Law Association of Zambia and Ors v The Attorney General (2025/CCZ/0029) [2025] ZMCC 21 (25 November 2025)

IN THE CONSTITUTIONAL COURT OF HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: BETWEEN: UTION OF ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016 THE ALLEGED CONTRAVENTION OF ARTICLES 1(2), 5, 8, 9, 90, 91(1)(2) AND (3), 92(2)(F) AND (J) OF THE CONSTITUTION THE MISAPPLICATION OF ARTICLES 92(2)(F) THE AND CONSTITUTION 92(2)(J) OF THE DECISION OF THE CONSTITUTIONAL COURT IN MUNIR ZULU AND ANOTHER V ATTORNEY -GENERAL [2025] ZMCC 12 (27 JUNE 2025) THE ESTABLISHMENT, COMPOSITON AND OPERATION OF THE TECHNICAL COMMITTEE ON AMENDMENTS TO THE CONSTITUTION APPOINTED BY HIS EXCELLENCY THE PRESIDENT OF THE REPUBLIC OF ZAMBIA ON 2 OCTOBER THE LAW ASSOCIATON OF ZAMBIA p t PETITIONER NON-GOVERNMENTAL ORGANISATIONS' CO-ORDINATING COMMITTEE FOR GENDER AND DEVELOPMENT REGISTERED TRUSTEES BISHOP ANDREW MWENDA (AS EXECUTIVE DIRECTR OF THE EVANGELICAL FELLOWSHIP OF ZAMBIA BISHOP EMMANUEL CHIKOYA (AS SECRETARY -GENERAL OF THE COUNCIL OF CHURCHES IN ZAMBIA) FATHER FRANCIS MUKOSA (AS SECRETARY 2nd PETITIONER 3rd PETITIONER 41h PETITIONER R2 GENERAL OF THE ZAMBIA CONFERENCE OF CATHOLIC BISHOPS LCK FREEDOM FOUNDATION LIMITED AND 5th PETITIONER 6th PETITONER THE ATTORNEY GENERAL RESPONDENT BEFORE LADY JUSTICE MARIA MAPANI - KAWIMBE IN CHAMBERS ON 21sr AND 25TH NOVEMBER, 2025 For the Petitioner: Ms. L. C Kasonde of Messrs LCK Chambers For the Respondent: Mr. M. Muchende, SC, - Solicitor General of Zambia, assisted by Ms C. Mulenga - Ag. Chief State Advocate, Mr. C. Mulonda - Deputy Chief State Advocate, Mr. N. Mwiya - Principal State Advocate of the Attorney General's Chambers RULING Cases referred to: 1. Munir Zulu & Celestine Mukandila v Attorney General 2025/CCZ/0012 2. Gitirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [2014) eKLR 3. Kimokoti v Makale &4 Others [2024) KEHC 5970 (KLR) (Ruling) 4. Judicial Service Commission v Speaker of the National Asembly and Another [2013) KEHC 911 5. Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Another . Petition No. 154 of 2016 (2018 KEHC 9274 (eKLR) (20th June 2018) 6. Isaac Mwanza & Maurice Makalu v Attorney General 2023/CCZ/005 (Ruling) (29 March 2023) 7. South African case of National Treasury and Others v Opposition to Urban Tolling Alliance & Others 2012 (6) S 223(CC) R3 8. Embassy Supermarket v Union Bank of Zambia Limited (in Liquidation) SCZ No. 25 of 2007 9. Nkumbula v Attorney General (1972) ZR 204 10. Clare Akombelwa Mac Wangi v Katongo Bwalya and Attorney General Appeal No.108/2019 11 . Attorney General v Law Association of Zambia (2008) ZR 21 12. Michael Mbuyu Mutwana v AG -2021/CCZ/0038. 13. Allen v Sir Alfred Mc Alphine & Sons Ltd (1968) 1 All ER 543 14. Bia Tosha Distributions Ltd v Kenya Breweries Ltd and 6 Others Petition No. 50 of 2020 at paragraph 21 15. The Attorney General v Roy Clarke SCZ Appeal No. 96A/2004 Legislation referred to: The Constitution of Zambia Chapter 1 of the Laws of Zambia as amended by Act No. 2 of 2016 The Constitutional Court Act No. 8 of 2016 The Constitutional Court Rules, Statutory Instrument No. 37 of 2016 Other works referred to The Black's Law Dictionary, edited by Bryan A. Garner, 1 oth edition, Thomson West Publishers, USA (2014) INTRODUCTION [1] This Ruling is on the petitioner's notice of motion for interim relief by way of a conservatory order made pursuant to Articles 1, 128 and 267(4) of the Constitution as amended by Act No. 2 of 2016 (the Constitution) and Orders IV, rule 2 and X rule 2(1) and (2) of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 (the Rules). In the main petition , which was filed on 1 Jth November, 2025 , the petitioners seek to challenge the constitutionality of the establishment, composition and operation of the Technical R4 Committee on amendments to the Constitution appointed by the President of the Republic of Zambia on 2nd October, 2025, based on the contention that the constitutional standards articulated in the case of Munir Zulu & Celestine Mukandila v Attorney General 2025/CCZ/00 121 have been violated. [2] The notice of motion was filed ex parte with a certificate of urgency on 20th November, 2025 and was accompanied by a supporting affidavit and skeletion arguments of even date. The interim relief that was sought by the petitioners is as follows : 1. A conservatory order be granted maintaining the constitutional status quo ante, restraining the respondent and all persons acting under its authtority from continuing, implementing or giving effect to: (a) the establishment, sittings, consultations, decisions or operations of the Techn ical Committee on amendments to the Constitution appointed by the President of the Republic of Zambia on 2 October 2025 ("the Technical Committee"); (b) the Terms of Reference purportedly issued to the Technical Committee on 20 October 2025; and (c) any action, measure or step in the constitutional amendment process undertaken through the Technical Committee pending the hearing and final determination of the Petition. 2. A conservatory order suspending all ongoing sittings, deliberations, collection and analysis of submissions, drafting, RS reporting or decision-making activities undertaken by or through the Technical Committee, pending determination of this Petition. 3. A directive that these orders operate as constitutional conservatory relief under Articles 1, 2, 128 and 267( 4) of the Constitution and not as an injunction within the meaning of section 16 of the State Proceedings Act; 4. Costs of this application in the cause; and 5. Such further or other relief as this Honourable Court may deem just. [3] I ordered the application to be heard inter partes on 21 st November, 2025 and the respondent duly filed its opposition to the motion. THE PETITIONERS' CASE [4] The petitioners set out five grounds as the basis for the interim relief sought. Firstly, that the petition discloses a strong prima facie case of constitutional violations. The violations were itemised as contraventions of Articles 1, 5, 8, 9, 90, 91 and 92 of the Constitution as a result of the establishment, composition and operations of the Technical Committee. Creation of the Technical Committee without a gazetted legal instrument and our decision in Munir Zulu 1 were other cited factors in reference to this ground. [5] The second ground was that there is a real and imminent risk of irreparable harm if interim relief is not granted. Reasons cited as supporting this ground were the completion of the nationwide RG consultations by the Technical Committee and the accelerated manner in which the Committee was proceeding with consultations, which the petitioners reasoned , could render the petition nugatory as well as occasion irreparable harm to constitutional legitimacy and the constitutional order of Zambia. [6] Thirdly, the petitioners claim that the conservatory relief is necessary to preserve the authority and jurisdiction of this Court. It is the petitioners' view that if the alleged unconstitutional process is allowed to continue, the exclusive jurisdiction of this Court would be undermined due to the petition becoming an academic exercise. Interim conservatory relief was said to be necessary to prevent a fait accompli. [7] The fourth ground was that the relief sought is constitutionally permissible and not barred by the State Proceedings Act. Distinguish ing conservatory orders from injunctions, the petitioners pressed that the conservatory relief flows from Article 1 (2), 2, 28 and 267(4) of the Constitution. [8] Lastly, the balance of convenience and public interest were said to strongly favour the grant of the conservatory relief sought. The petitioners based this on what they termed as the 'broad-based loss of public confidence' in the on-going process and comparative jurisprudence which consistently affirms conservatory measures as R7 essential to preserving the effectiveness of constitutional adjudication by preserving the status quo. [9] The affidavit in support of the petitioners case was sworn by Mr. Lungisani Zulu in his capacity as President of the Law Association of Zambia (LAZ). He deposed that the Technical Committee concluded its nationwide consultations on 13th November, 2025 within an inadequate twelve day timeframe and that reporting and drafting stages were already underway. Based on this, the deponent offered that in the absence of an immediate intervention, the Technical Committee will finalise a draft constitutional amendment bill before the Court hears the petition. [1 O] The deponent went on to highlight what he considered would be the dangers to the constitutional equilibrium and the people's sovereign authority. He also alluded to the need to curb Executive overreach and that all this pointed to the public interest that favours the grant of the interim relief sought. Further that, the grant of the orders sought would not prejudice the respondent in any way as the constitutional status quo would be maintained. [11] In skeleton arguments in further support of the motion , the petitioners started by addressing the nature of a conservatory order and later went on to offer arguments for each ground set out in their notice of motion . A conservatory order was said to be a temporary RB constitutional safeguard designed to preserve the status quo pending the determination of a substantive constitutional question. It is issued to prevent irreversible harm, constitutional violations and to uphold the supremacy of the Constitution by ensuring that the court's final decision remains effective. This in turn promotes the broader public interest. The Kenyan cases of Gitirau Peter Munya v Dickson Mwenda Kithinji & 2 Others2 , Kimokoti v Makale & 4 Others3 , Judicial Service Commission v Speaker of the National Asembly and Another4 and Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Another5 were cited. [12] According to the petitioners, this Court in the case of Isaac Mwanza & Maurice Makalu v Attorney General6 asserted its power to issue conservatory orders. As regards the first ground, the petitioners argued that the petition had disclosed a prima facie case of constitutional violation and therefore justified the grant of the interim relief sought. The establishment of the Technical Committee was said to be unlawful as it was established without any constitutional or statutory authority or gazette legal instrument. The petition, it was pressed , also alleged that the establishment of the Technical Committee breached the binding principles in our decision in Munir Zulu 1 . R9 [13] The alleged Executive usurpation of constituent power reserved for the people, lack of independence and predetermined agenda of the Technical Committee and the serious procedural irregularities as well as exclusionary practices were also said to be establishing a prima facie case justifying the grant of a conservatory order. [14] Moving onto the second ground , the petitioners argued that allowing the Technical Committee to continue with its tasks presents a reasonable apprehension that if the conservatory order is not granted, the Technical Committee will go on to draft and present an amendment bill which, when tabled in Parliament, would have irreversible constitutional consequences notwithstanding that this Court subsequently finds the process unconstitutional. Pointing out the irreparable harm, the petitioners itemised it as the entrenchment of unconstitutional structures, undermining the sovereignty of the people, loss of public trust and loss of legitimacy in constitutional governance, among others. [15] On the third ground of preserving this Court's authority and jurisdiction , the petitioners posited that allowing the Technical Committee to proceed would undermine this Court's jurisdiction as granted by Article 128 of the Constitution as conclusion of their tasks would render this Court's decisions ineffective or an academic exercise. Arguing ground four, the petitioners made it clear that they RlO did not seek an injunction as proscribed in section 16 of the State Proceedings Act. In the petitioner's view, the interim relief sought arises from Article 1, 128 and 267(4) of the Constitution. [16) Lastly on ground five, the petitioners argued that the interconnected consideration of public interest, constitutional values and the balance of convenience favour the intervention of this Court in preserving the status quo until the substantive dispute is resolved. In addition to the Kenyan cases, the South African case of National Treasury and Others v Opposition to Urban Tolling Alliance & Others7 was cited to justify their assertion. THE RESPONDENT'S CASE [17) The respondent filed an affidavit in opposition and skeleton arguments dated 21 st November, 2025. The affidavit was sworn by Dr. Landilani Banda in his capacity as Vice Chairperson of the Technical Committee. He stated that the Technical Committee was appointed by the President on 2nd October, 2025 and the 25- member Committee began its sittings on 27th October, 2025, both physically and virtually, throughout the Republic to collect submissions from the general public. It had so far received submissions in excess of 11 ,000, had concluded its sittings and is in the process of finalising its draft report. Rll [18) In the skeleton arguments in further opposition to the notice of motion, the respondent set out four elements that the petitioners had to demonstrate for a conservatory order to be granted in line with the Kenyan case of Wilson Kaberia Nkunja v Magistrates and Judges Vetting Board & Another5 . On the first element, the respondent argued that the petition had slim chances of success as the Technical Committee was appointed pursuant to a constitutional provision and is a replication of the Technical Committee on Drafting of the Constitution of Zambia (TCDZC) appointed in 2011 . Further that, by appointing the Technical Committee, the Executive was implementing the decision of the Constitutional Court in Munir Zulu 1 . [19) It was posited that the prima facie case weighs in favour of allowing the Technical Committee to proceed and complete its mandate as it had received overwhelming submissions. Halting the operations of the Technical Committee pending the determination of the petition would amount to estopping the President from exercising his statutory powers. The case of Embassy Supermarket v Union Bank of Zambia Limited (in Liquidation)8 was said to dictate against this . [20) On the second element of public interest, the respondent argued that public interest, as espoused in Nkumbula v Attorney R12 General9 , would be prejudiced by a conservatory order. Pointing to the 11 ,000 individuals that have made submissions to the Technical Committee, it was contended that these individuals had a well founded legitimate expectation that their submissions would crystallise into a report. The case of Clare Akombelwa Mac Wangi v Katongo Bwalya and Attorney General10 was cited in support. [21] The final contention related to the timing of the application. The respondent argued that since the Technical Committee has concluded its sittings and is in the process of finalising its report, the petitioners have sought the conservatory order at a late hour. The bulk of activities having been already undertaken by the Technical Committee, there was no live dispute to warrant a conservatory order. The respondent concluded by urging that granting a conservatory order would be academic and would be contrary to the Constitutional Courts decisions in Attorney General v Law Association of Zambia 11 and Michael Mbuyu Mutwana v Attorney General 12 . HEARING [22] The matter came up for hearing on 21 st November, 2025. On behalf of the petitioners, their learned counsel, Ms. Kasonde, submitted that she would place reliance on the affidavit verifying the facts in the petition dated 17th November, 2025, the affidavit in support of R13 notice of motion dated 20th November, 2025, together with the skeleton arguments filed on the same day. She further submitted that the matters for determination in the notice of motion were as follows: a) Whether the petition discloses a prima facie case of constitutional violations? b) Whether there is a real danger of irreparable and irreversible harm to occasion on the petitioners if the status quo is not maintained? c) Whether the interim relief sought is necessary to preserve the authority, effectiveness and jurisdiction of this Court under Article 128 of the Constitution? d) Whether the public interest and balance of convenience favours the granting of the conservatory order sought? (23] In terms of the petitioners' skeleton arguments, she explained that the nature of a conservatory order had been described in detail in the Kenyan cases cited in support of the petitioner's case. That in the case of Wilson Kabaria Nkunja v Magistrates and Judges Vetting Board & Another, a three-part test on when to grant a constitutional conservatory order has been laid down, that is: - (i) whether a prima facie arguable case regarding alleged constitutional violation exists? R14 (ii) whether it is demonstratable that failure to grant relief will cause irreversible constitutional harm and render the substantive matter nugatory? (iii) whether there is proof that the relief sought is in the public interest, where constitutional supremacy favours maintaining the status quo? [24] On whether a prima facie case had been established , counsel reiterated the petitioners' position in the skeleton arguments stating that the petition filed on 17th November, 2025, in casu, had set out substantial and arguable violations of the Constitution under Articles 1 (2), 5, 8, 9, 90, 91 (1 ),(2) and (3), 92(2)(f) and U) of the Constitution. The alleged violations being: a) The unlawful establishment of the Technical Committee appointed by the President on 2nd October, 2025, where it was argued that the provisions relied upon by the President in making the appointments required supporting legal and constitutional framework. As such, Articles 92(2)(f) and U) of the Constitution could not be read in isolation of other constitutional provisions because the power therein does not exist in a vacuum. That the failure by the appointing authority to establish a framework amounted to a breach of the binding principles set out in the Munir Zulu 1 case. R15 b) It was further submitted that the President's appointment of the Technical Committee amounted to usurpation of the constituent power of the people of Zambia who are sovereign pursuant to Articles 5, 90 and 91 of the Constitution. That in consequence, the appointments made by the President had the effect of restructuring Executive power without proper constitutional authority. c) Counsel argued that the Technical Committee's composition lacked independence and that it was pursuing a predetermined outcome, which would breathe back life into the assailed Bill 7 of 2025. For the assertion , it was submitted that the Terms of Reference of the Technical Committee which were published on 20th October, 2025 mirrored the contents of the undesirable Bill 7 of 2025. [25] On the basis of paragraph 40 of the affidavit verifying the facts in the petition , the Electoral Reform Technical Committee (ERTC) report commissioned by the Executive was produced to show that several members of the ERTC are members of the current process and lacked independence. That the result was that the compromised membership of the Technical Committee clearly contravened the Court's judgment in the Munir Zulu case, which requires the constitution making process to be people driven as opposed to the R16 Executive which had overlooked principles of broad consultation , inclusiveness, transparency and independence. [26] Lastly, on justifying the petitioners' submission that they had established a prima facie case; counsel submitted that serious irregularities and exclusionary practices had been committed by the Technical Committee in pursuing its mandate. Referring the Court to paragraph 40 of the affidavit verifying facts in the petition and exhibits thereto, counsel submitted that statements had been made by several Civil Society Organisations (CSOs) that venue notices had been given late, the lack of translation facilities, submissions induced by payments, poor publicity, exclusion of rural communities and non-English speaking citizens in the assailed constitution making process. [27] Counsel further submitted that contrary to the Munir Zulu case, the twelve-day window in which members of the public were given to make their submissions was grossly insufficient. That in countering this valid observation, the respondent's inadequate response which had no substance was that the petitioners had inordinately delayed to challenge the process in Court. [28] Moving on to the ground of demonstrating real danger of irreparable and irreversible harm, counsel submitted that whilst the Technical R17 Committee was appointed on 2nd October, 2025, its Terms of Reference were only published on 20th October, 2025. That the Technical Committee was expected to produce its final report on 26th November, 2025. Given the 'lightning speed' at which the proceedings had progressed and the report writing , counsel submitted that the petitioners' application was clearly one of urgency because once the Technical Committee's report was submitted, the enactment process would proceed. Further, that once a bill is tabled before Parliament, it would be extremely difficult for the petitioners to challenge the content, which would have been derived from an illegitimate process. [29] In counsel's view, the petitioners had satisfied the test of demonstrating irreparable harm and if the interim relief was not granted, the petition would be rendered nugatory and an academic exercise. It was the petitioners' submission that the Court needed to preserve its authority and jurisdiction through a conservatory order. That anything to the contrary would undermine its judgment in the case of Munir Zulu 1 . [30) On the balance of convenience, counsel submitted that the application should be granted so as to maintain the status quo. That in order to arrive at such decision, the Court would be required to R18 evaluate three considerations, namely, public interest, constitutional values and the balance of convenience. With respect to public interest, counsel averred that what is at stake is not the individual interest of the persons who made submissions to the Technical Committee, but the greater constitutional governance consideration of supremacy of the Constitution. [31] With regard to the constitutional values espoused in Articles 8 and 9 of the Constitution, it was submitted that there is need to protect the national values of legality, separation of powers, human dignity, accountability and the rule of law. As such , the balance of convenience the Court needs to weigh is the comparative harm that each side would suffer. In this matter, it was averred that if the activities of the Technical Committee were not suspended in the face of an arguable case, the petitioners would suffer irreparable harm. [32] Counsel concluded by urging the Court to grant the petitioners' a conservatory order. [33] On behalf of the respondent, the learned Solicitor General, Mr. Muchende, SC opposed the petitioners' notice of motion by placing reliance on the respondent's affidavit in opposition and skeleton arguments filed on even date. R19 [34] The Solicitor General augmented the respondent's case by, firstly, addressing the issue of hierarchy within the Court averring that the appointment of the Technical Committee by the President followed the guidance of the full Constitutional Court given in the case of Munir Zulu1 . The result being that as a single judge I had been placed in an unenviable and awkward position , and had no jurisdiction to usurp the powers of the full Court. That in the premise, it was safer for the single judge to decline the petitioners' application for want of jurisdiction. [35] Turning to the substantive arguments, the Solicitor General emphasised that a conservatory order was intended to preserve the status quo. That the current status quo is that the Technical Committee was appointed on 2nd October, 2025 as evidenced by the respondent's affidavit in opposition had been collecting submissions from the members of the public on the constitutional amendment process as guided by the Court in the Munir Zulu1 judgment. In that regard, it was argued that the status quo that the petitioners were asking the Court to preserve and to this extent, the respondent agreeing with them, was for the process to be allowed to continue. He drew a distinction between status quo and status quo ante - which the petitioners had not asked of the Court, R20 explaining that the latter refers to restoring the situation to what it was before the status quo. [36] The Solicitor General argued that for the grant of a status quo ante one must wait until the matter is heard in full because ultimately the main relief it grants is to reverse what happened. That based on the petitioners' application , the Court could not grant the order because they were seeking to close the stable door when the horse had already bolted. The idiom entailing that the petitioners' application was inordinately and inexcusably delayed. It was filed a month after the Technical Committee commenced its work and even after being fully aware of the stages of the consultative process. That the work was almost at the tail end and the petitioners who had slept on their rights only had themselves to blame. [37] The Solicitor General further argued that the petitioners failed to show that they had an arguable prima facie case demonstrating that there were no serious issues to be heard in the main matter. That the averment in the petition that the President's invocation of his power under Article 92(2)(f) and U) of the Constitution was unconstitutional did not prove an arguable case. Two reasons, were offered to support the argument, firstly that a literal interpretation of the cited provision clearly allows the President to appoint persons to perform special duties and the Technical Committee had been R21 constituted for that purpose which is not ordinary. That those duties were stated in the Munir Zulu 1 judgment at paragraph 49 and 51 requiring the President to replicate or come up with something better or of similar magnitude like the TCDZC appointed by late President Sata in 2011 . [38] That by and large, this is what the President did in accordance with paragraph 49 of that judgment and in the Solicitor General's view, the President or Executive is responsible for facilitating the process of initiating amendments to the Constitution. Further, that there is no other legal framework upon which a Technical Committee can be appointed and no other authority other than the President can appoint members to a Technical Committee. [39] The second reason being that the provisions relied on to constitute the TCDZC , in 2011 , largely mirrored the provisions of the Constitution, which the President relied on in constituting the current Technical Committee. That the TCDCZ was appointed pursuant to Articles 33 and 44 of the Constitution of Zambia as amended by Act No. 18 of 1996, and by comparison , Article 33 which was replaced by Article 91 (1) of the Constitution and Article 44 which was replaced by Article 92 of the Constitution show through the two constitutional regimes, that there is prima facie no violation by the President of Articles 91 and 92 of the Constitution. R22 [40] On the petitioners' allegation that the Technical Committee's operations were tainted with irregularity and exclusionary practices, and by extension that the speed at which the Technical Committee was conducting its mandate was alarming; the Solicitor General contended that the petitioners had not pointed to any constitutional provision which details the modus operandi of Technical Committees. [41) That in any event the Court in Munir Zulu1 did not go into the granular details of the mechanics and/or modus operandi including the time frame within which the Technical Committee should do its work. The Solicitor General added that "speed" is a relative term and there are no hard and fast rules which define the pace or number of days that the Technical Committee would be required to spend on consulting the people. As far as he was concerned, the Technical Committee would have benefited from the petitioners if they had made submissions as opposed to spending time to stop its work. [42) On whether the petitioners had proved the requirement of irreversible harm, the Solicitor General contextualised his argument by averring that the work of the Technical Committee was only meant to collate submissions and views of the Zambian people on the constitutional amendments. Its outcome would have no binding R23 effect nor would it translate ipso facto or ipso Jure into constitutional amendments. [43] That in essence, the process of the Technical Committee was not an end in itself but merely a means to an end, and only a precursor to the furtherance of Article 79 of the Constitution , which embeds more detailed processes to be complied with before amendments to the Constitution can be made. Consequently, that at this stage there was neither reasonable cause for fear on the part of the petitioners nor any apparent or real danger of irreparable and irreversible harm upon which the Court could grant a conservatory order. [44] Counsel also dismissed the petitioners fear that once a bill is tabled that they would have no opportunity to challenge as being speculative because neither the petitioners nor the Court had a crystal ball to foretell that the process will run into a train wreck. Further, that there was no need to draw the Court into speculative arguments on the perceived future that the Technical Committee would be presenting Bill 7 as a fait accompli when there was no evidence to suggest that the Technical Committee was going around the country to sell or market that Bill. [45] In the Solicitor General's view, the Terms of Reference of the Technical Committee were clear and there was no mention of Bill 7. That however, thematic areas had been developed by the Executive R24 to gauge the pulse of the people and this was done in line with the Munir Zulu1 judgment. The import was that the Executive was required to put proposals to the people and hear them out. Further, that the process was not a blank cheque where anything goes but rather facilitated under thematic areas where people are heard, themes discussed and adopted by the people. This process it was asserted was not irregular and comparison was drawn to exhibit LB2 in the respondent's affidavit in opposition where it was shown that the TCDZC invited members of the public to debate a draft Constitution. [46) It was averred that in line with the 2011 process, the Executive made proposals to show that the process of initiating constitutional amendments lies with it and must be undertaken in a structured way. That thereafter, the people can make comments and the Executive must be allowed to carry out its mandate as guided in the Munir Zulu 1 judgment. That this was the norm in 2011 and nothing new had been added to the current constitution making process. [47) In concluding, the Solicitor General prayed to the Court to decline the petitioners' application for a conservatory order for the reason that the petitioners had failed to show that they had an arguable prima facie case. In his view, it was desirable for the Court to maintain the status quo, that is, for the constitution consultative R25 process to continue even as the Court awaited the petitioners to demonstrate what is at variance with the Constitution through the petition . That what the Executive had done thus far vyas guided by the Munir Zulu 1 judgment and the President had exercised power in the same way it was exercised in 2011 on the constitution amendment process. That therefore, the public interest and balance of convenience tilted in favour of allowing the process undertaken by the Technical Committee to proceed because there was no basis at this stage to halt the process. [48] In further augmenting the respondent's case, learned counsel, Ms. Mulenga on the issue of inordinate and inexcusable delay referred the Court to the case of Allen v Sir Alfred McAlphine & Sons Ltd14 where it was held that: What is not inordinate delay must depend on the facts of each case. Inordinate delay is inexcusable as a rule until a credible excuse is made out. The natural inference would be that it is inexcusable. [49] She contended that the petitioner had delayed to present its application to Court and no credible excuse had been given for the delay which was over a month. On the strength of the respondent's affidavit in opposition and skeleton arguments, counsel averred that the Technical Committee had concluded its sittings and was in the process of finalising its report, which stood at 95% of its mandate. R26 That the petitioners who had delayed bringing their matter to Court could not be aided in their quest. [50] Learned counsel, Mr. Mulonda merely concurred with the earlier arguments offered on behalf of the respondent. [51] In further augmenting the respondent's submissions, learned counsel, Mr. Mwiya drew the Court's attention to the case of Wilson Kaberia Nkunja5 where it was stated that: To those erudite words I would only highlight the importance of demonstration of real danger and evident, true and actual and not fictious, so much so that it deserves immediate remedial attention or redress by the Court. Thus, an allegedly threatened violence that is remote and unlikely will not attract the Court's attention. [52] Counsel went on to contend that the petitioners' application did not show that there was any imminent danger for a conservatory order to be granted because the alleged fear was not supported by any evidence. That the alleged threatened danger was, therefore, too remote to be entertained by the Court by any stretch of imagination. For the assertion , counsel cited the Kenyan case of Bia Tosha Distributions Ltd v Kenya Breweries Ltd and 6 Others14 where it was stated that: Thus , conservatory orders are not ordinary civil law remedies but remedies provided under the Constitution, the supreme law of the land, indeed the appeal emanates from the learned Judges exercise R27 of discretion under Article 23(3) of the Constitution which empowers the court to inter a/ia grant conservatory orders. [53] Counsel went on to contend that the grant of a conservatory order must emanate from the Constitution itself and from the petitioners' application , they had failed to show the actual provisions of the Constitution upon which their application was predicated. That none of the provisions they cited in support of their notice of motion provided for the relief of a conservatory order as distinguished from the Kenyan Constitution that has embedded the grant of conservatory orders in Article 23(3) of that Constitution. Counsel stated in reference to exhibit LB2 of the respondent's affidavit at page xviii showing that the responsibility for initiating a constitution amendment process lies with the Government and he urged the Court to take the consideration into account. He concluded by reiterating the respondent's prayer and for an order for costs. [54] In reply and on behalf of the petitioners, Ms. Kasonde on the hierarchy of authority within the Constitutional Court argued that by favouring the petitioners notice of motion , the Court would be upholding its judgment in the case of Munir Zulu 1 • She emphasised that the process undertaken by the Technical Committee was not broad based , independent and that the appointments made by the !?resident were unlawful in the absence of a legal framework. R28 [55] Counsel argued that the Solicitor General's argument that the conservatory order sought was to preserve the status quo was disingenuous, because the purpose of a conservatory order entailed that "do not proceed, do not go, stop right there". That this was the relief the petitioners were clearly seeking in their application . [56] On the argument of inordinate and inexcusable delay advanced by both the Solicitor General and Ms. Mulenga, counsel contended that the action taken by the petitioners in the matter was done in reasonable time and the application was not inordinately filed. That it was unusual that the Technical Committee was moving at lighting speed because this defeated the purpose of a broad and wide consultative process. She further contended that sustaining the argument that there has been inordinate delay in filing the petitioners' application would set a very dangerous precedent where Zambians who may wish to seek relief in this Court would be unduly bound. In any event, the Constitution is the supreme law of the land and it had been provided under Article 118 that technicalities should not defeat the ends of justice. [57] Counsel dismissed the argument that 95% of the Technical Committee's work had been done because what this meant in essence is that it has not completed its work. As such, it was argued that there was still time to arrest the process in order to avoid the R29 violation of the Constitution. That in the result, the argument buttressed the petitioners' case which was of utmost urgency because the process could be halted. [58] On the Solicitor General's argument that the petitioners had failed to establish an arguable prima facie case, Ms. Kasonde relied on her earlier submissions and the cases cited in support thereof, and reiterated that the Technical Committee's process was flawed because the people had not been broadly consulted. That the input given to the people must be people driven and not Executive led from inception according to the Munir Zulu 1 judgment. On the Solicitor General's argument that the Executive was responsible for guiding the public, counsel contended that it showed that the process was not open and in contradiction of the Munir Zulu 1 judgment. (59] It was further argued that the Solicitor General's contention that the President used provisions in the Constitution in appointing the Technical Committee of 2025 similar to those used in 2011 on appointing the TCDZC and thereby legitimised the process, was inconsequential. That as argued by the petitioners in the petition and affidavit verifying facts in the petition, the mere fact that the previous appointments under the TCDZC had not been challenged did not justify the current unconstitutional process. R30 [60] On the Solicitor General's argument that there is no constitutional provision that dictates how the Technical Committee should operate, counsel submitted that it fortified the petitioners' position that the appointment of the Technical Committee without a supporting legal framework was illegal. Regarding the Solicitor General's argument that the speed at which the Technical Committee is moving is relative, and there is no hard and fast rule on pace, counsel contended based on exhibit LB2 that the TCDZC process took two years. Further that in the case of Munir Zulu 1 , the Court allegedly guided what is to be considered as the appropriate standard for broad consultation. [61] With regard to the contention that the petitioners failed to show irreversible harm if the conservatory order is not granted , counsel argued that the affidavit verifying facts in the petition showing that the Executive acted contrary to the guidance of the Court in Munir Zulu 1 , proved that irreparable harm would be committed if Bill 7, which is still on the table in Parliament is considered. That there was strong support for the assertion because the Terms of Reference of the Technical Committee mirrored those of Bill 7 and the danger was that it would be passed at lighting speed in Parliament. [62] Counsel submitted that the ongoing constitution making process had a predetermined outcome placing reliance on paragraph 40 of R31 the affidavit verifying facts in the petition , where the petitioners exhibited the transcript of the Solicitor General's interview at Radio Phoenix FM. Therein he said that it is the Executive which determines what the people should be consulted on. That the process is not a blank cheque and there is need for guidance from the Government. This, it was argued, was contrary to the Munir Zulu 1 judgment. Counsel dismissed the argument that the TCDCZ restricted its work to receiving comments only on the draft constitution that had been presented to the people for consideration. [63] In response to Mr. Mwiya's argument, counsel submitted that case law is good law and there is no need to cite a law to obtain a conservatory order which is a necessary tool in protecting the Constitution from being violated. That the case before Court was too important and if activities of the Technical Committee were allowed to continue, the result would threaten to alter the very fabric of the Constitution. [64] Counsel concluded by reiterating the petitioners' prayer. CONSIDERATION AND DETERMINATION [65] I have considered the petitioners' notice of motion , the supporting affidavit and skeleton arguments, the petition, petitioners affidavit verifying the facts in the petition, the respondent's affidavit in R32 opposition and skeleton arguments, and the oral arguments of counsel presented in support and in rebuttal to the issues herein. The petitioner's notice of motion for a conservatory order was made under the following provisions: Article 1 of the Constitution which provides that: 1. (1) This Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency. (2) An act or omission that contravenes this Constitution is illegal. (3) This Constitution shall bind all persons in Zambia, State organs and State institutions. (4) The validity or legality of this Constitution is not subject to challenge by or before a State organ or other forum. (5) A matter relating to this Constitution shall be heard by the Constitutional Court. [66] In addition, Article 128 of the Constitution which defines the Court's jurisdiction as follows: (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear- (a) a matter relating to the interpretation of this Constitution; (b) a matter relating to a violation or contravention of this Constitution; (c) a matter relating to the President, Vice-President or an election of a President; (d) appeals relating to election of Members of Parliament and councillors; and (e) whether or not a matter falls within the jurisdiction of the Constitutional Court. (2) Subject to Article 28 (2), where a question relating to this Constitution arises in a court, the person presiding i•n that court shall refer the question to the Constitutional Court. (3) Subject to Article 28, a person who alleges that (a) an Act of Parliament or statutory instrument; (b) an action, measure or decision taken under law; or (c) an act, omission, measure or decision by a person or an authority; contravenes this Constitution, may petition the Constitutional Court for redress. R33 (4) A decision of the Constitutional Court is not appealable to the Supreme Court. [67] The petitioner also cited Article 267(4) of the Constitution, which states that: 267 ... (4) A provision of this Constitution to the effect that a person, an authority or institution is not subject to the direction or control of a person or an authority in the performance of a function, does not preclude a court from exercising jurisdiction in relation to a question as to whether that person, authority or institution has performed the function in accordance with this Constitution or other laws. [68] Let me point out that Article 1 of the Constitution is a foundational provision and it establishes the Constitution as the highest law in our country, which all persons and institutions are bound by. The provision embeds the principle of constitutional supremacy, reinforces the rule of law and supports institutional accountability, while protecting the Constitution itself from challenge on its validity. [69] Article 128 of the Constitution vests the Constitutional Court subject to Article 28, with original and final jurisdiction over constitutional matters namely, the interpretation of the Constitution, the resolution of constitutional violations or contraventions, resolution of election disputes and the determination of jurisdiction of this Court. This places the Constitutional Court as the central pillar in the resolution of constitutional disputes. R34 [70] The effect of Article 267(4) of the Constitution is that it anchors judicial oversight over the actions of persons who are not subject to the direction or control of others. In so doing , the provision ensures that persons who are appointed to act independently should not use their independence as a shield to commit unconstitutional actions. [71] I am circumspect that as a single Judge of the Constitutional Court and only dealing with an interlocutory application , I am not vested with jurisdiction to hear constitutional disputes on the merits. The petitioners though cited Articles 1, 128 and 267(4) of the Constitution , which has necessitated a little consideration on my part as I deal with the question whether their application is grounded in those provisions. So far, I have not been able to decipher that these provisions have any bearing on their application. [72] The petitioners in their application have heavily relied on Kenyan cases to support their case. In fact, it was argued on their behalf that case law is good law and that there is no need to point any specific law for the relief they seek. I do not share the petitioners' position for the reason that while comparative jurisprudence may illuminate important legal principles, it cannot, without more, be transposed wholesale into our constitutional order. In the present matter, the petitioners relied heavily on Kenyan authorities addressing the grant of conservatory orders. This they did without R35 considering the fact that the precedents relied on were interpreting express provisions under the Constitution of Kenya, 2010, specifically, Articles 23(2)(c), 23(3), 10(2), 89(7)(a) and 257 together with section 23A of the Supreme Court Act of Kenya and the Supreme Court Rules, 2020. These provisions it must be emphasised have no corresponding equivalent in the Zambian Constitution. [73] In my considered view, to urge this Court to adopt reasoning grounded in constitutional texts and procedural rules that do not exist in our jurisdiction risks undermining the supremacy of our Constitution. As was aptly stated by the Supreme Court in the case of The Attorney General v Roy Clarke15 international instruments and foreign cases are only of persuasive value. Consequently, they cannot be the basis upon which parties may seek to enforce their rights under the Zambian legal system. [74] Be that as it were, the petitioners in support of their application for interim relief (conservatory order) further placed reliance on Orders IV rule 2 and X rule 2(1) and (2) of the Rules. [75] Order IV rule 2 of the Rules provides that: (2) A petition shall disclose- (a) the petitioner's name and address; (b) the facts relied upon; (c) the constitutional provision allegedly violated; and (d) the relief sought by the petitioner. R36 (76] must immediately remark that the petitioners' reference to the provision is misplaced in terms of the application before Court. (77] Order X rule 2(1) and (2) of the Rules states that: 2. (1) Despite any provision to the contrary, the Court may hear and determine an application for an interim order. (2) An application under subrule (1) may be made ex parte and the Court may grant such order ex parte on such terms as the Court may consider reasonable. (78] It follows that Order X rule 2 of the Constitutional Court Rules provides the Court power to grant interim relief. It does not specifically itemise the nature of interim orders that the Court can make. I would, however, consider that a conservatory order may fall within the broad class of interim orders that the Court can grant. Therefore, in exercising my jurisdiction as a single Judge, I have a responsibility to use my discretion judiciously. That is to say, I must be satisfied that this application presents a deserving case in which I can grant the petitioners the interim relief of a conservatory order. [79] From the authorities cited in the Ruling, the purpose of a conservatory order is to preserve the substance of a dispute between the parties. In granting these conservatory orders the Kenyan courts have considered three tests. The first relates to whether there is an arguable case in the matter; secondly, whether the case would be rendered nugatory if the conservatory order is not granted and whether it is in the public interest to grant the R37 conservatory order. Also clear from these cases is that conservatory orders ought to be granted on the inherent merit of a case bearing in mind public interest, constitutional values and proportionate magnitudes as well as priority levels attributable to the relevant causes. [80] In the case at hand , the substance of the main petition relates to a challenge of the constitution making process, namely the establishment of the Technical Committee, its terms of reference and its activities including consultations, reporting and drafting of a constitution amendment bill. The petitioners argue that this stands to be tampered with should the Technical Committee proceed with its work. Noting the fact that the Techn ical Committee has concluded consultations and appears to be in the stages of rendering a report and possibly, tendering a draft amendment bill, the petitioners are apprehensive that the main petition will be rendered nugatory and an academic exercise. [81] In addressing the first test, I align myself with the views expressed by my learned sister Mulongoti, JC in Isaac Mwanza and Maurice Makalu v Attorney General6 that what I have to assess at this stage is whether the petitioners have established an arguable prima facie case? I have to be cautious so as not to delve into the main issues, the determination of which is reserved for the trial of the petition . R38 [82] I have perused the petition and the affidavit evidence brought before me by the petitioners. Appreciated holistically, the two questions which the petition raises concern the exercise of powers by the President in establishing and appointing the Technical Committee and the way the Technical Committee has gone on to collate views from members of the public. The provisions of the Constitution marshalled to support the petitioners' application include Articles 5, 8, 9, 90, 91 and 92 of the Constitution. [83] None of these provisions lay out minutely the manner in which the Constitution making process ought to be undertaken and this explains why the petitioners heavily relied on our decision in Munir Zulu 1 in impugning the establishment of the Technical Committee and its operations. [84] I have deliberately reproduced the parties arguments in the Ruling at great length in order to show how far apart the parties are in this dispute. In short, there broadly appears to exist real controversy between the parties on the following : a) Whether the President incorrectly or correctly invoked his power under Article 91 (2)(f) and U) of the Constitution when he constituted the Technical Committee? b) Whether Articles 1 (2), 5, 8, 9, 90, 91 (1 )(2) and (3) of the Constitution were contravened by the President? R39 c) Whether the Executive breached the Munir Zulu judgment? [85] Given the law on what a prima facie case has been defined to mean, I have no doubt that the issues raised above require the Court's attention . [86] The second consideration is whether the petitioners will suffer irreparable harm and prejudice if the conservatory order is not granted? I must be careful at this point in determining harm and prejudice at this prelimary stage. This is because the provisions of the Constitution allegedly breached are yet to be subjected to a legal examination. I have however, observed that the conservatory order sought is drafted in very broad strokes. In essence, if granted, it has the effect of stopping the constitution making process that is the subject matter of the main petition in a way that could be dispositive of the case in its entirety. As a single judge sititing and exercising jurisdiction under the Constitution as provided in Article 129(2) of the Constitution, I cannot pronounce myself in a way that will affect the substratum of the matter on the merits. [87] From the manner in which the parties presented their respective cases, it was quite obvious that they strayed into the merits, which I must not concern myself with at this stage. The irreparable harm that the petitioners fear is that if the process of the Technical ' . R40 Committee is allowed to continue then their petition will be rendered nugatory. From where I sit, it is not apparent that this will be the result. Apart from submitting that the Terms of Reference of the Technical Committee appear to be aligned to Bill 7 of 2025, the petition seems to perceive that the final work of the Technical Committee is that which has already been impugned in Bill 7. [88] In my view, the damage or threat to the Constitution that the petitioners allege must be so real that the Court should not unmistakenly overlook it. As far as I discern from the material before me, the petitioners have failed to demonstrate that they stand to suffer irreparable damage if the conservatory order is not granted. The process that they complain of is difficult to assess at this point because it involves an ongoing process with no perceptible result. [89] On to the third consideration, that is question where the balance of convenience rests in the matter, I find it necessary to define what is meant by "public interest", which the petitioners allege to be the bedrock of their notice of motion and ultimately their pettion. The Black's Law Dictionary 10th Edition defines public interest to mean: The general welfare of the public that warrants recognition and protection and it is something in which the public as a whole has a stake; especially an interest that justifies governmental regulation. R41 [90] It follows, that, the role of public interest in an application for a conservatory order serves the interest of the public. A cursory perusal of the relief sought by the petitioners in the main petition shows that it is almost identitcal to that stated in their notice of motion, albeit in a summarised manner. In fact, during the hearing of the notice of motion , their counsel sought to rely on their affidavit verfifying facts in the petition dated 17th November, 2025. This raised concern on my part because by introducing evidence from that affidavit, the petitioners' were in essence attempting to prematurely contest their case on the merits. [91] As I have stated above, I have no jurisdiction to hear any matter in this Court on the merits as that power lies with the Court pursuant to Article 129(1) of the Constitution. Suffice to state that the grant of a conservatory order should not create new conditions favourable to a party before the conclusion of a matter. The main concern of a conservatory order being that it should be granted in public interest. In my view, therefore, and taking into account the reasons given thus far in the Ruling , I am satisfied that the balance of convenience lies with public interest and that is allowing the Technical Committee to continue with its work. R42 [92] My determination, therefore, yields that the pet_itioner~ have not successfully met the threshold for the grant of a conservatory order as sought in their notice of motion. [93] That being the case, their application is unsuceesful and accordingly dismissed. [94] The parties shall bear their own costs. Dated 25th day of November, 2025 f7(Y,. ,r. ,. , .... , .. , ,~l~Yl~~a.. J:i.,LJ,., . ,. , .. . . ... . M. Mapani-Kawimbe Constitutional Court Judge