LAZ urges Concourt to dismiss Wright Musoma, 4 Others case
By Staff Reporter
THE Law Association of Zambia has asked the court to dismiss with costs the case in which pro-PF opposition leaders have sued the association.
The three pro- PF opposition leaders and two individuals have sued LAZ over its decision to drag President Edgar Lungu to court for attempting to alter the Constitution of Zambia through Bill 10, 2019.
On August 30, Wright Musoma, Richard Mumba, New Congress Party president pastor Peter Chanda, Mwanalushi Mulemwa and Citizens Democratic Party president Robert Mwanza commenced an action by originating summons in the Constitutional Court citing LAZ.
In this action, Musoma and four others are seeking an interim order to stay proceedings in which LAZ has sued President Lungu, the Attorney General and the National Assembly for attempting to alter the Constitution of Zambia through Bill 10, 2019, pending determination of their matter.
They also seek an order which will declare that LAZ’s decision to sue the National Assembly is illegal and contravenes Section 12 (1) of the State Proceedings Act, and therefore null and void.
The applicants are further seeking costs and an order of the court declaring that LAZ’s decision to sue President Lungu in total disregard of Article 1 clause (1) and (2), Article 2 and 98 (1) of the Constitution, contravenes Section 13 (3) of the Legal Practitioners Act Chapter 30 of the laws of Zambia and amounts to breach of LAZ’s members’ Oaths of State Counsel, Oath of Office and Oath of Allegiance under the said section.
But LAZ has raised preliminary issues in the case and wants the court to dismiss it for being illegally before court that the applicants be condemned to pay the costs of and occasioned by the proceedings.
According to arguments in support of motion for an order dismissing Musoma and others action filed on Yesterday, LAZ through its lawyers Simeza, Sangwa and Associates, has argued that it’s application to dismiss the action is pursuant to Articles 128 (3) (b) of the Constitution and the inherent jurisdiction of the Constitutional Court.
LAZ submitted that the allegations by Musoma and others touches in the contravention of the Constitution.
“It’s our position that the applicants have not complied with the said provision in moving the Constitutional Court,” it submitted.
LAZ further submitted that Musoma and others in moving the court are bound to follow the provisions of the Constitution in so far as they relate to how the Constitutional Court can be moved.
The lawyers’ body added that the need to comply with the Constitution extends even to the manner of moving the Constitutional Court as long as it is prescribed by the court.
“In this case, the applicants are bound to respect the Constitution in moving this court and it’s our position that they did not do so making this action illegal. In moving this court, the applicants contravened the provisions of Article 128 (3) of the Constitution,” LAZ argued.
It also argued that the Constitutional Court has original and final jurisdiction in matters that relates to the violation or contravention of the Constitution.
“Whereas, Article 129 (1) deals with the procedure for moving the court where one alleges (a) that an Act of Parliament or Statutory Instruments;( b) an action, measure or decision taken under law or (c) an Act, omission, measure or decision by a person or an authority contravenes the Constitution. The Constitution requires the person who makes such an allegation to petition the Constitutional Court for redress or remedy,” LAZ argued further.
They argued also that Musoma and Others have contravened Article 128 (3) of the Constitution, which addresses the manner of moving the court where it is alleged that the Constitution has been contravened.
Meanwhile, LAZ further stated that since it was the foundation of the arguments by Musoma and Others that the lawyers’ association contravened the Constitution, they should have moved the court by petition pursuant to Article 128 (3)(b) or (c) of the Constitution and not by originating summons.
“Their failure to move the court by petition is a contravention of the Constitution and therefore, the case before court against the respondent (LAZ) is illegally before court. The court cannot therefore, hear or decide it on the merit. By moving the court by originating summons, the applicants have contravened Article 128 (3) of the Constitution, section 8 (3) of the Constitutional Court Act and Order 4 Rule 1 of the Constitutional Court Rules,” submitted LAZ.
This matter comes up for hearing on October 8.
