Madam Speaker, the Court Has Spoken: A Juridical Defense of the Constitutional Court’s Ruling on Bill 7

Madam Speaker, the Court Has Spoken: A Juridical Defense of the Constitutional Court’s Ruling on Bill 7

By Dr Mwelwa

The Constitutional Court of Zambia’s ruling in Zulu and Mukandila v. Attorney General marks a critical reaffirmation of constitutional supremacy and participatory democracy. It is not, as some may simplistically assert, judicial interference with parliamentary sovereignty. Rather, it is a principled enforcement of the rule of law—specifically, the requirement that any attempt to alter the foundational legal order of a democratic state must begin with the people.

At the heart of the judgment lies a key distinction: the difference between procedural regularity within Parliament and the constitutionality of the process leading to legislative consideration. While the National Assembly is supreme in managing its internal affairs—as affirmed in Bradlaugh v. Gossett (1884) 12 QBD 271, and later followed in Zambia’s own Shimbagam v. Attorney General (2019/CC/009)—such privilege does not extend to immunizing Parliament from the requirements of constitutional fidelity. In other words, the internal procedures of Parliament may be beyond judicial scrutiny, but the conditions precedent to lawful lawmaking remain subject to constitutional oversight.

In Doctors for Life International v. Speaker of the National Assembly 2006 (6) SA 416 (CC), the South African Constitutional Court famously held that public participation is a fundamental part of the legislative process, and failure to engage in meaningful public consultation renders a bill unconstitutional. The court stated that “public participation enhances the civic dignity of those who participate by enabling their voices to be heard… and it promotes a sense of involvement and accountability.” Zambia’s Constitutional Court has now aligned itself with this jurisprudence, correctly holding that a constitutional amendment process that originates without demonstrable public consultation is fatally defective.

It is important to recall that the Constitution of Zambia is not an ordinary statute; it is a supreme, living document whose amendment requires not just technical compliance but adherence to democratic principles. In Republic v. El Mann (1969) E.A. 357, the East African Court of Appeal warned that the Constitution must be interpreted in a broad and purposive manner, “sui generis” in character. The same principle is echoed in Attorney General v. Momodou Jobe (Gambia, SC Civil Appeal No. 1 of 1984), where the Supreme Court insisted that no authority could act outside constitutional boundaries simply because it was following internal rules.

In this light, the Constitutional Court’s decision to halt the Bill 7 process was not an act of judicial activism—it was an act of constitutional guardianship. The defect did not lie in the Gazetting or the Committee referral; the defect occurred at the source. The process was initiated by the Executive without an independent consultation framework, without public hearings, and without a clear demonstration that the people of Zambia had been involved before the Bill was drafted and published.

The Court’s judgment is not in conflict with Article 77(1) of the Constitution or with Section 34 of the National Assembly (Powers and Privileges) Act. Rather, it enforces Article 8(c) and Article 5, which demand transparency, inclusivity, and respect for the sovereignty of the people. Sovereign authority under the Constitution is not a theoretical abstraction—it is a practical mandate requiring procedural legitimacy.

Comparative constitutions across Africa and the Commonwealth demonstrate the same emphasis. In Kenya, the High Court in Thirdway Alliance Kenya v. Speaker of the National Assembly (2021) invalidated a constitutional amendment process (the “BBI” initiative) on the basis that it lacked sufficient public engagement and did not originate from the people. The ruling was later upheld by the Kenyan Court of Appeal and partly affirmed by the Supreme Court of Kenya, showing regional judicial consensus on the matter.

Critics who argue that the court has trespassed into legislative terrain misunderstand the boundaries of constitutional adjudication. The judiciary is not substituting its views for those of Parliament; it is ensuring that Parliament itself does not act on a foundation laid in constitutional breach. As the Supreme Court of Canada held in Reference Re Secession of Quebec [1998] 2 SCR 217, the principles of democracy, constitutionalism, and the rule of law demand that changes to the constitutional order must reflect an informed and inclusive process. Anything less undermines the very legitimacy of constitutional governance.

The Zambian Constitutional Court has therefore rendered a judgment both defensible and necessary. It has reminded all arms of government that constitutional amendment is not merely a legal formality—it is a democratic ritual that begins with the people, not with power.

Madam Speaker, this is not a disruption of legislative independence—it is a defense of constitutional integrity. Let us not confuse procedural momentum with constitutional legitimacy. Bill 7, though published and tabled, was already in breach before its first reading. That breach cannot be cured by committee hearings or floor debates. The people were not asked before the pen hit the page.

In conclusion, the Constitutional Court has drawn a necessary line in the sand: You cannot amend the Constitution without the people—and certainly not before them. This is not judicial overreach. It is the fulfillment of the Court’s highest duty: to ensure that the Constitution remains the property of the governed, not a playground for the governors.