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The Constitutional Court has dismissed a preliminary application by Acting Auditor General, Ron Mwambwa, seeking to have the Law Association of Zambia (LAZ)’s petition challenging his appointment struck out.
The court ruled that the matter was properly commenced and should proceed to a full hearing.
Mwambwa had asked the court to determine, as a preliminary issue of law, whether LAZ had adopted the correct procedure by commencing the matter through a petition and whether the Constitutional Court had jurisdiction to hear the case.
He further argued that matters concerning the President’s exercise of constitutional powers, including appointments, should not have been brought in the manner adopted by LAZ.
However, in a judgment delivered by a panel comprising Justices Margaret Munalula, Martin Musaluke, Arnold Shilimi, Judy Mulongoti, Mathew Chisunka, Mudford Mwandenga and Maria Kawimbe, the court rejected the application.
The judges held that Article 128(3) of the Constitution expressly provided that proceedings alleging that an act, measure or decision contravened the Constitution must be commenced by way of a petition.
The court noted that LAZ’s petition directly challenged President Hakainde Hichilema’s decision to appoint Mwambwa as Acting Auditor General, alleging that the appointment violated Articles 249(1), 252(1), 259(1)(a), as well as Articles 1(5), 2, 92, 95, 128 and 234 of the Constitution.
Accordingly, the court found that the matter had been properly commenced under Article 128(3)(c) of the Constitution.
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In reaching its decision, the court also relied on its earlier ruling in Kabisa Ngwira v National Pension Scheme Authority, which established that proceedings alleging a breach or contravention of the Constitution must be instituted by way of a petition.
The judges further declined to determine whether the appointment of an Acting Auditor General requires ratification by the National Assembly, holding that the issue lies at the heart of the substantive petition.
They ruled that deciding the question at the preliminary stage would amount to determining the merits of the case before hearing the parties.
The court consequently dismissed Mwambwa’s notice of motion in its entirety and directed that LAZ’s petition proceed to hearing on its merits.
LAZ had petitioned the Constitutional Court seeking to nullify Mwambwa’s appointment as Acting Auditor General, arguing that it contravened several provisions of the Constitution, the Public Audit Act and the State Audit Commission Act.
The association contends that the appointment was made without a recommendation from the State Audit Commission or ratification by the National Assembly. It further argues that Mwambwa was appointed despite being above the prescribed retirement age for the office.
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