Pule and Others v Attorney General and Others (4 of 2017) [2018] ZMCC 10 (6 April 2018)

* I R1 IN THE CONSTITUTIONAL COURT 2017/CCZ/004 AT THE CONSTITUTIONAL COURT REGISTRY AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: THE INTERPRETATION OF ARTICLES 106 (1), (3), (6) AND 267 (3) (C) OF THE CONSTITUTION OF ZAMBIA TENURE OF OFFICE OF MR. EDGAR CHAGWA LUNGU PRESIDENT OF THE REPUBLIC OF ZAMBIA THE ELIGIBILITY OF MR. EDGAR CHAGWA LUNGU AS PRESIDENTIAL CANDIDATE IN THE IN PRESIDENTIAL ELECTION TO BE HELD BETWEEN: DR. DANIEL PULE WRIGHT MUSOMA PASTOR PETER CHANDA ROBERT MWANZA AND \} ATTORNEY GENERAL DAVIES MWILA (In his capacity as Secretary General of The Patriotic Front) THE LAW ASSOCIATION OF ZAMBIA STEPHEN KATUKA (In his capacity as Secretary General of The United Party for National Development) 1ST APPLICANT 2nd APPLICANT 3rd APPLICANT 4th APPLICANT 1st RESPONDENT 2 nd RESPONDENT 1st INTERESTED PARTY 2 nd INTERESTED PARTY Coram: Chibom ba, PC, Sitali, Mulenga, Mulembe, and M unalula, JJC. R2 On 27th March, 2018 and on 6th April, 2018. For the Applicants: For the 1st Respondent: Mr. B. C. Mutale, S. C., o f E llis and Company, Mr. S. Sikota, S. C., o f C entral Cham bers, Mr. R. Mallpenga o f M alipenga and Com pany Mr. M. Lungu o f Lungu Sim wanza and Associates, Mr. C. Bwalya of D. H. Kem p and Com pany Mr. D. Jere of Mvunga and A ssociates. Mr. L. Kaialuka, S. C ., Attorney G eneral, Mr. A. Mwansa, S. C., S olicitor G eneral, Mr. J. Sim achela, C hief State Advocate, Ms. D. Mwewa, A ssistant State Advocate ') For the 2nd Respondent: Mr. J. Zim ba of Makebi Zulu and Com pany For the 1st Interested Party: Mr. J. Sangwa, S. C., of Sim eza Sangwa and Associates. For the 2nd Interested Party: Mr. K. Mweemba of Keith Mweem ba Advocates Mr. G. Phiri o f PNP Advocates. R U L I N G Chibomba, PC, delivered the Ruling of the Court. Cases refereed to : 1. Lewanika and Others v Chiluba (1998) Z. R. 79 2. Flannery v Halifax Agencies [2000] 1 All E. R. 373 Legislation referred to : 1. The Constitution of Zambia (Amendment) Act No. 18 of 1996 2. The Constitution of Zambia (Amendment) Act No. 2 of 2016 3. The Constitutional Court Act No. 8 of 2016 By Notice of Motion filed on 26th January, 2018 the Applicants sought an order from this Court that a full bench com prising all seven R3 available Judges of the Constitutional Court should hear the main m atter in this case. The Notice o f Motion was filed pursuant to Article 129 (1) and (3) of the Constitution. Although Brigadier General Godfrey Miyanda (Rtd) was party to these proceedings as the 3rd Interested Party, he has since withdrawn from the entire case. We, therefore, shall not refer to the submissions that he made in this Notice o f Motion. In support o f this Notice o f Motion, the learned Counsel for the Applicants relied on the Affidavit in Support dated 26th January, 2018 and deposed to by Robert Mwanza, the 4th Applicant in this m atter and arguments advanced in the Skeleton Arguments filed on the same date. Paragraphs 5, 6, 7 and 8 of the said Affidavit provide as follow s:- “5. That I honestly believe that this m atter before Your Lordships is of a novel nature and indeed of a high jurisprudential value in so far as the Zambian Constitutional C ourt decisions are concerned. 6. That owing to the novelty o f the m atter, I am o f the considered view that all the available Judges ought to have a say on this m atter, In order that the full potential and resource of the Court be attained and/or utilised. 7. That I am aware that there are presently seven (7) Judges o f the Constitutional Court, and that; given w hat I have ju s t stated supra, it is my wish and desire th at all seven (7) Judges form part o f the bench determ ining this m atter. 8. That the above has been necessitated by w hat is stated in the above paragraphs, as w ell as my desire as a party to have a R4 benefit of the full Court’s (in this case, all seven available judges) determ ination in this m atter.” The thrust of the arguments in the Applicants’ Skeleton Argum ents is that the m atter before us is one that ought to be heard by the full bench as the questions raise novel issues in our constitutional jurisprudence and are o f constitutional significance. And that the outcome w ill have legal, social and political consequences. Hence, the need for inclusion o f all available judicial resources in order to give the decision the w idest judicial interrogation. It was contended that the prescription o f a minimum as opposed to a maximum number o f judges required to constitute a full bench is only aimed at preventing the recurrence o f the challenge o f jurisdiction faced by the Supreme Court in Lew anika and O thers v C h ilu b a 1 wherein the Supreme Court interpreted the full bench as provided in Article 41 o f the Constitution as amended by Act No. 18 of 1996 to be the maximum available odd number of the judges of the court that could be mustered to hear the case. And that in construing the purpose and objectives of Article 129 (3) of the Constitution, this Court should construe a full bench to be the maximum available uneven number of judges that the Court could muster to hear the case at any given moment but not less than R5 five, especially as the matter involves a substantial question regarding interpretation of the Constitution. It was submitted that a bare minimum of a larger pool of judicial resources that can be mustered must be avoided in order to achieve robust development of constitutional jurisprudence as envisaged by Article 267 (b) of the Constitution. And that this would lead to the avoidance of lingering questions in the event that there is a split decision, it was contended that as such, a legalistic approach ought to be avoided. It was further submitted that no prejudice would be suffered by the other parties by the constitution of the full bench. The case o f F lannery v H alifax A g e ncie s2 was relied on to support the argument that cogent reasons ought to be given on why a full bench ought not to be constituted because fairness requires that the parties should not be in doubt as to why they have won or lost and that a lack o f reasons is a ground for appeal. In augmenting the Skeleton Argument, Mr. Mutale, S. C., submitted that there was no opposition to the Motion by all the Respondents and interested parties. He concluded his oral submissions by urging us to consider reconstituting ourselves as a panel of seven Judges. R6 Co-Counsel for the Applicants, Mr. Sikota, S. C., adopted the position taken by Mr. Mutale, S. C. The learned Attorney General, Mr. Kalaluka, S. C., supported the Motion by the Applicants. Similarly, both Counsel for the 2nd Respondent, Mr. Zimba, and Co-Counsel for the 1st Interested Party, Mr. Sangwa, S. C., also supported the Motion. In opposing the Motion, Counsel for the 2nd Interested Party, Mr. Mweemba, submitted that the Motion was opposed on a point of law. He submitted that there is no situation that has arisen to warrant changing the composition of the bench as the current com position of the Court had satisfied the letter o f the law as provided by Article 129 (3) of the Constitution which provides that the full bench of the Constitutional Court shall be constituted by an uneven number o f not less than five Judges. In response to the Applicants’ reliance on the case o f Lew anika and O thers v C hilub a and O thers1, Mr. Mweemba subm itted that in that case, the issue of what constitutes a full bench arose, and it was held, inter alia, that the requirement o f the full bench of the Supreme Court under Article 41 of the Constitution was satisfied when the maximum available odd number of judges of the court were impanelled to hear the case. R7 He submitted that at the time that the petition in this m atter was filed, the composition o f the Constitutional Court was six Judges. And that this Court was able to muster an odd number o f five Judges and that this met the prescribed threshold for a full bench o f not less than five Judges. Therefore, there is nothing unconstitutional, illegal or unlawful about the composition o f the bench. Counsel contended that if the Court agreed w ith the Applicants and increased the number of Judges, there was a danger o f another application being made to re-constitute the bench in the event that there was a further appointm ent of an additional judge(s) to the Constitutional Court. And that this would result in compromising the delivery of justice in terms of public perception. Counsel also submitted that Article 41 o f the Constitution prior to the 2016 Amendment, which was applicable at the tim e the Lew anika1 case was decided, did not have a definition o f a full bench. However, that Article 129 (3) o f the Constitution as amended provides for what constitutes a full bench. Therefore, the Lew anika case was cited out of context. In response to the case o f Flannery v H a lifa x E state A gencies2, relied upon by the Applicants to support their position, Mr. Mweemba submitted that the above cited case has no relevance to this case as R8 Britain is a parliamentary democracy which practices parliam entary sovereignty while Zambia is a constitutional democracy which practices constitutional supremacy. Co-Counsel for the 2nd Interested Party, Mr. Phiri, adopted Mr. Mweemba’s submissions in toto. He added that Article 129 (3) provides the minimum threshold for a full bench, and that the Constitution has not defined the term “full bench”. In response to the Applicant’s proposition that this Court should construe the term “full bench” to mean the maximum available odd number of Judges that the Court could muster to hear the case at any given moment but not less than five, Mr. Phiri subm itted that the Constitution does not use the word “available” . He contended that the Applicants have not shown that the efficiency and competence o f the bench, as currently constituted, would be enhanced by the inclusion of two extra Judges. He also submitted that there is no requirem ent under Article 129 for increasing the number of judges on the panel when a m atter is novel or is of high jurisprudential value. In conclusion, Mr. Phiri posed the following rhetorical questions- would the court reconstitute itself if additional judges were appointed?; R9 or would the Republican President not appoint further judges during the pendency o f these proceedings?; and why does the C ourt need to reconstitute itself? In reply, Mr. Sikota, S. C., as regards Mr. P hiri’s rhetorical questions responded that the questions were merely speculative. He contended that it would not be reasonable to request that the panel of judges be reconstituted if further appointments were made to the Constitutional Court after the hearing o f the main m atter has already commenced. In addressing the attack on the contents o f the A ffidavit in Support of the application and in particular paragraph 6, State Counsel Sikota argued that there was no Affidavit in Opposition challenging its contents nor setting out the basis of disputing the novelty of the m atter before us. He submitted that Article 129 (3) does not preclude more than five judges constituting a panel so long as it is an uneven number. And that the novel nature of this matter requires the highest jurisprudential resource as set out in paragraph 5 of the Affidavit. And that it had not been shown what damage would ensue from the expansion of the panel. He concluded by stating that the mere fact that Britain is a parliamentary democracy as opposed to Zambia which is a constitutional RIO democracy, does not suffice as a reason that its decisions should not have persuasive value in this jurisdiction. In supplementing Mr. Sikota, S. C.’s reply, Mr. Lungu submitted that Article 127 of the Constitution places the full com plem ent o f this Court at thirteen judges and Article 129 (3) sets out five judges as the minimum number to comprise a full bench. And that no argum ents had been advanced on whether this Court is precluded from sitting as 7, 9, 11 or 13 judges if resources permit. He implored this Court to adopt the practice in the Supreme Court through persuasive value. In conclusion, he submitted that this application was neither on the efficiency nor competence but rather as of when the Court can exercise its discretion to sit as a bench of more than five judges to com prise the full bench. And that this being a matter of great national consequence and novel, the Court should consider sitting as the maximum available odd number of judges. We have seriously considered this Notice of Motion, the Affidavit in Support, the arguments in the Applicants’ Heads of Argument, the oral submissions by the learned Counsel for the respective parties and the authorities cited which we have interrogated. It is our considered view that this Notice of Motion raises the question w hether or not the main R ll matter in this case should be heard by a panel of seven Judges of the Constitutional Court who are in place. Article 129 o f the Constitution, which provides for the sittings o f the Constitutional Court is very clear. It provides that:- “(1) The Constitutional Court shall be constituted by an uneven num ber o f not less than three judges, except w hen hearing an interlocutory m atter. (2) (3) The Constitutional Court shall be constituted by one judge when hearing an interlocutory m atter. The full bench of the Constitutional Court shall be constituted by an uneven number o f not less than five judges. (4) The Constitutional Court shall be presided over by- (a) (b) (c) the President of the Constitutional Court; in the absence o f the President o f the Constitutional Court, the Deputy-President o f the Constitutional Court; and in the absence o f the D eputy-President o f the Constitutional Court, the m ost senior Judge o f the Constitutional Court, as constituted.” As can be seen from the above, Article 129 (3) clearly spells out the number of judges that can constitute a full bench, namely, not less than five judges. Further, when Article 129 (3) is read together with Article 138, which places the administration of the Constitutional Court under the charge of the President of the Constitutional Court, it will be seen that the power to constitute a panel is the prerogative of the Court itself and not that of the parties or litigants. Therefore, ordinarily, this should not be a subject o f litigation. W e say so because the composition R12 of a panel is an adm inistrative matter which is purely in the discretion of the Court and the Court takes into account many factors in constituting panels and such factors may include indisposition of judges. Further, Section 4 (2) of the Constitutional Court Act clearly states that:- "(2) S ubject to the provisions of this Act, the C ourt sh all, a t a sitting, be com posed o f such judges of the C ourt as the President may direct.” We also wish to draw the attention of the parties to the fact that when this Court became operational, there were only six judges of the Constitutional Court. When this matter commenced, the number remained at six until 23rd December, 2017 when a seventh judge was appointed and sworn in. By that date, the panel of judges which was hearing the motions arising from the single Judge’s scheduling of the main matter was already in place. Further, it must be noted that a panel that hears a motion may not be the same that would be constituted to hear the main matter as this depends on the circumstances existing at the tim e the main m atter is set for hearing. At the tim e this application was filed and heard, the panel that would hear the main matter had not yet been constituted. W e do not thus see the relevance of this application. Therefore, the application stands dismissed. RIB Each party to bear own costs. H. Chibomba PRESIDENT CONSTITUTIONAL COURT A. M. S'rtali JUDGE CONSTITUTIONAL COURT M. S. Mulenga JUDGE CONSTITUTIONAL COURT E. Mulembe JUDGE CONSTITUTIONAL COURT M. M. Munaiula JUDGE CONSTITUTIONAL COURT