Judges split on state asset safeguards, as Constitutional Court dismisses petition by Sampa on Mopani deal

The Constitutional Court has dismissed a petition by former Matero Member of Parliament, Miles Sampa, challenging the legality of the Mopani Copper Mines transaction, ruling by majority that the deal did not amount to a disposal of a major State asset requiring parliamentary approval.

However, the decision exposed sharp divisions on the bench, with dissenting judges warning that the ruling weakens constitutional safeguards over national assets.

Sampa petitioned the Court on December 16, 2024, citing the Attorney General, ZCCM-Investment Holdings (ZCCM-IH), Mopani Copper Mines Plc and Delta Mining Limited as respondents.

He sought, among other reliefs, a declaration nullifying the transaction for alleged non-compliance with Article 210 of the Constitution, which requires parliamentary approval for the sale or disposal of major State assets.

The seven-member panel comprised Constitutional Court President Justice Margaret Munalula, Deputy President Justice Anorld Shilimi, and Justices Martin Musaluke, Mathew Chisunka, Judy Mulongoti, Mudford Mwandengaand Kenneth Mulife.

The majority judgment was delivered by Justice Mwandenga, with Justices Shilimi and Mulife concurring. Justice Musaluke issued a separate concurring judgment, while Justices Munalula, Mulongoti and Chisunka dissented.

Delivering the majority decision, Justice Mwandenga held that the Court’s jurisdiction was limited to constitutional questions and did not extend to resolving commercial disputes grounded in statute.

He ruled that the Mopani transaction involved a subscription of shares by Delta Mining, not a sale or transfer of shares by ZCCM-IH or the Government.

“It is plainly evident and not disputed by the petitioner that the shares in issue were issued to Delta and subscribed to by the fourth respondent,” the Court held. “Above all, it is also not disputed that the shares were not issued by the Government to Delta Mining,” it stated.

The majority found that Sampa’s arguments focused on the dilution of ZCCM-IH’s shareholding and loss of control in Mopani, but said these concerns had “no bearing whatsoever on the primary constitutional issue.”

“In our view, those concerns are merely a smokescreen to hide the fact that the transaction was a share subscription,” the Court said, adding that any grievance over dilution should have been pursued in a court of general jurisdiction rather than through a constitutional petition.

On Article 210, the Court adopted a literal interpretation, holding that although the provision requires parliamentary approval for the sale or disposal of major State assets, it lacks enabling legislation defining what constitutes such assets or the process of disposal.

Reading Articles 210 and 272 together with Section 21 of Act No. 1 of 2016, the majority concluded that Article 210 was not yet operational.

“This invariably means that the petitioner cannot invoke Article 210 to ground the petition,” the Court ruled.

It dismissed Sampa’s request to nullify the Mopani transaction and rejected his plea to compel future parliamentary oversight, describing the latter as speculative.

The Court further held that no ZCCM-IH shares were sold or transferred and that the State had not disposed of any asset within the meaning of Article 210(2).

“The petitioner’s case therefore collapses on its own inaction,” the Court stated.

While dismissing the petition, the Court ordered each party to bear its own costs, citing the public importance of the issues raised.

Notably, the majority cautioned that the continued non-operational status of Article 210 undermines parliamentary oversight and urged action.

“So long as Article 210 remains non-operational, its benefits will never be realised,” the Court said, calling on the Attorney General and the National Assembly to enact legislation to bring the provision into force.

In his concurring judgment, Justice Musaluke agreed that Sampa had failed to establish any constitutional breach.

In dissent, Justices Munalula and Mulongoti faulted the majority’s approach, arguing that the case raised complex factual and commercial issues unsuitable for determination on affidavit evidence.

They held that whether a disposal had occurred was not itself a constitutional question and should have been determined by the High Court after a full trial.

They also rejected the view that Article 210 was inoperative, warning against interpretations that undermine constitutional intent.

“We should not by our interpretation water down the people’s will and allow the Constitution to be defeated by the actions of constitutional functionaries,” they said.

Justice Chisunka, in a separate dissent, adopted a purposive interpretation of Article 210, relying on ZCCM-IH financial statements showing that Mopani was no longer listed as a State subsidiary.

He concluded that the transaction resulted in both a loss of majority shareholding and control.

“The form of the transaction is irrelevant if the effect is a loss of State control,” Justice Chisunka held, finding that the transfer of 51 percent ownership to Delta amounted to a disposal of a major State asset carried out without the constitutionally required two-thirds parliamentary approval.

“For the foregoing reasons, I respectfully dissent,” he said.

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