By CHINTU MALAMBO
THE State has submitted that it is not legally tenable to restrain the republican President and the National Assembly from performing their constitutional mandate of processing the Constitution of Zambia (Amendment) Bill No. 10 of 2019.
Attorney General Likando Kalaluka argues that the Constitution conferred the National Assembly with powers to regulate its own procedures.
This is in a matter in which LAZ has sued the President, the Attorney General and the National Assembly over the bill, which has already passed first reading in Parliament, alleging that it is a contravention of the current Constitution.
LAZ then applied for an order of interim injunction to restrain the National Assembly from considering the bill until determination of its petition by the court.
But Mr Kalaluka argues that the reliefs being sought by LAZ are injunctive in nature because they seek to prohibit the President and the National Assembly from performing their constitutionally mandated functions to process the Constitution of Zambia Bill 10 of 2019.
He submitted that the application for an injunction was misconceived and not legally tenable.
“It is instructive to note that the objective of the State Proceedings Act is to provide for civil proceedings by and against the State and civil liabilities and rights of the State and its servants. Thus the State is immunised against injunctions,” Mr Kalaluka states.
He argues that the State Proceedings Act is an act of Parliament and that the Constitutional Court rules are promulgated by Statutory Instrument No 37 of 2016. Therefore, it was settled law that a statutory instrument could override an act of Parliament. Mr Kalaluka says it is not possible to grant an interim injunction against the President and the National Assembly.
And LAZ has asked the Constitutional Court to throw out with costs, an application where the State seeks to have its petition challenging the Constitution of Zambia (Amendment) Bill No 10 dismissed.
LAZ has sued President Lungu, Mr Kalaluka and the National Assembly over the bill alleging that it is a contravention of the current Constitution.
It also applied for an order of interim injunction to restrain the National Assembly from considering the Bill no constitution 10 until determination of the petition.
Attorney General however, asked the court to dismiss the petition saying it is irregular, incompetent and lacks merit.
He said the petition is incompetent because the petitioner have not explained how the President, who is empowered by the Constitution to initiate bills, contravened the constitution and also how the Attorney General contravened the law when he was constitutionally empowered to sign government bills.