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Monday, August 10, 2020

Can Judicial Review or Petition halt consideration of Bill 10 by Parliament?

Columns Can Judicial Review or Petition halt consideration of Bill 10 by Parliament?

By Isaac Mwanza

Introduction

When the former Minister of Commerce Mr. Dipak Patel dragged the Government to court in relation to parliamentary oversight on debt contraction as provided in Article 63 of the Constitution of Zambia, a point of order was raised as to why Parliament should continue to debate Bill 10 which proposes alteration to the said article. The Speaker of the National Assembly ruled that the National Assembly will proceed with its debate on the Constitution of Zambia (Amendment) Bill 2019, NAB No. 10 despite the litigation which is before the court. The one question from the public is whether a judicial review or a petition before the courts can stop Parliament from tabling or debating the Bill.

Judicial Review and Parliamentary Process

From the outset, it must be noted that apart from Mr. Dipak Patel, Paramount Chiefs have sued the Government in relation to the payment of subsidies as per Article 165. Livingstone based magistrate, Benjamin Mwelwa, has also challenged adherence of political parties to Article 60 of the Constitution. Finally, this author has also dragged the Electoral Commission of Zambia to court in relation to rescinding of resignation by councillors, as per article 157 and 158. All these articles mentioned in these pending cases are subject to alteration by Bill 10. Interestingly, no one has asked the Speaker to stop debate of Bill 10 because these citizens petitioned the Court.

Zambia has a developed jurisprudence on the use of judicial review against decisions taken by Parliament. Any competent lawyer is aware of the landmark decision of the Supreme Court of Zambia in the case of Zambia Democratic Congress (ZADECO) v. Attorney General delivered on 11th November, 1999 and 13th January, 2000, which is binding on both the High Court and Court of Appeals. This article is meant to discuss this case and allow the readers to discern the parallels from it.

In brief, ZADECO had on April 26, 1996 obtained leave to apply for judicial review, asking the High Court to quash the decision by the President and his Cabinet to amend the present 1991 Constitution in the manner suggested in the Constitution of Zambia (Amendment) Bill No. 17 of 1996 (I will refer to this Bill as Bill 17) which was published in the Government Gazette as required by Article 79(2)(a) on February 23, 1996. In the alternative, ZADECO sought an order to prohibit, among others, the National Assembly from proceeding with the consideration, discussion, debate or the enactment of the said Bill into law. ZADECO also made a request that leaves granted should operate as a stay of proceedings.

In determining these matters, the High Court judge in the application for leave to apply for judicial review observed that the application was impeaching the right and authority of the National Assembly to carry out its legislative duties by way of debate on the proposed amendments to the Constitution of Zambia 1996. The High Court judge thus categorically stated that such reliefs as sought by ZADECO, to stop parliament from debating a bill before the House, could not be granted; “this is untenable in this jurisdiction,” said the High Court. The application was thus refused.

ZADECO appealed to the Supreme Court against the High Court’s refusal to halt consideration, debate or any other proceedings on Bill 17. The Supreme Court deliberated the appeal to determine whether the procedure of judicial review adopted was correct and whether there was a clear and sustainable cause of action at law as opposed to morality and politics which, as the learned trial judge observed, is not the court’s domain.

Firstly, the Supreme Court was shocked that the High Court, while correctly noting that it was untenable to impeach the National Assembly from going ahead with debate on the proposed legislation, the High Court Judge, nevertheless, went ahead to hear the application for judicial review in circumstances which he rightly held to be untenable.

The Supreme Court observed that the use of judicial review to stop parliamentary proceedings was untenable “because Order 53/14/19 of the 1999 edition of the White Book does not suggest that the remedy of judicial review is concerned with reviewing the legislative process or Acts of Parliament.” The Supreme Court observed that the Order itself (53/14/19) sets out the nature and scope of judicial review in the following terms-

“The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself”. “It is important to remember in every case that the purpose… [it] is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question”…

The Supreme Court has, in several cases, affirmed the position that the purpose of Judicial Review is not to provide an appeal procedure against decisions of public bodies, such as the Minister, on their merits, but rather to control the jurisdiction of public bodies by ensuring that they comply with their duties or by keeping them within the limits of their powers.

The Supreme Court went further to pronounce itself, that the legislative process cannot be arrested by commencing proceedings for judicial review.

As observed by the highest court of the land, on grounds of procedure alone, the application for judicial review as a way to halt consideration of the then Bill 17 was misconceived and ought to have failed ab initio.

The Supreme Court settled the outcome of the ZADECO appeal by referring to its earlier decision in Derrick Chitala v. Attorney-General (SCZ Judgment No. 14 of 1995) in which the court explained the general proposition in judicial review as lying against inferior courts and tribunals and against any persons or bodies which perform public duties or functions. The Court thus guided:

“The Constitution of Zambia itself gives Parliament power to make laws. By no stretch of any imagination can our Parliament be equated as an inferior tribunal or body when it is exercising its legislative powers although in appropriate cases, actions, but not by judicial review, can be commenced against it…”

Without doubt, it is settled law that the High Court of Zambia has Constitutional Jurisdiction to hear applications for judicial review in matters involving parliament as held in the case of Attorney General v. Speaker of the National Assembly and Dr. Ludwig Sondashi (SCZ Judgement No. 6 of 2003). Zambia’s jurisprudence also allows parliamentary Hansards to be brought into the record of the court for consideration when necessary and relevant to the matter in issue.

Readers may wish to know that when the High Court grants leave to commence judicial review in matters involving parliament, it does so with the full understanding of the purpose of judicial review as espoused by the Supreme Court in the case of Fredrick Jacob Titus Chiluba v. Attorney General (2003) Z.R. 153. The High Court does thus seek to have many questions answered, the key of which are:

  1. Was the applicant for judicial review given fair treatment by the authority to which he has been subjected?
  2. Is the applicant asking the Court to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question?
  3. Is the application an appeal from the body concerned or does the applicant want the court to interfere in any way with the exercise of any power or discretion which has been conferred on that body?
  4. Did the authority have the jurisdiction to make the decision it made or exercised, in a way which is not within that body’s jurisdiction or was the decision reasonable?

Conclusion

In Zambia, the law was settled law by the Supreme Court, to the effect that the legislative process cannot be arrested or halted by commencing proceedings for judicial review as determined in the ZADECO case. In 1996, consideration of Bill 17 was not halted by the application or hearing of the application for Judicial Review. In 1996, the Speaker of the National Assembly proceeded to allow the House to debate and enact amendments to the Constitution while the High Court was hearing an application for judicial review, and also while the Supreme Court was hearing the appeal.

This article has also demonstrated that Parliament is amenable to having its decisions and actions, reviewed by the High Court, but that this process is not concerned with the merits of the decision in respect of which the application for Judicial Review is made. Rather, it is concerned only with the decision-making process itself. The purpose of Judicial Review is to ensure that an individual is given fair treatment by the authority to which he has been subjected, but that it is not the purpose of judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question.

The Court does not, on an application for Judicial Review, act as a “court of appeal,” from the decision of the Speaker to proceed with the legislative process, nor can the court interfere in any way with the exercise of any power or discretion by the Speaker which has been conferred on him by law, unless it has been exercised in a way which is not within Mr. Speaker’s or parliament’s jurisdiction, or if the decision is unreasonable.

This article has been authored to encourage fellow citizens to appreciate the rationale by which the Courts handle judicial review or petitions against decisions by Parliament. It does not in anyway, suggest that parliament cannot be sued; rather, this article demonstrates, as stated clearly by the Supreme Court, that the courts cannot stop or interfere with Parliament’s power or right to carry out its legislative duties as conferred upon it by the Constitution

22 COMMENTS

  1. In this case, the judicial review is in order because the argument is that the bill had expired. The extension came long after it had died. It would be interesting to hear what the judges will say on that. Also your well articulated article has brought light to the fact that judicial review can not halt parliament to proceed with its mandate of making laws. And that the high court can however hear the case but limiting itself to if parliament followed its own procedures!! Thank you for enlightening us.

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  2. This article makes a lot of sense. So the Speaker can rightly do what his predecessor did in 1996 and ignore the judicial review. He really can’t be stopping Bills every time judicial review is commenced

  3. Fair analysis and balanced. Am Keen to hear UPND MPs debate Bill 10 against fellow MPs in Parliament and not on radios and press briefings. With this clarity, I don’t see why Speaker will not allow presentation of Bill 10 for second reading this month.

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  4. Been asking this question: how is it that UPND MPs can debate Bill 10 on radios but are afraid of debating the same in Parliament? Something is not adding up. Let our MPs go debate in Parliament

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  5. This is highly packed and informative. So I can understand what will happen with the Jack Mwiimbu application to stop Parliament to debate Bill 10. It can be ignored by Speaker and that would be within this established law or it will be thrown out by the Courts themselves

  6. The reason why they can’t debate bill 10 is because they have been lying to the people. Debating in Parliament will only expose their evil intentions. I have not heard anyone pinpoint the bad article. All they say is bill 10 is evil, or bill 10 will make the president stay in power forever …
    I have gone through bill 10 several times, and I have not seen what the opposition mps have been preaching about.

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  7. I don’t know why, as UPND we spend so much time on going to Court if we can go vote NO against Bill 10 in Parliament. Won’t that show that we truly mean what we say than these gymanstics. And true, why has no one taken issues with many petitions from Chiefs, Mwelwa, and Mwanza to stop Bill? My take is let’s take the bull by its horns in Parliament.

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  8. Lets just say, in UPND we know our MPs who want to vote for Bill 10 because contentious issues have been resolved. But we don’t want to give PF benefit of doubt that they amended the Constitution. We want Bill 10 to come after 2021 so we can get the credit ourselves. Now, our target for judicial review is not the High Court which will rule in favour of Government but we targetting this matter to he heard by the Supreme Court because we will be in control of where this case must go. At least our Supreme Court would be sympathetic to UPND and undo its old decisions

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  9. If they are things which Labour Party Leader, Jeremy Corbyn regrets during his 4-year tenure in the top job was thinking the people opposed Brexit just as the Labour Party did. The same may be said about Hichilema and UPND after 2021. The Labour Party was very confident the majority people would vote vote the ruling party because they were scared of Brexit or they didn’t want it. The opposite proved to be true. Jeremy Corbyn and his party lost numbers and lost the elections, paving way for the ruling party to conclude the BREXIT. This is the case with Bill 10. Appears Lungu knows what he is doing but the opposition should have taken advantage to have this Constitution amended so we can have 37 days for the petition.

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  10. “…Parliament power to make laws. By no stretch of any imagination can our Parliament be equated as an inferior tribunal or body when it is exercising its legislative powers although in appropriate cases, actions, but not by judicial review, can be commenced against it…”

    Besides we have 3 organs of Government in Zambia.

    1. Executive 100%
    2. Legislature 100%
    3. Judiciary 100%
    All these it’s 100% independence.
    These must not be working in isolation the constitution provides guidance. But their functional operations must observe and embrace each other’s boundaries.
    Parliament makes laws, courts interpret and administer those laws as in execution of justice. Cabinet’s own is to exercise authority in and hold responsibility for the governance of the country.
    No…

  11. …amount of ubukopo can derail these institutional structures.
    Bayupeend dead bakopofye mwe.
    Yangu!

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  12. Continue wasting your time in courts and making lawyers richer Haha. We will continue with the BILL whether you scream like babies that need their nappies changing. If you have lawyers with valid arguments against bill 10, then why not take that argument to parliament? You are voted in by constituents who expect you to represent them in parliament and not court. Upnd are embarrassing and a bunch of cowards. This is how men with small p.e n.i.s behave

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  13. The analysis by the writer is spot on. However the only issue is whether or not the Speaker can resurrect a dead Bill by re-tabling a lapsed Bill on the Order Paper for further debate and vote? Can the Speaker unilaterally resurrect the bill from its death and put some life into it for further debate? The PF Chief Whip conceded that Bill 10 after being deferred for 6months lapsed on June 4, 2020. There are 2 issues here: 1. Can a Bill deferred for 6 months be deferred again for another 6 months b4 it expires? 2. Can a Bill which has expired after 6 Months extension and 20 days after expiry date be resurrected and re-tabled for debate and vote? What law or Standing Committee Rule does the Speaker use to put life in a dead Bill? Can someone pse explain?

  14. Well articulated article but if we are use the same logic why did the speaker refuse to table the motion to impeach ECL under the pretext that the case was in the courts of law. Is the speaker in order to show blatant bias?

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  15. Well this a non issue really. Until the court rules it can carry on the debate and vote; any decision thus made can either be upheld or nullified by the courts eventual ruling.

    UPND MUST STOP TRYING TO PREVENT PROGRESS IN ZAMBIA BY UNDERMINING PARLIAMENT WITH WALKOUTS AND FILING VEXATIOUS, MALICIOUS LITIGATION.
    it’s like asking the same question about the current legality of UPND considering there is a petition before the courts to deregister the party because it has not had a convention, thus not being able to show it understands the democratic tenents on Leadership selection. Why is UPND still functioning as a party, sitting/walking out of Parliament then????? GET IT?

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  16. Speaker has been clear. Doctrine of cognisance allows them to decide when to proceed with matter which is before Court or when not to proceed. That’s parliamentary privilege

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  17. By walking out UPND is preventing their votes from being rigged – by master riggers, ‘Pharaoh’s Fanatics’.

    You can’t rig what’s not there.

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  18. UPND knows this Bill is wanted by some of its MPs, so only option is to walk out. This Bill brings back UPND MPs into Councils. Why would they reject it? For UPND, this Bill is more about satisfying the ego of HH than realities. If UPND MPs followed realities, they would enact Bill into law but they are scared they won’t get adoption from HH, including those opposition who want adoptions.

  19. @ Mayo Mampa, that’s very correct and it’s what is not being told to the masses. Why did PF reject ECZ to oversee the voting on Bill 10 2 weeks ago ? Besides no one has stopped the rest of the MPs from debating & voting on Bill 10. Why defer it every time there is a walkout on flimsy grounds ? This Bill is centred on article 52(4). If 14 days will work against those wishing to petition, then let them be, it’s their loss. You indeed can’t manipulate what is not there, hence the desperation as time is also running out. Why should we trust people who have refused to pay back what the concourt ordered ?

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  20. The courts can not stop parliamentary proceedings. Parley also can not wait for the High Court to deal with the UPND case so they can tackle Bill 10.
    Surprisingly, both the Choma and Monze honourable lawmakers promised us to sue after Speaker Matibini tables the much publicised Bill, why did they do it sooner than later?

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