Jurisdiction and institutional framework of the constitutional court of Zambia.
Date
2019
Authors
Kawandami, Annie Musonda
Journal Title
Journal ISSN
Volume Title
Publisher
The University of Zambia
Abstract
The newly established Constitutional Court of Zambia is expected to play the pivotal roles of interpreting, protecting and defending the Zambian Constitution. To do this, the Court requires appropriate jurisdiction and an adequate institutional framework. Thus, the purpose of this study was to assess the Court’s jurisdiction and institutional framework in order to determine its probable efficacy. More specifically, the study examined the Court’s original and appellate jurisdiction as conferred by Article 128 (1) of the amended Constitution of Zambia. The study undertook a qualitative and triangulatory research paradigm because a study of this nature requires detailed descriptions and prose which a quantitative study could not provide. Both primary and secondary data were collected in order to add knowledge to the subject. The primary data was collected from legislation, case law and interviews. The secondary data from books, journals and peer reviewed articles among others, provided support for primary sources, ground for comparison, gauging and defining the topic which was in a novel area of constitutional law in Zambia. Regarding the jurisdiction of the Court, the study found that original and appellate jurisdictions of the Court are necessary for it to effectively carry out its mandate. The powers under the Court’s original jurisdiction would allow it to function as a specialised Court, solely dedicated to adjudicating over matters arising from the Constitution. On the other hand, its appellate powers would enable it to effectively hear those matters which would overwhelm the Court’s docket if heard originally. Further, on the subject of jurisdiction, the study noted that wide though its powers; it is excluded from hearing matters under the Bill of Rights which forms a fundamental part of the Zambian Constitution. This is because Zambia has had an entrenched Bill of Rights since 1991 which can only be amended using a referendum. According to Article 28 (1) and (2) of the said Constitution, all matters arising under the Bill of Rights are a preserve of the High Court of Zambia with appellate jurisdiction vested in the Supreme Court of Zambia. The study seeks to demonstrate that the Constitutional Court will have complete jurisdiction over the Zambian Constitution only if the necessary constitutional amendments are made to allow the Court to hear matters arising from the Bill of Rights.About the Court’s institutional framework, the study found that the position of the Constitutional Court and the Supreme Court as apex courts in the hierarchy of the Zambian judicial system, may lead to delineation problems. The study therefore recommends that the Constitutional Court be the highest court in Zambia to be headed by the Chief Justice and the Deputy Chief Justice to be included as a member of the Court. Further research about the Constitutional Court may explore whether persons, institutions and authorities will comply with the Court’s decisions as this is key to determine its success in the role of interpreting, protecting and defending the Zambian Constitution.
Description
Thesis of Master of Laws