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The Constitutional Court has ruled that the government was not constitutionally required to submit prospective international agreements to the National Assembly for approval before negotiations are concluded.
The court made the determination after dismissing a petition by Chapter One Foundation and the LCK Freedom Foundation, which sought to compel the government to disclose the contents of a Memorandum of Understanding (MoU) and a Bilateral Compact under negotiation with the United States government.
The petitioners argued that the proposed agreements, relating to a health sector partnership reportedly involving a US$1 billion commitment, raised issues of public interest and national sovereignty that warranted parliamentary scrutiny.
However, the court held that the petition was premature because no agreement had been concluded between Zambia and the United States that required parliamentary consideration.
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A bench comprising Constitutional Court Judges Professor Margaret Munalula, Judy Mulongoti, Martin Musaluke, Mudford Mwandenga and Kenneth Mulife held that Article 63 of the Constitution did not require the Executive to obtain parliamentary approval during the negotiation stage of an international agreement.
The court ruled that parliamentary approval was only required before ratification or accession, after negotiations had been concluded and a final agreement has been reached.
“We must state categorically that the approval envisaged in Article 63 of the Constitution relates to the National Assembly’s role in the Executive securing domestic approval before the act of accession or ratification, and not at the negotiation stage of treaties, as erroneously contended by the petitioners,” the court held.
The judges explained that Parliament’s constitutional role was to authorise the Executive to proceed with ratification or accession, while the actual act of ratification was undertaken by the State in accordance with international law.
The court further observed that Zambia’s dualist legal system required international agreements to be incorporated into domestic law before they become enforceable within the country.
The bench held that the petition lacked a legal basis because no final agreement had been reached between the two governments and, consequently, no document existed that could be submitted to Parliament for approval.
The Constitutional Court dismissed the petition and ordered that each party bore its own costs.
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