NGOS CASE TO DECRIMINALISE HOMOSEXUALITY IN ZAMBIA COMES UP IN THE CONCOURT
CONSTITUTIONAL COURT TO HEAR CASE ON SEXUAL OFFENCES AGAINST ORDER OF NATURE
….Lusaka, Zambia, 29 July 2024
THE full bench of the Constitutional Court has this morning delivered a majority Ruling in which it has decided to hear a case challenging laws that criminalize sexual relationships by persons against the order of nature.
The case was brought by activist Isaac Mwanza and the Zambia Civil Liberties Union (ZCLU) who argue that these laws go against the provision in Bill of Rights.
In a preliminary issue raised by the Court itself, the Court had to first decide if it had the jurisdiction to hear the case, since it involves interpreting provisions in the Bill of Rights and alleged contraventions of the a provision in the Bill of Rights by a subsidiary law.
The petitioners argued that the High Court can only hear cases where an individual’s rights have been violated, but not cases where a law is challenged for violation any provisions in the Constitution, which includes provisions in the Bill of Rights itself.
The petitioners argued that one of the courts between the Constitution Court or the High Court had jurisdiction to hear whether a law is inconsistent with any provisions of the Constitution, and that such a court is the Constitutional Court as provided by Article 1(5) of the Constitution.
They also alleged that the High Court has no jurisdiction either under the Constitution or the law to hear an alleged contravention of all provisions of the Constitution, which includes the Bill of Rights, by an Act of Parliament.
They argued that the recent decisions in the cases of Hakainde Hichilema and Godfrey Miyanda all point to the direction that the Constitutional Court has the jurisdiction over the entire Constitution.
They said the Constitutional Court jurisdiction is only ousted when the allegation has been raised by a person who claims it is their rights which have been violated, which is not the case in the case before the Court.
The petitioners reiterated that they not alleging any contravention of the Bill of Rights in relation to themselves or to anyone else. They contended that there would be a vaccum if the Constitutional Court had no jurisdiction to a matter where the claim alleges that provisions of the law are in breach of the Constitution inclusive of the Bill of Rights.
They submitted that the High Court jurisdiction on this matter is it tenable because the Petitioners are not alleging that their personal rights had been violated.
But Senior State Advocate in the Attorney-General Chambers had also submitted that the matter was improperly before the Court as Article 128 of the Constitution is clear with regard to the jurisdiction of the Constitutional Court.
She argued that the Petitioners were seeking interpretation of the mentioned articles of the Constitution which the Petitioners cannot do so because there was no factual basis for the said interpretation.
In arriving at the decision, the Court noted that the issues raised by the Petitioners are, on the face of it, distinguishable from the issues considered before Constitutional Court in the cited cased.
“With that in mind, we are of the considered view that the Petition raises issues that can only be determined after a full hearing of the matter,” stated the Court.
Meanwhile the Court has adjourned the hearing of an application by the Heart of Mercy Zambia, a church group, which seeks to join the Petiton as an interested party.
In written submissions, the Attorney General has opposed the application to join as an interested party. The Court has given given time for the Petitioners to make written submissions on the same application.
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