into law, he could not sign the new Bill of Rights into law as it needed the referendum. Well, on August 11, 2016 when the referendum was held, the new Bill of Rights was rejected as it did not meet the required threshold. This led to the failure of the referendum question. A new Bill of Rights was not entrenched leading to a situation where we have a new constitution (I am using “new” here even if it is just an amendment), with an old Bill of Rights. While Zambia has an amended constitution in almost all areas, one area that has remained unchanged is its Bill of Rights. Constitution 2016, however, established the Constitutional Court to be the highest court over constitutional matters. In some respects, such as a presidential petition, the ConCourt has original and final jurisdiction.

The proposed Bill of Rights, which was rejected on August 11, 2016, provided that the Constitutional Court would have jurisdiction over the Bill of Rights. However, after the failure of the referendum, the current Bill of Rights provides that those aggrieved may enforce the Bill of Rights only in the High Court. It is absurd to have a Constitutional Court that has no jurisdiction over the Bill of Rights. We must find a way to resolve this absurdity. I propose the following.

First, Zambia could hold another referendum and put a simpler question to the electorate. Instead of amending the whole Bill of Rights, it could be possible to simply ask the electorate to vote on giving the ConCourt jurisdiction over the Bill of Rights. This step would be quite expensive and after the recent elections, our people are quite tired of campaigns and voting. This route might prove difficult.

The second proposal is to ask that parliament passes an un-entrenched provision in the current constitution giving the Constitutional Court some jurisdiction over the Bill of Rights concurrent with the High Court. This should not be controversial as parliament does enjoy some level of sovereignty as the law maker and law giver in our democracy. While the entrenched provisions of our Bill of Rights are clear that parliament cannot unilaterally amend the Bill of Rights, the law should recognise parliament’s ability to help our courts enforce the Bill of Rights. By giving the ConCourt jurisdiction over the Bill of Rights, parliament is enforcing the law and showing strong fidelity to the rule of law.

The third proposal is directed at the Constitutional Court itself. The Court should peel away at its recent rulings and reclaim jurisdiction over the Bill of Rights. It is absurd that we should have a Constitutional Court which is refusing jurisdiction over helping citizens enforce their fundamental rights. The Bill of Rights is part of the Constitution, and the ConCourt has jurisdiction over the entire constitution. This entire constitution, I must submit, includes the Bill of Rights in spite of what the Bill of Rights says about jurisdiction. What happened during the presidential petition where Mr. Hichilema and Mr. Mwamba had to engage the High Court to enforce their rights under the Bill of Rights should have been avoided had the ConCourt accepted jurisdiction over the question. What is even more bizarre though is High Court Judge Chitabo’s ruling that he too could not accept jurisdiction over Mr. Hichilema’s fundamental rights as his case had already been handled by a court higher than his! Judge Chitabo played ping-pong and the Constitutional Court must stop this High Court-ConCourt ping-pong by assuming and accepting some jurisdiction over the Bill of Rights.

The fourth proposal is that if none of the three proposals above work, then the President should appoint the current ConCourt judges to the Lusaka High Court as well. In that case, they will be able to have both High Court and Constitutional Court jurisdiction. If we continue under the legal fiction that the Bill of Rights should be enforced in the High Court only, the ConCourt judges can circumvent that limitation by sitting as High Court judges. In that situation we will have a win-win situation. Those with Bill of Rights grievances can still go to the High Court, but those with constitutional issues that trigger the Bill of Rights can still be heard by ConCourt judges who also have concurrent High Court jurisdiction by virtue of parliamentary appointment.

Constitutional Court judges are best suited to handle the Bill of Rights. They should forthwith assume jurisdiction without fail.

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A Zambian holding three law degrees from England and Chicago, USA, Elias Munshya is a  seminary trained pentecostal minister practicing law in Alberta, Canada.