Edward Bwalya Phiri v Attorney General (2025/CCZ/004) [2025] ZMCC 20 (3 October 2025)

IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL REGISTRY HOLDEN AT LUSAKA IN THE CONSTITUTIONAL COURT OF ZAMBIA AT THE CONSTITUTIONAL REGISTRY HOLDEN AT LUSAKA ( Constitutional Jurisdiction) (Constitutional Jurisdiction) 2025/CCZ/004 2025/CCZ/004 IN THE MATTER OF. IN THE MATTER OF. THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF . IN THE MATTER OF. BETWEEN: BETWEEN ARTICLE 128(3)(A) OF THE CONSTITUTION OF ZAMBIA ARTICLE 128(3)(A) OF THE CONSTITUTION OF ZAMBIA ALLEGED CONTRAVENTION OF ARTICLE 232 AND ARTICLE 264(1) OF THE CONSTITUTION OF ZAMBIA ALLEGED CONTRAVENTION OF ARTICLE 232 AND ARTICLE 264(1) OF THE CONSTITUTION OF ZAMBIA SECTION 8(3) OF THE CONSTITUTION COURT ACT IV RULE 1 OF THE NO 8 OF 2016 AND ORDER CONSTITUTION COURT RULES S.l NO. 37 OF 2016 SECTION 8(3) OF THE CONSTITUTION COURT ACT NO 8 OF 2016 AND ORDER IV RULE 1 OF THE CONSTITUTION COURT RULES S. I NO. 37 OF 2016 EDWARD BWALYA PHI EDWARD BWALYA PHIlfel REPUBLIC op ZAMBIA CONbTiTuTKDHAL COURT O f ZAMBIA AND AND 0 3 OCT 2U25 m PETITIONER PETITIONER ATTORNEY GENERAL ATTORNEY GENERAL KifolSiKY b B O X 5 0 0 6 7 L U S A K A -------- RESPONDENT RESPONDENT CORAM: MUNALULA, PC, SHILIMI, DPC, MUSALUKE, CHISUNKA CORAM: MUNALULA, PC, SHIL1M., DPC, MUSALUKE, CHISUNKA MULONGOTI, MWANDENGA AND MULIFE, JJC ON 11TH JUNE 202~ MULONGOTI, MWANDENGA AND MULIFE, JJC ON 11™ JUNE 202g AND 3RD CTOBER, 2025. AND 3rd CTOBER, 2025. ' FOR THE PETITIONER: FOR THE PETITIONER: FOR THE RESPONDENT: FOR THE RESPONDENT: In person. In person. Mr. M. Muchende, SC - Solicitor General Mr. M. Muchende, SC - Solicitor General Mrs. B. M. Kamuwanga, Acting Principal State Mrs. B. M. Kamuwanga, Acting Principal State Advocate, Ms. C. Bwalya, Senior State Advocate Advocate, Ms. C. Bwalya, Senior State Advocate and Ms. M H. Cheelo, State Advocate - Attorney and Ms M H. Cheelo, State Advocate - Attorney General's Chambers. General’s Chambers. Jl Ji JUDGMENT JUDGMENT Mulife, JC. delivered the Judgment of the Court. Mulife. JC. delivered the Judgment of the Court. Cases referred to: Cases referred to: c-a-a '.' _1: a- □ a o v Attorn ey General , 2019/CCZ/008, Selected Judgment Cr-a—a ’.'_ :a ~ z 2 3 v Attorney General, 2019/CCZ/008, Selected Judgment No. 32 of 2019 Nc. 32 of 2019 2 .. e--e Ka □ -ga v Attorney General SCZ Appeal No. 79 of 2009 . . e - “ 5 < a c '3 = v Attorney General SCZ Appeal No. 79 of 2009 3 Za 3 2 Nations Commercial Bank PLC v Martin Musonda and 58 Others, 3 Za :::: a Nationa Commercial Bank PLC v Martin Musonda and 58 Others, 5 s 53:6-2 Judgment No 24 of 2018 Se ecrea Judgment No 24 of 2018 - - Assoc a r c - of Zambia and Chapter One Foundation v Attorney General, _a Assoc ano- of Zambia and Chapter One Foundation v Attorney General, 2:J2 .. ccz 0036 232" CCZCG3S d 5 S~e. e- KatL;t' a ana the Law Association of Zambia v Attorney General and 5 S:s.s- <ar-^a 3^2 the Law Association of Zambia v Attorney General and \ 22sa 5 -cyakii a and S3 Others. CCZ Judgment No. 29 of 2016 N~::sa S - □ ya ku a and 63 Others. CCZ Judgment No. 29 of 2016 6 300.:..e_. Ma e-ce~a v Attorney General and Another CCZ Selected Judgment 2 Gzc“ e . Ya e-ze^a v Attorney General and Another CCZ Selected Judgment .. JM ~- 34 o= 2017_ No. 34 of 2017. - r<a-ca·aga Mpundu Kaunaa v The People SCZ Judgment No. 2 of 1991 <a~ 2 2 ' 2 2 e Mpundu Kaunaa v The People SCZ Judgment No. 2 of 1991 5 _a,., Assoc at on of Zamb ia v Attorney General 2021/CCZ/51 2 _ a A s s c a a:on of Zambia v Attorney General 2021/CCZ/51 ; r 55 = 3 V.va^za saac Pt1,,a ... za a"'o Zamb a Civil Liberties Union (ZCLU) v Attorney General and Zamb a Civil Liberties Union (ZCLU) v Attorney General and 3 Others 2024/CCZ/008 3 Otr-iers 2024/CCZ/008 .. ~ saac 11,•tanza 'suing as a member and in the interest of the Zambia Civi\ "3 5553 Y.vanza 'suing as a member and in the interest of the Zambia Civil , The National Assembly of Zambia and Attorney General, / The National Assembly of Zambia and Attorney General, _ c-er:ies Un or _ semes Ur on 2~24/CCZ/0022 2024/CCZ/0022 .... aa,...., o· Zam a v Ch bate Meat Corporation Limited, SCZ Judgment No. 14 of " ' B a ^ o' Za~c a v Ch bote Meat Corporation Limited, SCZ Judgment No. 14 of ICOc agistatioil referred to: -sqisiation referred to: Coosbtu-tioo of Zambia as amended by ' Constitution of Zamba as amended by the Constitution of Zambia the Constitution of Zambia A"lleOdfneotjAct No. 2 of 2016. AmendmentjAct No. 2 of 2016. 2 Constitutior.al Court Act No. 8 of 2016 2 Constitutional Court Act No. 8 of 2016 ,..,,._,.... ___ W'V~ Commission Act No. 1 of 2022 3. Emoluments Commission Act No. 1 of 2022 ◄ u. JISIILllrCX'liat Coort Rties St3b.iory lnstrumeit 4 Cchsttuttcra Co l t Rules Statutory Instrument No. 37 of 2016 o t h e r w o r k s r e f e r r e d to : OthP-r works referred to: 1 Garner 8 A {edJ Black s Law D,cbonary f1" EdlCJOn 20CM 1 Garner B A (edj Black s Law Dictionary & Edrtwn 2004 2 Report of the Committee on Parastatal tx>d-es on 1tie "e , 2 Report of the Committee on Parastatal bodies on the 'e . of of al tr,e of r e Ho6d 1·"95 ax Za-oa Hokkngs and Management Z a r-o a ZCCM-Investment ZCCM-lnvestment and Management Telecommunicat,ons Company um,ted for the Turd Sess-r cr' :-E - ~ Telecommunications Company Limited for the Third Session of the TweJflh National Assembly. appomted on Wednesday 21st Secterrbe(" 2':J National Assembly, appointed on Wednesday 21st September. 2017 3 Report of the Committee on Cab net Affairs on the Er:'lG.;.;~ Cor·••"='SS,,:r 3 Report of the Committee on Cabinet Affairs on the Emc*i*nents C u iiM riM m 8111 NAB No 1 of 2022 for the First 5ess,oo of the Th rteeri Na: :r.a ;.,ss.:-::, f Bill N A B No 1 of 2022 for the First Session of the Thirteen National Assembly 4 Report of the Technical Committee on the [)ra fting o-= tr'e Za-::::,a- ~ - - - : r " " ' . rsttLffior 4 Report of the Technical Committee on the Drafting c* r e Za~c«a and dated 30th April 2012 dated 30th April 2012 5 Draft Report of the Technical Comm rttee on Drafti'1Q me Za~o-.ari eo-s:-:_.-:<-r. 5 Draft Report of the Technical Committee on Drafting the Za m txa n ConsfcbAon dated 30th December, 2013 dated 30th December, 2013 When we heard this petition we sat with our earned brother. Hoo_ Mc When we heard this petition, we sat with our ’earred brother. Hon. Mr. Justice M. Z. Mwandenga who has since proceeded on officia eave. For Justice M. Z. Mwandenga who has since proceeded on omcia save. For this reason , the judgment is by the majority. this reason, the judgment is by the majority. INTRODUCTION INTRODUCTION [1] The judgment relates to the petition that was fil ed by Edward Bwalya The judgm ent relates to the petition that was filed by Edward Bwa .. a is Phiri (the Petitioner) on 11 th February. 2025. The petition Phiri (the Petitioner) on 11th February. 2025. T he petition is supported by an affidavit sworn by the Petitioner. supported by an affidavit sworn by the Petitioner. [2] [21 The Petitioner is alleging that section 5(1) of the E"""lC,._llfflE_. The Petitioner is alleging that section 5(1) of the Emoluments Commission Act No. 1 of 2022 (the Emoluments cnn,~ - -- contravenes Articles 232 and 264 of the Coo contravenes Articles 232 and 264 of the Constitution of ZamD a as Commission Act No. 1 of 2022 (the Emoluments C om m issior Ac: ~ ta:• amended by the Constitution of Zambia ( amended by the Constitution of Zambia (Amendment) A ct No. 2 of 2016 (the Constitution). That this · 2016 (the Constitution). That this is because section 5(1) of the Emoluments Commission Emoluments Commission Act, has expanded the Em olum ents J3 ; 0 V b lC A ‘ ' ,W~ Comrnission's rnand~lto by suhstitut1nu tllP lt~1111 ~;'"'" l11 .• 111u11 ,,, · Commission’s mandate by substituting the tw in Slnte Institutiwr.' for "Public Officers" as a secto, whoso 01noh11nn11l!i .110 un, " bl for "Public Officers” as a sector whoso emoluments nit* umrnubln to detern1ination by tl1e Ernolu,nonts Con11111 8s 1on to determination by the Emoluments Commission [3] [3] The Petitioner has raised issue with The Petitioner has raised issue with this st1puli1llon hoc u this stipulation bourn iso foundational provisions (Ariicles 232 and 264 of tho Conslltut1on) foundational provisions (Articles 232 and 264 ot the Constitution) expressly mention "public officers" and not "state institutions" s th expressly mention “public officers" and not "state Institutions .is the sector whose emoluments are an1enable to regulation by th sector whose emoluments are amenable to regulation by the Emoluments Commission. Emoluments Commission. [4] [4] Flowing from the foregoing, the Petitioner is seeking the following Flowing from the foregoing, the Petitioner is seeking the following remedies: remedies: (i) (i) (ii) (ii) (iii) (iii) (iv) (iv) A declaration and an order that section 5(1) of the A declaration and an order that section 5(1) of the is unconstltutlonal and Emoluments Commission Act Emoluments Commission Act is unconstitutional and therefore void to the extent of the inconsistence with the therefore void to the extent of the inconsistence with the Constitution; Constitution; That section 5(1) of the Emolurnents Commission Act be That section 5(1) of the Emoluments Com m ission Act be expunged from the statute books; expunged from the statute books; That each party bears its costs; and That each party bears its costs; and Such orders as this Court shall deem fit. Such orders as this Court shall deem fit. [5] Additionally, the Petitioner has posed the following question for [5] Additionally, the Petitioner has posed the following question for interpretation by this Court: interpretation by this Court: Your petitioner seeks an attendant interpretation of whether or Your petitioner seeks an attendant interpretation of w hether or not parastatal corporations and quasi-governmental institutions parastatal corporations and quasi-governm ental institutions are included under Article 232 as read with Article 2 4 included under Article 232 as read with Article 264 of the Constitution. Constitution. [6] [6] The Respondent is opposed to the petition and in The Respondent is opposed to the petition and in doing so, on 1st April,2025, he filed an answer supported b April,2025, he filed an answer supported by an affidavit and skeleton arguments. arguments. J4 THE PETITIONER’S CASE THE PETITIONER'S CASE [7] [7] The petition and supporting affidavit aver that Article 232 of the The petition and supporting affidavit aver that Article 232 of the Constitution established Constitution established the Emoluments Commission and the Emoluments Commission and mandated it, am ong others, to determine emoluments for public mandated it, among others, to determine em olum ents for public officers! chiefs and members of officers, chiefs and members of the House of Chiefs, on the House of Chiefs, on recommendation by the relevant authority or commission. recommendation by the relevant authority or com mission. [8] [8] the State, pursuant to Article 232 of the That in the year 2022, the State, pursuant to A rticle 232 of the That in the year 2022 Constitution, enacted enacted Constitution I the Emoluments Commission Act, the Emoluments Com m ission Act, to to operationalise the Emoluments Commission. However, section 5(1) operationalise the Emoluments Commission. However, section 5(1) of the Emoluments Commission Act expanded the Emoluments of the Emoluments Commission Act expanded the Em olum ents Commission's mandate beyond the scope contemplated by Articles C om m ission’s mandate beyond the scope contem plated by Articles 232(2) and 264(1) of 232(2) and 264(1) of the Constitution, hence the Constitution, hence the alleged the alleged contraventions. That this occurred by way of section 5(1) of the contraventions. That this occurred by way of section 5(1) o f the Emoluments Commission Act substituting the term "public officers Emoluments Commission Act substituting the term "public officers" contained in Articles 232(2) and 264(1) of the Constitution , for the contained in Articles 232(2) and 264(1) of the C onstitution, fo r the term “State Institutions”. term "State Institutions". [9] [9] In his list of authorities and skeleton arguments of even In his list of authorities and skeleton arguments of even date, the Petitioner contends Petitioner contends that based on Order IV, that based on Order IV, rule 1 of the Constitutional Court Rules, Statutory lnstr·1.1m19i1 Constitutional Court Rules, Statutory Instrument No. 37 of 2016 (CCR} and section 8(3) of the Con (CCR) and section 8(3) of the Constitutional Court Act No. 8 of 2016 (CCA}, the petition is properly b (CCA), the petition is properly before this Court. (10) The Petitioner posits that b [10] The [ etitioner posits that by substituting the phrase “public officers” Y subst1tut1ng the phrase "public officers" . s , section 5( 1) of the Emoluments Commission State institutions , section 5(1) of the Emoluments Commission for "State institution " . . Act, contravenes Art· I 1c es 232(2) and 264(1) of the Constitution Act, contravenes Articles 232(2) and 264(1) of the Constitution because according to the stated constitutional provisions, the because according to the stated constitutional provisions, the mandate of the Emoluments Commission, is expressly limited to mandate of the Emoluments Commission, is expressly limited to upublic officers" and not "State institutions". ‘public officers” and not “State institutions”. l 11] [11] It is the Petitioner's further contention that the term "public officer" is It is the Petitioner’s further contention that the term “public officer is not synonymous with the term "State institution'. That this is not synonymous with the term “State institution’. That this is because whereas the term "public officer" only refers to civil because whereas the term “public officer” only refers to civil servants or public service employees, the term "State institutions" servants or public service employees, the term State institutions goes beyond civil servants as to include employees in parastatal or goes beyond civil servants as to include employees in parastatal or quasi-government institutions. quasi-government institutions. [12] [12] In support of this proposition, the Petitioner referred us to our In support of this proposition, the Petitioner referred us to our holding in the case of Chama Mutambalilo v Attorney General1 holding in the case of Chama Mutambalilo v Attorney General1 that the office of public officer on the other hand is an office in the that the office of public officer on the other hand is an office in the public service in terms of Article 221 (2) of the Constitution. public service in terms of Article 221(2) of the Constitution. [13] The Petitioner also referred us to the following holding [13] The Petitioner also referred us to the following holding of the Supreme Court in the case of Vivienne Kaonga v Attor Supreme Court in the case of Vivienne Kaonga v Attorney Genera 12 General2: : An incorporated company is a distinct legal An incorporated company is a distinct legal personality...it can sue and be sued. The Attorney General in a and be sued. The Attorney General cannot be sued J6 J6 rtlprtllluntcttlvo c11pncl ty for nets or ornlssions by such an entity, the ropwioutativo rapacity tor acts or omissions by such an entity, the uuvtunintlnt l>ulnu tlu> prlnclpnl sharoholdor notwithstanding. ^ovomnumt being tlu> principal shareholder notwithstanding. l . l 1 hut thu Suph. lll t Cou, t wont on to state that the appellant who had l hat the Supremo Court went on to state that the appellant who had woikod for tho Zambia Co operative Federation and Zambia Daily war kt:1d fo1 tho l unbiu Co operative Federation and Zambia Daily Mail. " ... w,-1s not n civil servant" Mail, "...was not a civil servant" { \ 5} 1 he Petitioner also cited the Report of the Committee on 1'5] ''he Petitioner also cited the Report of the Committee on Parastatal bodios on the review of the operations and Parastatal bodies on the review of the operations and Managernent of ZCCM-lnvestment Holdings and Zambia Management of ZCCM-Investment Holdings and Zambia Telecontntunications Cornpany Limited for the Third Session Telecommunications Company Limited for the Third Session of the Twelfth National Assembly, appointed on Wednesday, of the Twelfth National Assembly, appointed on Wednesday, 21 st September, 2017 where it is stated that:· SOEs (State owned 21st September, 2017 where it is stated that: ‘ SOEs (State owned Enterprises) are not government departments, but commercial Enterprises) are not government departments, but commercial entities". entities". y! [16] [16] In stressing that the Constitution only contemplates employees in In stressing that the Constitution only contemplates employees in the civil service or public service to be amenable to the Emoluments the civil service or public service to be amenable to the Emoluments Commission's mandate, the Petitioner referred us to the following Commission’s mandate, the Petitioner referred us to the following excerpt in the Report of the Committee on Cabinet Affairs on the excerpt in the Report of the Committee on Cabinet Affairs on the Emoluments Commission Bill, N. A. B No. 1 of 2022 for the First Emoluments Commission Bill, N. A. B No. 1 of 2022 for the First Session of the Thirteen National Assembly at p.1. Session of the Thirteen National Assembly at p.1. The structures and conditions of service in the pub ·c serYlca The structures and conditions of service in the public service had been and were still characterized by deep roo&ed •· - - • been and were still characterized by deep rooted inequalities, anomalies and inconsistencies to the extent t anomalies and inconsistencies to the extent that in 2010, the Government established a Public Service Government established a Public Service Salaries Review Commission. Among the recommendatiORs of Commission. Among the recommendations of the Commission was to was the establishment of the Em• - • the establishment of the Emoluments Commission · J7 J7 • . . hannonise and rar1 1- . Publ. ona 1se salaries and conditions of service in the public service ?hkna*'Se salar'es and conditions of service in the 1c service This w . public · as aimed at enhancing the capacity of the public service to attr^?S a*med at enhancin9 the capacity of the . _service to attract, retain and motivate officers and staff with reauisito .. act> retain and motivate officers and staff with requ_,s,te q~alifications, skills and experience in order to improve lcatlons« skills and experience in order to improve service HpI ~ervice delivery. Consequently, in 2016 the Government provided in tho *e*ry: Consequently, in 2016, the Government provided 1n the c t·t ' ·• ~- .. ons I utIon of Zambia (Amendment) Act, No. 2 of 2016, a nrm/fci *St,tUt,0n ° f Zambla (Amendment) Act, No. 2 of 2016, a provision to establish the Emolument Commission to determine on 10n t0 establ'sb tbe Emolument Commission to determine on the. the recommendations of the relevant authority or commission, the recommendations of the relevant authority or commission, the emoluments of public officers chiefs and members of the House of emo uments of public officers, chiefs and members of the House of Chiefs. Chiefs. . · ' The Emoluments Bill therefore, was the result of the above and The Emoluments Bill therefore was the result of the above and sought, inter alia, to provide for harmonized framework to govern sought, inter alia, to provide for harmonized framework t~ govern the determination and management of emoluments of chiefs and the determination and management of emoluments of chiefs and officers in state organs and state institutions. officers in state organs and state institutions. I {17] The Petitioner further referred us to the meaning of the terms "public 7] The Petitioner further referred us to the meaning of the terms “public service" and "civil servant" as provided for in Article 266 of the service” and “civil servant” as provided for in Article 266 of the Constitution. Constitution. [18] That in as far as section 5(1) of the Emoluments Act replaced the [18] That in as far as section 5(1) of the Emoluments Act replaced the term “public officers” with the term “state institution”, the Act has term "public officers" with the term "state institution", the Act has exceeded the mandate bestowed on the Emoluments Commission exceeded the mandate bestowed on the Emoluments Commission by Articles 232(2) and 264(1) of the Constitution. That to this extent, by Articles 232(2) and 264(1) of the Constitution. That to this extent, the provision is void by virtue of this Court’s holdings in the cases of the provision is void by virtue of this Court's holdings in the cases of Zambia National Commercial Bank PLC v Martin Musonda and Zambia National Commercial Bank PLC v Martin Musonda and 58 Others3 and Law Association of Zambia and Chapter One 58 Others3 and Law Association of Zambia and Chapter One Foundation v Attorney General4 Foundation v Attorney General4, that any law that is inconsistent , that any law that is inconsistent with the Constitution is void to the extent of the inconsistency. with the Constitution is void to the extent of the inconsistency. J8 JS I RESPONDENT'S RESPONSE RESPONDENT'S RESPONSE [·191 11 SI ·t. In his answer and affd In his answer and a f M , „ in supp»„ 0 ( ft , , nswer Resp<Jnden| 1 av1 1n support of the answer, the Respondent conceded that in as far as it has substituted the term "public officer'' ©d that in as far as it has substituted the term “public officer” for th e term "state institutions ", section 5(1) of the Emoluments Act for the term state institutions”, section 5(1) of the Emoluments Act 's not a is not a replica of Article 232 of replica of Article 232 of the Constitution. This the Constitution. This notwithstanding, the Respondent disputed the alleged contravention notwithstanding, the Respondent disputed the alleged contravention on the ground that the term “state institutions” includes “public on the ground that the term "state institutions" includes "public officers”. Therefore, officers". Therefore, it did not expand it did not expand the Emoluments the Emoluments Commission's mandate. Commission’s mandate. [20] The Respondent went on to aver that parastatals and quasi [20] The Respondent went on to aver that parastatals and quasi­ government institutions whose emoluments and expenses are a government institutions whose emoluments and expenses are a charge on the Consolidated Fund or other prescribed public fund, charge on the Consolidated Fund or other prescribed public fund, are included under Article 232 as read together with Article 264 (1) are included under Article 232 as read together with Article 264 (1) of the Constitution. of the Constitution. [21] Based on the foregoing, it is the Respondent’s prayer that the [21] Based on the foregoing, it is the Respondent's prayer that the petition should be dismissed with costs. petition should be dismissed with costs. [22] [22] In his list of authorities and skeleton arguments, the Respondent is In his list of authorities and skeleton arguments, the Respondent is similarly of the view that the petition has been properly instituted. similarly of the view that the petition has been properly instit J9 J9 [23] Th e Respondent furth P31 The Respondent further referred u, Article 266 o(lhe constitution er re erred us to Article 266 of the Constitution f regarding the def1n1tion of the terms 11 state institutions", 11public regarding the definition of the terms "state institutions", “public " officer" and ,.public off officer and “public office”. rce . [241 Citing our holding in the case of Steven Katuka and the Law [24] Citing our holding in the case of Steven Katuka and the Law Association of Zambia v Attorney General and Ngosa Association of Zambia v Attorney General and Ngosa Simbyakula and 63 Others 6 that the Constitution must be read Simbyakula and 63 Others5 that the Constitution must be read holistically, the Respondent urged us to read the Constitution as a holistically, the Respondent urged us to read the Constitution as a whole and to consider the historical origins of the Emoluments whole and to consider the historical origins of the Emoluments Commission. That against this backdrop, the Court should disregard Commission. That against this backdrop, the Court should disregard the Petitioner's interpretation of the term "public officer" as it is the Petitioner’s interpretation of the term “public officer as it is narrow and restrictive. narrow and restrictive. [25] The Respondent contends that Article 266 of the Constitution [25] The Respondent contends that Article 266 of the Constitution defines the term "state institution" broadly as to include ministries, defines the term “state institution” broadly as to include ministries, departments of government, public offices, agencies, institutions, departments of government, public offices, agencies, institutions, statutory bodies and any company in which the government has a statutory bodies and any company in which the government has a controlling interest. That therefore, public officers are within the controlling interest. That therefore, public officers are within the scope of the Emoluments Commission's mandate. scope of the Emoluments Commission’s mandate. [26] The Respondent explained that it is for this broad definition of th [26] The Respondent explained that it is for this broad definition of the term "state institution" that even State organs (executive, legi a term “state institution” that even State organs (executive, legislature and judiciary) are amenable to the Emoluments Co and judiciary) are amenable to the Emoluments Commission s no JlO mandate even th m andate even though oug 1 thE y nr t~ I lot . ,lu V me not Included lllcludod in the definition of In the definition of Public officer" . “public officer". [27] h Respondent 't e W ’" tlera a r9 lK d “ * Emoluments Commission A Em olum ents Commission Acl, ct, argued that on the bas,·s ° " « » basis « , * „ 6(1) ol ,he f section 5( 1) of the the Em olum ents Commission llle Ernolurnents Commission equity 8nd efficiency in public sector remuneration . equity and efficiency in public sector remuneration. Further, that the pr ov1s1on enables the Ernolurnents Con1n1ission to Further, th a t the piovision enables the Emoluments Commission to · · regulate en1olument tate 1nst1tut1ons and State organs and reg ula te em olum ents within State institutions and State organs and s WI 11n ·tt . S . . . to curb disparities in salaries across different organisations that are to curb disparities in salaries across different organisations that are funded by the government. funded by the government. (28] The Respondent cited Article 265(2) of the Constitution to posit that [28] T he R espondent cited Article 265(2) of the Constitution to posit that all expenses of a State organ, State institution and public officer are all expenses of a State organ, State institution and public officer are a charge on the Consolidated Fund established under Article 200 of a charge on the Consolidated Fund established under Article 200 of the Constitution unless exempted by the provisions of the stated the Constitution unless exempted by the provisions of the stated Article 200 of the Constitution. Article 200 of the Constitution. [29] [29] In conclusion, the Respondent stressed that section 5(1) of the In conclusion, the Respondent stressed that section 5(1) of the Emoluments Commission Act, is consistent with the objective of the Em olum ents Commission Act, is consistent with the objective of the Emoluments Commission as envisaged under Articles 232 and Em olum ents Commission as envisaged under Articles 232 and 264( 1 ) of the Constitution. 264(1) of the Constitution. pETlTlONER' S REPLY PETITIONER’S REPLY .. 3 □ Tn e Petitioner's reply was filed on 17th April, 2025. It shall not be •;' c Tpe Petittoner’s reply was filed on 17th April, 2025, It shall not be recited because it is essentially a replica of the averments in the recited because it is essentially a replica of the averments in the petition and affidavit in support. He did not file skeleton arguments petition and affidavit in support. He did not file skeleton arguments or list of authorities in reply. or list of authorities in reply. THE HEARING THE HEARING (311 At the hearing on 11 th June, 2025 the Petitioner placed reliance on 131] At the hearing on 11th June, 2025 the Petitioner placed reliance on the petition, affidavit in support of the petition, list of authorities, and the petition, affidavit in support of the petition, list of authorities, and skeleton arguments, the reply and affidavit in support thereof· He skeleton arguments, the reply and affidavit in support thereof. He augmented with oral submissions, which were segmented into five augmented with oral submissions, which were segmented into five parts as follows: Constitutional contravention by section 5( 1) of the parts as follows: Constitutional contravention by section 5(1) of the Emoluments Commission Act; petitioner's locus standi in the matter; Emoluments Commission Act; petitioner’s locus standi in the matter; jurisdiction of the Court; response to the respondent's answer and jurisdiction of the Court; response to the respondent’s answer and prayer. prayer. [32) The submissions shall be recited as listed under the respective parts [32] The submissions shall be recited as listed under the respective parts Thus. as regards 'constitutional contravention by section 5(1) of the Thus, as regards ‘constitutional contravention by section 5(1) of the Emoluments Commission Act, the Petitioner submitted that the Emoluments Commission Act, the Petitioner submitted that the Constitution established Constitution established the Emoluments Commission and the Emoluments Commission and delineated its jurisdiction to chiefs, members of the House of Chiefs, delineated its jurisdiction to chiefs, members of the House of Chiefs, and public officers. That in enacting the Emoluments Commissi and public officers. That in enacting the Emoluments Commission Act Parliament has no latitude to go outside what hu Parliament has no latitude to go outside what has been Jl2 J12 provided for bv the Constitute in 5>Jluu support ct t*'is prnapie tne ,.. . c e c tea this ,',"urt ~ -...::... ... t~e case of Godfrey ‘ c e c :eo rv$ Court s dec s on in n e case of Godfrey ~ u1....,_ ~ or- ·~ '""" ' Malen,beka ~ Attorney General and Another~ , htch holds that M alem beka v Attorney General and Another" which nokis that 3 " e ' t cannot exceed the mandate come ec on t b\ the C a··,st tut on ...... hat therefore a ac .. 1r1a ... t ,e Corst t ... bon can onty be C 0’"'st'tut on. ^hat therefore a ac./ia ' t-e C o 's ::..: on can on y oe redressed b, a const1tutiona an1endn1ent and ""ot an orthnary Act of redressed b\ a ccnstitutior.a amendment and ~ot an ord'narx Acte* Parliament. Parliament. l33] The Petitioner n1aintained that b\ substituttng the tern, public [33] The Petitioner maintained that b\ substituting the term public officer \Ylth State Institutions·. section 5t 1) of the Emolun1ents Act officer with State Institutions', section 5(1) of the Emoluments Act expanded the En1olun1ents Comn1ission·s n-,andate. contra()' to the expanded the Emoluments Commission s mandate, contrary to the constrt.utional provisions. That this is because the terms public constitutional provisions. That this is because the terms public officer' and State institutions cannot be used interchangeably as officer' and State institutions cannot be used interchangeably as they are at cross-purposes according to their definitions under they are at cross-purposes according to their definitions under Article 266 of the Constitution. Article 266 of the Constitution. [34] Thus. ,vhile ·state Institutions· is a universal tern, encon1passing [34] Thus, while 'State Institutions' is a universal term encompassing among others. government ministries and departn1ents state among others, government ministries and departments state organs. public office. govemn1ent agencies and State-owned organs, public office, government agencies and State-owned .s just one of the constituents Enterprises, the term. ‘Public officer s just one of the constituents Enterprises. the term. ·Pubhc officer of the term ·state Institutions· Therefore the use of the term -Stalle of the term 'State Institutions' Therefore the use of the term State Institutions· in section 5( 1) of the Emoluments Act UlStead of P l ~ Institutions' in section 5(1) of the Emoluments Act nstead of public J 13 Jl.3 > officer office r' is an enhancement is an enhancement of fhQ c f th e Emoluments Commission's moluments Commission’s , ma ndate hence a contravention of the Constitution. mandate hence a contravention of the Constitution. [351 In support of this proposition, the petitioner cited this Court's ^ suPPort of this proposition, the petitioner cited this Court’s definition of ' public officer' according to the case of Mutambalilo v on of public officer according to the case of Mutambalilo v Attorney General1. Attorney General1. [36] Moving to the part regarding the Petitioner's locus standi in this [36] Moving to the part regarding the Petitioner’s locus standi in this matter, the Petitioner submitted that Article 2 of the Constitution read matter, the Petitioner submitted that Article 2 of the Constitution read with sections 8(3)(a) and 11 of the CCA confers upon him the locus with sections 8(3)(a) and 11 of the CCA confers upon him the locus standi to file this petition. standi to file this petition. [37] Further, the Petitioner submitted that Articles 1 (5) and 128(1 )(b) of [37] Further, the Petitioner submitted that Articles 1(5) and 128(1)(b) of the Constitution read with section 8(1 )(b) of the CCA clothe this the Constitution read with section 8(1 )(b) of the CCA clothe this Court with original and final jurisdiction to hear and decide on Court with original and final jurisdiction to hear and decide on matters alleging contravention of the Constitution, such as the matters alleging contravention of the Constitution, such as the [38] [38] subject petition. subject petition. In responding to the Respondent's Answer, the Petitioner submitted In responding to the Respondent’s Answer, the Petitioner submitted that the starting point in construing the Constitution is Article 267 of that the starting point in construing the Constitution is Article 267 of that the Constitution must be the Constitution, which guides that the Constitution must be the Constitution, which guides interpreted in accordance with the Bill of Rights. Further, the interpreted in accordance with the Bill of Rights. Further, the to highlight Petitioner cited Article 1 of the Constitution to highlight the Petitioner cited Article 1 of the Constitution supremacy of the Constitution; Article 8 of the Constitution supremacy of the Constitution; Article 8 of the Constitution to underscore national values and principles; and Article 9 underscore national values and principles; and Article 9 of the J14 J14 t, th th n ~tional values and national values and [' ] titi n l ut rn1tt ct that th, Hi has had occasion to thii> Court has had occasion to n id r th . 1 1 n u1 a r l thora of cases and has cons' 61 the foregomg provisions in a plethora of cases and has f 1 sun1n1 d up the constitutional interpretative principles in a nun,ber up the constitutional interpretative principles in a number in a number of cases which include the case of Steven Katuka and the Law of cases which include the case of Steven Katuka and the Law Association of Zambia v Attorney General and Ngosa A sso cia tio n o f Zambia v Attorney General and Ngosa Simbyakula and 63 Others5 • That one such principle provides that S im byakula and 63 Others5. That one such principle provides that the starting point is to look at the ordinary n1eaning of the words the starting point is to look at the ordinary meaning of the woids used in the constitution; that only when this approach produces used in the constitution; that only when this approach produces absurdity will the purposive interpretative approach be deployed. absurdity will the purposive interpretative approach be deployed. That the other principle requires a holistic consideration of all That the other principle requires a holistic consideration of all provisions that have a bearing on the subject. In the present case. provisions that have a bearing on the subject. In the present case, such provisions include Articles 265(3), 266, and 200 of the such provisions include Articles 265(3), 266, and 200 of the Constitution Constitution [40] That an examination of Articles 265(3), 266. and 200 of the [40] That an examination of Articles 265(3), 266, and 200 of the Constitution discloses that for an entity to qualify to be called 'publ~c Constitution discloses that for an entity to qualify to be called ‘public office', its emoluments and expenses must be a direct charge on the office’, its emoluments and expenses must be a direct charge on the Consolidated Fund. Therefore, not all entities fulfil this criteria and Consolidated Fund. Therefore, not all entities fulfil this criteria and Parliament is bound to stick to what the law is and not what Parliament is bound to stick to what the law is and not what it ought to be. to be. is ‘ ) T ie = 5 - - c - 5 - Com r S 'S c n e r e - ~ e r $ 2 c — s s : G r;: es ever . of the Emoluments sucnofiy o f the Emolumette .. Act of Partiament ec r -* a~ C^ * 3 I> Act or Parfemen: " T r e r c "oude p-oiic-fjrded Constitution. That - i ""a: • s s a . : a::c- o· me s ' s 5 e , : eoc~ o* r e soonerac> of the remacy of the : : me framers or c~. saoec o. r e ^-a-e^s or C o is tT r.o r g ~ s 'a re ~ ::r ~e Constitution o« - 'te e ‘ r r e Constitution =’- ~c o" r e ' o r ~am ""e2 ” ~o r e d e f ^ t t r of the terms 0 - c . c c~cer a~o : . : c ohdee a r n c r " ” o: "S'-eac of scea’\ "3 to ear* o r e ' ~ - ws .*m e r e def "tiem 0* o_o 0 o~'ce "0 jaes State o~oe 3 ~o cohsttutiora c~ce r e aefmtion o* rub 0 c r e e ' exc ^des nokcers o* State office _ ~ e 'e r'e 'me te~a re n re ta tio n of ooth te-s s -ar;c cao e as -: ea:Js tc an aosu-drt't Accord ngtv of Doth :e— 5 s " ac c oao e as t eaostc am acsu'dhv Rocc d ngl\ resort - _st be -aa to tre ourocs. e n~eroretato" wn ch ncludes 'esom "^w5t be "ac to r e zrrpcs .e re h re ta to ” v r ch ze ro e s 001< - : at the context a-a me sto- ca context o· the oo< a: the context 3"o 'me ~ ste'ca context o' the a,*. r43- T-e Petrtioner a so p aced re1 ance on me S ... oreme Court decisron 143' T "e Petitioner a so p aced ret ance on ‘me S ^ o re ^ e Court decsssor ... ttie case of Kambarage Mpundu Kaunda v The P~ fOC' the - r e case of K a m b a ra g e M o u n d u K a u n d a v T h e P e o p le ' fo r the argume-t mat me □ Jroos . e nterpreta~- sho kl be adop(ed s o m e " : r a : r e o r r e s .e hterp^etabo" s m - c be ad o p ted [44] Tne Petitioner stressec that paragraph ~ c* the Respondents of the Respogjenrs [441 T e Petitioner stressea that paragrapr. Affidavit ~ s-cccm c* r e -~s.ve' co-ceoes r a : section 5 of the Affidavit -swer concedes that secttan 5 al s ooort o: me Emoluments Co. . . issio~ Act d.ci not l"l'WTOr or reflect the Emoluments Commission Act did not mirror or reflect the letter of the constitutiona pfOVIU)n sought to gave effect n the constitutions pro, s m : sought to give effect to \ iJ5J T M Petitioner cited Paragrap„ 84 of ,5J The Petition er cited para ' of Zambia v Attorney G o f Zam bia v A ttorney General- ^ . 1 grap l 84 of th case of Law A ocl tfon rn a „ a enerals to posit that a /scun posil fta , , ^ L,onstitution can only be d . 'essed by a constitutional amendment constitution can only be redressed by a constitutional amendment re and not an Act of Parliament. an d not an Act of Parlian1ent. conceded on page 63 of the Record of Proceedings when he stated the Petitioner's fL1rtt1er argun,ent that the Respondent ^ was Petitioner's further argument that the Respondent It was conceded on page 63 of the Record of Proceedings when he stated that ·state Institutions· encon,passes all entities that operate under Government control or receive governn1ent funding. Government control or receive government funding. that 'State Institutions’ encompasses all entities that operate under [47] That therefore, it must be noted that not all entities fulfil the criteria [47] That therefore. it must be noted that not all entities fulfil the criteria stated. stated. [48] The Respondent informed the Court that he would rely on the [48] The Respondent informed the Court that he would rely on the [49] He submitted that the Emoluments Commission A ct is a creature of answer to the petition, list of authorities, and skeleton argum ents. Article 232(2) of the Constitution as it is the ‘prescription’ referred to answer to the petition, list of authorities, and skeleton arguments. [49] He submitted that the Emoluments Commission Act is a creature of Article 232(2) of the Constitution as it is the 'prescription' referred to in Article 232(2) of the Constitution. That the question is whether Section 5 of the Emoluments Commission Act exceeds the scope and scale of the Emoluments Commission's mandate. and scale of the Emoluments Commission’s mandate. Section 5 of the Emoluments Commission Act exceeds the scope in Article 232(2) of the Constitution. That the question is w hether [50] That in considering whether or not section 5 of the Emoluments [50] That in considering whether or not section 5 of the Emoluments Commission Act has extended the mandate of the Emoluments Commission, the Court should be guided by Article 267(1) of the Commission Act has extended the m andate of the Emoluments Commission, the Court should be guided by Article 267(1) of the accordance With th 9· .. Constitution Which Constitution which SmW enJoins enJoins . ill of Right . purposes, values a d . purposes, values and princip|es n Pnnc1ples. e it to . j it to interpret th sand in am e Constitution f n ° n - anner that promotes its “ * pr0™ '« »• ,he cons6“ [51] Further, that in line w·1th . urt er, that in line with its nre ■ . examine examine all provisions h „ its prPviou . .., · d s Ju gments, this Court must Judgments, this Court must t at have a bearing on the subject. 3 Pr° V1SIOns tha‘ have a bearing on the subject. [52] That the criterion for sub1·ect·1ng sublec,ing ™ “ * C,i" ri0n lhe Emolume„ ts an entity to the Emoluments Commission is if the ent·,ty's mission is if the entity’s emoluments and expenses are a emoluments and expenses are a charge on the Consolidated Fund. That State institutions are ar9e on the Consolidated Fund. That State institutions are amenable to the Emoluments Commission because according to amenable to the Emoluments Commission because according to Article 265 (2) of the Constitution, their emoluments and expenses Article 265 (2) of the Constitution, their emoluments and expenses are a charge on the Consolidated Fund. are a charge on the Consolidated Fund. [53] Further, the Respondent submitted that the term 'State Institution' [53] Further, the Respondent submitted that the term ‘State Institution’ reasonably includes all institutions that operate under Government reasonably includes all institutions that operate under Government control or receive public funding. That this recognises entities control or receive public funding. That this recognises entities beyond direct public service, namely quasi-government bodies, beyond direct public service, namely quasi-government bodies, regulatory agencies and parastatals. regulatory agencies and parastatals. [54] The Respondent submitted that Article 265(2) of the Constitution [54] The Respondent submitted that Article 265(2) of the Constitution provides that the expenses of State Organs, State Institutions and provides that the expenses of State Organs, State Institutions and Public Office shall be a charge on the Consolidated Fund regardless Public Office shall be a charge on the Consolidated Fund regardless of whether the Government is implementing this provision of the of whether the Government is implementing this provision of the Constitution. That the provision does not give any exceptions as it Constitution. That the provision does not give any exceptions as it Jl8 J18 ;s drafted in mandatory t is drafted in mandatory terms tk . erms. Therefore b . term, Therefore, by r . . „ e m , Y including the word State institutions', secta 5(, )ofttre E1 estate 1nstItut1ons' section 5(1) . aligns with Constitutional . t aligns with Constitutional intent on the regulation of public „ of the Emoluments Commission Act ,n ent on the regulation of public sector , . pay pay. [5S.j The Respondent sub : th at Parliament has the authority to :j The Respondent submitted that Parliament has the authority to ·u d m, e . th aws at implement constitutional provisions. define and structure I define and structure laws that implement constitutional provisions. That in light of this, section 5(1) of the Emoluments Commission Act That in light of this, section 5(1) of the Emoluments Commission Act in public sector ensures equity, efficiency and accountability ensures equity, efficiency and accountability in public sector themselves emoluments and that institutions do not dig themselves emoluments and institutions do not dig that into into institutions are not unsustainable debt, particularly when unsustainable debt, particularly when the institutions are not the [56] [56] financially stable. financially stable. In reply, the Petitioner reiterated that Parliament has no power to In reply, the Petitioner reiterated that Parliament has no power to expand the scope of the Emoluments Commission beyond that expand the scope of the Emoluments Commission beyond that which is contemplated by the Constitution. which is contemplated by the Constitution. jh e Petitioner disputed the proposition that the sole consideration [57] The Petitioner disputed the proposition that the sole consideration [5 7 ] for subjecting an entity to the Emoluments Commission is if its for subjecting an entity to the Emoluments Commission is if its emoluments and expenses are a charge on the Consolidated Fund. emoluments and expenses are a charge on the Consolidated Fund. That the correct criterion, in addition to the afore-stated, is if the That the correct criterion, in addition to the afore-stated, is if the entity is a 'public office' within the meaning of Article 266 of the entity is a ‘public office’ within the meaning of Article 266 of the Constitution. Constitution. J19 Jl9 coNSI DERA TION CONSIDERATION [58] We have considered the petition, affidavit and skeleton arguments [58] We have considered the petition, affidavit and skeleton arguments in support thereof. We have also considered the Respondent's in support thereof. We have also considered the Respondent’s response to the petition and supporting skeleton arguments. We response to the petition and supporting skeleton arguments. V\Je have equally given due consideration and are indebted to the have equally given due consideration and are indebted to the parties' spirited oral submissions. parties’ spirited oral submissions. [59] We shall not directly answer the question for interpretation posed by [59] We shall not directly answer the question for interpretation posed by the Petitioner as it is improperly before us. This is in light of our the Petitioner as it is improperly before us. This is in light of our the cases of Isaac Mwanza and Zambia Civil decisions in the cases of Isaac Mwanza and Zambia Civil decisions in Liberties Union (ZCLU) v Attorney General and 3 Others 9 and Liberties Union (ZCLU) v Attorney General and 3 O thers9 and Isaac Mwanza (suing as a member and in the interest of the Isaac Mwanza (suing as a member and in the interest of the Zambia Civil Liberties Union) v The National Assembly of Zam bia Civil Liberties Union) v The National A ssem bly of Zambia and Attorney General 10 in which we guided that a petition Zambia and Attorney General10 in which we guided that a petition is a mechanism solely for presenting allegations of constitutional is a mechanism solely for presenting allegations of constitutional breaches and not for posing questions for this Court's interpretation. breaches and not for posing questions for this Court’s interpretation. The mechanism for posing questions for this Court's interpretation The mechanism for posing questions for this Court’s interpretation is an originating summons. Accordingly, the Petitioner's question for is an originating summons. Accordingly, the Petitioner’s question for interpretation should have been posed through an originating interpretation should have been posed through an originating summons. summons. [60] As regards the petition, we agree with the parties that it is prop [60] As regards the petition, we agree with the parties that it is properly before us. This is in light of Article 2(a) read with Article 1 before us. This is in light of Article 2(a) read with Article 128(3)(a) of J20 J20 the const itution and section B(3 )( a) of the CCA which, relevant to lW constitution and section 8(3)(a) of the CCA which, relevant to th e present matter empowe rs every person who alleges that an Act ,ne present matter, empowers ever, person who alleges that an Act , . . .. 5(1) of the Emoluments Commission Act contravenes Articles of Parliament contravenes th C e onst1tut1on, to petition this Court for ol Parliament contravenes the Constitution, to petition this Court for h a er, t e Petitioner is alleging that section redress. In the present m tt redress. In the present matter, the Petitioner is alleging that section 5( 1) of th e Emoluments Commission Act contravenes Articles 232 (2 ) and 264 of the Constitution by unlawfully expanding the the scope mandate of the Emoluments Commission beyond mandate of the Emoluments Commission beyond the scope contemplated by the said constitutional provisions. contemplated by the said constitutional provisions. 232(2) and 264 of the Constitution by unlawfully expanding the Articles 232(2) and 264 of the Constitution namely, to determine Emoluments Commission in executing its mandate as conferred by under Article 242 thereof. It was enacted to operationalise the [61] The Emoluments Commission Act is a creature of the Constitution l611 The Emoluments Commission Act is a creature of the Constitution under Article 242 thereof. It was enacted to operationalise the Emoluments Commission in executing its mandate as conferred by Articles 232(2) and 264 of the Constitution namely, to determine emoluments of specified employees. Relevant to this petition, such employees are denoted as "public officers' (according to Articles 'State officer', ‘State officer’, 232(2) and 264(1) of 232(2) and 264(1) of 'Constitutional office holder' as well as 'Judge' (according to Article emoluments of specified employees. Relevant to this petition, such empioyees are denoted as “ public officers' (according to Articles ‘Constitutional office holder' as well as 'Judge' (according to Article the Constitution) and the Constitution) and 264(2) of the Constitution) 264(2} of the Constitution) [62] For convenience, both provisions are hereby reproduced. l621 For convenience, both provisions are hereby reproduced. (2): The Emoluments Commission shall determ ine, on the Article 232: (1) There is established the Em olum ents C o m m ission . Article 232: (1) There is established the Emoluments Commission. (2): The Emoluments Commission shall determine. on the recommendation of the relevant authority or Commission. tbe emoluments of oublic officers, chiefs and members of th8 emoluments of public officers, chiefs and m em bers of the ho use of recommendation of the relevant authority or C om m ission, the J21 ^ ^ ^ onstitutton Chiefs, a provided in this C c« , s. provided In .h i, t o * * , o, „ Br»,C()w or as Proscribed Arti cle 264 (1) ~ ~ubn ' Chiefs, shall be aid c ~car, Chief or ol 7 ” « «» S e K , “ hell such omof umonta :emb r of fho Hou ot relevant authorit Emoluments Commlao~ Commission arid~comme'!<!,d PY fht ~tormfoa..l!Y. fl,aa ----lUJl (2) The emoluments «jLS a g g l i t Ol 0 SOI, m a t M U ,, Rnn.lH.iMnnal office holder a d Commission a~ a IUd~e shall be dete;~i~~~c~for, Con,utuUonal otlice holder and a |udqa shall be determined by the Emolument* y the Emolument. Commission, as prescribed... [emphasis ours) prescribed ... (r,mphasih ouri;J ' mo uments Commissi lhe E l”he E m olum ents Com m ission Act not only established a framework on Act not only established a framework I to operat,onalise the E to operationalise the Emoluments Commission but went further, mo uments Commission but went further, -:-.9 a S~te officer s - • Qll; f I . - u a a s s s I [63) [63] t under section 5( 1) under section 5(1), to reaffirm the Emoluments Commissions 0 reaffirm the Emoluments Commission 's ' mandate in the following terms: mandate in the following terms: shubject. to the Constitution, the Commission shall determine, harmonise and Constitution, the Commission shall determine, IO~a •~e ~moluments of a chief and officer in a 1· armomse and rat· rat,onalise emoluments of a chief and officer in a State o rn a n Stat e organ or State mst1tut1nn. (emphasis ours) - ^ - ^ a a r L o r S t a t e institution (emphasis ours) l641 The Petitioner contends that section 5(1) of the Emoluments ]B4] The Petitioner contends that section 5(1) of the Emoluments Commission Act has not replicated the provisions of Articles 232 (2) Commission Act has not replicated the provisions of Articles 232 (2) and 264 of the Constitution, firstly, because one of the terms and 264 of the Constitution, firstly, because one of the terms adopted by section 5(1) of the Emoluments Act, 'officer in a State adopted by section 5(1) of the Emoluments Act, ‘officer in a State institution', does not appear in Articles 232(2) and 264 of the institution’, does not appear in Articles 232(2) and 264 of the Constitution. And, secondly, because the same term, is broader in Constitution. And, secondly, because the same term, is broader in scope than the term 'public officer' to the extent that it even scope than the term ‘public officer’ to the extent that it even embraces a 'public officer' as one of its subgroups. embraces a ‘public officer as one of its subgroups. [65] l651 lt is as a result of the foregoing dissimilarity that the Petitioner is It is as a result of the foregoing dissim ilarity that the P e titio ne r is a\\eging that section 5(1) of the Emoluments Commission Act has alleging that section 5(1) of the Emoluments C om m ission A c t has contravened Articles 232(2) and 264 of the Constitution. contravened Articles 232(2) and 264 of the Constitution. J22 J22 ► 36] Though conceding that section 5(1) of the Emoluments Act Is not a \f)61 1hough conceding that section 5( 1) of lhe E111olurnents Act is not a \Jerba\im rep\ica 01' Articles 232(2) and 264 of the Constitution, it is verbatim replica of Articles 232(2) and 2(34 of the Constitution, it is \he Respondent's case that lhe said section 5( 1) of the Er11oluments the Respondent's case that the said section 5(1) of the Emoluments Act is consistent with the constitutional fra111ework when read Act is consistent with the constitutional framework when read ho\istica\\y. That this is because the overriding consideration in holistically. That this is because the overriding consideration in determining if a sector is amenable to the mandate of the determining if a sector is amenable to the mandate of the Emoluments Commission, is if its remunerations and expenses are Emoluments Commission, is if its remunerations and expenses are a charge on the Consolidated Fund. And to this effect. Article 265(2) a charge on the Consolidated Fund. And to this effect, Article 265(2) of the Constitution designates the expenses of a ·state institution' of the Constitution designates the expenses of a ‘State institution’ as a charge on the Consolidated Fund. as a charge on the Consolidated Fund. [67] [67] I he Petitioner has not raised issue with the term ·an officer in a State I he Petitioner has not raised issue with the term ‘an officer in a State organ', which similarly appears in section 5(1) of the Emoluments organ’, which similarly appears in section 5(1) of the Emoluments Commission Act. Accordingly, we shall restrict ourselves to the term Commission Act. Accordingly, we shall restrict ourselves to the term 'an officer of a State institution' as regards the question whether or ‘an officer of a State institution’ as regards the question whether or not its presence in section 5 (1) of the Emoluments Commission Act not its presence in section 5 (1) of the Emoluments Commission Act contravenes Articles 232(2) and 264 of the Constitution. contravenes Articles 232(2) and 264 of the Constitution. [68] Foundational documents on the establishment of the Emoluments [68] Foundational documents on the establishment of the Emoluments Commission, the Draft Reports of the Technical Committee o Commission, the Draft Reports of the Technical Committee on Drafting the Zambian Constitution, do not help in the resoluti Drafting the Zambian Constitution, do not help in the resolution of this dispute. This this dispute. This is so because is so because they conceptualised they conceptuali the establishment and mandate of the Emoluments Commission establishment and mandate of the m J23 (origina\\y the National Fiscal and Emoluments Commission) as well (originally the National Fiscal and Emoluments Commission) as well as the rationale thereof, in very limited terms. To this effect, relevant as the rationale thereof, in very limited terms. To this effect, relevant portions of Clause 289 of the First Draft of the Report of the portions of Clause 289 of the First Draft of the Report of the "Technical Committee on Drafting of the Zambian Constitution Technical Committee on Drafting of the Zambian Constitution dated 30th April, 2012, states as follows: dated 30th April, 2012, states as follows: 289(1) There is established the National Fiscal and Emoluments 289(1) There is established the National Fiscal and Emoluments Commission of which the...additional functions, operations...shall Commission of which the ... additional functions, operations ... shall be provided for by or under an Act of Parliament. be provided for by or under an Act of Parliament. (2) Without limiting clause (1 ), the functions of the National Fiscal (2) Without limiting clause (1), the functions of the National Fiscal and Emoluments Commission shall include ... (b) determining the and Emoluments Commission shall include...(b) determining the emoluments of constitutional office holders and other public emoluments of constitutional office holders and other public officers as provided under this Constitution and any other officers as provided under this Constitution and any other law ... management, finances ... law...management, finances... . there are a number of The rationale for the Article is that The rationale for the Article is that, there are a number of , const1t_utional offices established to render public services. The constitutional offices established to render public services. The therefore, observes that it is necessary for the Committee, is necessary for the therefore, observes that Committee, Constitution to make provision for an institution that will provide Constitution to make provision for an institution that will provide guidance on the emoluments of constitutional office holders ... guidance on the emoluments of constitutional office holders... it [69] The Final Draft Report of the Technical Committee on Drafting [69] The Final Draft Report of the Technical Committee on Drafting the Zambian Constitution dated 30th December, 2013 whose the Zambian Constitution dated 30th December, 2013 whose contents on this aspect appear verbatim under Article 232 of the contents on this aspect appear verbatim under Article 232 of the Constitution, only changed the title of the Commission from the Constitution, only changed the title of the Commission from the 'National Fiscal and Emoluments Commission' to the 'Emoluments ‘National Fiscal and Emoluments Commission’ to the ‘Emoluments Commission’. Commission'. It It retained retained the mandate of the Emoluments the mandate of the Emoluments Commission as defined in the First Draft Report. Commission as defined in the First Draft Report. [70] The foregoing notwithstanding, the Constitution is adequate in aiding [70] The foregoing notwithstanding, the Constitution is adequate in aiding us resolve the dispute. This, we shall do by examining all us resolve the dispute. This, we shall do by examining constitutional provisions having a bearing on the subject matter i.e., constitutional provisions having a bearing on the subject ma J24 J24 the mandate of the mandate of the Emo^reits Ccnr ss c r ~ -= . . . . _ accordance Hrrh the accordance with the crojrec _n:e's:ofac - /anous dectSiCrs s^sr a s Z a r'n ia Hato'va Ccr~'-'£"c a Ss~* : : Sa v Martin Musonda & 58 Others: v Martin Musonda & 58 Others* ' =: All the relevant provis!. ORS o-;.a- -g _ - n, e s __ Alt the relevant provisions z - a - ' c should be constderea togetner as a should be constderec together as a *"o-'«s - : * : ? :: g * = a“ r-r. the objective of the Constru · o.. i'h · s - s.a-;s - o o ~ :::n::llY'Sion :* the objective of the Constitute-’* This - ea_-5 -a a~a : - the Constitution sh . :~e ~ the Constitution should oa segregated mom the z~*5”s a -_ considered alo e. considered alone. r a s_:,ac: *':* n e m ’e s c z - -,o.,e .. :,J;!'" ·;:; g .-e - d De s.e-g ~~!ea - s a . J. JiC. -·a.... .... / ::. c~ !:) - [71] With this imperative n ^.inc we s ta r’ey exa (71] With thts imperative Flf ....- ....,,._~ !),. i.,i11 • z r e t e — = - officer, which is the yardstick me cor sitj i c_s , a z t. ;* sen : - 5(1) of th e Emoluments Comn-155.0'1 ~ - - : :e-- s =-=--,a.-.:: 5(1) of the Emoluments Comm sskm Acl ~~e :e s decree Article 266 of the Constitution as Article 265 of the Constitution as oe !Xh oo,es no( anclUCle ••• a oerson holdina or actiri a - a ... a person holding or actmc - 3 z ~ c s z_: zz-=s _ z: _ : -z e a State officer, counc1 lo p a Constitutiona office ~r,oloet a JIIICige a State officer, c o u n c iilo ' a Constitutiona office zo ze- a .-d o e and a judicial officer s-:; ~ass u _-: and a ju d ic ia l o fficer a - z ' a s i z - " [72] [72] It is our considered / eu that :he z'oz-e’ de~ ~ :z r c' r e :e It is our considered -1 eH that the cro:;,e ... :Je= '":)(j 0( the i- z : officer cannot be strictly confnec to ts s -g - a* c e ^~ xn - - r e e 266 of 266 of the Constitution. Thrs the Constitution. Th s s zeca-se mere s’e oner DeCalJS€ thefe a,e Constitutional texts that speak to the ,s ues z ~ z z es "s r.-t Constitutional texts that speak to the values principles framework and therefore the totality of the enzese a - n me :e*~* framework and therefore the totaMty of the purpose is designed to achieve. Forthis ’ease” sum* texts s is designed to achieve. For this reason such iexis - * -sse «e consideration as we will do late* r the judgment consideration as we will do later .-i the •· dlllll!.._ m ,25 V v v 00,0 Ooiimt-.on ot .< yul'lu Otluoi pomlt- in. to f'uWu* otlico o oooto in whioli a pul'lu oltu 01 i:. nui('lov<!>l Aith'lo llf tho Constitution oottnosthotoim pul'lu otliv o ns ~" "'n".·t:~ """'~t' ~\\\~\ll\\\~\\ll nn\i \?'~\?neee nt\? a charu<? on 1 ■\n ottu-o wiu'sn emoluments ami eMxnim1 mo a climue on tM<’ C1.,ns1..,111.idttH.i h.n\d ,,, ,,thu1 p1,>ll, 1 lhc>,i puhlh· hind :111d lncludt>S :1 Consolidated fund oi othoi pu>m fUmd public Uitul and includes a St~tt:~ OU11.~t,, C1.,ntlUtutl"'""' ,,tth t> .:1nd an ,,Uh·c> 111 Utt> public sorvl(~O State Office, Constitutional ottU o and an office In the public service "'"~lud,n\] th.:\t ,,t ~ ,n,,1nhc,1 ,,f rt'-~''"""'"""'" including that ot a member ot a Commission 1u1'ta~1~ ·" ,1, ,~ ’v ' xjnin *s e. N' p 4 ] B\ tho foiegomg definition, the threshold toi qualification of ’public office is the tact ot such an office's emoluments and expenses hemp a charge on the Consolidated I und In othei words, any oftiee whose emoluments and expenses aie dlsbuised tiom the Consolidated Fund, ,s d ·pubhc on,'-~t¾', Consolidated Fund, is a 'public office', - [~, 5] A [/5] Accordingly, this this d. ccor 1ngly, leads us to tho 'Consolidated Fund'. 'Con~"'lidnh.1d Fund'. lends u~ to the) It is It is established under Article 200 ot tht~ Con~titution u, the following established under Article 200 of the Constitution in the following terms: terms: (1) There is establishod R Consolld to Fund tQ whlctl stu,n bG d ) T here is established a Consolidated f und to which shall ho credited the revenues and othor monlos Hccrulng tg thq IIMIYDt.a credited the revenues and other monies accruing to tho Treasury (2) Clause (1) does not apply to n,onlos- (2) Clause (1) does not apply to monies- (a) prescribed for a public fund established for a specific purpose; (a) prescribed for a public fund ostabllshod for n spoclflc purpose: or or (b) that a State organ or State Institution ,nny rotnin tor the purpe&Q (b) that a State organ or State Institution may retain tor the purpose of defraying the expense of the State organ or State lnstrt\lt of defraying the expense of tho State organ or State institution, as prescribed, (emphasis ours) prescribed. (e1nphos1s ours) [76] Article 265(2) of the Constitution specifies sectors whose aX?~- [76] Article 265(2) of the Constitution specifies sectors whose expenses " are disbursed from the Consolidated f und, It states as follows are disbursed from the Consolidated Fund. It st tes the expenses of a State organ, State institution and public office shall expenses of a State organ, State institution be a charge on the consolidated fund" be a charge on the consolidated fund" l 11 ll ,s c\ear \hat a 'State institution', the sector in which 'an officer in a ii is cluar that a ‘State institution’, the sector in which ‘an officer in a St ,te \nstitution' is employed, is expressly classified as one of the State institution’ is employed, is expressly classified as one of the sec\ors whose expenses are disbursed from the Consolidated Fund. sectors whose expenses are disbursed from the Consolidated Fund. \\ ,s del,ned under Article 266 of the Constitution as follows: U \s defined under Article 266 of the Constitution as follows: institution institution includes a ministry or department of the includes a ministry or department of the state state Government, a public officer, aaencv. institution. statutory body, Government, a public officer, agency, institution, statutory body. Comn,ission or Comoanv in which the Government or local Commission or Company in which the Government or local authorltv has a controllina interest. other than a State Organ. authority has a controlling interest, other than a State Organ. (emphasis ours) (rnnphasis ours) I he foregoing definition embraces two categories of entities with the \ ' 8| 1 he foregoing definition embraces two categories of entities with the { · B\ common denominator of Government con1n1on denominator of Government funding funding through through the the Consolidated Fund. Thus, one category comprises entities in the Consolidated Fund. Thus, one category comprises entities in the traditional Government service. These are traditional Government service. These are the ministries or the ministries or departrnents of Government and 'public officer'. It is common departments of Government and ‘public officer’. It is common knowledge that the operations of such entities are financed by the knowledge that the operations of such entities are financed by the Government. Governn1ent. - ] The other category comprises other entities. These are public The other category comprises other entities. These are public agencies. institutions, statutory bodies, Commissions or companies agencies, institutions, statutory bodies, Commissions or companies bLJt in which the national or local Government has a controlling but in which the national or local Government has a controlling interest. We opine that these entities similarly receive Government interest. We opine that these entities similarly receive Government funding. funding. (SO] The term ·controlling interest' is not defined in the Constitution but ^SQ] The term ‘controlling interest’ is not defined in the Constitution but n other legal sources. Overall, it means ownership, control n other legal sources. Overall, it means ownership, control or J27 J27 management of an entity. In this regard for example, Black's Law management of an entity. In this regard for example, Black’s Law Dictionary, Eighth Edition states as follows: Dictionary, Eighth Edition states as follows: control\\ng \nterest. Sufficient ownershio of stock in a company to controlling interest. Sufficient ownership of stock in a company to control oo\icv and manaaement: esp., a greater-than-50% control policy and management; esp., a greater-than-50% ownersh\p Interest in an enterprise. (emphasis ours) ownership interest in an enterprise, (emphasis ours) \8~ 1 \n the case of Bank of Zambia v Chibote Meat Corporation In the case of Bank of Zambia v Chibote Meat Corporation , the Supreme Court similarly highlighted this feature in the Limited11 Limited11, the Supreme Court similarly highlighted this feature in the following terms: following terms: .. . the question which was not discussed but which was staring the ...the question which was not discussed but which was staring the court In the face was whether those with a controlling voice and court in the face was whether those with a controlling voice and interest in a comoanv could not bind the corporate entities which interest in a company could not bind the corporate entities which in common lanauaQe they 'own' .... Thus, we affirm that those with in common language they ‘own’.... Thus, we affirm that those with superior claim and title such as the beneficial owners of the superior claim and title such as the beneficial owners of the company have overriding authority over the company's affairs. company have overriding authority over the company’s affairs. Even over the wishes of the Board of Directors. (emphasis ours) Even over the wishes of the Board of Directors, (emphasis ours) [82] From the foregoing, we deduce that the threshold for determining if [82] From the foregoing, we deduce that the threshold for determining if a sector of employment is amenable to the mandate of the a sector of employment is amenable to the mandate of the Emoluments Commission, is ultimately if its emoluments and Emoluments Commission, is ultimately if its emoluments and expenses are disbursed from the Consolidated Fund. Such entities expenses are disbursed from the Consolidated Fund. Such entities are listed under Article 265(2) of the Constitution as officers in a are listed under Article 265(2) of the Constitution as officers in a 'State organ', 'State Institution' and 'public office'. The list includes ‘State organ’, ‘State Institution’ and ‘public office’. The list includes entities mentioned in Articles 232 (2) and 264 of the Constitution if entities mentioned in Articles 232 (2) and 264 of the Constitution if not expressly covered under the umbrella of 'State Organ', 'State not expressly covered under the umbrella of ‘State Organ’, ‘State Institution' and 'Public office'. According to Article 232 of the Institution’ and ‘Public office’. According to Article 232 of the Constitution, these are: 'public officer', 'chiefs', and 'members a Constitution, these are: ‘public officer’, ‘chiefs’, and ‘members of the J28 J28 House of Chiefs'. Article 264(1) of the C House of Chiefs’. Article 264(1) of the . . onst1tut1on reinforces this Constitution reinforces this list. list. [83) On the other hand, Article 264(2) of the Constitution expands the list [33] On the other hand, Article 264(2) of the Constitution expands the list beyond the scope of Article 232(2) of the Constitution, to cover beyond the scope of Article 232(2) of the Constitution, to cover 'State officer', ·councillor', 'constitutional office holder', and 1udge'. 'State officer’, 'councillor’, ’constitutional office holder’, and 'judge'. Suffice it to add that all the entities listed above as being amenable Suffice it to add that all the entities listed above as being amenable to the mandate of the Emoluments Commission, are easily to the mandate of the Emoluments Commission, are easily identifiable since they have been defined under Article 266 of the identifiable since they have been defined under Article 266 of the Constitution. Constitution. [84] The criteria of extending [84] The criteria of extending the mandate of the Emoluments the mandate of the Emoluments Commission based on government funding as per Article 265(2)(3) Commission based on government funding as per Article 265(2)(3) of the Constitution, is well founded as it resonates well with the of the Constitution, is well founded as it resonates well with the guiding principles of public finance enshrined in Article 198 of the guiding principles of public finance enshrined in Article 198 of the Constitution which include transparent, accountable, equitable, Constitution which include transparent, accountable, equitable, prudent and responsible use of public resources. prudent and responsible use of public resources. [85] For completeness, relevant portions of Article 198 of the Constitution [85] For completeness, relevant portions of Article 198 of the Constitution are thus reproduced: are thus reproduced: 198. The guiding principles of public finance include the following: 198. The guiding principles of public finance include the following: (a) transparency and accountability in the development or (a) transparency and accountability in the development or formulation of macro-economic frameworks, socio­ formulation of macro-economic frameworks, socio economic plans and the budget; economic plans and the budget; (b) the promotion of a public finance system that ensures (b) the promotion of a public finance system that ensures J29 that ... th a t... lii) revenue raised nationally is shared equitably among (ii) revenue raised nationally is shared equitably among different levels of government; and... different levels of government; and... · (d) prudent and responsible use of public resources (d) prudent and responsible use of public resources CONCLUSION CONCLUSION l861 Ha\J,ng ho\istical\y considered all constitutional provisions that have [86] Having holistically considered all constitutional provisions that have a bearing on the mandate of the Emoluments Commission, we a bearing on the mandate of the Emoluments Commission, we deduce that the impugned term, 1an officer in a State institution' deduce that the impugned term, ‘an officer in a State institution’ adopted by section 5( 1) of the Emoluments Commission Act, is adopted by section 5(1) of the Emoluments Commission Act, is within the scope of Articles 232(2) and 264 of the Constitution. This within the scope of Articles 232(2) and 264 of the Constitution. This is because the impugned term is operationalising the criteria is because the impugned term is operationalising the criteria according to the Constitution that entities whose emoluments and according to the Constitution that entities whose emoluments and expenses are disbursed from the Consolidated Fund should be expenses are disbursed from the Consolidated Fund should be amenable to the mandate of the EmoluIT1ents Commission. amenable to the mandate of the Emoluments Commission. [87] Accordingly, section 5(1) of the Emoluments Commission Act is [87] Accordingly, section 5(1) of the Emoluments Commission Act is consistent with Articles 232(2) and 264 of the Constitution relating consistent with Articles 232(2) and 264 of the Constitution relating to the mandate of the Emoluments Commission. Consequently, the to the mandate of the Emoluments Commission. Consequently, the petition is dismissed in its entirety. petition is dismissed in its entirety. [88] Parties shall bear their respective costs . [88] Parties shall bear their respective costs. ............................................ ............................................................................. ................•. ~ ......•....•........... M. M. Munalula (JSD) M. M. Munalula (JSD) President - Constitutional Court President - Constitutional Court •••••••••••••••••••••••••••••••••••••••••• ~. M. Shi\imi AuN\. ShWimi Oeputv President -Constitutional Court Deputy President -Constitutional Court ••••••••••••••••• ••••••••••••••••••••••••• M. K. Chisunka M . K . Chisunka Constitutional Court J Constitutional Court J M. us e Constitutional urt Judge urt Judge t J. Z. Mulongoti J. Z. Mulon oti Constitutional Court Judge Constitutional Court Judge • • • • • • • . . . . . . . . . M.z. Mwandenga Constitutional Court Judge Constitutional Court Judge M. Z. Mwandenga ••••••••••• •••••••••••• ••••••••••••••••••• ···················- K. Mulife K. Mulife Constitutional Court Judge Constitutional Court