How could Constitutional Amendment Bill 7 be unconstitutional yet still remain valid for parliamentary proceedings?

By MUBANGA LUCHEMBE

CHIEF Government Spokesperson Cornelius Mweetwa insists that the deferred constitutional amendment Bill 7 would be reintroduced to parliament once broad consultations have been concluded.
Mr. Mweetwa, who is also Information and Media Minister explained that the deferment allows for additional stakeholder engagement and citizen input.
He clarified that the deferment signified an intention to bring the legislation back under parliamentary debate, distinguishing it from withdrawal, which would have indicated permanent abandonment.
Mr. Mweetwa added that the Bill was set aside to enable the UPND government meet court-outlined parameters ensuring consultation requirements were fully-satisfied. He stated that had it been the intention of the UPND government not to re-introduce the Bill, it would have completely been withdrawn.
In a recent ruling, Speaker of the National Assembly Nelly Mutti made a ruling that Bill 7 would still proceed and shall be taken to Parliament when the Justice Minister deemed it fit despite a Constitutional Court ruling declaring the constitutional amendment unconstitutional.
As things unfold, the question being raised by most observers is: How could constitutional amendment Bill 7 be unconstitutional yet still remain valid for parliamentary proceedings?
The Speaker’s ruling caused a bitter controversy ultimately leading to the Law Association of Zambia (LAZ) take legal action against her, over her handling of the controversial Bill 7. According to statements issued by some of the civil society activists, LAZ filed a petition challenging the Speaker’s decision to allow the continuation of a legislative process that had already been declared unconstitutional by the Constitutional Court.
They stated that, this action by LAZ served as a vital reminder that Zambia remains a constitutional democracy, not a space for “political convenience.”
Prior to its court case, LAZ had earlier carefully reviewed the provisions of Bill 7, which was published in the Government Gazette on May 23, 2025. The UPND government had signalled its intention to introduce the Bill in Parliament as part of efforts to reform the country’s constitutional order.
However, LAZ noted with concern that the proposed constitutional amendment process excluded stakeholders and citizens from meaningful involvement.
The Bill appeared to have been published in the Gazette merely for the public’s general information, without any clearly established pathway for participation prior to its submission to Parliament.
In light of these and a myriad of other compelling reasons, LAZ called on the UPND government to heed the voices of the Church, traditional leaders, civil society and other stakeholders by withdrawing Bill 7 from Parliament in totality.
Currently, though, in Zambia, Article 79 of the Constitution primarily deals with the process for amending the Constitution. It outlines the procedures and requirements for how the Constitution can be changed.
Specifically, Article 79 has been referenced in legal cases and documents related to constitutional amendments. Article 79 is the central article for amendments.
This Article specifies the mechanisms and conditions under which the Constitution can be altered. The amendment process involves specific procedures that must be followed, as outlined in Article 79.
Historically, though, the Zambian Constitution has been amended several times, with one notable example being the Constitution of Zambia (Amendment) Act No. 2 of 2016. 
Perhaps predictably, though, the Minister of Justice Princess Kasune has gone quiet on the matter – and disaffection amongst the voting public and civil society communities continues to grow, as they insist on complete withdrawal of Bill 7 from Parliament rather than its deferment.
However, constitutional legal experts argued that a deeper understanding of our Constitution may flow from some new thinking about the possible limits on its amendability.
Exploring the question of whether a constitutional amendment could itself be unconstitutional may reward them with a better appreciation of the Constitution itself.
Their focus was on the possible substantive unconstitutionality of purported constitutional amendments. They did not consider unconstitutionality for failure to comply with the procedural requirements Article 79 of the Constitution imposes on the amendment process.
Yet again, the Chief Government Spokesperson called on stakeholders to seize the opportunity created by the “suspension” of Bill 7 in Parliament and actively participate in the country’s constitutional amendment process.
He emphasised the need for consensus-building, in line with President Hakainde Hichilema’s call for broader participation and inclusivity. He also emphasised the need for consensus-building, in line with the president’s call for broader participation and inclusivity.
Rather, the focus here is upon what might be referred to as implied limitations on the substance of constitutional amendments.
It is hoped that the usefulness of this UPND government’s clarion call would transcend the number of amendments that actually have been held unconstitutional on substantive grounds.
Arguments for the substantive unconstitutionality of procedurally valid amendments rarely had been presented to the Constitutional Court. They uniformly, and almost summarily, had been rejected.
The mainstream position remains that “no limitations on substance had yet been found, and it is unlikely that any would ever be found.”
Nonetheless, one of the most important subjects that can engage the attention of Zambians is the extent and scope of the power to amend the Constitution of Zambia.
This is largely because when we answer the question as to what we can never do constitutionally, we have gone a long way toward clarifying the Zambian conception of constitutionalism.
Common sense suggests that an inescapably vague range of proposed amendments to the Constitution are in fact unconstitutional, or incompatible with the assumed remainder of the Constitution, on substantive as opposed to procedural grounds.
This suggestion is itself unusual enough in the modem era. What is particularly noteworthy, however, is that this suggestion is reached without any reliance on natural law, excessive devotion to the views of our stakeholders, or any assumption that the Constitution has some discrete essence or overriding “consensus-building.”
At some point, an alleged “amendment” so undermines the remainder of the Constitution with which it is alleged to be compatible that it is no longer possible to pretend that such compatibility genuinely exists, just as at some point in the human organ or tissue transplant surgical procedure, the rejection process can become so extensive, complete, and irreversible that it becomes misleading to refer to the unsuccessfully transplanted tissue as a transplant in any substantive sense.
At that point, for reasons of logic rather than morality, the “amendment” cannot reasonably be regarded as in fact a genuine amendment to the Constitution, but rather as the genesis of a new and separate constitution.