ConCourt halts Bill 7

…warns that bypassing public involvement, especially ahead of the 2026 elections, risked confusion with the potential to undermine constitutional integrity, says current process lacks legitimacy and is not people-driven

By GRACE CHAILE

THE Constitutional Court has ordered government to comply with the spirit of the Constitution by ensuring that any constitutional amendment process is people-driven and led by an independent body of experts, following wide consultations with the public.
The Court warned that bypassing public involvement, especially ahead of the 2026 elections, risked confusion and undermined constitutional integrity.
This followed a petition by former Lumezi Member of Parliament Munir Zulu and Tonse Alliance National Youth Chairperson Celestine Mukandila, who challenged the legality of the constitutional amendment process.
In a majority judgment by Constitutional Court President Professor Margaret Munalula, Judges Martin Musaluke, Mathew Chisunka, and Judy Mulongoti, the court ruled that the government’s current approach lacked legitimacy.
The court found that there was no evidence of structured engagement with the public in the initial stages of the amendment process.
The judges held that even amendments deemed non-contentious could fundamentally alter the Constitution and should, therefore, be subjected to broad consultations.
“Having considered the Constitution as a whole, in particular Articles 1, 2, 5, 7, 8, 9, 61, 90, 91, 92 and 118, we have come to the inescapable conclusion that the Constitution amendment process cannot be initiated without the participation of the People of Zambia through wide consultations,” read part of the judgment.
“In the absence of any evidence that the initial process undertaken by the Respondent meets the expectations of wide consultations with the People… we are of the firm view that the initiating process lacks legitimacy,” the ConCourt ruled.
The court added: “We order that the Respondent complies with the spirit of the Constitution by ensuring a People-driven process led by an independent body of experts in conducting wide consultations with the People.”
The bench emphasisededthat the Constitution grants the Court broad powers under Article 128(3)(c) to review government actions beyond just legislation, stating that the amendment process must be rooted in public consensus and not simply stem from government proposals.
The judgment highlighted past processes such as the Chona, Mvunga, and Mwanakatwe Commissions and the work of the Technical Committee Drafting the Zambian Constitution (TCDZC) as examples of inclusive and transparent constitution-making efforts.
However, in a dissenting opinion, Judges Arnold Shilimi, Mudford Mwandenga, and Kenneth Mulife held that the petition lacked merit and that the amendment process was not unconstitutional.
“We underscore that judicial intervention in circumstances where a weakness or lacuna in the law has been identified is, at most, a recommendation for amendment of the law. Wider public consultations, prior to the generation of a constitutional amendment Bill, are a matter of practice. The absence of such consultations cannot be a basis for nullifying a constitutional amendment process without proof of breach of Article 79 of the Constitution,” the dissenting judges stated.
They stated that the matter should have been determined within the ambit of Article 79, which governs constitutional amendments, and that the process had not violated this provision.