THE Constitutional Court says it will not conduct oral hearing of the matter in which the Litunga of the Lozi and three other paramount chiefs have petitioned it seeking a declaration that their traditional authority to recognise, install and discipline including dethronement of any of their subordinate chiefs in accordance with customary law shall continue to be exercised by them.
Constitutional Court judge Enock Mulembe on behalf of others has ordered that there being no dispute by the State on the facts filed by the Litunga and his counterparts, the matter would be
disposed of entirely on the basis of the petition, the answer, the affidavits and written submissions.
Justice Mulembe said in his orders to the paramount chiefs and the Attorney General, evidence shall be in form of the chiefs’ affidavits verifying petition and the respondent’s affidavit in support of answer.
“The petitioner shall file submissions within fourteen (14) days of the date of this order,” judge Mulembe said. “Submissions in reply, if any, should be filed within seven (7) days of receipt of the respondent’s submissions.”
He said judgment shall be delivered on a date to be communicated by the court.
In this matter, the Litunga and three other paramount chiefs (Mpezeni of the Ngoni, Gawa Undi of the Chewa and Chitimukulu of the Bemba) have petitioned the Constitutional Court seeking a determination and declaration that the institutions of paramount chief, senior chief and other chiefs continue to exist and are guaranteed under article 165 (1) of Constitution of Zambia.
They have cited the Attorney General challenging the decision by government to remove chiefs from the pay roll.
The Litunga and his counterparts in their petition said that according to Article 165 (1) of the Constitution Act No.2 of 2016, the institution of chieftaincy and traditional institutions are guaranteed and shall exist in accordance with the culture, customs and traditions of the people to whom they apply.
They said that according to article 167, a chief may own property in a personal capacity and enjoy privileges and benefits bestowed on the office of chief by or under culture, custom and tradition and attached to the office of chief as prescribed.
The Litunga and his counterparts said that article one (1) and (2) provides that the constitution is the supreme law of Zambia and any other written law, customary law, and customary practice that is inconsistent with its provisions is void to the extent of inconsistency and further that any act or omission that contravenes it was illegal.
They stated that the position taken by the Ministry of Chiefs and Traditional Affairs was different not only with the provisions of Article 165, 166 and 167 of the constitution of Zambia but also the definition of “chief” in Article 266.
They said that Article 2 of the constitution says that very person has the right and duty to defend the constitution as well as resist or prevent a person from overthrowing, suspending or illegally abrogating the constitution.
And according to their individual affidavits in support of the petition, the four explained that from the time Article 165 of the constitution became operational, there had been scramble for chieftainship proven by declarations of illegal chiefs now claiming that they no longer need to be recognised by senior chiefs under article 165 of the Constitution.
“It is important for Government to pay necessary subsidies to chiefs to enable them discharge their functions diligently and maintaining their dignity,” said the Litunga and others.
They want the court to determine and declare that when a paramount chief recognises or dethrones a subordinate chief in accordance with the traditional and customary practices and informs government accordingly, the State shall acknowledge and accord to such chief or in the case of dethronement cease to accord to the chief, the honour and dignity befitting a chief.
The quartet further want a declaration that they have authority to continue to administer and resolve traditional matters according to customary law in their traditional courts.
They are seeking a declaration that every chief and deputy chief shall be paid for the purpose of enabling them to maintain the dignity and status of the office of the chief and discharge the functions of the offices of the chief under African customary law in a fit and proper manner.
The four want the court to determine that section 2 of the Chiefs Act in so far as it defines the word chief is unconstitutional and therefore null and void.
In his answer to the petition, Attorney General Likando Kalaluka said the Litunga and his counterparts were entitled to the reliefs sought that the traditional authority of the paramount chiefs should recognise, install and discipline including dethronement of any of their subordinate chiefs in accordance with customary law shall continue to be exercised by them.
The state confirmed that Section 8 of the Chiefs Act was not declared unconstitutional and void by the Constitutional Court in the case of Webby Mulubisha Vs the Attorney General therefore the four paramount chiefs were entitled to the reliefs sought.
“The petitioners are entitled to the reliefs sought save for costs as the petition raises serious Constitutional issues and the said costs should be in the cause and for the reasons that the same issues raised were canvassed in the Webby Mulubisha V Attorney General judgment,” said Kalaluka.