The Constitutional Court of Zambia has granted Milingo Lungu leave to amend his original petition to include the decision made on 22nd December, 2022 by Director of Public Prosecutions, DPP, Gilbert Andford Phiri to revoke his immunity agreement.
The original petition awaiting determination seeks to declare as illegal the decision by the state to investigate, arrest and arraign Mr. Lungu before the Subordinate Court on criminal charges related to his role as Provisional Liquidator for Konkola Copper Mines, KCM.
Lungu had argued that these actions contravened Articles 180 (7) and 216 (c) of the Zambian constitution. However, the new development, namely, the purported revocation of this immunity agreement by the DPP, Mr. Phiri, necessitated the decision by the Petitioner to amend his original petition.
Through the new amendment, the Petitioner is asking the court to determine whether the incumbent DPP has the authority to revoke the agreement and whether he is not estopped from proceeding in that manner.
The State had objected to the amendment arguing that the court had no jurisdiction, firstly, to allow the Petitioner to amend the petition to add a cause of action that did not exist when the petition was filed; and secondly, to allow an amendment that substantially changes the action before Court.
In its unanimous ruling, the five-member-bench comprising Judges Sitali, Mulonda, Mulenga, Musaluke, and Chisunka, the Constitutional Court ruled that “the Petitioner’s application to amend the petition has been occasioned by the 1ST Respondent’s (the state) action, through the DPP, on 22nd December, 2022 to announce the revocation of the immunity agreement, which is the subject of the petition and cross-petition after the petition had already been cause listed for trial”.
Furthermore, the Court ruled, “Thus in our view, the proposed amendments though introducing a new cause of action stem from substantially the same facts. The justice of the cause therefore dictates that the application for amendment be allowed in order for the real dispute between the parties to be determined, particularly as the new cause of action arises substantially from the same facts as we have already stated”.
The Court reminded the State of its apparent self-contradictory arguments when it opposed the application saying the amendment would delay the determination of the main petition, a petition that the State has already applied to be dismissed arguing that its continued hearing amounts to an academic exercise because the DPP has already annulled it.
The Court has directed the Petitioner to file his amendments by the 6th of April 2023 while the State is expected to file their amended responses by the 21st of April 2023. The Petitioner is expected to file their amended responses by the 2nd of May 2023 and a supplementary record of proceedings by the 5th of May 2023 after which the amended petition shall be set down for trial thereafter.