Constitutional Cases

Christine Mulundika and 7 others V the people

Facts
The appellants challenged the constitutionality of certain provisions of the
Public Order Act, Cap.104, especially s.5 (4) which requires any person to
hold a peaceful assembly to obtain a permit and contravention of which is
criminalized by S.7 of the same Act. Appellants argue that the act goes
against the fundamental freedoms and rights guaranteed by Articles 20 and
21 of the Constitution.

Issue

Whether the provisions of the Public Order Act’s are against the fundamental
rights and freedoms of the constitution.

Ratio Decidendi

The Public Order Act, Cap.104 s.5 (4) prescribes that any person who wishes
to convene an assembly in any public place shall first make application in that
behalf to the regulating officer of the area concerned, and, if such officer is
satisfied that such assembly is unlikely to cause or lead to a breach of the
peace, he shall issue a permit. Article 21 of the Constitution reads “no person
shall be hindered in the enjoyment of his freedom of assembly and
association, that it to say, his right to assembly freely and associate with other
persons and in particular to form or belong to any political party, trade union
or other association for the protection of his interests.”

A major argument against section 5(4) was with regard to its effect upon the
enjoyment of the freedoms of expression and assembly. The argument was
that although the freedoms under the constitution are not absolute, they
should only be regulated but not abridged or denied. It was submitted that the
subsection could not reasonably be justifiable in a democratic society when it
reduced the fundamental freedoms to the level of a mere licence to be
granted or denied on the subjective satisfaction of a regulating officer. The
implication in the Public Order’s Act is that the permit must be refused unless
the regulating officer is able to satisfy him or herself to the contrary and it
could recipe for possible arbitrariness and abuse. Which could lead to the
fundamental rights of the constitution being denied all together. Subsection 4
of section 5 the Public Order Act, CAP 104, contravenes Articles 20 and 21 of
the constitution and is null and void, and therefore invalid for
unconstitutionality. It follows also that the invalidity and the constitutional
guarantee of the rights of assembly and expression preclude the prosecution
of persons and the criminalisation of gatherings in contravention of the
subsection pronounced against.
Holding

Appeal Allowed. There will be no order as to Costs.

Thomas Mumba V The people

Facts

The applicant was standing trial in the subordinate court for an offence under
the Corrupt Practices Act. Section 53 (1) of the Act required that where such
an accused elected to say something in his defence, he had to say it on oath
only. At the hearing of this matter, Mr Chitabo for the applicant submitted that
the provisions of section 53 (1) of the Corrupt Practices Act contravene the
provisions of Article 20 (7) of the Constitution that says that one, in a criminal
matter, should not be compelled to give evidence. He submitted that since the
section is in conflict with the Article of the Constitution, it should be declared
null and void and unconstitutional.

Issue

Whether section 53 (1) of the Corrupt Practices Act, Act number 14 of 1980
contravenes Article 20 (7) of the Republican Constitution.

Ratio Decidendi

Section 53 (1) of the Corrupt Practices Act reads as follows: "An accused
person charged with an offence under part IV shall not, in his defence be
allowed to make an unsworn statement, but may give evidence on oath or
affirmation from the witness box." Article 20 (7) of the Constitution reads as
follows: "No person who is tried for a criminal offence shall be compelled to
give evidence at the trial."

In countries like Zambia where there is a written constitution, the Constitution

is the supreme law, any other laws are made because the Constitution
provides for their being made; and are therefore subject to it. It follows
therefore that unless the Constitution is specifically amended, any Act that is
in contravention of the Constitution is null and void. There is no doubt that the
provision of Section 53 (1) of the Corrupt Practices Act is in direct conflict with
the provisions of Article 20 (7) of the Constitution. As the Constitution is
supreme and above all the laws and as Section 53 (1) of the Corrupt
Practices Act is in direct conflict with Article 20(7) of the Constitution, I have
no hesitation in declaring that Section 53 (1) of the Corrupt Practices Act is
unconstitutional and therefore null and void and it should be severed from the
Act. An accused person in a criminal trial cannot be compelled to give
evidence if he wants to say something in his defence.

Holding

Section 53 (1) of the Corrupt Practices Act declared unconstitutional, null and
void.
Resident Doctors Association of Zambia and Others v the Attorney- General

Facts

On 20th April 2000, the 2nd petitioner gave a written notification to the
Commanding Officer of Lusaka, that the petitioners would hold a public
procession on 27th April 2000. The Commanding Officer, one Mr. Mayonda,
informed them on 26th April 2000, that he would not grant them permission to
demonstrate. The Police, through the Commanding Officer, also indicated that
they did not have enough manpower to police the situation. He did not
suggest any alternative date on which the demonstration could be conducted.
The Petitioners preceded with the demonstration and were then detained then
later released. This is an appeal by the Petitioners against the decision of the
court below, which decided that they had breached section 6(7) of the Public
Order Act, which prohibited the holding of public meetings, processions, or
demonstrations, where the Police notify the conveners, that they cannot
adequately police such events and the denial by the court to award them
damages after having found that the Police had violated the Act and articles
11 to 26, of the Constitution.

Issue

Whether the petitioners violated the Public Orders Act, whether the police
violated Section 5 of the Act as well as articles 20 and 21 of the Constitution,
and whether the court was wrong to refuse to award the petitioners damages.

Ratio Decidendi

Section 5 of the Act, in its current form, does not require a person wishing to
hold a public meeting or procession or demonstration to obtain a permit from
the Police for such an event. All that is required by the law is a notification to
the Police at least 7 days before the event. Once a notification has been
received, the regulating officer has an obligation to propose an alternative
date and time, on which the said event should take place, if the Police cannot
adequately police it. The petitioners complied with the law and duly notified
the Police within the time allowed by law. The regulating officer’s
endorsement of a purported rejection of the march, a day before the event for
reasons that the demonstration would cause a breach of the peace, was not a
valid exercise of power under the Act. The regulating officer in this case, Mr.
Mayonda, acted capriciously and oppressively, contrary to the provisions of
the Act, when he endorsed on the notification that the permit was refused. A
notification cannot be rejected on the grounds that the regulating officer thinks
that the event will cause a breach of the peace. The learned trial judge found
that having breached the law, the police had violated the petitioners’
fundamental rights and freedoms as guaranteed by articles 20 and 21 of the
Constitution.

Having been illegally curtailed from completing their march, they were
subsequently incarcerated in police cells. There is no doubt that they were
falsely imprisoned and no doubt suffered humiliation and inconvenience. They
are entitled to damages.

Holding

Appeal allowed. An award of K500, 000.00 to each petitioner in respect of

both general and exemplary damages, to be paid with interest.

Mazoka and 5 Others v AG, ECZ and Chief Justice

Facts:

 The Applicants, various Presidential candidates from different political

parties, filed an application expressing concerns and complaints about
the ongoing Presidential elections in Zambia.

 Their complaints included:

o The Returning Officer's refusal to order recounts and verification

of Presidential polls in certain constituencies despite requests
under Regulation 44 and 46 of the Electoral (General)
Regulations.

o Alleged misposting of results in Moomba, Matero, and

Livingstone constituencies.

o Identical results in Roan and Luanshya constituencies, raising

suspicions.

o Delays in voting in Luapula and Northern Provinces due to lack

of monitors.

 The Applicants sought recounts and verification in the Copperbelt,

Northern, Lusaka, and Luapula Provinces, and an order to prevent the
announcement of the Presidential election results until after verification
and recount.
Issue:

 Whether the High Court has jurisdiction to grant leave for Judicial
Review against the Returning Officer’s decisions concerning recount
and verification of Presidential polls before the announcement of
election results and declaration of the winner.

Reasoning:

 Attorney-General's Arguments:

o The High Court lacks jurisdiction in Presidential election matters,

which fall under the purview of the Supreme Court, as per Article
41 of the Constitution and Section 9(3) of the Electoral Act.

o The application is premature since the Returning Officer has not

yet announced the results or received all results.

o Judicial Review is inapplicable in this case as there is no

decision by the Returning Officer that can be reviewed.

 Applicants' Counterarguments:

o The issue is not about challenging the nomination or election of

the President but about the Returning Officer's discretion in
recount requests, which can be subject to Judicial Review.

o The Supreme Court has jurisdiction only after a President is

elected and sworn in.

o Regulation 44 and 46 entitle candidates to recount and

verification, respectively, and these rights should be protected.

 Court's Reasoning:

o The Constitution mandates that the Returning Officer declare

the winner and swear them in once results are communicated.

o The High Court does not have jurisdiction to interfere with the
Presidential election process before the President is sworn in,
as per Article 41 of the Constitution and Section 9(3) of the
Electoral Act.

o The Applicants’ complaints about electoral irregularities should

be addressed by the Supreme Court post-election within the
stipulated fourteen-day period.
 o Judicial Review is not available in this case because the
Returning Officer lacks the discretion to halt the election
process, which is mandated by the Constitution.

Holding:

 The High Court refused the application for leave to apply for Judicial
Review, deeming it premature. The Applicants retain the right to
challenge the Presidential election results within the fourteen-day
period after the President is sworn in. Each party is to bear its own
costs, and leave to appeal to the Supreme Court is granted.

Bizwayo Newton Nkunika v. Lawrence Nyirenda and Electoral Commission of

Zambia, 2019/CCZ/005 (1 March 2021)

Facts:

 The Petitioner, Bizwayo Newton Nkunika, and the First Respondent,

Lawrence Nyirenda, were parliamentary candidates for Lundazi
constituency in August 2016. Nyirenda emerged victorious.

 Nkunika challenged Nyirenda’s election, arguing that Nyirenda did not

meet the minimum academic qualifications required under Article 70(1)
(d) of the Zambian Constitution.

 Article 70(1)(d) requires a candidate to have "a grade twelve certificate

or its equivalent."

 Nyirenda claimed he had the necessary qualifications, including a

grade 12 General Certificate of Education (GCE), Zambia National
Service military training certificate, computer course certificates, music
certificate, and theological tutors’ certificate.

Issue:

 Whether the qualifications held by the First Respondent, specifically

the GCE, met the requirement of a "grade twelve certificate or its
equivalent" as stipulated in Article 70(1)(d) of the Zambian Constitution.

Reasoning:
  The Court sought clarification on what constitutes a "grade twelve
certificate or its equivalent" by subpoenaing experts from the
Examinations Council of Zambia (ECZ) and the Zambia Qualifications
Authority.

 The expert from ECZ, Michael Chilala, differentiated between a School

Certificate and a General Certificate of Education (GCE). A School
Certificate could be obtained by passing six subjects (including
English) with at least one credit, or five subjects (including English) with
at least two credits.

 A GCE, according to Chilala, is given to candidates who do not meet

the requirements for a School Certificate but pass at least one subject.

 Chilala testified that Nyirenda’s GCE, which had only four subjects, did
not meet the criteria for a School Certificate.

 The Court also considered the drafting history of Article 70(1)(d) to

determine the legislative intent, which aimed to ensure that
parliamentary candidates have sufficient educational background to
debate effectively and contribute meaningfully.

Holding:

 The Court concluded that the GCE held by Nyirenda did not qualify as
a grade 12 certificate or its equivalent.

 Despite this finding, the Court decided not to nullify Nyirenda’s election.
It reasoned that since Nyirenda had acted based on a binding High
Court decision at the time of his nomination, applying the ruling
retrospectively would be unjust and disrupt the justice delivery system.

 The majority of the Court (Judges Sitali, Mulenga, and Musaluke)

dismissed the petition, allowing Nyirenda to remain in office.

 However, two judges (Chibomba and Mulonda) dissented, arguing that

the finding that the GCE was not a grade 12 certificate should result in
invalidating Nyirenda’s election and ordering him to vacate office.
Frederick Jacob Titus Chiluba v. Attorney-General, Supreme Court Appeal
Number 125 of 2002

Facts:

 The appellant, Frederick Jacob Titus Chiluba, a former President of

Zambia, challenged the decision of the National Assembly to remove
his immunity against prosecution for acts committed while in office.

 On July 11, 2002, the President addressed the National Assembly,

making allegations against Chiluba and discussing the removal of his
immunity.

 On July 16, 2002, the National Assembly resolved to lift Chiluba’s

immunity.

 Chiluba sought judicial review of this decision, arguing it was

procedurally improper and violated his right to fair treatment.

Issue:

1. Whether the removal of Chiluba's immunity by the National Assembly

was procedurally improper and in violation of Article 43(3) of the
Zambian Constitution.

2. Whether the High Court’s decision to dismiss Chiluba’s application for

judicial review was correct.

3. Whether Section 34 of the National Assembly (Powers and Privileges)

Act was inconsistent with Article 94(1) of the Constitution, as
determined by the High Court.

Reasoning:

 Judicial Review Process: The Court emphasized that judicial review

focuses on the decision-making process rather than the merits of the
decision. It aims to ensure fair treatment by the authority concerned,
not to substitute the court's judgment for that of the authority.

 Nature of Immunity Removal: The Court found that Article 43(3) does
not require specific charges to be presented before lifting a former
President’s immunity. The National Assembly has the discretion to lift
immunity if there are prima facie allegations of criminal conduct.

 Procedural Impropriety: The Court held that there was no procedural

impropriety in the National Assembly's decision-making process. The
Assembly’s decision was based on serious allegations of criminal
 conduct, which justified the removal of immunity.

 Right to be Heard: The Court found that Article 43(3) does not
stipulate that a former President must be given the opportunity to be
heard before immunity is lifted. This contrasts with impeachment
proceedings under Article 37, where the President has the right to be
heard.

 High Court's Handling of Evidence: The Court ruled that the High
Court was correct in deciding the matter based on affidavit evidence
and not allowing viva voce evidence, as the latter is generally not
necessary in judicial review proceedings.

 Validity of Section 34: The Supreme Court disagreed with the High
Court’s finding that Section 34 of the National Assembly (Powers and
Privileges) Act was inconsistent with Article 94(1) of the Constitution.
The Supreme Court held that the High Court was not asked to
determine the validity of Section 34.

Background on Cross-Appeal: The High Court had previously ruled

that Section 34 of the National Assembly (Powers and Privileges) Act
was inconsistent with Article 94(1) of the Constitution, which implies
that the High Court believed that Section 34 improperly limited its
jurisdiction to review decisions made by the National Assembly.
Supreme Court's Decision on Cross-Appeal: The Supreme Court
disagreed with the High Court’s ruling on this point. It held that the
High Court was not asked to determine the validity of Section 34 in the
original judicial review application and thus should not have made a
ruling on it. Therefore, the Supreme Court set aside this part of the
High Court's judgment, effectively reinstating the validity of Section 34.

Section 34 of the National Assembly (Powers and Privileges) Act

generally stipulates provisions that limit the jurisdiction of courts to
question the proceedings or decisions made by the National Assembly.
This section aims to protect the legislative process from judicial
interference, ensuring the separation of powers between the legislative
and judicial branches of government.

In the context of the case, Section 34 was invoked to argue that the
High Court could not review the decision of the National Assembly to
remove the former President's immunity. The High Court had initially
ruled that this section was inconsistent with the Constitution, which led
to the cross-appeal by the Attorney-General. The Supreme Court
 ultimately disagreed with the High Court’s ruling, reinstating the validity
of Section 34.

To give you the precise wording of Section 34:

Section 34 of the National Assembly (Powers and Privileges) Act:

Protection of Members and Officers:

1. No proceedings or decision of the Assembly or committee of privileges

acting in accordance with this Act or any standing orders shall be
questioned in any court.

2. No process issued by any court in the exercise of its civil jurisdiction

shall be served or executed within the precincts of the Assembly while
the Assembly is sitting or through the Speaker, the Clerk, or any officer
of the Assembly.

This section essentially ensures that the internal proceedings and

decisions of the National Assembly are immune from judicial review,
maintaining the independence of the legislative process.

Holding:

1. The Supreme Court dismissed the appeal, upholding the decision of

the National Assembly to lift Chiluba's immunity. It found that the
decision-making process was lawful, and there was no requirement for
Chiluba to be heard before the removal of his immunity.

2. The Court allowed the cross-appeal by the respondent, setting aside

the portion of the High Court’s ruling that struck out Section 34 of the
National Assembly (Powers and Privileges) Act. The Court ruled that
the High Court had overstepped its jurisdiction by addressing the
validity of Section 34 when it was not asked to do so.

Conclusion:

 The appeal by Frederick Jacob Titus Chiluba was dismissed, and the
decision to remove his immunity was upheld.

 The cross-appeal by the respondent was allowed, reinstating the

validity of Section 34 of the National Assembly (Powers and Privileges)
Act.

 Each side was ordered to bear its own costs due to the general public
Musonda v. Attorney General

Court: High Court of Zambia

Judge: Honourable Lady Justice F. M. Lengalenga

Date: 9th May 2014

Case No.: 2013/HP/0922

Facts:

• Background: Dr. Phillip Musonda was appointed as a Supreme

Court Judge on 3rd May 2011. On 30th April 2012, the President of
Zambia suspended him pending an investigation by a Tribunal into alleged
professional misconduct.

• Tribunal’s Decision: Despite Dr. Musonda’s resignation from his

position as Supreme Court Judge on 4th June 2013, the Tribunal decided
to proceed with hearings against him. The resignation was accepted by
the Acting Chief Justice on behalf of the President.

• Application for Judicial Review: Dr. Musonda filed for judicial

review, challenging the Tribunal’s decision on grounds of illegality, excess
of jurisdiction, and unreasonableness. He sought orders of certiorari to
quash the Tribunal’s decision, prohibition to restrain the Tribunal from
proceeding, and a stay of the Tribunal’s actions.

Issues:

1. Illegality: Whether the Tribunal’s decision to proceed with

hearings against Dr. Musonda after his resignation was illegal.

2. Excess of Jurisdiction: Whether the Tribunal acted beyond its

jurisdiction by proceeding with the hearings after Dr. Musonda’s
resignation.

3. Unreasonableness: Whether the Tribunal’s decision to proceed

with the hearings was unreasonable in the Wednesbury sense.

Relevant Provisions:

1. Article 98(3)(b) of the Constitution of Zambia:

• “(3) If the President considers that the question of removing a

judge of the Supreme Court or the High Court under this Article ought to
be investigated then –

(b) The Tribunal shall inquire into the matter and report on the facts thereof
to the President and advise the President whether the judge ought to be
removed from office under this Article for inability as aforesaid or for
misbehaviour.”

2. Article 98(5) of the Constitution of Zambia:

• “(5) If the question of removing a judge of the Supreme Court or

of the High Court from office has been referred to a Tribunal under Clause
(3) the President may suspend the judge from performing the functions of
his office and any such suspension may at any time be revoked by the
President and shall in any case cease to have effect if the Tribunal advises
the President that the judge ought to be removed from office.”

3. Article 137(1) of the Constitution of Zambia:

• “(1) Any person who is appointed or elected to any office

established by this Constitution may resign from that office by writing
under his hand addressed to the persons or authority by whom he was
appointed or elected.”

4. Article 137(2) of the Constitution of Zambia:

• “(2) The resignation of any person from any office established by

the Constitution shall take effect when the writing signifying the resignation
is received by the person or authority to whom it is addressed or by any
person authorised by that person or authority to receive it.”

5. Judicial Code of Conduct Act No. 13 of 1999, Section 2:

• Defines “judicial officer” and outlines the code of conduct for

chilujudicial officers.
Reasoning:

1. Illegality:

• Arguments: Dr. Musonda argued that his resignation, accepted

by the appointing authority, removed him from the jurisdiction of the
Tribunal. He claimed the Tribunal’s decision was illegal as it violated
several constitutional rights, including protection from forced labour (Article
14), the right to a fair trial (Article 18), freedom of association (Article 21),
and protection from discrimination (Article 23). He cited past cases where
Tribunal proceedings were terminated upon resignation of the concerned
individuals.

• Court’s Analysis: The court examined Article 98(3)(b) and (5) of

the Constitution, which outlines the procedure for investigating and
potentially removing a sitting judge. The court agreed that these provisions
apply only to serving judges and not to those who have resigned. The
court found that the Tribunal’s decision to proceed against Dr. Musonda,
who was no longer a judge, was without legal basis and thus illegal.

2. Excess of Jurisdiction:

• Arguments: Dr. Musonda contended that the Tribunal’s mandate

was to investigate the conduct of serving judges and make
recommendations based on its findings. Since he had resigned, the
Tribunal’s mandate could no longer be applicable to him. He also argued
that inviting individuals to testify on internal judicial matters exceeded the
Tribunal’s jurisdiction.

• Court’s Analysis: The court agreed that the Tribunal’s jurisdiction

was limited to serving judges and that proceeding against Dr. Musonda
after his resignation was beyond its mandate. The court noted that any
findings or recommendations made by the Tribunal would be ineffective
since Dr. Musonda was no longer a judge. The court also found that the
Tribunal inviting unknown persons to testify on internal matters of the
judiciary was irrelevant to the Tribunal’s jurisdiction.

3. Unreasonableness:

• Arguments: Dr. Musonda argued that proceeding with the

Tribunal was unreasonable as it was an academic exercise with no
implementable outcome, considering his resignation. He also pointed out
that the Tribunal disregarded the Supreme Court’s advice not to proceed
due to constitutional issues.

• Court’s Analysis: The court applied the Wednesbury standard of

unreasonableness, which considers a decision unreasonable if it is so
irrational that no sensible person who had applied their mind to the issue
could have made it. The court found that proceeding with the Tribunal’s
hearings was unreasonable, as it would not result in any enforceable
recommendation and would waste public funds. The court also noted that
while the Supreme Court’s advice was not legally binding, the Tribunal’s
decision to ignore it added to the unreasonableness.

Holding:

• The court granted the orders sought by Dr. Musonda:

• Certiorari: The Tribunal’s decisions to proceed with the hearings

against Dr. Musonda, delivered on 18th June 2013 and 28th June 2013,
were quashed.

• Prohibition: The Tribunal was restrained from acting outside or

in excess of its jurisdiction by proceeding against Dr. Musonda, who was
no longer a judicial officer.

• Costs: The court awarded costs to Dr. Musonda, with the

specifics to be determined if not agreed upon by the parties.

• Leave to Appeal: The court granted leave to appeal.

Dr. Ludwig Sondashi v Brigadier General Godfrey Miyanda, MP (1995)

S.J. 1 (S.C.)

Court: Supreme Court of Zambia

Judges: Chief Justice Ngulube, Deputy Chief Justice Bweupe, and Justice
Gardner

Date: 3rd February 1995

Case Number: S.C.Z. Judgment No. 1 of 1995

Facts:
Dr. Ludwig Sondashi was expelled from the Movement for Multi-Party
Democracy (MMD), a political party in Zambia. He believed his expulsion
was unfair and sought a legal remedy by applying for "judicial review" to
challenge the decision and get a declaration (an official statement from the
court) that his expulsion was wrongful.

Key Legal Terms and Uncommon Words:

1. Judicial Review: A legal process where a court reviews the actions or

decisions of a public body to ensure they are lawful. It's usually used to
oversee public law matters, not private disputes.

2. Writ: A formal written order issued by a court. In this context, it means

starting a legal action in the court with a specific claim.

3. Declaration: A statement made by the court that officially declares the

rights of the parties involved.

4. Injunction: A court order requiring a person to do or cease doing a

specific action.

5. Private Association: An organization or group that is privately run and

not part of the government, like a political party.

6. Public Law: Laws that govern the relationship between individuals and
the state, including the actions of public bodies.

7. Private Law: Laws that govern relationships between individuals and

private organizations.

Issues:

1. Appropriateness of Judicial Review: Should the decision to expel

Sondashi from a political party be challenged through judicial review?

2. Correct Legal Procedure: What is the proper legal method to

challenge the decision of a private association like a political party?

Court's Reasoning:

1. Judicial Review and Private Tribunals:

o Judicial review is meant for public law matters, where a public

body or tribunal's decisions are reviewed. Since MMD is a
private organization, its internal decisions are private law
matters.
 o The expulsion from a political party is an internal, private matter,
not suitable for judicial review.

2. Correct Legal Procedure:

o The appropriate way for Sondashi to challenge his expulsion

would have been to start legal action by issuing a writ. This
means he should have formally claimed that his rights were
violated and sought a declaration and an injunction through
regular court proceedings, not through judicial review.

Court's Decision (Holding):

1. Judicial Review:

o The court agreed with the lower court that judicial review was
not the correct procedure for Sondashi's case and dismissed
this part of his appeal.

2. Amendment of Proceedings:

o The court decided to send the case back to the High Court. The
High Court will now treat it as if it had been started correctly, by
writ, allowing Sondashi to pursue his claims in the proper legal
manner.

3. Costs:

o The respondent (the person being sued, Brigadier General

Godfrey Miyanda) was awarded the costs of the appeal. This
means Sondashi might have to pay for some of the legal
expenses incurred by Miyanda.

Conclusion:

Dr. Ludwig Sondashi's attempt to challenge his expulsion from the MMD
through judicial review was dismissed because it was not the proper legal
procedure. The Supreme Court instructed that the case be sent back to
the High Court to be handled correctly, allowing Sondashi to proceed with
his claims through the appropriate legal channels.

Case Summary: Dith Zewelani Nawakwi v Attorney General (1991)

S.J. (H.C.)
Court: High Court of Zambia

Judge: Justice C. M. Musumali

Date: 24th June 1991

Case Number: 1990/HP/1724

Facts:

 Dith Zewelani Nawakwi, an unmarried mother of two boys, was a

Zambian citizen who had held two Zambian passports. Her first
passport expired and included her children, David Kayivwambile
Siwakwi and Mbwiga Mlozi Siwakwi.

 After her first passport expired, she applied for a new passport and
requested the inclusion of her children in it. She was issued a new
passport, but her children were not included. She was asked to swear
fresh affidavits to have her children included, which she found
discriminatory and demeaning.

 She went on and said that she did not have any problems to include
the second child in her passport. This was because his father filled in
all the relevant documents in London and they were handed in and
processed by the Zambian High Commission. She attacked that
practice because it recognises a foreign male, as was the case in this
case as the father of her second child is a Tanzanian, but refuses to
recognise a Zambian Female, who is a parent of a child.

 Nawakwi argued that as a single mother, she should not need the
father's consent to include her children in her passport and that the
procedures in place were discriminatory against women.

Issues:

1. Discrimination: Whether the requirement for a father's consent for

including children in a mother's passport is discriminatory based on
sex.

2. Recognition of Single Parent Families: Whether single parent

families headed by women are recognized as family units under
Zambian law.

3. Freedom of Movement: Whether the refusal to include children in the

mother's passport without the father's consent infringes on the
constitutional right to freedom of movement.
4. Locus Standi: Whether Nawakwi has the legal standing to bring the
case on behalf of her children.

Relevant Laws and Articles:

 Article 13 of the Constitution of Zambia: Entitles every person to

fundamental rights and freedoms without discrimination based on sex,
among other factors.

 Article 25 of the Constitution of Zambia: Prohibits discriminatory

treatment by any person acting under written law or in the performance
of public office functions.

 Article 29 of the Constitution of Zambia: Allows any person to apply

to the High Court for redress if their rights under Articles 13 to 27 are
contravened.

 Article 24 of the Constitution of Zambia: Guarantees freedom of

movement for all Zambians.

Reasoning:

1. Discrimination:

o The court found that the practice of requiring a father’s consent

for including children in a mother’s passport was discriminatory
against women. This practice unfairly treated mothers as less
entitled to their children’s affairs than fathers, based solely on
their gender.

2. Recognition of Single Parent Families:

o The court recognized single parent families headed by either

male or female as legitimate family units under Zambian society
and law. The petitioner’s status as an unmarried mother should
not preclude her from including her children in her passport.

3. Freedom of Movement:

o The court held that holding a passport is a right incidental to the

freedom of movement guaranteed by the Constitution. Thus, it is
a right for every Zambian to have a passport or to include their
children in their passport unless there is a valid legal reason
barring such inclusion.

4. Locus Standi:
 o The court determined that Nawakwi had the legal standing to
bring the case on behalf of her children, as they were minors
and unable to sue on their own.

Holding:

The court made several declarations in favor of the petitioner:

1. Discrimination: Nawakwi was unfairly discriminated against on the

ground of sex.

2. Endorsement of Children: The petitioner’s children’s particulars

should be endorsed in her present passport without requiring fresh
affidavits or documents.

3. Recognition of Single Parent Families: A single parent family

headed by a male or female is recognized as a family unit in Zambian
society.

4. Freedom of Movement: A passport is part of the freedom of

movement and is a right for every Zambian to have one or to include
their children in one unless there is a valid legal excuse barring such
possession or endorsement.

5. Consent for Passports: A mother does not need the father’s consent
to have her children included in her passport or for them to obtain
passports or travel documents.

The petitioner was awarded the costs of the action.

Hangandu v. Law Association of Zambia (Appeal 109 of 2013) 2014

ZMSC 114

Facts:

Kelvin Hang'andu, an advocate and member of the Law Association of

Zambia (LAZ) since 1996, converted to the Seventh-day Adventist (SDA)
faith on May 24, 2003, which requires observing the Sabbath from Friday
sunset to Saturday sunset. Hang'andu complained that LAZ's practice of
holding meetings on Saturdays infringed on his religious liberty and
prevented him from observing the Sabbath. Despite his complaints, LAZ
continued to schedule meetings on Saturdays, leading Hang'andu to
petition the High Court, arguing that LAZ's meeting schedule violated his
rights under Articles 19 and 23 of the Zambian Constitution, which protect
freedom of conscience and prohibit discrimination based on creed. The
High Court dismissed his petition, finding no evidence of coercion or
discriminatory intent by LAZ. Hang'andu then appealed to the Supreme
Court.

Issues:

1. Freedom of Conscience: Whether LAZ's practice of holding meetings

on Saturdays infringed on Hang'andu's right to freedom of conscience
as protected under Article 19 of the Zambian Constitution.

2. Discrimination: Whether LAZ's practice constituted discrimination

against Hang'andu based on his religious creed, contrary to Article 23
of the Zambian Constitution.

Relevant Laws and Articles:

 Article 19 of the Zambian Constitution: Protects the right to freedom

of conscience, including freedom of thought and religion, freedom to
change one's religion or belief, and freedom to manifest and propagate
one's religion or belief.

 Article 23 of the Zambian Constitution: Prohibits laws or actions that

are discriminatory either in themselves or in their effect. Discrimination
is defined as affording different treatment to different persons
attributable to their race, tribe, place of origin, political opinions, color,
creed, or sex.

High Court Judgment:

 The High Court dismissed Hang'andu's petition, finding that LAZ had
not coerced Hang'andu into choosing between attending meetings and
observing the Sabbath.

 The court determined there was no discriminatory intent in LAZ's

scheduling of meetings.

Supreme Court Reasoning:

1. Freedom of Conscience:

o The Supreme Court found no evidence that LAZ's conduct

hindered Hang'andu's freedom of conscience. Hang'andu had
voluntarily converted to Adventism and observed the Sabbath
without any coercion from LAZ.

o The court noted that the right to freedom of conscience is

protected unless there is evidence of coercion or compulsion,
 which was absent in this case.

2. Discrimination:

o The Supreme Court agreed with the High Court that Hang'andu
failed to prove that LAZ's meeting schedule was discriminatory.

o The court emphasized that discrimination under Article 23

involves treating people differently based on characteristics like
creed. Hang'andu did not show that LAZ treated members of
other religious groups more favorably or that the scheduling was
intended to discriminate against him.

o The court observed that requiring LAZ to change its meeting

days would unjustly favor Hang'andu and potentially infringe on
the religious liberties of other members.

Holding:

 Appeal Dismissed: The Supreme Court dismissed Hang'andu's

appeal, upholding the High Court's decision.

 Freedom of Conscience and Discrimination: The court held that

Hang'andu's rights to freedom of conscience and protection from
discrimination were not violated by LAZ's meeting schedule.

 Balance of Rights: The court stressed the importance of balancing

constitutional rights to avoid favoring one group over another and to
ensure that no single group's rights unjustly infringe on others.

Conclusion:

The Supreme Court affirmed that LAZ's practice of holding meetings on

Saturdays did not infringe on Hang'andu's constitutional rights to freedom
of conscience and protection from discrimination. The court highlighted the
necessity for concrete evidence when alleging discrimination and
reinforced the judicial principle of balancing rights to prevent undue
favoritism or infringement. The appeal was dismissed in its entirety, with
the court emphasizing the need for fairness and equity in addressing
claims of religious discrimination.

Zinka v The Attorney-General (1990 - 1992) Z.R. 73 (S.C.)

Court:

Supreme Court of Zambia

Judges:

SILUNGWE, C.J., NGULUBE, D.C.J., GARDNER, CHAILA, and CHIRWA,

JJ.S.

Date:

29th August, 1989, and 5th July, 1991

Facts:

The appellant, Zinka, was a license holder whose trading license was revoked
by the President of Zambia. The revocation was executed through regulations
made under the Emergency Powers Act, Cap. 108. However, these
regulations were supposed to be based on a proclamation of a state of public
emergency under Article 30(1)(a) of the Zambian Constitution. Zinka was not
given a hearing before his license was revoked. Subsequently, his property
was searched by police officers, who did not find anything incriminating, and
his goods were taken over by the state. Zinka petitioned the High Court, which
dismissed his petition. He then appealed to the Supreme Court.

Issues:

1. Legality of the Revocation under Incorrect Legislation: Was the

revocation of Zinka's license lawful despite being promulgated under
the wrong statutory provision?

2. Application of Natural Justice: Should Zinka have been given a

hearing before his license was revoked?

3. Definition of Essential Commodities: Were the goods Zinka dealt in

considered essential commodities, justifying the revocation of his
license?

4. Confiscation of Goods: Were Zinka's goods lawfully confiscated by

the state?

Reasoning:

1. Legality of the Revocation:

o Emergency Powers Act vs. Preservation of Public Security

Act: The President revoked Zinka's license under the
 Emergency Powers Act, which requires a state of public
emergency proclamation. However, there was no such
proclamation. Instead, the proclamation was under Article 30(1)
(b) of the Constitution, indicating a threatened public
emergency.

o Legal Basis for Actions: Despite the wrong reference, the

President's actions were deemed valid because they could be
traced to a legitimate source of power under Section 3(2) of the
Preservation of Public Security Act, Cap. 106, which allows
similar powers during a threatened public emergency.

o Section 20(7) of the Interpretation and General Provisions

Act: This section stipulates that a statutory instrument is valid if
it can be justified under any existing enabling power, even if an
incorrect power is cited.

2. Application of Natural Justice:

o Audi Alteram Partem Rule: Generally, natural justice requires

that a person be given a hearing before a decision affecting their
rights is made. This rule applies unless explicitly or implicitly
excluded by statute.

o Exceptional Circumstances: The Constitution allows for

derogation from natural justice principles during a state of
emergency or a threatened emergency as per Article 26, which
permits the limitation of certain fundamental rights (including
property rights) for public safety and order.

3. Definition of Essential Commodities:

o Trading Without Permit: Zinka continued trading in essential

commodities like sugar even after his permit was revoked, which
justified the application of emergency regulations to his
business.

o Statutory Instruments and Regulations: The regulations

defining essential commodities were correctly applied, and
Zinka's activities fell within these definitions.

4. Confiscation of Goods:

o Government Control vs. Confiscation: The court found that

Zinka's goods were not confiscated but taken over by the state,
entitling him to compensation. The process for disputing the
 compensation amount involves appealing to the National
Assembly as per the emergency regulations.

Holding:

1. Legality of Revocation: The revocation of Zinka's license was lawful

because the President had the authority under the Preservation of
Public Security Act, despite citing the Emergency Powers Act
incorrectly.

2. Natural Justice: The principles of natural justice did not apply in this
case due to the emergency situation, as permitted by Article 26 of the
Constitution.

3. Essential Commodities: Zinka's dealings in essential commodities

justified the revocation of his license under the emergency regulations.

4. Control of Goods: The taking over of Zinka's goods by the state was
lawful, with provisions for compensation in place.

Conclusion:

The Supreme Court dismissed Zinka's appeal, affirming the legality of the
actions taken under the emergency regulations and the inapplicability of
natural justice principles in the context of a declared emergency. There was
no order as to costs, considering the novel issues raised in the appeal.

Chongwe v Zambia (2001) AHRLR 42 (HRC 2000)

Court:

Human Rights Committee (HRC)

Date:

Decided at the 70th session, 25 October 2000, CCPR/C/70/D/821/1998

Facts:

Rodger Chongwe, a Zambian advocate and chairman of a 13-party opposition

alliance, claimed to be the victim of human rights violations by the Zambian
government. On 23 August 1997, Chongwe and former President Kenneth
Kaunda were shot at by police in Kabwe while attending a political rally.
Chongwe suffered life-threatening injuries, while Kaunda was slightly
wounded. Despite promises from the police and the Zambian Human Rights
Commission to investigate the incident, no results were produced. The
incident was reported by Human Rights Watch and the Inter-African Network
for Human Rights and Development, confirming the shooting through witness
statements and medical reports. Chongwe alleged the incident was an
assassination attempt by the government and that he had no access to
effective domestic remedies.

Issues:

1. Security of Person: Whether Zambia violated Chongwe’s rights to

security of person under Article 9 of the International Covenant on Civil
and Political Rights (ICCPR).

2. Right to Life: Whether the use of lethal force by the police violated
Chongwe’s right to life under Article 6 of the ICCPR.

3. Exhaustion of Domestic Remedies: Whether Chongwe had

exhausted all available domestic remedies.

4. State Responsibility: Whether Zambia had conducted sufficient

investigations into the incident.

Reasoning:

1. Security of Person (Article 9 ICCPR):

o Article 9 of the ICCPR states: "Everyone has the right to liberty

and security of person. No one shall be subjected to arbitrary
arrest or detention." The Committee noted that Article 9 protects
the right to security of person outside the context of formal
deprivation of liberty. Chongwe was shot and wounded by
persons acting in an official capacity within the Zambian police
forces. The state's failure to conduct independent investigations
or conclude the initiated ones violated his right to security of
person.

2. Right to Life (Article 6 ICCPR):

o Article 6(1) of the ICCPR stipulates: "Every human being has the
inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life." The Committee observed
that Article 6(1) entails an obligation for the state to protect the
right to life of all persons within its territory. Zambia failed to
contest the claim that it authorized the use of lethal force without
lawful reasons. The use of force could have led to Chongwe’s
death, thus violating his right to life.
 3. Exhaustion of Domestic Remedies:

o Chongwe argued he had no access to effective domestic

remedies. The state did not contest this claim. Given the lack of
state response, the Committee accepted Chongwe’s assertion
that no effective domestic remedies were available to him, in line
with Article 5(2)(b) of the Optional Protocol, which requires
exhaustion of domestic remedies unless they are unavailable or
ineffective.

4. State Responsibility:

o The state has a duty under Article 2(3)(a) of the ICCPR to

provide an effective remedy for rights violations. The Zambian
authorities failed to conduct independent investigations or
initiate criminal proceedings against those responsible, further
violating Chongwe’s rights.

Holding:

1. Violation of Article 9(1) (Security of Person):

o The Committee concluded that the state violated Chongwe’s

right to security of person under Article 9(1) of the ICCPR.

2. Violation of Article 6(1) (Right to Life):

o The Committee found that the state failed to protect Chongwe’s

right to life under Article 6(1) of the ICCPR.

3. Obligation to Provide Effective Remedy:

o Under Article 2(3)(a) of the ICCPR, the state is obliged to

provide an effective remedy, including adequate measures to
protect Chongwe’s security and life from threats. This includes
carrying out independent investigations, expediting criminal
proceedings against responsible parties, and providing damages
if state agents are found responsible.

4. Publication and Information:

o The Committee requested Zambia to publish its views and

report back within 90 days on measures taken to comply with
the Committee's recommendations.

Conclusion:
The Human Rights Committee found that Zambia violated Chongwe’s rights
under Articles 6(1) and 9(1) of the ICCPR by failing to protect his right to life
and security of person and not conducting sufficient investigations into the
shooting incident. The Committee urged Zambia to provide an effective
remedy, including independent investigations, criminal proceedings, and
compensation if state agents were responsible.

Banda v The People (2002) AHRLR 260 (ZaHC 1999)

Court:

High Court of Zambia, Lusaka

Date:

29 November 1999

Judge:

Chulu J.

Facts:

John Banda, the appellant, was convicted of malicious damage to property

and sentenced to one month of simple imprisonment, suspended for twelve
months, and ten strokes of a cane. The incident occurred on 14 November
1998, when police patrolling Mulamba Street in Libala Stage 4B stopped
Banda and his friends. Banda ran away but was apprehended after becoming
violent and breaking the rear window of the police vehicle.

Issues:

1. Cruel, Inhuman, or Degrading Treatment: Whether the sentence of

ten strokes of a cane constitutes cruel, inhuman, or degrading
punishment under Article 15 of the Zambian Constitution.

2. Constitutional Supremacy: Whether sections 24(c) and 27 of the

Penal Code, which provide for corporal punishment, are
unconstitutional in light of Article 15 of the Constitution.

3. Judicial Notice: Whether statutory provisions relating to corporal

punishment are applied discriminatively.

Reasoning:

1. Cruel, Inhuman, or Degrading Treatment (Article 15 of the

Constitution):
 o Article 15 states: "A person shall not be subjected to torture, or
to inhuman or degrading punishment or other like treatment."
The appellant argued that corporal punishment is brutal,
inhuman, and barbaric, violating this constitutional protection.
The court agreed, emphasizing that corporal punishment inflicts
acute pain, physical suffering, and strips the recipient of dignity
and self-respect. It is also easily subject to abuse by those
administering it and degrades both the punished and the
punisher.

2. Constitutional Supremacy:

o The Constitution is the supreme law of Zambia, and any law

inconsistent with it is null and void. Sections 24(c) and 27 of the
Penal Code, which permit corporal punishment, were found to
be in direct conflict with Article 15 of the Constitution. The court
noted that the Penal Code had not been amended to reflect
constitutional changes and that the derogation clause present in
the 1973 Constitution had been intentionally omitted in the 1991
Constitution and maintained in the current Constitution. This
indicated a clear legislative intent to abolish corporal
punishment.

3. Judicial Notice:

o The court acknowledged that corporal punishment is often

applied discriminatively, primarily affecting underprivileged
individuals from shanty compounds, while affluent individuals
are rarely subjected to such punishment. The court took judicial
notice of this discriminatory application of the law.

Holding:

1. Sentence of Corporal Punishment:

o The appeal was upheld, and the sentence of ten strokes of a

cane was set aside. The court found the punishment to be
inhuman, degrading, and unconstitutional.

2. Unconstitutionality of Penal Code Provisions:

o Sections 24(c) and 27 of the Penal Code, which provided for

corporal punishment, were declared unconstitutional and null
and void. These sections were ordered to be severed from the
Penal Code.
Conclusion:

The High Court of Zambia ruled that corporal punishment constitutes cruel,
inhuman, and degrading treatment, violating Article 15 of the Constitution.
Consequently, the court declared the relevant provisions of the Penal Code
unconstitutional, affirming the supremacy of the Constitution and the need to
protect individual rights against inhuman treatment. The court's decision
reflects a commitment to uphold human dignity and eliminate barbaric
practices within the judicial system.