Laws of Zambia Active 2016

The Constitutional Court

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Constitutional Court

No. 8 of 2016 359

THE CONSTITUTIONAL COURT ACT, 2016
_____________________

ARRANGEMENT OF SECTIONS

PART I
PRELIMINARY PROVISIONS

Section
1. Short title
2. Interpretation

PART II
CONSTITUTION AND GENERAL POWERS OF THE COURT

3. Constitution of Court
4. Sittings of Court
5. Powers of single judge of Court
6. Restriction regarding sitting on appeals
7. Seal
8. Jurisdiction of Court
9. Practice and procedure
10. Process and execution of judgment of Court
11. Right of audience
12. Friend of Court

PART III
EVIDENCE

13. Summoning and compelling attendance of witnesses
14. Refusal to be sworn or to give evidence
15. Evidence of bystander
16. Evidence of prisoner
17. Allowances to witnesses
18. Inspection
19. Evidence of Zambian customary law and assessors
20. Record of evidence, etc
21. Recording of proceedings
22. Perjury

PART IV
APPEALS

23. Right of appeal
24. Restrictions on appeals
25. Powers of Court on appeal

___________

Single copies of this Act may be obtained from the Government Printer
P.O. Box 30136, 10101 Lusaka. Price K24.00

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PART V
GENERAL PROVISIONS

nt Printer
P.O. Box 30136, 10101 Lusaka. Price K24.00

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360 No. 8 of 2016] Constitutional Court

PART V
GENERAL PROVISIONS

26. Registrar and officers of Court
27. Establishment of Registry
28. Administration of oaths
29. Warrant for production of appellant before Court
30. Costs
31. Rules of Court
32. Transitional provisions

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Constitutional Court [No. 8 of 2016 363

(5) The determination of any question before the Court shall be Sittings of

according to the opinion of the majority of the judges of the Court court

hearing the case.

4. (1) The sittings of the Court shall usually be held at Lusaka
but may be held at such other place in accordance with a circuit

schedule issued by the Chief Justice.

Subject to the provisions of this Act, the Court shall, at a
; sitting, be composed of such judges of the Court as the President
: may direct.

(2)

5. A single judge of the Court may exercise a power vested in Powers of
the Court not involving the decision of an appeal or a final decision single judge
in the exercise of its original jurisdiction. of court

n Powers of
the Court not involving the decision of an appeal or a final decision single judge
in the exercise of its original jurisdiction. of court

6. A judge of the Court shall not sit on the hearing of an appeal Restriction
or exercise power under section five in respect of an appeal from a regarding
judgment given by that judge or a judgment given by a court of sitting on
which that judge sat as a member. appeals

7. The Court shall have a seal approved by the Chief Justice. Seal

8. (1) Subject to Article 28 of the Constitution, the Court in Jurisdiction
exercise of its original and final jurisdiction may determine— of Court

(a) a matter relating to the interpretation of the Constitution; Cap. 1

(b) a matter relating to a violation or contravention of the Cap. 1
Constitution;

(d) a matter relating to the Republican President, VicePresident
or the election of a Republican President;

(e) appeals relating to election of Members of Parliament and
councillors;

(f) an application to review a decision of the Electoral
Commission of Zambia in the delimitation of
constituencies and wards;

(g) a matter referred to the Court by the Republican President
pursuant to the Constitution; and Cap. 1

he delimitation of
constituencies and wards;

(g) a matter referred to the Court by the Republican President
pursuant to the Constitution; and Cap. 1

(h) whether or not a matter falls within the jurisdiction of the
Court.

(2) Subject to Article 28 (2) of the Constitution, where a question Cap. 1
relating to the Constitution arises in a court, the person presiding in
that court shall refer the question to the Court.

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n a court, the person presiding in
that court shall refer the question to the Court.

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Cap. 1 (3) Subject to Article 28 of the Constitution, a person who
alleges that—
(a) an Act of Parliament or statutory instrument;
(b) an action, measure or decision taken under any written
law; or
(c) an act, omission, measure or decision by a person or an
authority;
contravenes the Constitution, may petition the Court for redress.
Cap. 1 (4) The Court shall hear and determine—
(a) appeals from the High Court to challenge the election of a
Member of Parliament;
(b) appeals from a tribunal; and
(c) any other matter as may be conferred upon it by or under
the Constitution or any other written law.

9. The jurisdiction vested in the Court shall, as regards practice
Practice and
procedure and procedure, be exercised in the manner provided by this Act and
the rules.

tice
Practice and
procedure and procedure, be exercised in the manner provided by this Act and
the rules.

9. The jurisdiction vested in the Court shall, as regards practice
Practice and
procedure and procedure, be exercised in the manner provided by this Act and
the rules. Process and 10. Service of the process of the Court may be effected
execution of
judgment of throughout Zambia and a judgment of the Court shall be executed
Court and enforced in like manner as if it were a judgment of the High
Court. Right of
audience 11. (1) The parties to a matter before the Court may appear in
person or be represented and appear by a practitioner.

nce 11. (1) The parties to a matter before the Court may appear in
person or be represented and appear by a practitioner.

(2) Subject to subsection (1), a Court proceeding may be
instituted by—
(a) a person acting on behalf of another person who cannot
act in their own name;
(b) a person acting as a member of, or in the interest of, a
group or class of persons;
(c) a person acting in the public interest; or
(d) an association acting in the interest of one or more of its
members. (3) The Public Protector may bring an action before the Court
Cap. 1 in accordance with the Constitution. Friend of 12. (1) The Court may allow a person with expertise in a
Court particular matter which is before the Court to appear as a friend of
the Court.

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(2) Leave to appear as a friend of the Court may be granted to a person on application orally or in writing.

(3) The Court may, on its own motion, request a person with expertise to appear as a friend of the Court in a matter before it.

orally or in writing.

(3) The Court may, on its own motion, request a person with expertise to appear as a friend of the Court in a matter before it.

PART III
EVIDENCE

13. (1) The Court may, in any suit or matter in which the Court is exercising original jurisdiction—
(a) summon a person to give evidence or produce a document in that person’s possession or power; and
(b) examine a person as a witness and require the person to produce any document in that person’s possession or power.

(2) The Court may, at any stage of a suit or matter, exercise the power in subsection (1) on its own motion or on the application of a party to the suit or matter.

(3) A person who is summoned and given reasonable notice of the time and place at which that person is required to attend, in accordance with subsection (1), but fails to attend without reasonable excuse commits contempt of court and may be proceeded against by warrant to compel that person’s attendance.

14. (1) A person who appears before the Court in obedience to a summons or under warrant and being required to give evidence refuses to—
(a) take an oath;
(b) answer a question lawfully put to that person; or
(c) produce a document in that person’s possession or power; commits contempt of court and may, by warrant, be committed to prison by the Court.

; or
(c) produce a document in that person’s possession or power; commits contempt of court and may, by warrant, be committed to prison by the Court.

Summoning and compelling attendance of witnesses

Refusal to be sworn or to give evidence

(2) A person committed to prison under subsection (1) shall remain in prison until that person consents to take the necessary oath, answer the question or produce the document required under that subsection.

(3) A person’s liability under subsection (1) does not affect any other liability that may attach to that person for a contravention of that subsection.

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Evidence of 15. A person who is present in Court, whether as a party in a
bystander matter or not, may be compelled by the Court to give evidence or to
produce a document in that person’s possession or power, in the
same manner and subject to the same rules as if that person had
been duly summoned to attend and give evidence or to produce that
document, and may be dealt with under the provisions of section
fourteen for any refusal to obey the order of the Court.

document, and may be dealt with under the provisions of section
fourteen for any refusal to obey the order of the Court.

Evidence of 16. A judge may issue a warrant under the judge’s hand to
prisoner bring up a person confined as a prisoner under a sentence or
otherwise, to be examined as a witness in any matter pending in the
Court, and the jailer or person in whose charge that prisoner is
shall obey the warrant by bringing up the prisoner in custody and
delivering that prisoner to an officer of the Court.

Allowances 17. (1) The Court may order, and allow to be paid to a person
to witnesses required to attend or be examined, as a witness, such sum of money
as the Chief Justice may, with the approval of the Minister
responsible for finance, prescribe for defraying the reasonable
expenses of that person.

responsible for finance, prescribe for defraying the reasonable
expenses of that person.

(2) A sum of money allowed under subsection (1) shall be paid
by the party on whose behalf the witness is called, and shall be
recoverable as ordinary costs of the hearing unless the Court orders
otherwise.

Inspection 18. The Court may, in any matter, make an order for inspection
by the Court, the parties or witnesses, of any real or personal
property, the inspection of which may be material to the
determination of the matter in dispute, and may give such directions
with regard to that inspection as the Court considers necessary.

Evidence of 19. (1) The Court may, in any matter in which a question of
Zambian Zambian customary law is material to the matter—
customary
law (a) call as a witness a person whom the Court considers to
have special knowledge of Zambian customary law;

(a) call as a witness a person whom the Court considers to
have special knowledge of Zambian customary law;

(b) call a chief or person, to the Court’s assistance, as an
assessor of Zambian customary law; or

(c) consult and, to the extent necessary, give effect to any
book or publication which the Court considers to be an
authority on Zambian customary law.

(2) An assessor called as a witness under subsection (1) shall
advise the Court on all matters of Zambian customary law, which
may arise in the matter concerned, and tender the assessor’s opinion
to the Court on the matter generally, but in reaching its decision the
Court is not bound by the assessor’s opinion.

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(3) An assessor called under subsection (1) shall be paid such
fees and allowances as the Chief Justice may prescribe, with the
approval of the Minister responsible for finance.

subsection (1) shall be paid such
fees and allowances as the Chief Justice may prescribe, with the
approval of the Minister responsible for finance.

(4) The fees and allowances under subsection (3) shall be paid
out of the Consolidated Fund unless the Court orders otherwise.

(5) An assessor called under this section shall take an oath
prescribed in the rules.

20. (1) A party to a matter before the Court is, on payment of
such fee as may be prescribed by the rules, entitled to a copy of the
record of evidence given in that matter.

(2) Despite subsection (1), a person is not entitled, as of right
at any time or for any purpose, to inspect a copy of a record of
evidence given in a matter before the Court, or to a copy of the
notes of the Court, except where expressly provided by the rules.

21. The proceedings in a matter before the Court shall be taken
down and recorded in a manner prescribed by the rules.

22. (1) Where it appears to the Court that a person has
committed perjury in any proceeding before the Court, the Court
may call that person to show cause why the person should not be
convicted for perjury.

(2) Where a person fails to show cause why the person should
not be convicted for perjury, the Court shall convict the person.

nvicted for perjury.

(2) Where a person fails to show cause why the person should
not be convicted for perjury, the Court shall convict the person.

(3) A person convicted under subsection (2) is liable to a fine
not exceeding fifty thousand penalty units or imprisonment for a
term not exceeding six months, or to both.

(4) A penalty imposed under this section is a bar to any other
criminal proceedings in respect of the same offence.

PART IV
APPEAL

23. (1) Subject to Article 28 of the Constitution and section
twenty-four, an appeal shall lie to the Court from a judgment of the
High Court in a constitutional matter.

(2) An appeal shall lie to the Court from a judgment of a
tribunal.

24. (1) An appeal shall not lie—

(a) from an order allowing an extension of time for appealing
from a judgment;

Record of
evidence

Recording of
proceedings

Perjury

Right of
appeal
Cap. 1

Restrictions
on appeals

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Recording of
proceedings

Perjury

Right of
appeal
Cap. 1

Restrictions
on appeals

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368 No. 8 of 2016] Constitutional Court

(3) A person convicted under subsection (2) is liable to a fine
not exceeding fifty thousand penalty units or imprisonment for a
term not exceeding six months, or to both.

(4) A penalty imposed under this section is a bar to any other
criminal proceedings in respect of the same offence.

PART IV
APPEAL

23. (1) Subject to Article 28 of the Constitution and section
twenty-four, an appeal shall lie to the Court from a judgment of the
High Court in a constitutional matter.

(2) An appeal shall lie to the Court from a judgment of a
tribunal.

24. (1) An appeal shall not lie—

(a) from an order allowing an extension of time for appealing
from a judgment;

Record of
evidence

Recording of
proceedings

Perjury

Right of
appeal
Cap. 1

Restrictions
on appeals

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368 No. 8 of 2016] Constitutional Court

Recording of
proceedings

Perjury

Right of
appeal
Cap. 1

Restrictions
on appeals

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368 No. 8 of 2016] Constitutional Court

(b) from an order of a judge of the Court giving unconditional
leave to defend an action;
(c) from a judgment given by the High Court in the exercise
of its appellate or revisional jurisdiction without the leave
of the High Court or, if that has been refused, without
the leave of the Court;
(d) from an order made with the consent of the parties or from
an order as to costs only which by law is left to the
discretion of the court or tribunal without the leave of
the court or of the judge who, or tribunal which, made
the order or, if that has been refused, without the leave of
a judge of the Court; or
(e) from an order made in chambers by a judge of the High
Court or by a tribunal, or from an interlocutory order or
interlocutory judgment made or given by a judge of the
High Court or by a tribunal, without the leave of that
judge or, if that has been refused, without the leave of a
judge of the Court, except in the following cases:
(i) where the liberty of the subject or the custody of
infants is concerned; or
(ii) where an injunction is granted or refused.

e the liberty of the subject or the custody of
infants is concerned; or
(ii) where an injunction is granted or refused.

(2) An order refusing unconditional leave to defend an action
is not an interlocutory order or interlocutory judgment within the
meaning of subsection (1)(e).

unconditional leave to defend an action
is not an interlocutory order or interlocutory judgment within the
meaning of subsection (1)(e).

Powers of 25. (1) The Court may, on the hearing of an appeal—
Court on
appeal (a) confirm, vary, amend or set aside the judgment appealed
from or give such judgment as the case may require;
(b) where necessary or expedient in the interest of justice—
(i) order the production of a document, exhibit or other
thing connected with the proceedings, the
production of which appears to the Court
necessary for the determination of the case;
(ii) order a witness who would have been a competent
and compellable witness at the trial to attend
and be examined before the Court, whether the
witness was or was not called at the trial, or
order the examination of the witness to be

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lled at the trial, or
order the examination of the witness to be

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conducted in the manner provided by the rules
before any judge of the Court or before an
officer of the Court or other person appointed
by the Court for the purpose, and allow the
admission of a deposition so taken before the
Court;
(iii) receive the evidence, if tendered, of any witness
or party who is a competent but not
compellable witness, and if a party makes an
application for the purpose, of the spouse of
that party in cases where the evidence of the
spouse could not have been given at the trial
except on application to the trial court or
tribunal; or
(iv) remit the case to the High Court or tribunal
for further hearing, with instructions regarding
the taking of further evidence or otherwise, as
necessary; or

(c) set aside the judgment appealed against and order a new
trial to be held where the Court determines that a new
trial should be held.

(2) The Court shall, where the Court gives instructions for
the taking of further evidence under subsection (1)(b)(iv), make
an order to allow the parties to the proceedings to examine a
witness whose evidence is taken.
PART V
GENERAL PROVISIONS

v), make
an order to allow the parties to the proceedings to examine a
witness whose evidence is taken.
PART V
GENERAL PROVISIONS

26. (1) The Judicial Service Commission shall appoint a
Registrar of the Court and such other officers as may be necessary
to give effect to the provisions of this Act.

(2) The Registrar shall—
(a) be responsible for the day-to-day administration of the
Registry; and

(b) administer oaths and perform such other functions as the
Chief Justice may, by rules, prescribe or as may be
directed by a special order of the Court.

27. The Registry of the Court shall be at Lusaka.

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Administration
of oaths
28. (1) The Court or a judge of the Court may require and
administer an oath for purposes of this Act.

(2) The form of an oath shall be as prescribed in the rules.

Warrant for production of appellant before Court
29. When the presence of an appellant who is in custody in a
habeas corpus matter is necessary or desirable at the hearing of an
appeal or where the appellant exercises the right to be present at the
hearing of the appeal, a judge of the Court may issue a warrant for
the production of the appellant at the appeal.

ises the right to be present at the
hearing of the appeal, a judge of the Court may issue a warrant for
the production of the appellant at the appeal.

Costs
30. The Court has discretion to award costs in any proceedings
under this Act.

Rules of Court
31. (1) The Chief Justice may, by statutory instrument, make
rules for regulating—

(a) the practice and procedure of the Court and with respect
to appeals to, or reviews by, the Court;

(b) the time within which any requirement of the rules is to be
complied with;

(d) the fees to be charged in respect of proceedings; and

(e) any other matter which is necessary for purposes of this
Act.

(2) The Chief Justice may issue practice directions for the better
carrying out of the rules.

Transitional provisions
Cap. 1
32. (1) Proceedings pending before the High Court which, under
the Constitution are required to be commenced before the Court,
shall continue to be heard and determined by the High Court.

(2) An appeal pending before the Supreme Court which, under
the Constitution, is required to be heard by the Court shall continue
to be heard and determined by the Supreme Court.

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