THE PROPOSED CONSTITUTIONAL COURT IN ZAMBIA: A COMPARATIVE ANALYSIS OF THE COURT’S JURISDICTION IN ZAMBIA AND SOUTH AFRICA

Abstract

This research undertakes a comparative analysis of the jurisdiction accorded to the proposed Constitutional Court as provided for in Article 157 of the 2014 Final Draft Constitution of Zambia and the Constitutional Court of South Africa. The main objectives of this research include: to examine the general nature and purpose of a Constitutional Court, to critically analyse the jurisdiction given to the proposed Constitutional Court and the South African Constitutional Court and to analyse whether or not the proposed Constitutional Court of Zambia should be vested with original and final jurisdiction on all constitutional matters, instead of appellate jurisdiction on all constitutional matters. This research considers various arguments that have been advanced for and against the proposed Constitutional Court being vested with original and final jurisdiction. It also examines the rationale behind the appellate jurisdiction that the South African Constitutional Court has been accorded. This research was undertaken by making reference to different sources of law including local and foreign legislation, judicial decisions, books, journals, newspaper articles and other relevant publications. It is therefore qualitative and focuses on analysing the different sources of law. This research establishes that conferring appellate jurisdiction on the proposed Constitutional Court would better achieve the purposes that Constitutional Courts seek to fulfil. Further that original and final jurisdiction of the Court should be reserved for the most fundamental constitutional matters. Such a jurisdiction is narrower and thus more efficient. It does not take away the benefits of coherence, uniformity and accountability that a system of appeals produces. This research further establishes that the wide jurisdiction of the proposed Constitutional Court may result in a violation of Article 147(2) of the Final Draft Constitution which provides that justice shall not be delayed. Further, Article 157 of the 2014 Final Draft Constitution, by eliminating a right of appeal, effectively violates Article 147(1) which provides that justice “shall be exercised in a manner that promotes accountability.” The right of appeal accords an opportunity to review decisions made by lower Courts thus creating accountability. This research thus recommends that the proposed Constitutional Court should mainly operate as a Court of appeal. It is recommended that original jurisdiction of constitutional matters that are not exclusively reserved for the Constitutional Court, must continue to be presided over by the High Court. This will help to get a full development of the facts and legal arguments in cases such as those concerning the violation of human rights before the cases reach the Constitutional Court. This research also recommends that the Constitutional Court should only have original and final jurisdiction in the following matters: to determine a Presidential election petition challenging the election of a President-elect; to determine disputes between State organs or State institutions and to determine whether or not a matter falls within the jurisdiction of the Court. Additionally, this research also recommends that the proposed Constitutional Court should devise rules that will help ensure that there is prompt disposition of cases that are brought before it. The prompt disposition of cases will uphold the principle provided for in Article 147 (2) (b) of the Final Draft Constitution that justice shall not be delayed.