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ConCourt dismisses petition on ministers

By GRACE CHAILE LESOETSA

THE Constitutional Court has dismissed the matter where governance activist Isaac Mwanza was seeking its interpretation on whether a minister can be in office after dissolution but before commencement of Parliament.

The Court in its judgement delivered on Monday, January 31, 2022, by Judge Professor Margaret Munalula said Mr Mwanza should have moved the court through a petition and not originating summons as he was seeking interpretation of the constitution.

In this matter, Mr Mwanza had asked the Constitutional Court, among many issues, to give an interpretation of whether a nominated Member of Parliament can be sworn in as minister and perform ministerial functions without having taken a Parliamentary oath.

Mr Mwanza also questioned whether it was legal for the President or any other appointing authority to terminate employment of public officers without just cause and due process citing article 173(3) of the Constitution.

He asked the court to state whether a presidential abolishment of an office in the public service with a substantive holder is constitutional, legal and valid.

Mr Mwanza was also seeking clarity on whether the President can institute, create or abolish a public office without recommendation of the relevant service commission. The applicant cited the Attorney General as respondent.

However, in the judgement, the court noted that Mr Mwanza disputes the constitutionality of the President’s actions as evident from his arguments.

The ConCourt said the matter should have been commenced by petition as directed by article 128(3) of the Constitution, section 8(1)(b) of the Act and order IV Rule 1 of the rules.

Justice Munalula said that the court’s interpretation of the provisions of the Constitution requires a factual basis.

“It is our position that we have no jurisdiction to consider any of the questions in the originating summons. This is because there are questions about the constitutionality of specific actions brought under the guise of interpretation. Originating summons is therefore not the correct mode by which to move the court. That being the case, the matter is improperly before us and is dismissed,” read the judgement.

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