By 
The Constitutional Court has been asked to overturn its own landmark ruling that declared Constitution Amendment Bill No. 7 of 2025 illegal, with the State arguing that the majority judgment stepped outside constitutional boundaries and effectively “legislated from the bench.”
In its answer and cross-petition in the matter of PF Mporokoso MP, Brian Mundubile and Celestine Mukandila v President Hakainde Hichilema and the Attorney General, the State argues that the court’s June 27, 2025 decision invented procedures not found anywhere in the Constitution, thereby creating a new and unauthorized constitutional architecture.
Mundubile and Mukandila accuse the President of breaching the Constitution by proceeding with Bill 7, a process they say was declared illegal.
Attorney-General Mulilo Kabesha argues that President Hakainde Hichilema cannot be sued in his individual capacity for official acts undertaken as part of his executive authority, and that all such actions are properly responded to by the Attorney General.
The State denies that the process leading to the publication of Bill No. 7 of 2025 was unconstitutional or that the Constitutional Court ever declared the bill null and void.
It agrees that Bill 7 was gazetted by the Minister of Justice but maintains that the process complied fully with Article 79, which outlines the constitution-amendment procedure through mechanisms such as the Parliamentary Select Committee process.
According to the State, the Bill only failed to run its full course because President Hichilema intervened on June 26, 2025, instructing the Minister of Justice to defer further parliamentary processing to allow more consultations following a meeting with church mother bodies and over 30 civil society organisations — and because the Concourt’s ruling the following day introduced a new requirement for an independent Technical Committee to conduct nationwide consultations.
Before the June 27 decision, the State argues, there was no constitutional provision or court guidance requiring such a body to lead consultations before initiating a constitutional amendment.
It insists that the judgment did not state that its new requirements applied retrospectively to processes already underway, such as Bill 7, which was tabled in Parliament on June 25.
In compliance with the court’s guidance, President Hichilema appointed a Technical Committee on October 2, 2025, which began its work later that month.
The committee submitted its report to the President on December 2, leading the Minister of Justice to move a motion in Parliament to restore Bill 7 and incorporate the committee’s findings into the legislative process.
The Attorney General rejects assertions that the President or the government violated Articles 1, 2, 5, 7, 8, 9, 61, 90, 91 or 92 of the Constitution and insists that there is no legal basis to render President Hichilema ineligible for nomination under Article 100(2), arguing that the petitioners failed to cite any constitutional provision that would support such a consequence.
The State therefore asks the court to dismiss the petition as frivolous and vexatious.
In its cross-petition, the State attacks the Concourt’s majority ruling head-on, accusing it of prescribing a pre-Article 79 “people-driven process” that the framers did not provide for and that infringes on the separation of powers by intruding into the executive’s authority to initiate legislation and Parliament’s power to amend laws.
It argues that the judgment created legal uncertainty by introducing undefined concepts such as “wide consultations,” “people-driven process,” and “independent body of experts,” none of which have constitutional grounding.
The State also accuses the court of misapplying several constitutional provisions, including Article 1 by failing to uphold constitutional supremacy; Articles 61, 62 and 64 by curtailing Parliament’s legislative authority; Article 88 by restricting citizens’ right to petition Parliament for legislative amendments; and Article 91 by limiting the President’s executive authority to initiate Bills.
The cross-petition asserts that Article 79 is the sole and exhaustive procedure for amending the Constitution and that elected representatives — whether the executive, Parliament or citizens through Article 88 petitions — retain full authority to initiate amendments without additional judicially created conditions.
The State seeks declarations that the Munir Zulu judgment was per incuriam to the extent that it created a pre-legislative “people-driven” requirement not found in the Constitution, that the basic structure doctrine does not apply in Zambia, and that the orders in Munir Zulu & Mukandila v Attorney General be vacated.
The Attorney General accordingly asks the court to set aside the June 27 ruling in full and to award the State costs.
WARNING! All rights reserved. This material, and other digital content on this website, may not be reproduced, published, broadcast, rewritten or redistributed in whole or in part without prior express permission from ZAMBIA MONITOR.
Comments