WHY BILL 7 REMAINS JUSTICIABLE EVEN AFTER ASSENT
CONSTITUTIONAL SUPREMACY OVERRIDES PARLIAMENTARY ACTION- Simpamba Abraham

WHY BILL 7 REMAINS JUSTICIABLE EVEN AFTER ASSENT
CONSTITUTIONAL SUPREMACY OVERRIDES PARLIAMENTARY ACTION

The Attorney General’s argument collapses at the point of constitutional supremacy. Article 1(2) of the Constitution of Zambia unequivocally provides that the Constitution is the supreme law of the Republic and that any law inconsistent with it is void to the extent of the inconsistency.

This supremacy applies to all laws without exception, including constitutional amendments. Supremacy attaches to the Constitution itself not to Parliament, not to presidential assent, and not to political or legislative convenience. Where the process of amending the Constitution violates constitutional requirements, the product of that process cannot be salvaged or immunised by assent.

PARLIAMENT IS NOT THE FINAL GUARDIAN OF THE CONSTITUTION

The Attorney General’s position implicitly asserts parliamentary supremacy, a doctrine not recognised under Zambia’s constitutional order. Article 119(1) of the Constitution vests judicial authority in the courts and mandates that such authority be exercised in accordance with the Constitution. This provision firmly establishes the courts, not Parliament, as the final interpreters and guardians of the Constitution.

Parliament cannot validate its own unconstitutional conduct merely by completing the legislative process. To accept the Attorney General’s argument would mean that Parliament may violate constitutional procedures, rush a Bill to assent, and permanently shield it from judicial scrutiny. Such a position would strike at the heart of constitutionalism and dismantle the system of checks and balances.

CONTINUING AND ORIGINAL JURISDICTION OF THE CONSTITUTIONAL COURT

The assertion that the matter has been overtaken by events is legally unsustainable. Article 128(1)(a) establishes the Constitutional Court, while Article 128(3) confers upon it original and final jurisdiction in constitutional matters. Further, Article 128(2) empowers the Court to hear matters relating to the interpretation of the Constitution.

This jurisdiction does not lapse upon presidential assent to a Bill. On the contrary, where a law has already taken effect, the need for judicial scrutiny becomes more pressing in order to safeguard constitutional order and prevent ongoing illegality.

ARTICLE 79 DOES NOT IMMUNISE UNCONSTITUTIONAL AMENDMENTS

The Attorney General’s reliance on Article 79(5)(a) is misplaced. While Article 79 outlines the procedure through which a Bill becomes law upon assent, it does not confer immunity on legislation that is constitutionally defective. Article 79 regulates form and procedure it does not legalise illegality.

A constitutional amendment that fails to comply with the requirements of the Constitution in substance and spirit remains constitutionally defective. Nowhere does the Constitution state that once an amendment is assented to, it becomes immune from judicial challenge. Any such assertion finds no support in the constitutional text.

THE MUNIR ZULU JUDGMENT CHALLENGED THE ORIGIN OF BILL 7

The judgment in Munir Zulu and Celestine Mukandila v Attorney General did not concern minor or cosmetic procedural irregularities. It fundamentally questioned whether the entire constitutional amendment process complied with constitutional requirements, including the legality of the process, public participation, and adherence to constitutional thresholds.

Where the origin of a constitutional amendment is unconstitutional, subsequent remedial steps cannot cure that illegality. The establishment of a technical committee cannot retrospectively legitimise an unconstitutional process, and presidential assent cannot sanitise a poisoned legislative foundation. In constitutional law, legality cannot be built upon illegality.

PRESIDENTIAL ASSENT CANNOT CURE CONSTITUTIONAL INVALIDITY

Presidential assent is a formal constitutional act it is not a mechanism for curing constitutional defects. Across constitutional democracies, courts have consistently held that executive assent does not validate unconstitutional legislation. To hold otherwise would elevate the President above the Constitution, a position expressly rejected by Article 1 of the Constitution.

The President, like Parliament, is bound by the Constitution and cannot confer validity upon a process that was unconstitutional at its inception.

THE ALLEGATION OF ABUSE OF PROCESS IS MISCONCEIVED

Seeking constitutional clarity on whether a constitutional amendment was lawfully enacted particularly after a prior judgment has cast doubt on its legality does not constitute an abuse of court process. Rather, it represents the proper invocation of constitutional accountability mechanisms. It is a legitimate defence of constitutional supremacy and a necessary inquiry into whether Zambia remains governed by the rule of law or drifts towards legislative absolutism.

CONCLUSION

Parliament is not the final guardian of the Constitution. Presidential assent is not a shield against constitutional illegality. The jurisdiction of the Constitutional Court cannot be extinguished by political timing or procedural expediency. Where the origin of a constitutional amendment is unconstitutional, the amendment itself is void assent notwithstanding.

Simpamba Abraham
Together We Can
Ichalo Bantu!