CHAPTER One Foundation limited has opposed an application by the state to strike out President Edgar Lungu from the matter in which it has petitioned him for assenting to the Correctional Service Bill No.35 of 2021 when his parliamentary mandate expired following the dissolution of Parliament.
It argued that the relief it was seeking was not against President Lugu but against the Bill, which must be quashed on the premise that it was ultra-vires (in excess of) the Constitution.
The NGO said the contention was the legality of the signing of the Zambia Correctional Service Act no.35 of 2021 after the dissolution of Parliament on May 13, 2021.
Among other clauses of the Bill, well behaved inmates would be given two-weeks leave to visit their families. Prisoners will also be released on a special license apart from being pardoned.
But Chapter One Foundation wants a conservatory order staying the operation of the Zambia Correctional Service Act no.35 of 2021 and restoring the Prisons Act Chapter 97 of the Zambian laws pending determination of the petition.
It wants a declaration that to the extent that the Zambia Correctional Service Bill no.35 of 2021 was assented to by the President after the dissolution of Parliament on May 13, 2021, the Zambia Correctional Service Act no.37 of 2021 was not law enacted by Parliament of Zambia therefore it was null and void.
COF is further seeking an order of certiorari that the Zambia Correctional Service Act no.37 of 2021 be quashed.
Josiah Simachela, a chief state advocate in the Attorney General’s chambers, asked the court to remove President Lungu from the matter as he enjoys immunity and could not be sued.
In an affidavit in support of combined summons for joinder of a party to proceedings and for misjoinder of party, Simachela said the President had been sued for performing his duties in his capacity as President.
“All civil matters ought to be brought against the Attorney General, the intended second respondent. President Lungu, being a public officer, has been wrongly joined to the proceedings as no civil action can be instituted or continued against a person occupying the Office of President,” said Simachela
But in its skeleton arguments in opposition to summons for joinder and misjoinder, COF said although the Attorney General seeks to be joined to the proceedings as the second respondent, he seeks to be the sole respondent in place of the President.
It said the application lacked merit and should be dismissed as Article 98 of the constitution had been misapprehended by the Attorney General and the argument that the President was a public officer was misplaced and without any legal foundation.
“Article 98(1) of the constitution does not abolish but merely suspends the right of any person to continue civil proceedings against the President in respect of anything done or omitted to be done by the President in his private capacity during the tenure of office as President,” COF said.
“It is evident that the applicant has been very casual in this application in that no effort has been made either in the affidavit in support or in the arguments to interrogate the nature of the case before court against the respondent.”
The petitioner stated that it was not enough to rely on article 98 of the Constitution as the Attorney General had an obligation to demonstrate that the case against the President was within the ambit of the said article in relation to what he did or omitted to do in his private capacity.
“The respondent is party to these proceedings as President of the Republic of Zambia, in whom the Constitution has placed the executive authority of the Republic,” COF said.
It argued that the case had nothing to do with the Head of State in his personal capacity but what he did in his official capacity as President of the Republic of Zambia.
“The issues in contention in this case are therefore not subject to article 98 of the Constitution. The case before court is not civil or criminal, which is covered under article 119(2)(a) of the Constitution. It is constitutional in that it comes within the ambit of article 119(2)(b) of the constitution since it relates to the exercise of the authority vested in the President by the Constitution,” said COF. “We therefore submit that there is no merit in the Attorney General’s application for joinder and misjoinder. However, the applicant is at liberty to act as counsel for the respondent. The application must, therefore, be dismissed for lack of merit.”