Public Protector for the Republic of Zambia v Indeni Petroleum Refinery Company Limited (1 of 2018) [2019] ZMCC 6 (28 May 2019)

IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) SELECTED JUDGMENT NO. 16 OF 2019 (484) 2018/CCZ/ROOl IN THE MATTER OF: THE PUBLIC PROTECTOR ACT ~O. 15 OF AND IN THE MATTER OF: THE COMMISSION FOR ACT CAP 39 OF THE LAWS OF ZAMBlA (REPEALED) lNVESTIGATIONS AND -~ f- '-lfllfY ~---- IN T E ,M,'\'FlJIER, OF: 'T :>F • ORDER t;l, A ..., ~UPREME COURT 1999 EDITIO~ 53 OF THE RULES OF THE (WHITE j L..:,B MAY 2019 • BOOK) A.e:Gt$'t ~v , ...,, • S'• r>o 90 - - IN THE MATTER OF: AN APPLICATION FOR JUDICIAL REVIEW BETWEEN: THE PUBLIC PROTECTOR FOR THE REPUBLIC OFZAMBlA APPLICANT AND INDENI PETROLEUM REFINERY COMPANY LIMITED RESPONDENT CORAM: Chibomba, PC, Sitali, Mulenga, Mulembe, Munalula, JJC on 16 th January, 2019 and 28 th May, 2019 For the Applicant: Mr. E. S. Silwamba, SC, and Mr. J. Jalasi Messrs. Eric. Silwamba, Legal Practitioners Jl Jalasi and Linyama For the Respondent: Mr. B. Mbilima In-House Counsel Indeni Petroleum Refinery Company (485) JUDGMENT Si tali , JC delivered the Judgment of the Court. Cases cited : 1. Zambia National Independence Z. R . 115 Party Limited Holdings (UNIP) v The Attorney-General and United National ( 1993 -1994) 2. Kelvin Hang ' andu and Company (A firm) v Wehby Mulubisha (S. C. Z. Judgment No. 39 of 2008) (Secretary (1995-1997) Z. R. 91 3. Derrick Chitala Attorney-General of The Zambia Democratic Congress) v 4. Ridge v. Baldwin (1963) 2 ALL ER 66 5. The Attorney-General Dr . Ludwig Sondashi , MP (2003) Z. R. 42 v The Speaker of The National Assembly and 6. Frederick Titus Jacob Chiluba v The Attorney-General 7. ZNPF Board v Attorney -General and Others 8. The People v The Registrar (1983) Z . R. 140 Industrial Relations Court , Ex (2003) ZR 153 of the Parte Zambia Revenue Authority Jack Shamwana (2007) Z. R 132 v The Attorney-General 9. Edward (1988-1989) Z . R 10. Vacher and Sons Ltd v London Society of Compositors HL 18 Nov 11. Samuel Miyanda v Raymond Handahu 1994) (S. C. Z. Judgment No.6 of 12. Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) Z. R. 138 13 . Nkumbula v Attorney -General 14. Hakainde Hichilema Others 2016/CC/0034 (1972) Z. R. 204 and Another v Edgar Chagwa Lungu and 4 15. Lubunda Ngala 2017/CC/R002 and Another v Anti-Corruption Commission 16. South Dakota v North Carolina 17 . Steven Katuka (1940) 192 USA 268:48 ED and Others and Others v Attorney-General Z. R. 226 (2016) 18. Kehar Singh v State (Delhi Admin) 1988 SCR Supl (2) 24 J 2 19 . The President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA A (CC) 20 . The Public Protector (SA 420 SCA) v Mail and Guardian Ltd and Others 2011 (4 (486) 21. Ex Parte Chairperson of the Constitutional of the Republic Assembly : In Re of South Africa Certification 1996 4(4) 744(CC) of the Constitution 22. Minister ZASCA 15 of Home Affairs v Public Protector (308 / 2017 ) 2018 23 . Panny Pule and Others v The Attorney-General Selected Judgment No . 60 of 2018. and Others 24 . Godfrey Miyanda v The Attorney -General SCZ Judgment No . 9 of 2009 . 25. Milford Maambo and Others v The People Selected 31 of2017 Judgment No. 26 . Zambia National Commercial Bank Pie v Martin Musonda and other s, Selected Judgment No. 24 of 2018 27 . Amanda Muzyamba Chaala (Administratrix of the estate of the late Florence Mwiya Siyunyi Chaala) v Attorney -General and Mukelabai Muyakwa, Supreme Court Judgment No. 6 of 2012 28 . The South African Broadcasting Democratic Alliance and Others Corporation and Others v (393/2015) [2015] ZASCA 156 Legislation cited : 1. The Constitution 2 . The Public Protector Act No. 15 of 2016 3 . The High Court Act , Chapter 27 of the Laws of Zambia of Zambia , Chapter 1 of The Laws of Zambia This is a constitutional reference from the High Court of Zambia at Ndola. It was referred to us pursuant to the pr ovisions of Article 128 (2) of the Constitution as amended by the Constitution of Zambia (Amendment) Act No. 2 of 2016 (hen ceforth referred to as the Constitution). J 3 (487) According to the ruling of the lower Court, the question for our determination is whether or not in terms of the provisions of Articles 243 and 244 of the Constitution, the office of the Public Protector ranks pari passu with the High Court and therefore its decisions are not amenable to judicial review. The background of this reference is that on 23 rd November, 2017 the Respondent herein filed an ex-parte application for leave to apply for judicial review of a decision of the Applicant at the Ndola District Registry of the High Court of Zambia. On 13th March, 2018 the Applicant herein filed in the same Ndola District Registry a notice of intention to raise issues in limine (preliminary issues); summons for an order to refer matter to the Constitutional Court together with an affidavit and heads of argument in support of summons for an order to refer matter to the Constitutional Court of Zambia. On 27 th March, 2018 the High Court of Zambia sitting at Ndola delivered a ruling in which the learned Judge ordered that the matter be referred to the Constitutional Court for the determination of the question raised. The Court stayed the judicial J 4f (488) review proceedings before it pending the determination by the Constitutional Court of the said question. The Applicant filed heads of argument m support of this reference on 20 th September, 2018. In the heads of argument , Counsel for the Applicant began by addressing the question whether the Public Protector is amenab le to judicial review by the High Court of Zambia. It was submitted in that regard that unlike the office of the Investigator -General, the Public Protector is an independent office created by Article 243 of the Constituti:>n. That the High Court, on the other hand, was created oy Artic le 133 of the Constitution as amended an d that Article 134 spells out its jurisdiction . Counse l submitted that although Article 134 vests unlimited jurisdiction in civil and criminal matters in the High Court, that jurisdiction is not limitless as held by the Supreme Court in Zambia National Holdings Limited and United National Independence Party (UNIP) v The Attorney-Genera1 r1J and in Kelvin Hang'andu and Company (A firm) v Wehby Mulubisha. 121 Counsel proceeded to argue that j u dicial review lies against inferior courts and tribunals and against any persons or bod ies J S (489) which perform public duties or functions. The cases of Derrick Chitala (Secretary of the Zambia Democratic Congress) v Attorney -General 131 and Ridge v Baldwin 141 in which it was held that "as a general proposition judicial review now lies against inferior courts and tribunals and against any persons or bodies which perform public duties or functions " were cited in support. Counsel further cited the cases of Attorney-General v The Speaker of the National Assembly and Dr. Ludwig Sondashi, MP l in which it was held that the High Court of Zambia has constitutional jurisdiction to hear applications for judi cial review in matters involving Parliament. They also cited the case of Fredrick Titus Jacob Chiluba v Attorney -General 161 in which the decision of the National Assembly on the issue of the removal of the former President's immunity was entertained by the Court. Counsel proceeded to submit that in terms of Article 244 (3) (a) of the Constitution, the Public Protector can bring an action befor e a court and that an action can also be brought against the Public Protector but contended that the action cannot be by way of judicial review. J 6 (490) Regarding the question whether or not the Public Protector is an inferior court or tribunal, Counsel cited the provisions of Article 244 (4), (5) and (7) of the Constitution and argued that Article 244 (4) guarantees the professional independence of the Public Protector . Counsel drew an analogy between the office of Public Protector and that of Director of Public Prosecutions by setting out the historical constitutional provisions regarding the independence of the OPP in the performance of the functions of that office. Counsel submitted that the analogy with the office of tJ:·_e Director of Public Prosecutions was important for putting into conte xt th e independence of the office of the Public Protector. Counsel submitted that of all the constitutional office holders provided for in Articles 176 to 184 of the Constitution, namel y, the Attorney -General, the Solicitor-General, the Director of Public Prosecutions and the Public Protector , only the Public Protector enjoys judicial functions. Counsel further submitted that the office of Public Protec tor and that of High Court Judge are created by the Constitution and that the Public Protector has the same powers as those of the High J 7 (491) Court of Zambia. Counsel contended that the two institutions therefore rank pari passu. Counsel drew our attention to the High Court case of ZNPF Board v Attorney -General and Others 171 in which it was held that the Industrial Relations Court, which at the time was created by Act of Parliament, was inferior to the High Court for purposes of judicial review. Counsel further cited the cas ,e of The People v The Registrar of Industrial Relations Court , Ex parte Zambia Revenue Authority 181 which was decided after the enactment of Article 91 (1) by the Constitution of Zambia (Amendment) Act No. 18 of 1996 which included the Industrial Relations Court to the Judicature of the Republic of Zambia. In that case, the Supreme Court held that the High Court had no power to review the orders or judgments of the Industrial Relations Court. Counsel further submitted that the Public Protector is not amenable to judicial review by the High Court because the legal regime which governs the appointment and removal of a Judge is the same as that of the Public Protector. J 8 • (492) Counsel proceeded to su bmit on the rules of statutory interpretation and cited the case of Edward Jack Shamwana v The Attorney-General 191 wherein the dictum from Vacher v London Society of Compositorsl lOJ was cited to the effect that: . .. that in construing all other written , as in "Now it is a universal rule and construing that would ordinary sense of the words is to be adhered to, unless lead to some absurdity, or some repugnance or inconsistency with the rest of the and ordinary so as to avoid absurdity and inconsistency, sense of the words may be modified, , the grammatical but no further ." the grammatical in which case instrument, instruments statutes Counsel cited, among other cases, the case of Samuel Miyanda v Raymond Handahu 111l wherein the Supreme Court held that the construction of a statute in statutory interpretation is to be fou nd in the intention of the legis lature which in turn is to be ascertained by taking the words in their natural, literal and usual sense. Lastly, the case of Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others 1121 was cited wherein it was held, inter alia, that the primary ru le of interpretation is that words should be given their ordinary grammatical anc1 natural meaning and that other princip les of interpretation should only be J 9 • (493) resorted to if there is ambiguity in the natural meaning of the words and the intention cannot be ascertained from the words used by the Legis lature. In conclusion, Counsel submitted that the Public Protector is not amenable to judicial review proceedings as judicial review lies only against inferior courts and tribunals and against persons or bodies which perform public duties or functions. It was contended that the office of the Public Protector is not inferior to the High Court of Zambia because according to Counsel, Articles 243 , 244, 245, 246, 247 and 248 of the Constitution of Zambia clearly demonstrate that the office of the Public Protector and the High Court of Zambia rank pari pa.ssu. At the hearing of the matter, State Counsel Silwamba augmented the Applicant's written heads of argument and submitted that the Applicant seeks this Court's interpretation of the question whether judicial review can lie against the Public Protector when judicial review can only lie against inferior tribunals. State Counse l submitted that the comparison made by the Respondent between the office of the Public Protector and that J lO (49 4) of the Auditor-General was misplaced because while the Auditor General enjoys security of tenure like a High Court Judge , only the Public Protector can exercise powers akin to those of a High Court Judge including the power to proceed against a person for contempt of Court under Article 244 (5) of the Constitution. State Counsel argued that as the powers of the Public Protector and those of a High Court Judge rank pari passu , judicial review is not available against the Public Protector. Stat e Counsel further submitted that since under Article 244 (5) of th e Constitution , the Public Protector can exercise the same powers as those of the High Court, it is the Applicant's position tha t the High Court cannot sit to issue the prerogative writs of mandamus, certiorari and prohibition against the Public Protector . When asked by the Court if he had any other authority to support the Applicant's assertion that the Public Protector ranks at par with the High Court apart from Article 244 (5) of the Constitut ion, State Counsel Silwamba stated that he did not. He stated that the provisions of Article 244 (5) are not couched in very cheerful terms but argued that that is a reality we have to deal with. J l l • • (495) State Counsel Silwamba further submitted that the South African cases cited by the Respondent are distinguistable from this case because one cannot litigate on a draft bill or proposed legislation in this jurisdiction as held in the case of Nkumbula v Attorney -General . 113 ) That on the other hand, under the 1993 interim Constitution of South Africa, there was a schedule which contained constitutional principles under which a draft bill could be taken to Court to examine whether it complied with the interim Constitution. State Counsel conceded in conclusion that he had not seen any specific provision in the Constitution which ranks the Public Protector the same as the High Court or whether judic :al review can be issued against that office. The Respondent filed heads of argument on 13 th December, in which Counsel for the Respondent submitted that this application turns upon a referral from the High Court seeking a determination of whether or not in terms of Articles 243 and 244 of the Constitution, the office of the Public Protector ranks pari passu J l2 "' • (496) with the High Court and hence its decisions are not amenable to judicial review. Counsel submitted first, that this Court should adopt both the literal and the purposive approach when interpreting the prov1s1ons of the Constitution which are before us, because adopting a literal interpretation alone would lead to absurdity. Second ly, that the correct interpretation of the constitutional provisions based on the purposive approach is that the Public Protector is not a court of law and therefore does not rank pari passu with the High Court in terms of Articles 243 to 248 of the Constitution. Counsel submitted that the Public Protector does not exercise judicial power nor is the Public Protector's function adjudicative. He argued that the Public Protector's juris::liction is different from that of the High Court as the Public Protector is merely an independent office that carries out investigations of decisions taken or omitted to be taken by a state institution in the pe rformance of an administrative function. He further submitted that although the office of the Pu blic Protector is new in Zambia, this Court has established princip les on how to interpret J l3 . - (497) provisions of the Constitution in a manner that gives effect to the intention of the Legislature. Counse l cited the case of Hakainde Hichilema and Another v Edgar Chagwa Lungu and Others 114l wherein according to Counsel, it was held that when construing statutory provisions, the words used in the statute mus t be given their ordinary meaning and that the literal rule of inte :-pretation must be applied un less doing so would result in absurdity. Counsel also cited the case of Lubunda Ngala and Another v Anti -Corruption Commission 1151 in which we referred to the case of South Dakota v North Carolina 1161 and held that in interpreting constitutional provisions , the Constitution must be read as a whole and that no single provision must be isolated from the other provisions bearing on the subject matter. That all provisions bearing on the subject matter must be considered and taken into account in order to give effect to the greater purpose of the instrument. Counsel submitted that in Steven Katuka (Suing as Secretary General of UPND) and Law Association of Zambia v Attorney General and Others 1171 this Court held that the J 14 ., . (498) purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose and that requires the court to ascertain the meaning and purpose of the provision having regard to the context and historical origins, where necessary. Submitting on what constitutes ascertaining the provisions of a statute, Counsel cited the Indian case of Kehar Singh v State (Dehli Admin) 118 > quoted in the Lubunda Ngala t15 > case wherein the Court in India stated that: of the language "If the words are ambiguous , uncertain or any doubt arises as to the terms employed , we deem it as a paramou .nt duty to put upon a rational meaning . We then the the necessity which gave examine the Act as a whole . We examine legislature the rise to the Act. We look at the mischief which intended to redress. We look at the whole situation and not just one -to-one relation . We will not consider any provision out of the framework of the statute ." legislature Counsel urged us to adopt both the literal and purposive approach in interpreting Articles 243 and 244 of the Constitution and submitted that to interpret the two constitutional provisions literally by equating the Public Protector with the High Court would lead to absurdity and would not give a rational meaning to the intention of the Legislature. J 15 • -· . (499) In contending that the Pub lic Protector is not at par with the High Court, Counsel cited the South African case of The President of the Republic of South Africa and Others v South African Rugby Football Union and Others 119l wherein the Constitutional Court of South Africa stated that the office of the Pub lic Protector is one mechanism of constitutional control aimed at establishing and maintaining efficient, equitable and ethical public administration which respects fundamental rights and 1s accountable to the broader public. Counsel further cited another South African case of The Public Protector v Mail and Guardian Limited and Others 1201 to press the point regarding the importance of the institution of the Public Protecto r wherein the Supreme Court of Appeal of South Africa held that: KThe office of the Public Protector provides what will often be a last defence against bureaucratic in publi c office oppression , and against corruption and malfeasance that that are capable of institution loses an indispensable itself undermined , the nation guarantee. " falters or finds constitutional the nation . If is an important institution. insidiously destroying It Counsel went on to submit that in analyzing the reason why the Constitution has conferred the Public Protector with :he same powers as the High Court in ce r tain instances under Article 244 J l6 (500) (5), we should consider the history, rationale and context of the provision. Counsel submitted that before the office of the Public Protector was created, its predecessor office , the Com□ission for Investigations was accountable to the executive and depended on the executive to enforce its decisions. The Commission for Investigations also had to seek permission from the executiv e to commence certain high profile investigations in terms of section 8 and 21 of the repealed Commission for Investigations Act. Counsel contended that one of the major weaknesses of the office of th e Investigator General was the lack of a proper enforcement mechanism of the recommendations which the office ma <ie. Counsel argued that the Investigator General relied upon other agencies to enforce their recommendations and that in most cases its recommendations were not followed through . Counsel submitted that the Legislature extended the powers of the High Court to the Public Protector in summoning witne s ses, and enforcing decisions to ensure efficiency and effective inv estigation and implementation of the orders of the Public Prote ctor. Tha t given that legislative history, the mischief which the Legis iature J 17 • (501 ) intended to cure in giving the Public Protector some of f::1e powers of the High Court was first the ineffectiveness of the Public Protector in enforcing its decisions and secondly, to delink it from interference from the executive over which the core func:ion of the Public Protector might touch. Counsel submitted that n::> mischief would arise from subordinating the Public Protector to the jurisdiction of the High Court. Counsel further submitted that Article 244 (5) was enacted in order to foster the independence and boost the efficiency of the Public Protector and also to provide for an effective mechanism of investigating and enforcement of orders. Counsel urged this Court to contextualize the provisions of Articles 243 and 244 of the Constitution bearing in mind the history and rational e of those particular provisions. While agreeing with the Applicant's submission that the High Court's unlimited jurisdiction is not liniitless as held in the Zambia National Holdings Limited 111 case and the Kelvin Hang 'andu 121 case , Counsel disagreed with the Applicant 's submission that the Public Protector is not amenable to judicial J l8 • (502) review on the ground that the Pu b lic Protector is independent and exercises the same powers as the High Court and therefore ranks pari passu with the High Court. Counsel submitted that the office of Public P:-otector is inferior to the High Court and is therefore amenable to judicial review notwithstanding that it is an independent office which is vested with limited powers of the High Court. Counsel submitted that the office of Public Protector was created in order to ensure good governance and integrity and to promote constitutional democracy as the Constitution specifically provides for the independence and powers of the Public Protector as the guard of guards. Counse l submitted that both the office of the Public Protector and the High Court are creatures of the Constitution and that Article 119 of the Constitution vests judicial authority in the Courts, which authority shall be exercised by the Courts in accordance with the Constitution and other laws. Counse l further submitted that the jurisdiction of the High Court provided for under Article 134 of the Constitution is not limited to exc lude matters that are before the Public Protector or Jl 9 (503) which have been settled by that office and that the Pubhc Protector is not exempted from the jurisdiction of the High Court. He contended that to argue otherwise would be to read words into the Constitution. Counsel went on to submit that the High Court's functions are adjudicative while those of the Public Protector are investigatory in nature and that Article 245 (a) of the Constitution limits the power of the Public Protector to investigate a matter which is before a court or which relates to an officer in the Judicial Service. Counsel submitted that there 1s no corresponding limitation on the powers of tlhe High Court regarding the jurisdiction of the Public Protector. Counsel submitted that Article 244 (4) regarding the independence of the Public Protector which the Applicant had relied upon sho u ld be read in the light of Article 267 (4) which provides that: "A provision authority or institution a person or an authority preclude a court question as to whether the function performed other laws ." of the Constitution to that a person , the effect is not subject to the direction or control of in the performance of a function does not to a has or in relation that person, authority or institution in accordance with this Constitution jurisdiction from exercising J 20 (504) Counsel submitted that the issue before the Court below, was not whether or not the Public Protector had the powers to render an order in the manner envisaged by the Constitution , or whether or not the office was independent, but whether the Public Protector's pow e rs were exercised legaily and rationally . Counsel contended that the provision prov iding for the independence of the Public Protector does not preclude it from being am enable to review by the High Court. Counse l argued that the ind ependence envisaged by the Constitution must be contextualised in order to give purpose to the constitutional provisions. Counsel further contended that according to Article 244 (1), the core duty of the Public Protector is to investigate an action or decision taken or omitted to be taken by a State institution in the performance of an administrative function. He cited the definition of State institution as stated in Article 266 of the Constitution. He argued that courts are out of the ambit of the functions of the Public Protector and that there was therefore no apprehended mischief which would cause the Legislature to oust the jurisdiction of the High Court over the Public Protector. J 21 (505) Counsel submitted by way of comparison that the Public Protector in South Africa is provided for under section 118 of that country's Constitution as a chapter 9 institution with the sole purpose of ensuring that there is an effective public service which maintains a high standard of professional ethics. He cited the South African case of Ex Parte Chairperson of the Constitutional Assembly: In Re Certification of th e Constitution of the Republic of South Africa 121 1 in support. Counsel submitted that the Public Protector in South Africa is granted wide powers to investigate the grievances of members of the public into any conduct of state affairs and to report on such conduct and take remedial action in order to strengthen constitutional democracy in the Republic in terms of section 181 of the Constitution of South Africa. Counsel further submitted that the functions and powers of the Public Protector of South Africa are far wider than tl:ose of the Public Protector of Zambia in that the Public Protector of South Africa can investigate any conduct of state affairs, including conduct of the President while the Public Protector of Zambia is J 22 (506) precluded from investigating actions of state organs including those of the President. Further, that the Public Protector of South Africa is empowered to take remedial action as an important component of the institution. Counsel submitted that with all its sweeping powers and wide mandate , the Public Protector of South Africa is not regarded as a Court or to be at the same level as a Court . That the Supreme Court of Appeal of South Africa pronounced itself on whether or not the action of the Public Protector in that country can be reviewed in the case of The Minister of Home Affairs v The Public Protector 1221 wherein that Court essentially stated that the Public Protector is not a court and does not exercise judicial power and therefore cannot be equated with a court. Counsel further submitted that the Court accepted in that case that the Pub lic Protector is amenab le to judicial review. Counsel contended that the Public Protector of South Africa with wide reaching powers is su bordinate d to the High Court , a position which is within the spirit of that Constitution. J 23 (507) That in the same light, the prov1s1ons of the Zambian Constitution resonate well with that position and that this Court should hold that the Legislature did not intend to create the office of the Public Protector as being equivalent to that o: the High Court. Counsel submitted that the Constitution instead intended to create an independent office performing functions totally different from the High Court but which enjoys the same power as the High Court in specific areas. Counsel contended that the office of the Public Protector is thus amenable to the jurisdiction of the High Court to review its decisions. Counsel further submitted that the ouster of the jurisdiction of the High Court must be clearly stated and should not be implied and the ouster should be consistent with the objective of the Constitution. Counsel contended that Articles 243, 244, 245, 246, 247 and 248 do not in any way place the Public Protector at the same level as the High Court to oust the High Court's jurisdiction over the Public Protector. He submitted that the only way in which the findings of the Public Protector may be validly set aside is through the mechanism of the Courts, with the High Court at the J 24 (508) centre of it. Counsel reiterated in conclusion that the o:fice of the Public Protector is not at the same level as the High Court. In augmenting the Respondent's written heads of argument , Mr. Mbilima submitted that as the Applicant had conceded, the couching of Article 244 (5) is what had brought this matter before this Court. And that a literal interpretation would lead to absurdity. Counsel su bmitted that it was for that reason that th e Respondent has urged this Court to adop t a purposi ve interpretation of Article 244 (5) in line with this Court 's decision in Danny Pule and Others v the Attorney -General and Otber s ,123 1 in which this Court guided that the starting point in statutory interpretation is the literal interpretation and that only when doing so results in absurdity should a court resort to the purposive interpretation. Mr. Mbilima subm itted that whereas State Counsel Silwamba contended that the Respondent ha d , in its submissions, compared the Public Protector with the Au ditor General, the Respondent merely mentioned the Auditor General as an independent body created under the Constitution and did not submit further on the J 25 (509) matter except to mention that the two offices were created as independent offices. As regards the contention that judicial review does not he against the Public Protector, Counse l submitted that the High Court is vested with power to answer that question and that this Court should rather direct its mind to the effect of Article 244 (5) on the powers of the Pub lic Protector. Counsel contended that if this Court looked at the legis lative history of the office of the Public Protector, it would come to the firm conclusion that the reason why the Constitution has given the Public Protector the powers contained in Article 244 (5) is to enhance its effectiveness . Counsel further submitted that the Respondent cited the two South African cases to aid this Court on how it should interpret Articles 244 and 245. That of particular interest to this Court should be the far reaching powers which the South African Public Protector has as stipulated in section 118 of the South African Constitution, which include the power to investigate the affairs of the President. Counsel submitted that notwithstanding those wide powers, the J 26 (510 ) Public Protector in South Africa has been subjected to judicial intervention and review . Counsel went on to submit that although the Appti cant, in its submissions, had extensively compared the office of the Director of Public Prosecutions to that of the Public Protector, the :wo offices are not comparable as they operate in different constitutional spaces. He urged us to disregard the comparison. In conclusion, Counsel submitted that the Public Protector is not at the same level as the High Court and that that office is amenable to judicial review by the High Court. Counsel , therefore, urged us to dismiss this application. In reply , State Counsel Silwamba submitted that this reference was very specific and was inspired by the or cier of the High Court for leave to apply for judicial review directed at the Public Protector. State Counsel argued that judicial review is a very special procedure which lies against an inferior body. State Counsel argued that the Applicant's argument was not that the Public Protector could not be sued. He cited the Supreme Court case of Godfrey Miyanda v The Attorney General 1241 wherein it J 27 (511 ) was held that although the President of the Republic of Zambia enjoys immunity under the Constitution, the Pres ident can still be sued and submitted that the Applicant was under no illusion that the Public Protector cannot be sued. State Counsel suboitted that rather the App licant's contention is that the mo de of commencement is not by way of judicial review. State Counsel submitted in conclusion that the issue in the present case is that the High Court does not enjoy the power to issue writs under judicial reviev, against a body exercising powers similar to it, and that this Cou rt shou ld n.tle that it cannot do so. We have considered the written arguments and oral submissions made by counsel on both sides as well as the authorities cited. The issue we have to determine as framed by the learned Judge of the High Court is whether the office of the Public Protector ranks equivalently with the High Court and therefore is not amenable to judicial review by the High Court. Before we consider the issue before us, we reiterate what we stated in the case of Steven Katuka and Others v At torney General and Others 117 l and in Milford Maambo and Others v The J 28 (512) People 1251 that when interpreting the Constitution, the primary principle of interpretation is that the meaning of the text should be derived from the plain meaning of the language used . In other words, where the words of any provision are clear and unambiguous, they must be given their ordinary meaning unless this would lead to absurdity or be in conflict with other provisions of the Constitution. Further, that other principles of interpretation should only be resorted to where there is ambiguity in the text or where a literal interpretation would lead to absurdity or conflict with other provisions of the Constitution. A further principle of constittutional interpretation whjch we applied in the case of Zambia National Commercial Bank Plc v Martin Musonda and Others 1261 is that when interpr eting the Constitution, all the relevant provisions bearing on the subject for interpretation should be considered together as a whole in order to give effect to the objective of the Constitution. In other words, no one provision of the Constitution should be segregated from the other provisions and considered alone. J 29 (513) It is with these principles in mind that we shall consider the issue before us. The reference raises two issues which are inter related. The first issue is whether the office of Public Protector ranks equivalently with the High Court and the second is whether the Public Protector is amenable to judicial review by the High Court. We shall consider the two issues in that order. Regarding the question whether or not the office of Public Protector is at par with the High Court, we have considered the relevant prov isions of the Constitution and the Public Pro tector Act No. 15 of 2016 (henceforth the Public Protector Act_l on the establishment, functions and powers of the Public Protector. We have also considered the constitutional provisions and the provisions of the High Court Act, Chapter 27 of the Laws of Zambia relating to the establishment, jurisdiction and pov.rers of the High Court as well as its practice and procedure. Article 243 of the Constitution establishes the office of Public Protector. It reads as follows: (1) There s hall be a Public Protector who shall be appointed by the President of the Judici al Service Commission , subject to ratification by the National Assembly . , on the recommendation J 30 (2) A person qualifies person - for appointment as Public Protector if that (514) (a) (b) is qualified does not hold a State office or constitutiona to be appointed as a Judge ; and l office (3) (4) The office of Public Protector provinces and progressively shall be decentralised , as prescribed. to districts to the procedures The administration Protector shall be prescribed. , staff , and operations finances , of financial management , the Public the office of Articles 244 ( 1), (2) and (3) provide for the functions of the Public Protector in the following terms: (1) (2) The Public Protector may taken or omitted performance to be taken by a State function. of an administrative investigate an action or decision Institu t ion in the For purposes omitted of clause (1), an action or decision is an action or decision which is - to be taken taken or (a) (b) unfair , unreasonable not compliant with the rules of natural or illegal ; or justice . (3) For purposes of clauses ( 1) and (2), the Public Protector may - (a) (b) bring an action before a court; hear an appeal by a person decision person ; and taken or omitted relating to be taken to an action or in respect of that (c) make a decision on an action officer or constitutional to be taken a office holder, which against shall . be implemented by an appropriate public decision authority Articles 244 (4) and (5) provide for the independence and powers of the Public Protector in the following terms: J 31 1515) (4) The Public Protector control of a person or an authority functions of office . shall not be subject to the direction in the performance or of the (5) The Public Protector High Court in - has the same powers as those of the (a) (b) (c) (d) (e) of witnesses the attendance enforcing them on oath; examining witnesses compelling enforcing decisions citing a person or an authority to carry out a decision . the production , outside Zambia ; of documents issued by the Public Protector for contempt and examining ; ; and for failure Article 245 of the Constitution limits the powers of the Pub lic Protector as follows: 245 . The Public Protector shall not investigate a matter which - (a) (b) (c) (d) (e) to an officer in the Parliamentary is before a court, court martial or a quasi-jud icial body ; relates Service or Judicial Service; involves government organisation; relates is criminal between or an international to the exercise of the prerogative and foreign government of mercy or in nature . relations dealings the the or As regards how the hearings by the Public Protector should be conducted, section 22 of the Pu blic Protector Act reads: (l)When conducting a hearing t:he Public Protector is not bound by the rules of practice or evidence. (2) The Public Protector shall formality and technicality (3) The Public Protector may conduct as is possible. conduct emphasis possible , written on an adversarial approach submissions may be presented. hearings with as little hearings with little as is possible and wherever as J 32 Regarding the High Court, the first prov1s1on we have considere d is Article 120 (1) of the Constitution which establishes the Judiciary of Zambia of which the High Court is a part. Article (516) 120 (1) reads: 120 . (1) shall consist of the superior courts and The Judiciary the following courts: (a) subordinate courts ; (b) small claims courts; (c) local courts; and (d) courts , as prescribed. Article 266 of the Constitution defines the superior courts as comprising the Supreme Court, Constitutional Court, Court of Appeal and High Court established in accordance with the Constitution. In terms of Article 120 (2), the courts established under Article 120 (1) are courts of record except local courts which are required to progressively become courts of record. Article 120 (3) (a) provides that the processes and procedu r es of the courts shall be prescribed. The High Court 1s established by Article 133 (1) of the Constitution and its jurisdiction is set out in Article 134 of the Constitution in the following terms: J 33 (517) (134) The High Court has , subject to Article 128 - (a) u .nlimited ; matters (b) appellate (c) jurisdiction and original jurisdiction in civil and criminal an d s upervisory jurisdiction , as prescribed; and to review decisions , as prescribed . Further, section 9 (1) of the High Court Act restates the jurisdiction of the High Court as follows: ( 1) The Court shall be a Superior Court of Record, and, in addition jurisdiction to any other this or any other written subject jurisdiction, Justice in England. as in this Act mentioned powers and authorities conferred by the Constitution law , shall, within , possess vested and by and the and exercise all the in the High Court of limits Section 9 (2) of the High Court Act provides that the jurisdiction vested in the High Court includes the judicial hearing and determination of matters in dispute. Section 10 of the High Court Act further provid es for the practice and procedure of the High Court in the following terms : (1) vested , be exercised in the manner the Criminal Procedure Code , the Matrimonial in the Court shall, as regards practice The jurisdiction provided by this and procedure Causes Act, law, or by such rules, orders Act , 2007, or any other written or directions this Act , the of the Court as may be made under Criminal Procedure Code, the Matrimonial Causes Act, 2007 , or such written conformity with Book) of England and subject practice in England to 3l •t December (White to subsection law and in the High Court of Justice up in default law, and the Supreme Court Practice, in su bstantial applicable (2), the , 1999. thereof J 34 _J (518) An examination of the provisions of Article 243 (1) and (2) of the Constitution reveals that although the office of Public Protector is created by the Constitution and although the qualifications for appointment as Public Protector are the same as those required for appointment as Judge, the Public Protector is not a court and does not perform adjudicative functions as a Judge of the High Court does. The Public Protector's role is completely different from that of the High Court as shown by the functions of that office which in terms of Article 244 (1) and (2) are to investigate an action and decision taken or omitted to be taken by a State Institution in the performance of an administrative function , which action is unfair, unreasonable, illegal or is not compliant with the rules of natural justice. Further, in terms of sections 6 and 13 of the Public Protector Act, the Public Protector's mandate is to investigate allegations of maladministration by a State institution. It is therefore evident from the provisions of Article 244 (1), (2) and (3) read with sections 6 and 13 of the Public Protector Act that the jurisdiction of the Public Protector is specific and is restricted to investigation of allegations of maladministration by a J 35 (519) State Institution. As we have al ready observed, it is different from the jurisdiction of the High Court which has unlim ited and original jurisdiction in civil and criminal matters, appe llate and supervisory jurisdiction and j u ris diction to review decisions , in accordance with the law , subject on ly to Article 128 of th e Constitution. In the South African case of The Minister of Home Affairs v The Public Protector, J which was cited by the Respondent , the Su preme Court of Appeal of South Africa stated regarding the Public Protector of South Africa as follows : is not a court , does not exercise "The Public Protector judicial power and cannot be equated with a court . Her role is completely different the courts are entirely Protector's jurisdiction. the Constitution bounds of the Public Protector's jurisdiction ." of of the Public to look to section 182 of and the Public Protector Act to asc e rtain the to that of a court and the jurisdictional irrelevant to a determination It is necessary arrangements Similarly , in the case of Zam b ia, it is evident that the Public Protector is not a court as Article 120 of the Constitution clearly states the composition of the Judiciary and does not include the office of the Public Protector. J 36 ,, (520) Further, the Constitution does not contain any express provision which equates the Public Protector to the High Court. The main reason for the Appl icant's contention that the Pub lic Protector ran ks the same as the High Court is that Article 244 (5) of the Constitution has conferred on the Public Protector some of the powers of the High Court in the areas specified in that Article. The p lain language of Article 244 (5) reveals that the Public Protector has the same powers as the High Court to enforce the attendance of witnesses before her and to examine them on oath, to examine witnesses outside Zambia, to compel the production of documents, to enforce dec isions made by the Public Protector and to cite a person or an authority for contempt for failure to carry out a decision issued by the Public Protector. Article 244 (5) does not provide that the Public Protector shall possess and exercise all the powers vested in the High Court. Further, while according to Article 134 (a) of the Cor:stitution, the High Court is a super ior court of record with unlimited and original jurisdiction in civil and criminal matters, the Public Protector's investigative powers are limited. The Pub lic Protector is J 37 (521) expressly prohibited by Article 245 of the Constitution from investigating a matter which is before a court, including a subordinate court, or which is criminal in nature. Further, according to section 23 of the Pu b lic Protector Act, the Public Protector cannot commence or continue an investigation where the subject matter of a complaint or investigation is the sub ject matter of judicial proceedings. Section 23 p rovides th at: "Where the subject matter of a complaint or investigation subject matter of judicial proc ,eedings, not commence outcome of those proceedings." the Public Protector the investigation or continue pending an is the shall final With regard to procedure, the High Court is bound by rules of procedure and evidence 1n civil and criminal matters. This is clearly stated in section 10 (1) of the High Court Act which we cited earlier on. The Public Protector, on the other hand, is not bound by rules of evidence or procedure and is requ ired by law to conduct hearings with minimal formal ity an d technicality. Further, the Public Protector should conduct hearings with as little emphasis on an adversarial approach as is possible. Section 22 of the Public Protector Act is categorical to that effect. J 38 (522) While we agree with the Applicant's submission on the well settled position of the law that the High Court's jurisdiction in civil and criminal matters though unlimited is not limitless, there is no provision in the Constitution or in the Public Protector Act which limits the High Court's jur isdiction to review a decision of the Public Protector. Rather, the opposite position is that the Public Protector is precluded by Article 245 of the Constitution from investigating a matter that is before a court. In view of the foregoing observations, the Applicant's assertion that the office of the Public Protector ranks equally with the High Court has no backing of the Constitution or any other law. As we stated ear lier on in this judgment, although the Public Protector is vested with some of the powers which are exercised by the High Court, the Public Protector does not possess or exercise all the powers of the High Court. Article 244 (5) is specific to that effect. It 1s our considered view that the matter of C,e Public Protector being equivalent to the High Court is a substantive matter which the legislature could not have left to be inferred from J 39 (523) the provisions of the Constitution relating to the matter . Our firm view is that were it the intention of the framers of the Constitution to equate the office of Public Protector to the High Court, they would have made express provision to that effect as they did in the case of the Constitutional Court and the Supreme Court in Article 121 of the Constitution which clearly provides that the Supreme Court and the Constitutional Court rank equivalently. Based on the constitutional provisions which we have examined, we determine that the Public Protector does not rank equivalently with the High Court. Turning to the question whether or not the Public Protector is amenable to judicial review by the High Court, we note that the Applicant argued that the Public Protector is not subject to judicial review by the High Court because the Public Protector exercises the same powers as a High Court Judge and is indeper.dent and not subject to the direction or control of any person or an authority in the performance of the functions of the office. It is settled law that judicial review lies against an inferior court or tribunal, and against any persons or bodies which J 40 (524) perlorm public duties or functions as was he ld in Ridge v Baldwin. 141 The office of Public Protector is a public office in terms of Article 266 which defines a public office "as an office whose emoluments and expenses are a charge on the Consolidated Fund or other prescribed public fund and includes a State office, constitutional office and an office in the public service , including that of a member of a commission ." Section 31 (1) (a) of the Public Protector Act provides that: (1) The funds of the office of the Public Protector shall consist of such monies as may - (a) be paid to the office of the Public Protector by Parliament for the purposes of the Public Protector. Further, it is undisp u ted that the Pub lic Protector perlorms public functions. Therefore, since we have determined that the Public Protector is not at par with the High Cou rt, it follows that the office of the Public Protector being a public office wh ich perlorms a public function is amenable to judicial review by the High Cour t. While the Applicant argued that the Public Protector 1s not amenable to judicial review because the office is independent in terms of Article 244 (4) of the Consti tu tion, Article 267 (4) is J41 •' • (525) instructive with regard to the independence of the Public Protector. The Article gives a court power to examine whether the independent person, institution or office has performed its powers in line with the Constitution or others laws. The jurisdiction to review the performance of a function in line with the law is generally vested in the High Court in terms of Article 134 (c) of the Constitution. In view of the clear provisions of Article 267 (4) of the Constitution as amended, the Applicant's contention that the Public Protector is not amenable to judicial review by the High Court on the basis of the provisions of Article 244 (4) regarding the independence of the Public Protector in the performar_ce of the functions of the office, is untenable. The basis of the power of the High Court to review c.ecisions of inferior courts, public bodies and tribunals is that it can make such bodies do their duty and stop them from doing things which they have no power to do. The function of the High Court in judicial review proceedings is to ensure that the discretion entrusted to public author ities has been properly exercised. In the persuasive J 42 • : • (526) case of Amanda Muzyamba Chaala (Administratrix in the Estate of the late Florence Mwiya Siyuni Chaala) v The Attorney General 1271 the Su preme Court observed that: lawfulness is a public review the of public bodies law remedy by which a citizen before courts of law. The remedy can "Judicial of decisions made by public bodies or challenge for authorities accou .ntability the governed and the government adhere to the rule of law . It helps to is protect citizens against bureaucratic excesses. As far as a citizen concerned, a public authority must act in a fair and predictable manner . Public law requires that those who are entrusted with the exercise of public power should not do so arbitrarily or subject to to the true their own whims and caprices; intent of individual human rights." they must give effect fundamental is necessary that both law while upholding it ensures of the tenets the for In determining this matter, we have found South African case authorities regarding the status ,of the Public Protector in that country helpfu l in that they clearly state that the Public Protector is subject to ju dic ial review. In the case of The South African Broadcasting Corporation and Others v Democratic Alliance and Others, 128 1 the Supreme Court of Appeal of South Af::ica made the following remarks: compact demands that remedial action should not be ignored . State to heed the principles of co -operative governance "Our constitutional by the Public Protector are obliged prescribed by s 41 of the Constitution. institution Public Protector might, that by way of a review application. Absent a review application , as Any affected person or taken by the , challenge aggrieved by a finding, decision or action circumstances in appropriate institutions taken J 43 :, • (527) ho wever , such person is not entitled decision (Emphasis added). or remedial action to simply ignore the findings , the Public Protector ." taken by The Constitution and the Public Protector Act do not provide for any appeal procedure for a person who is dissatis fied with a decision of the Public Protector. Therefore, an aggrieved person or State institution may challenge trhat decision by way of judicial review proceedings. We reiterate in conclusion that the office of the Public Protector does not rank pari passu with the High Court as the Constitution does not contain any provision to that effect. The Public Pro tector being a public body is therefore amenable to judicial review by the High Court. Each party will bear their costs. ' <==r - s: "? a I H. Chibomba CONSTITUTIONAL COURT PRESIDENT ······~ A. M. Sital i ·············· CONSTITUTIONAL COURT JUDGE ................. ~ .............. . E. Mulembe M. S. Mulenga CONSTITUTIONAL COURT JUDGE .. .................... "'~ Prof . M. M. Munalula ........... .. CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL COURT JUDGE J 44