You can’t sue the President for official acts, Kabesha tells Mundubile
ATTORNEY General Mulilo Kabesha has submitted to the Constitutional Court that President Hakainde Hichilema cannot be sued in his personal capacity for actions he carries out as part of his official duties.
This is in response to a petition filed by PF presidential hopeful Brian Mundubile and party member Celestine Mukandila, who are asking the court to declare President Hakainde Hichilema ineligible to stand as a candidate for any election, alleging that his actions in initiating a constitutional amendment process were unconstitutional
The petitioners are seeking several declarations, including that the President and the Attorney General acted unconstitutionally by initiating a constitutional amendment bill without conducting wide and inclusive consultations with citizens or relevant stakeholders.
They argue that this conduct contravenes Articles 8(c) and (e), 9, 90, 91(3)(a), and 92(1) of the Constitution.
They claim that President Hichilema breached his oath of office to protect and uphold the Constitution, and that this breach disqualifies him from seeking re-election as Republican President.
The petitioners referenced the Munir Zulu and Celestine Mukandila case of 27th June 2025, in which the Constitutional Court guided that a people driven process led by an independent body of experts should be followed for constitutional amendments.
In his court submissions, Kabesha argued that all matters arising from the President’s executive functions are the legal responsibility of the Attorney General, making him the proper party to be cited in court.
“The 1st Respondent cannot be sued in his individual capacity for official acts within the exclusive Presidential authority as prescribed by the Constitution in furtherance of his Executive functions and further that the 2nd Respondent is the legally permissible party to be cited for all official acts and omissions of the Republican President.”
The Constitution (Amendment) Bill No. 7 of 2025 proposes changes in 13 thematic areas, including the expansion of the National Assembly, the introduction of a mixed-member proportional representation electoral system, reforms in by-elections and the representation of women, youth and persons with disabilities.
The amendment process began with the publication of the Bill in the Government Gazette on 23rd May 2025 and its tabling in the National Assembly on 25th June 2025.
On June 26, 2025, President Hichilema directed the Minister of Justice Princess Kasune to defer further readings of the Bill to allow for wider consultations with the Zambian public.
A Technical Committee on the amendments was appointed on October 2, 2025 to carry out consultations.
The committee began its work on 20th October and submitted its report to the President on Monday.
On Tuesday this week, the first deputy speaker announced that she had received communication from the minister of Justice to restore the deferred Bill for further legislative consideration to incorporate the committee’s findings.
Kabesha argued that the court’s guidance does not limit the President’s power to initiate amendments.
“The Constitution is the supreme law of the Republic of Zambia and it binds all persons in Zambia, State organs and State institutions. The Judiciary cannot invent and legislate any procedures and processes or bodies such as an independent body of experts to represent the People of Zambia in conducting wide consultations outside of Article 79 of the Constitution of Zambia,” he said.
The Attorney General explained that Zambia’s Constitution distinguishes between Constituted power, the authority of elected representatives to propose amendments and Reserved or Constituent power of the people, exercised only through a referendum.
He noted that the proposed amendments in Bill No. 7 do not create a new Constitution nor affect its basic structure.
The Attorney General asked the court to dismiss the petition, declare that Articles 79, 64, 88, and 92 of the Constitution provide the sole and exhaustive procedure for the amendment of the Constitution and confirm that the Basic Structure Doctrine does not apply in Zambia.
He also seeks costs of the cross petition and any other relief the Court may deem fit.
The case continues in the Constitutional Court.
By Catherine Pule
Kalemba, December 4, 2025