FREDERICK JACOB TITUS CHILUBA v ATTORNEY-GENERAL

Supreme Court
Sakala, CJ, Lewanika, DCJ, Chirwa, Chibesakunda, Mambilima, Chitengi, Silomba, JJJJS, Mushabati
and Munthali, Acting/JJS
31st October, 21st November, 2002 and 19th February, 2003
(Appeal Number 125 of 2002)

Flynote
Constitutional Law – Immunity of President –
Conditions for removal Judicial Review – Purpose – Procedure and Practice.

Headnote
This is an appeal against the judgment of the High Court dated 30th August, 2002, dismissing the
appellant’s application for Judicial Review of the decision of the National Assembly removing the
appellant’s immunity against prosecution in respect of any act done or omitted to be done by him
while he held office of the President.

Held:
1. The hearing of an application for Judicial Review does not start from the day set for the
motion. The application starts with notice of application for leave to apply for Judicial Review.

2. The remedy of Judicial Review is concerned with reviewing, not the merits of the decision in
respect of which the application for Judicial Review is made but the decision-making process itself.

3. The purpose of Judicial Review is to ensure that an individual is given fair treatment by the
authority to which he has been subjected and that it is not part of that purpose to substitute the
opinion of the judiciary or of individual judges for that of the authority constituted by law to decide
the matters in question.

4. The court will not on Judicial Review application act as a “court of appeal,” from the body
concerned, nor will the court interfere in any way with the exercise of any power or discretion
which has been conferred on that body, unless it has been exercised in a way which is not within
that body’s jurisdiction or the decision is Wednesbury unreasonable.

5. When the High Court is reviewing a decision of a public body it will not admit
evidence which is relevant whether the decision is reasonable one; but it will permit evidence
which is relevant to whether the decision is one which the body had power to make or whether it
was made in circumstances in which a reasonable body could have made it.

6. In all applications for Judicial Review, the principal source of evidence is from affidavits and
the only witnesses that may give viva voce evidence on applications for Judicial Review, are the
deponents of the affidavits on record.

7. The plain meaning of Article 43 (3) does not stipulate that specific charges have to be
presented to the National Assembly before the Immunity of the former President can be removed
even for a purpose of making a former President amenable to the criminal jurisdiction of the court.

8. The discretion conferred on the National Assembly by Article 43 (3) is wide and it can be
validly exercised by resolution once the National Assembly has before it allegations showing prima
facie criminal conduct to the National Assembly’s satisfaction.

9. The decision of the National Assembly was based on serious and unprecented allegations of
criminal conduct in this country

10. It was never the intention of the framers of the Constitution that when the issue of removal
of immunity of a former President arises, the former President would have the right to be heard.

Cases referred to:

1. New Plast Industries v The Attorney-General SCZ Judgment No. 8 of 2001.

2. O’Reilly v Mackman [1982] 3 All ER 680.
3. George v The Secretary of State for Environment [1979] 38 Pand CR 609.
4. R v Stokesley (Yorkshire) justices, exparte Bartram [1956] 1 All ER 563n.
5. Chitala v The Attorney-General (1995/1997) ZR 91.
6. Associated Provincial Picture Houses Limited v Wednesbury
Corporation [1947] All ER 680.
7. Council of Civil Service Union v Minister for Civil Service [1984] 3 All ER 935.
8. Patriotic Front ZAPU v Minister of Justice, Legal and
Parliamentary Affairs [1986] LRC (Constitution) 672.
9. Attorney-General and Another v The People (1999) ZR 186.
10. Zambia National Holding and Arutrel v The Attorney-General (1993-1994) 2R .115.

Legislation referred to:

1. The Constitution of Zambia, Cap.1: Articles 37, 43(3), 86(1) and 94(1).
2. The National Assembly (Powers and Privileges) Act, Cap. 12. Section 34.
3. The Supreme Court Rules, (White Book) 1999 Edition
Order 38/2
Order 53/3
Order 54/8
Order 53/9
Order 53/14/11
Order 53/14/13
Order 53/14/18
Order 53/14/19
Order 53/14/85
4. Grahame Aldous and John Alder: Applications For Judicial Review, Law and

Practice of the Crown Office, Second Edition, Chapters 1 and 15.

Other Works referred to:-

C.K. Banda, State Counsel, of Chifumu Banda and Associates

Messrs R.M. Simeza with J. Sangwa of Simeza, Sangwa and Associates for the appellant.

S. Nkonde, Solicitor-General,Dr. J.B. Sakala, State Counsel, of J.B. Sakala and Company, J. Jalasi
Principal State Advocate,M. Haimbe, Senior State Advocate for the respondent.

Judgment

SAKALA, CJ, delivered the judgment of the court.

At the time we heard this appeal, the members of the court had then a heavy workload and
schedule of other cases which they had to contend with. Among the cases contributing to the
heavy workload were the ongoing Presidential Election Petition and the Treason Appeal whose
judgment is now pending. These matters had been scheduled to be heard one after the other. In
addition, at the end of hearing this appeal on 21st November, 2002, when judgment was reserved,
the members of the court had also to prepare for a scheduled session in Ndola. Upon return from
Ndola, the court was scheduled to hear the Treason Appeal which was followed by the continuous
sittings in the Presidential Election Petition hearing. In between the hearings of the Presidential
Election Petition, the court had also to hear the Parliamentary Election Appeals. The judgments in
these appeals are also pending. The court was very mindful of the public interest this appeal has
generated. But the court was equally very mindful of the constitutional importance of the appeal
of this kind and the magnitude and the need, which was self-evident, for thorough reflection and
consideration of law and facts. As has been said else where, the novel point raised in the appeal
was being discussed for the first time in Zambia.

We make these observations not for the sake of defending ourselves; but to make the point that
under no circumstances would this court set a “bad example,” as stated in some media and
quarters. Indeed, justice delayed is justice denied. Equally, justice hurried is justice denied also.
We find it most unfortunate that some members of the public took it upon themselves to champion
the cause of speedy justice without ascertaining the facts on the ground. We do not subscribe to
trials by the press.

This is an appeal against the judgment of the High Court dated 30 th of August, 2002, dismissing
the appellant’s application for judicial review of the decision of the National Assembly removing
the appellant’s immunity. There is also a cross-appeal by the respondent. Before the hearing of
the appeal could commence, the court had to resolve three preliminary issues; one was based on
the record itself; and the other two were raised on behalf of the appellant.

The preliminary issue based on the record, raised by the court itself, arose from an argument that
there were no proceedings on record in respect of the motion. The record at the time of the
argument, showed that nothing took place on the 16th of August after the court had delivered its
ruling in an application by the 21 interested Members of Parliament; suggesting that the motion
was not heard although the learned judge delivered his judgment on 30th August. The
submission on this issue was that the record was incomplete and that, that being the case, the
matter be sent back for retrial before another Judge. Subsequently, the proceedings of the 16th
August were traced. The court ruled that the record was complete. The first preliminary issue on
behalf of the appellant related to the cross-appeal by the 21 interested Members of Parliament.
After hearing arguments on this issue and for reasons contained in our ruling, we struck out the
notice of the cross-appeal and the memorandum of appeal by the 21 Members of Parliament. The
second preliminary issue, also raised on behalf of the appellant, related to the cross-appeal by the
respondent. We dismissed that issue and granted the respondent leave to appeal out of time.

By his application for judicial review, the appellant prayed for the following orders and
declarations:-

1. An Order of certiorari to remove into the High Court for the purpose of quashing the said
decision of the National Assembly;

2. An Order of Mandamus to oblige the National Assembly to reconsider the decision to

sanction the prosecution of the Applicant as former President of the Republic of Zambia in line with
the provisions of Article 43(3) of the Constitution and the rules of natural justice;

3. A declaration that the resolution of the National Assembly to sanction the criminal
prosecution of the applicant is ultra-vires Article 43(3) of the Constitution hence null and void;

4. A declaration that the Respondents were obliged under the rules of natural justice to act
fairly and afford the Applicant an opportunity to be heard in person on the motion to remove his
immunity under Article 43(3) of the Constitution;

5. A declaration that the procedure adopted by the National Assembly to table the motion for
the removal of the Applicants immunity was irregular; and

6. Order that the costs of and occasioned by this application be paid by the Respondent to the
Applicant.

The facts and the circumstances of the appeal appear to be common cause. They are to be
distilled from the notice of application to apply for judicial review, from the affidavit filed in
support, from the decision of the National Assembly, from an excerpt of the speech of the
President, from an excerpt from the Debate on the removal of immunity and from an affidavit in
opposition. The sequence of events are these: On 11th of July, 2002, the President of the
Republic of Zambia addressed the National Assembly. In that address, allegations against the
appellant, as former President were made. The President also discussed, in his address, the issue
of the National Assembly lifting the immunity of the appellant. On 16th of July, 2002 the National
Assembly met, and considered the removal of the former President’s immunity. After a lengthy
and heated debate, the National Assembly passed a resolution, in exercise of its powers under
Article 43(3) of the Constitution, removing the appellant’s immunity. The resolution removing the
appellant’s immunity was in the following terms:

“That in terms of Article 43(3) of the Constitution of Zambia, this House do resolve that Mr. Chiluba
who has held, but no longer holds, the office of President may be charged with any criminal offence or
be amenable to the jurisdiction of any court, in respect of any act done or omitted to be done by him in
his personal capacity while he held office of the President and that such proceedings would not be
contrary to the interests of the State, and further that the immunity available to him be removed.”
On 17th of July, 2002, the appellant applied to the High Court for leave to apply for judicial review
of the decision of the National Assembly pursuant to Order 53(3) of the Rules of the Supreme
Court. The application for leave, comprising seven pages, set out the decision/resolution of the
National Assembly, the reliefs, and the grounds on which the reliefs were sought supported by
facts set out in twelve paragraphs and also set out the grounds for review comprising nine
paragraphs. The application also set out miscellaneous matters which the court was asked to be
aware of, which were in essence, a list of cases decided by this court and the High Court. The
application concluded with a paragraph seeking for a stay of the decision of the National Assembly
and the proceedings pending the determination of the application for judicial review.

The application for leave to apply for judicial review was supported by an affidavit sworn by the
appellant verifying the facts. The affidavit exhibited the decision of the National Assembly, a copy
of an excerpt from the speech of the President and a copy of an excerpt from the Debate on the
removal of the immunity of the appellant.

The court granted the Order for leave to apply for judicial review on the same day of the 17th of
July, 2002. The Order granted was in these terms:-

ORDER FOR LEAVE TO APPLY FOR JUDICIAL REVIEW UPON HEARING the notice of application for
leave to apply for judicial review dated the 17th day of July, 2002, for an order of Certiorari,
Mandamus and Declarations.

AND UPON READING the affidavit of FREDERICK JACOB TITUS CHILUBA the applicant herein sworn
on the 17th day of July, 2002, and the exhibits thereto

AND UPON HEARING Counsel on behalf of the Applicant.

It is ordered that the application be allowed and that the said Applicant do have leave to issue
Notice of Motion for judicial review as aforesaid.
THE COURT FURTHER directed that the decision of the National Assembly to remove the
Applicant’s immunity from criminal prosecution for things done or omitted to be done in his private
capacity whilst occupying the office of President and or further proceedings related to the said
decision IS HEREBY STAYED pursuant to Rule 3(10)(a) of Order 53 of the Rules of the Supreme
Court until after the hearing and determination of this matter.

THE COURT FURTHER directed that the hearing of the said motion be expedited.
Dated the 17 day of July, 2002.”

On 18th of July, 2002, subsequent to leave being granted, the appellant filed an originating notice
of motion for judicial review. The 29th of July was set down as the date of hearing the motion.
The notice of motion in part reads:

“AND TAKE NOTICE that at the hearing of this motion the applicant will use the affidavit which
accompany this notice and any subsequent affidavits to be filed.”

However, on 23rd of July, 2002, Messrs MNB Legal Practitioners filed a notice of appointment as
advocates for 21 Members of Parliament as interested parties in the matter.

On 25th of July, 2002, the respondent filed an affidavit in opposition to the application for judicial
review. On 26th of July, 2002, Messrs MNB, Legal Practitioners on behalf of the 21 Members of
Parliament, filed summons applying to the court to dismiss the Order for leave to apply for judicial
review obtained by the appellant.

Thus, on 29th of July, 2002, instead of the court hearing the motion for judicial review as set out on
the originating notice of motion, the court proceeded to hear an application by the 21 Members of
Parliament. At the hearing of the application by the 21 Members of Parliament, the respondent to
this appeal stated that they were not a party to the application by the 21 Members of Parliament.
At the conclusion of the hearing of that application by the 21 Members of Parliament the court
stated:-

“I have heard and I will have to wait, so I am asking you to write your submissions and submit
them within the next three days. The Review case is further stayed. The matter comes up on
Friday, 16th August, 2002, in Chambers.”

On the 8th of August, 2002, a twenty-two page submission was filed on behalf of the appellant in
the application by the 21 Members of Parliament. On 15th of August, a notice to produce
documents was filed on behalf of the appellant. These documents included numerous
correspondence and some documents relating to financial transactions. On the same date,
according to the record, summonses to witnesses James Mtonga, Lt. General Sunday Kayumba and
Mr. Christopher Mulenga, were issued for these witnesses to appear before the court on 16th of
August, 2002, at 09.00 hours to give evidence in the application for judicial review. It must be
observed here that the notice of motion had specifically stated that the appellant would rely on
affidavits filed.

On the 16th of August, the court delivered its ruling rejecting the application by the 21 Members of
Parliament and declining to discharge the exparte order for leave to apply for judicial review
granted on 17th of July, 2002. In the same ruling, the court directed that the application for judicial
review be heard and determined on its merit. What transpired on the 16th of August, 2002, after
the ruling was delivered on the issue raised by the 21 Members of Parliament, forms the
appellant’s first ground of appeal.

Since the proceedings of 16th of August, form the first ground of appeal, it is pertinent to set them
out in full to appreciate the context in which the issues for determination arose. The proceedings
of the 16th of August, went as follows:-

“Mr. Nkonde A.G May it please your lordship, I continue appearing for the Respondent, I am with
Mr Mutembo Nchito of MNB Associates, Mr J.B. Sakala and Mr Chisulo. Mr Simeza and Mr John
Sangwa appear for the Applicant.I understand my lord, Mr Simeza has got an application.

Mr. Simeza Yes my lord, if it may please your lordship, we would like to be heard on viva voce
evidence and we would like to call some witnesses.

Court Gentlemen, following that lengthy ruling and the skeleton submissions filed by some parties
from the Attorney-General’s Chambers, as well as those from the other party and I have got a
wealth of materials here, so I refuse to hear viva voce evidence unless there is something that you
want to add or subtract from what you heard from this court. In fact, what’s in issue here is a
question of Parliament removing Mr. Chiluba’s immunity which you have eloquently argued in your
skeleton arguments, what are those witnesses going to tell me, this is a matter of law and I will
pass Judgment on the affidavits on record, the court is not going to allow that which happened in
Parliament following the address of the President, you have eminently and eloquently argued
everything in your affidavits.

[Court addresses Counsels off record]

Afterwards
Mr. Sangwa My lord, we would like to file a further affidavit.
Court Yes, you can do so.
ORDER
Court You can file the Affidavit if you wish to do so, 14 days
from today Judgment should be delivered.”

Following the court’s directive to file further affidavit, the record shows that on 28th of August,
2002, a further affidavit, verifying facts, deposed to by one Peter Machungwa was filed. On the
same 28th of August, 2002, written submissions on behalf of the appellant were filed with the
court. On behalf of the Attorney-General, skeleton arguments were also filed. After the
“hearing” of 16th of August, 2002, the court reserved the judgment 14 days from that day. On
30th of August, 2002, the court delivered its judgment. In the judgment, the learned trial judge
reviewed the sequence of events after granting leave to apply for judicial review. The learned
trial judge examined the reliefs sought and the grounds on which the reliefs were sought and the
grounds for review. The court also reviewed the affidavit in opposition and the skeleton
arguments on behalf of the Attorney-General.

The learned judge pointed out that he had carefully considered all the matters and the arguments
presented by the parties and that he had already decided that courts have jurisdiction to inquire
into the workings of the National Assembly where certain issues had been questioned by an
aggrieved party.

The court summarized the issue for determination as being: whether there was impropriety on the
part of the National Assembly, either in lifting the immunity of the appellant or in the manner such
lifting of immunity was done. Before dealing with this issue, the learned judge reflected on the
basic principles and the scope underlying the judicial review process. The learned judge examined
the provisions of Article 43(3) of the Constitution. He concluded that the meaning of the Article is
that:-

“The National Assembly may, in its absolute discretion, remove from the Head of State, the veil
or the protection shield placed on him by the Article for purposes of facilitating investigations into
his activities while he held the position of the President and subsequent prosecution for the same
if such investigations establish the prima facie case against him.”

The learned judge found that there was no impropriety in lifting the appellant’s immunity for
 purposes of facilitating investigations into the allegations made against him in the Special Session
Address to Parliament on 11th of July, 2002. He also found that the National Assembly’s decision
to lift the appellant’s immunity was not ultra-vires the Constitution.

On the question of method used to lift the appellant’s immunity, the court observed that the
Constitution which confers power on the National Assembly to lift the immunity of a former Head
of State has itself provided the method, namely; that the decision to lift the immunity of the
former Head of State would be by resolution of the House and not by a Select Committee. The
learned judge observed that the High Court could not prescribe a particular way in which the
powers of the National Assembly should be exercised in making a decision to lift the immunity. The
court rejected, as erroneous, a contention that the appellant has had his rights to be heard
violated by the National Assembly. The court also rejected the contention that the President
usurped the powers of the Director of Public Prosecutions. The court declined to grant the relief of
Certiorari. Hence this appeal before us.

On behalf of the appellant, a Memorandum of Appeal was filed containing five grounds of appeal.
These are:-

1. That the learned trial judge misdirected himself in law by determining the motion without a
hearing and without considering Affidavit evidence and Submissions filed in support of the motion;

[Link] learned trial judge erred in law when he held that Article 43(3) of the Constitution of
Zambia is meant to empower the National Assembly to remove the immunity of a former Head
of State for purposes of facilitating investigations into his activities while he held the office
of President;

3. The learned judge in the court below erred in Law when he held that there was no procedural
impropriety in lifting the appellant’s immunity based on llegations made against him by President
Levy Mwanawasa during his special address to the National Assembly and that the President acted
as complainant on behalf of the people of Zambia;
[Link] learned judge erred in law when he held that there was no requirement for the Appellant to be
given an opportunity to be heard by the National Assembly to rebut allegations made against him
by President Mwanawasa because he will be afforded a hearing during interrogations by the
Police or Anti-Corruption Commission and later by the courts of law when he will be expected to
defend himself; and

[Link] learned judge in the court below erred in law when he held hat there was no procedural
impropriety in tabling and circulating the motion for the removal of the appellant’s immunity at
less than 24 hours notice since the appellant was not required to be heard by the National
Assembly and therefore suffered no prejudice.

Both parties filed written heads of argument supplemented by oral submissions based on these
five grounds of appeal. The first ground of appeal alleged misdirection in law on the part of the
court below allegedly by determining the motion without a hearing and without considering
affidavit evidence and submissions filed in support of the motion.

The written arguments and submissions on this ground, were that the refusal to hear the
appellant’s motion was a serious misdirection necessitating the matter to be referred back to the
High Court for a hearing; and that the procedure adopted by the learned judge in deciding the
matter without a hearing is not supported by any rule. On these arguments, we were referred to
Order 53 of the Supreme Court Rules (White Book), 1999 edition. It was also argued in the written
heads that the rules do provide for a hearing of parties to an application (Order 53 rule 9); that the
rules do allow parties to lodge bundles for use at the hearing (Order 53/14/11 and Order 53/14/18);
that the rules do require applications for judicial review to be held in open court (Order 53/14/13);
and that rules do allow the court to admit fresh evidence in addition to the affidavit evidence
(Order 53/14/85). It was thus submitted that the refusal by the learned judge to hear the
appellant was a serious negation of the rules.

Responding to the written heads of argument on the first ground, written heads of argument were
also filed on behalf of the respondent. It was contended on behalf of the respondent that the
learned trial judge was on firm ground when he refused to hear viva voce evidence.

It was argued that the refusal was in full compliance of the procedure for hearing applications for
judicial review as set out in Order 53; and that the learned judge even allowed the appellant to file
further affidavits to be deposed to by the witnesses that the appellant had desired to call to give
viva voce evidence and that the refusal to allow viva voce evidence did not prejudice the
appellant’s case. The respondent cited the case of New Plast Industries v The Attorney-General
(1), in support of their submissions in particular to a passage where this court said:-

“Where the evidence in support of an application is by way of affidavit, a deponent cannot be

heard to say that he was denied the right to a hearing simply because he did not adduce oral
evidence.”

In considering the written heads of arguments, we have taken cognisance of the fact that the
same were filed before our ruling of 31st of October, 2002, in which we confirmed, after
discovering the proceedings of 16th of August, 2002, that the court had sat on that day to
consider the motion. The position taken on behalf of the appellant before that ruling was that
there was no hearing at all on the 16th of August; but that the learned judge simply reserved
judgment on the motion. It was further, the position taken on behalf of the appellant that the
record, without the proceedings of the 16th of August, was incomplete. As it turned out, these
positions could not be supported after the court, on its own initiative, traced the proceedings of
the 16th August. We were satisfied then, that the record was complete and we accordingly
proceeded to hear the appeal. We have deliberately taken the trouble to set out in full what
transpired in court on the 16th of August, 2002, in order to place in a proper context the legal
arguments and the issues raised in ground one which is based on what happened in court on 16th
of August.

From what transpired in court on that day, we cannot accept a submission that the motion was
never heard at all. On the other hand, we agree that on that day, the learned judge refused to
hear viva voce evidence contending that:-

“…. following that lengthy ruling and the skeleton submissions filed by the parties I have got a wealth
of materials here, so I refuse to hear viva voce evidence ……”
After the court declined to hear viva voce evidence, Mr. Sangwa, for the appellant, informed the
learned judge that they would like to file a further affidavit. The court granted the request. The
record shows that one, Peter Machungwa, did actually file a further affidavit. Whether the learned
judge was correct or not in his ruling refusing to hear viva voce evidence is a different question
from saying that there was no hearing at all in the court below on that day in question. In his oral
submissions on behalf of the appellant, Mr. Banda contended that the application to call viva voce
evidence was made in the light of the special circumstances of the case in that it hinged on the
powers of Parliament pursuant to Article 43(3) of the Constitution and because a case of this
nature had never been litigated upon in Zambia or in the Commonwealth.

The other special circumstance contended by Mr. Banda was that the case emanated from powers
of Parliament against a person who had earned himself immunity; and the decision affecting him
was made in his absence, on the basis of allegations made by a sitting President to which he, the
appellant, had no opportunity to offer his side of the story. It was Mr. Banda’s spirited submission
that on the special circumstances of this case, viva voce evidence should have been allowed. In
support of these arguments and submissions on ground one, Mr. Banda referred us to several
passages in a book entitled APPLICATIONS FOR JUDICIAL REVIEW: LAW AND PRACTICE OF THE
CROWN OFFICE (2nd edition) by Grahame Aldous and John Alder. Mr. Banda also cited the case of
O’Reilly v Mackman (2). Mr. Banda contended that the justice of this particular case demanded
that the appellant should have been allowed to adduce viva voce evidence which would have
established that the acts purported to have been committed by him did not warrant the removal of
his immunity. He concluded his oral submissions on ground one by praying that the case be
remitted to the High Court to enable the appellant present his side of the story.

Responding to the oral submissions on ground one, Dr. Sakala, on behalf of the respondent,
submitted that the court below rightly decided to proceed by way of affidavit evidence which
contained facts tendered by the deponents of the affidavits. He submitted that the question of
the case being one of special circumstances was not raised in the court below. Dr. Sakala also
submitted that the court properly exercised its discretion to do away with viva voce evidence.
We have carefully examined the proceedings of the 16th August. They were very short.
According to these proceedings, Mr. Simeza did not advance any reason for the application to call
more witnesses. The court gave reasons for not accepting viva voce evidence. We agree with the
submission on behalf of the respondent that the question of special circumstances of the case
warranting viva voce evidence was never raised in the court below.

We have also very anxiously addressed our minds to the oral arguments and submissions on
ground one of appeal by both parties. The thrust of the submissions centres on the nature of
evidence on applications for judicial review; whether it should be by way of affidavit only or by way
of both affidavit and viva voce evidence. But before delving into the issue of the nature of the
evidence on applications for judicial review, a point must be made at this juncture that the hearing
of an application for judicial review does not start from the day set for the motion. The
application starts with a notice of application for leave to apply for judicial review accompanied by
an affidavit verifying the facts relied upon, which frequently are not in dispute. The requirement
of an affidavit commits an applicant to stating the basis of his case on oath. Thus, the affidavit
must contain all the basic factual material on which reliance will eventually be placed. The
affidavit forms the basis of the applicant’s application for judicial review together with the notice of
motion.
The scope of judicial review must also be understood. In volume 1 of the Supreme Court
Practice, 1999 edition, under Order 53/14/19, sub-heading entitled nature and scope of judicial
review page 902, the authors state:-

“The remedy of judicial review is concerned with reviewing, not the merits of the decision in
respect of which the application for judicial review is made, but the decision-making process itself.
‘It is important to remember in every case that the purpose of [the remedy of judicial review] is to
ensure that the individual is given fair treatment by the authority to which he has been subject
and that it is not part of that purpose to substitute the opinion of the judiciary or of individual
judges for that of the authority constituted by law to decide the matters in question.’ (Chief
Constable of North Wales Police –v- Evans [1982] 1 W.L.R. 1155 at 1160; [1982] 3 ALL E.R. 141 at
143, per Lord Hailsham L.C.). Thus, a decision of an inferior court or a public authority may be
quashed (by an order of certiorari made on an application for judicial review) where that court or
authority acted without jurisdiction, or exceeded its jurisdiction, or failed to comply with the rules
of natural justice in a case where those rules are applicable, or where there is an error of law on
the face of the record, or the decision is unreasonable in the Wednesbury sense (see para.
53/14/27). The court will not, however, on a judicial review application act as a ‘court of appeal’
from the body concerned; nor will the court interfere in any way with the exercise of any power or
discretion which has been conferred on that body, unless it has been exercised in a way which is
not within that body’s jurisdiction, or the decision is Wednesbury unreasonable. The function of
the court is to see that lawful authority is not abused by unfair treatment. If the court were to
attempt itself the task entrusted to that authority by the law, the court would, under the guise of
preventing the abuse of power, be guilty itself of usurping power (Chief Constable of North Wales
Police –v- Evans [1982] 1 W.L.R. 1155 at 1173; [1982] 3 ALL E.R. 141 at 154, per Lord Brightman).”

The authors of the book entitled: APPLICATIONS FOR JUDICIAL REVIEW, already referred to above,
make the point that the basis of the power of the High Court to review decisions of inferior courts,
or public bodies or tribunals is that it can make such bodies do their duty and stop them doing
things which they have no power to do.

Thus, the High Court cannot determine, in an application for judicial review, whether the decisions
by such bodies are right or wrong on their merits. It is now settled that the procedure under
Order 53 is thus not an avenue for appeal against decisions of such bodies. We have no reason to
disagree with this proposition. Having found that the record of appeal was complete; that there
was a hearing on 16th of August, 2002; and that the court rejected a request for viva voce
evidence; we now turn to consider the issue of the nature of evidence on applications for judicial
review. The starting point, in our view, is to examine the general rule. The general rule is that
the High Court may admit evidence in applications for judicial review as long as it is relevant to the
issues before it. Aldous and Alder, in their book, make the point that it is a fundamental principle
of administrative law that a public body’s power to make a decision includes the power to choose
between different options and even to make decisions which, on their merits, may appear wrong
or mistaken to a different body. The emphasis is that the purpose of judicial review is not to
provide an appeal procedure against decisions of public bodies on their merits, but to control the
jurisdiction of public bodies by ensuring that they comply with their duties or by keeping them
within the limits of their powers. For instance, when the High Court is reviewing a decision of a
public body it will not admit evidence which is relevant to whether the decision is a reasonable
one; but it will permit evidence which is relevant to whether the decision is one which the body
had power to make or whether it was made in circumstances in which a reasonable body could
have made it.

We are in total agreement with these propositions on the general rule. From the foregoing
propositions, we are satisfied that there are limits on the powers of the High Court in an
application for judicial review. Strictly speaking, it is never open to the High Court to open an
investigation of facts and admit “fresh” evidence in reviewing the acts and decisions of inferior
bodies or public bodies. This position makes the distinction that when the High Court sits in an
appellate capacity, it may be permitted to consider the merits of a decision. But when it sits in an
application for judicial review, the High Court is not permitted to consider the merits of a decision.

The practice in Zambia and in England is that in all applications for judicial review, the principal
source of evidence is from affidavits. But the court has power to order that a deponent and not
any other witnesses, attend to give oral evidence and to be cross-examined (Order 53 rule 8 and
Order 38 rule 2). It is important to emphasize the point that the only witnesses that may give
viva voce evidence on applications for judicial review are the deponents of the affidavits on record.

The practice in England, which we follow here in Zambia, is that courts are very reluctant to order
cross-examination on applications for judicial review. In the case of George –v- The Secretary of
State for Environment (3), at page 1615, Lord Denning, then the Master of Rolls, gave three
reasons for the judicial reluctance to order cross-examination in cases of judicial review:- These
were stated as follows:-

(i) that because the affidavits will usually speak as to what took place before a judicial or
quasi-judicial body they may have to be sworn by a planning inspector or a magistrate, or
someone of that kind. Since it is undesirable that such a person should be subjected to cross-
examination, the applicant should not be liable to cross-examination either;

(ii) experience shows that on procedural questions arising on judicial review there is very little
conflict on the affidavits; and

(iii) if cross-examination is permitted there will be a temptation to try and undermine the
actual findings of the inferior body.

Lord Goddard, C.J., in the course of the main judgment, in R v Stokesley (Yorkshire) justices,
exparte Bartram (4), where fraud was alleged, explained further the judicial reluctance to order
cross-examination in these terms:-
“As this was such a remarkable case, and there was this unfortunate incident of an altered order
having been put before the court, on which, at any rate to some extent, the court relied, we
accordingly ordered that the deponents should attend in court today. They have attended, and
they have been cross-examined. It is the first time in my experience and, I think, the first time in
anyone else’s experience in Crown practice matters, viz., applications for prerogative orders or
writs, that cross-examination has ever taken place. I do not want this to be thought to be an easy
precedent. We allowed cross-examination in this case because it is one of a very remarkable
character. [HIS LORDSHIP reviewed the evidence and concluded that the application failed.]”

The emphasis in all these authorities is that in applications for judicial review, the evidence is by
affidavit. And if need arises for viva voce evidence, it is, in the discretion of the court to order the
deponents of those affidavits to give that evidence.

In the instant case, we are satisfied that the learned judge cannot validly be criticized for rejecting
the application for viva voce evidence and for not hearing the parties for the reasons he stated.
And we must add that when we looked at the proposed viva voce evidence, we found that it was
irrelevant because it was intended to rebut the allegations against the appellant and had nothing
to do with the judicial review proceedings. Indeed, from the record, the learned judge had a wealth
of material before him. Whether he was correct or not in his conclusion is a different question
which we are capable of addressing since an appeal operates as a re-hearing on the record. But
for the reasons we have discussed, we reject the prayer to remit this case to the High Court. The
first ground of appeal therefore fails.

We have discussed ground one at great length because some of the issues considered in that
ground have a bearing on the issues raised in the remaining other grounds of appeal. Grounds two
and three were argued by Mr. Sangwa as one ground. The first part of this ground alleges that the
trial judge erred in law when he held that Article 43(3) of the Constitution of Zambia is meant to
empower the National Assembly to remove the immunity of a former Head of State for purposes of
facilitating investigations into his activities while he held the office of President. The second part
alleges misdirection on the part of the learned judge when he held that there was no procedural
impropriety in lifting the appellant’s immunity based on allegations made by the President. On
these two grounds argued as one, we were taken through ten pages of written heads of arguments
in addition to oral submissions. We heard arguments that the court below seriously misdirected
itself on the issue of illegality as a ground for judicial review and the import of Article 43(3) of the
Constitution. We also heard an argument that the decision of the National Assembly to sanction
the prosecution of the appellant was illegal. It was also argued that the National Assembly did not
understand correctly the provisions of Article 43(3) and hence failed to give effect to it as the
steps taken or followed to sanction the prosecution of the appellant were not consistent with the
Constitution. According to Counsel, this was evidenced from the Parliamentary Debates in which
none of the members of Parliament made reference to the language of Article 43(3). Mr. Sangwa
complained that the resolution, the subject of the judicial review, was formulated, presented to the
House and passed within three hours. He submitted that this was contrary to the practice and
procedure of the House which requires a motion to be formulated and distributed to members
twenty-four hours before debate.

Mr. Sangwa conceded that there was no procedure to be followed by the National Assembly when
invoking the powers under Article 43(3). But he contended that whatever had to be done, had to
be consistent with the provisions of the Constitution. He did not allude to those provisions.

He pointed out that the National Assembly acted on the representations by the President, which
were in form of an address to the House in which the President outlined a number of allegations
against various people who served under the appellant. Counsel argued that in his address, the
President misdirected the House on the question as to who should determine whether one should
be prosecuted or not. Mr. Sangwa then went to great length citing the powers of the Director of
Public Prosecutions under the Constitution. He submitted that by calling for the prosecution of the
appellant, the President acted illegally and usurped the powers of the Director of Public
Prosecutions.

Further arguments by Mr. Sangwa were that there are pre-conditions that must be satisfied
before the National Assembly can pass a resolution under Article 43(3). He argued that the Hon.
Members did not examine the language of the article and consequently failed to satisfy the pre-
conditions. He submitted that a former President can only be prosecuted or be amenable to the
criminal jurisdiction of a court for: things he did or omitted to do in his private capacity and the
National Assembly must make a determination that the prosecution would be in the interest of the
State. He submitted that such a determination can only be made if the nature of the charges is
known at the time the National Assembly is being called to invoke its powers under Article 43(3).
To fortify his arguments, Mr. Sangwa outlined the historical background of Article 43(3) from the
independence Constitution of 1964 to the 1991 Constitution, while citing the various Constitution
Commissions’ recommendations. Thereafter, Counsel set out the functions of the President.
Then at great length, he outlined the various allegations made against the appellant in the
President’s address. Counsel submitted that the things done or omitted to be done by the
appellant in his private capacity which may be the subject of the criminal prosecution or form the
basis for bringing him before the criminal jurisdiction of the court, fell outside his functions. Mr
Sangwa concluded his submissions on grounds two and three by contending that the resolution of
the National Assembly was null and void for illegality as the National Assembly did not give effect
to the provisions of Article 43(3). The short response to these submissions by Dr. Sakala, on
behalf of the respondent, was that Article 43(3) is very clear in its ordinary context by stating that
immunity of a former Head of State shall be lifted by a resolution of the National Assembly. Dr.
Sakala contended that it would be incorrect to import into Article 43(3) a particular procedure to
be followed by the National Assembly in lifting the appellant’s immunity. According to Dr. Sakala,
for purposes of investigations, the National Assembly had to remove the immunity of the
appellant. On procedural impropriety, Dr. Sakala pointed out that there was vigorous debate
before the resolution was passed. He submitted that the National Assembly had the right to
choose its own method of dealing with the matter. This concluded the parties’ submissions and
arguments on grounds two and three.

We have very carefully examined the judgment of the learned judge. We have also anxiously
considered the ingenious submissions on the two grounds argued as one. The upshot of Mr.
Sangwa’s detailed and resourceful submissions, which included a search into the history and
origins of Article 43(3) of the Constitution, is that the resolution of the National Assembly, lifting
the appellant’s immunity, was null and void for illegality and non-compliance with Article 43(3) of
the Constitution.

Before dealing with the issue of illegality and non-compliance with Article 43(3) of the Constitution,
the learned judge, rightly so, in our view, reflected on the basic principles underlying the judicial
review process. He considered the objectives and the scope of the remedy of judicial review and
examined some of the decided cases on the subject including authors on the same subject. In
dealing with ground one, we, too, examined the same principles and the same authorities. We
alluded to the fact that the remedy of judicial review is concerned with reviewing the decision-
making process itself and not the merits of the decision. We noted that in judicial review
proceedings, the court is not acting as a court of appeal.

To determine whether the resolution of the National Assembly was null and void for illegality, the
starting point must be to review the decision-making process itself. The learned trial judge took,
for his starting point, Article 43(3) of the Constitution. We find no valid reasons for criticizing his
approach. After setting out Article 43(3), the learned judge stated:-

“The import of this Article is quite plain and straightforward. It simply means what it says – that
the National Assembly may, in its absolute discretion, remove from the former Head of State, the
veil or the protective shield placed on him by the Article for purposes of facilitating investigations
into his activities while he held the office of President and subsequent prosecution for the same if
such investigations establish a prima facie case against him. There is simply no other meaning
apt enough that can be placed on this Article.”
In his oral submissions, Mr. Sangwa attacked this finding, contending that immunity is against
prosecution and that its lifting is not for the purposes of facilitating investigations. It was Mr.
Sangwa’s submission that nothing stops the authorities to investigate the appellant even without
lifting his immunity. We agree with Mr. Sangwa. The lifting of immunity as envisaged in the
article is not for purposes of facilitating investigations but for facilitating prosecution. Thus, under
immunity, the appellant can still be investigated, but he cannot be prosecuted because, immunity
is his shield.

It would appear to us that Dr Sakala too, laboured under the wrong impression that the appellant
cannot be investigated before removal of his immunity. This, in our view, is a mistaken and
incorrect understanding of the immunity as provided in Article 43(3). Mr. Sangwa further argued
that Article 43(3) sets out pre-conditions before a prosecution against a former Head of State can
be initiated. He submitted that before immunity can be lifted, charges must be known and must
exist. He submitted that this was not the case here. We are inclined to conclude that these
arguments take us into considering the merits of the decision of the National Assembly. This, in
our view, would be against the spirit, the scope and the purpose of the remedy of judicial review.
We decline to address ourselves to these arguments, forceful as they may be though. However,
the plain meaning of Article 43 (3) does not stipulate that specific charges have to be presented to
the National Assembly before immunity of the former President can be removed. Immunity can
be removed even for a purpose of making a former President amenable to the criminal jurisdiction
of the court. Amenability to criminal jurisdiction can envisage allegations of criminal conduct,
which in essence, was the gist of the President’s address to the National Assembly.

In deciding on whether there was here illegality and procedural impropriety in the lifting of the
appellant’s immunity based on the allegations made against him by the President, we have to be
guided, as we said in Chitala–v-The Attorney-General (5), by the three grounds enunciated by Lord
Green, but at the same time being mindful of not trying to substitute our own view for that of the
National Assembly under the guise of judicial review. The three grounds, enunciated by Lord
Green in Associated Provincial Picture Houses Limited v Wednesbury Corporation (6), are illegality,
irrationality and procedural impropriety. These principles have been further expounded in the
case of Council of Civil Service Union v Minister for Civil Service (7), by Lord Diplock at pages 950-
951 when he stated:-

“Judicial review has I think developed to a stage today when, without reiterating any analysis of the
steps by which the development has come about, one can conveniently classify under three heads the
grounds on which administrative action is subject of control by judicial review. The first ground I
would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not
to say that further development on a case by case basis may not in course of time add further
grounds. I have in mind particularly the possible adoption in the future of the principle of
‘proportionality’ which is recognized in the administrative law of several of our fellow members of
the European Economic Community; but to dispose of the instant case the three already well-
established heads that I have mentioned will suffice.

By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it. Whether he
has or not is par excellence a justiciable question to be decided, in the event of dispute, by those
persons, the judges, by whom the judicial power of the state is exercisable.

By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury

unreasonableness’ (see Associated Provincial Picture Houses Limited v Wednesbury Corporation
(6). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the question to be decided could
have arrived at it. Whether a decision falls within this category is a question that judges by their
training and experience should be well equipped to answer, or else there would be something
badly wrong with our judicial system. To justify the court’s exercise of this role, resort I think is
today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards (Inspector of
Taxes) –v- Bairstow [1955] 3 All ER 48, [1956] AC 14 of irrationality as a ground for a court’s
reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the
decision-maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a
decision may be attacked by judicial review.

I have described the third head as ‘procedural impropriety’ rather than failure to observe basic
rules of natural justice or failure to act with procedural fairness towards the person who will be
affected by the decision. This is because susceptibility to judicial review under this head covers
also failure by an administrative tribunal to observe procedural rules that are expressly laid down
in the legislative instrument by which its jurisdiction is conferred, even where such failure does not
involve any denial of natural justice. But the instant case is not concerned with the proceedings
of an administrative tribunal at all.”

The above has been cited with approval in a number of cases, including the Zimbabwean case of
Patriotic Front ZAPU –v- Minister of Justice, Legal and Parliamentary Affairs (8). We, too,
respectfully agree with Lord Diplock’s three grounds on reviewability of decisions of public bodies.
We begin with ‘illegality’. To succeed under this ground, the appellant has to prove that the
decision of the National Assembly contravened or exceeded the terms of the law which authorized
the making of that decision or that the decision pursues an objective other than that for which the
power to make the decision was conferred. By looking at the wording of the power and the
context in which the power is to be exercised, the court’s ultimate function is to ensure that the
exercise of the power is within or intra-vires the statute. Article 43(3) states:-

“(3) A person who has held, but no longer holds, the office of President shall not be charged
with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any
act done or omitted to be done by him in his personal capacity while he held office of President,
unless the National Assembly has, by resolution, determined that such proceedings would not be
contrary to the interests of the State.”

This Article, in our view, sets out the parameters in which the power to lift the immunity of a
former President is to be exercised. The challenge for the drafters of this article was to bring out
in clear words the power and the circumstances in which it was to be exercised. The former
President in terms of this article must be alleged to have committed some acts while in office
which amount to criminal offences or would make him amenable to the criminal jurisdiction of the
court and it is in the interest of the State that his immunity be lifted. The facts leading to the
removal of the appellant’s immunity are common cause. There was before the National Assembly
the address by the President. In the address, various allegations were made against the appellant
and others. It is not for the court, in an application for the remedy of judicial review, to determine
the truthfulness or the falsity of those allegations. The discretion conferred on the National
Assembly by Article 43(3) is wide and it can be validly exercised by resolution once the National
Assembly has before it allegations showing prima facie criminal conduct to the Assembly’s
satisfaction. Indeed, there were emotions and heated debate before the resolution was passed.
But we cannot infer any illegality of the decision they arrived at. We are therefore satisfied that
given the address of the President to the National Assembly, the National Assembly properly
exercised its powers under Article 43(3). The question of ‘illegality’ did not arise.

In the same vein, we find nothing irrational in the manner the resolution was passed. It cannot be
seriously argued that the decision of the National Assembly was “so outrageous in its defiance of
logic or of accepted moral standards that no sensible tribunal which had applied its mind to the
question to be decided could have arrived at it.” The decision of the National Assembly here, was
based on serious and unprecedented allegations of criminal conduct in this country. And no
doubt, these are the allegations which were taken into account before the decision was arrived at.

On ‘procedural impropriety’ we find that the issue does not arise because the article itself provides
for the procedure for lifting immunity. In any event, before the immunity was lifted, the National
Assembly debated the procedure to be followed. The fact that there was lengthy debate before
the resolution was finally passed, did not suggest any procedural impropriety. While we agree
that removal of immunity cannot be for purposes of facilitating investigations, we do not agree
that Article 43(3) means that immunity cannot be removed unless specific charges have been
framed. Grounds two and three are therefore not successful.

Ground 4 alleged that the learned judge erred in law by holding that there was no requirement for
the appellant to have been given an opportunity to be heard by the National Assembly. Counsel
referred us to numerous authorities on the requirement for an opportunity to be heard.

We have anxiously considered these authorities. But after looking at the provisions of Article
43(3), we find nothing in these provisions which suggest to us that before lifting the immunity of a
former President, the National Assembly should give a former President the opportunity to be
heard. The provisions of Article 43(3) should not be read in isolation, but together with the other
relevant provisions in the Constitution. The other relevant provisions we find are those in Article
37 dealing with impeachment of the President. Unlike the provisions dealing with removal of
immunity of a former President, which do not give the right to be heard, the provisions in Article 37
dealing with impeachment of the President specifically gives the President the right to be heard
and to be represented by Counsel. Which means that while in Article 37 the President has the
right to be heard, it was never the intention of the framers of the Constitution that when the issue
of removal of immunity of a former President arises, the former President would have the right to
be heard. Of course, one cannot seriously argue that Article 43(3) and Article 37 conflict with
each other because Constitutional provisions cannot contradict each other.

The rationale for this arrangement is very easy to find. In impeachment proceedings, the National
Assembly has, after going through the whole process, power to finally determine the fate of the
President by its own resolution. The National Assembly can either “acquit” the impeached
President or remove him from office. In proceedings to remove the immunity of a former
President, the National Assembly has no power to call upon a former President to give evidence to
rebut allegations against him before removal of his immunity by the National Assembly. What
action would the National Assembly take after hearing a former President? The National Assembly
cannot “acquit” or make a finding that there is a prima facie case made out against a former
President and should therefore be charged with a criminal offence(s) because the National
Assembly has no such powers under the Constitution. The power to determine the guilt or
innocence of a person in a criminal matter is assigned to the courts by the Constitution. For the
reasons we have given above, we hold the view that the provisions of Article 43(3) are very clear.
We cannot imply anything in these provisions. Nor can we bring into the interpretation of these
provisions glosses and interpolations derived from doctrine or case law. None of the numerous
cases cited to us gives identity and visibility to any principle of law which persuades and entitles
us to imply anything in a Constitutional provision which is very clear. We are satisfied that the
framers of the Constitution never intended that on removal of immunity, a former President should
be heard.

Indeed, Mr Simeza quite properly conceded that Article 43(3) makes no provision for hearing of a
former President whose immunity is to be removed. We agree with him. But Counsel contended
that the same article does not make provision for the incumbent President to initiate the removal
of immunity of the former President. This argument begs the question. The truth is that there is
no provision for an individual to be heard in Parliament. Above all, it is not in all cases where rules
of natural justice are always applicable. Ground four too fails.

Ground five alleges procedural impropriety. This we have discussed in grounds two and three.
While it is not in dispute that there was haste in circulating the motion, it is not correct, as argued,
that the National Assembly is obliged to religiously follow its own rules of procedure. Be that as it
may, Parliament regulates its own procedure (Article 86). We are satisfied that there was no
impropriety in the manner the motion was circulated and adopted. Ground five also fails. Before
concluding the discussion on the appeal, we turn to consider the cross-appeal by the respondent.
The notice of cross-appeal reads as follows:-
“TAKE NOTICE that the Respondent being dissatisfied with the judgment of judge ANTHONY
NYANGULU given in the High Court on 30th August, 2002, and ruling of 16th August, 2002, intends
to cross appeal to the Supreme Court against the judgment in so far as it decides that Section 34
of the National Assembly (Powers and Privileges) Act is inconsistent with the provisions of Article
94(1) of the Constitution.”

The ground of appeal in the memorandum of the cross-appeal alleges an error in law on the part of
the learned judge when he held that Section 34 of the National Assembly (Powers and Privileges)
Act is inconsistent with the provisions of Article 94(1) of the Constitution of the Republic of
Zambia. The short background leading to the cross-appeal is that 21 Members of Parliament
applied to be joined to the proceedings brought about by the appellant for judicial review as
interested parties pursuant to Order 53 rule 9(1) of the Rules of the Supreme Court. The 21
Members of Parliament sought to set aside the leave granted to the appellant to apply for judicial
review. It was then the contention of the 21 Members of Parliament that since the appellant in his
substantive application was challenging what transpired in the National Assembly, his application
should fail as Section 34 of the National Assembly (Powers and Privileges) Act has ousted the
jurisdiction of the High Court to inquire into the affairs of the National Assembly and whatever it
does. It was further the contention of the 21 Members of Parliament that Article 86(1) of the
Constitution has conferred authority upon the National Assembly to determine its own procedure.

It is in the light of the foregoing arguments that the High Court considered Section 34 of the
National Assembly (Powers and Privileges) Act. In dealing with the arguments based on Section
34 of the Act, the learned judge had this to say:-

“If it is indeed the contention on behalf of the 21 Members of Parliament that this court should dissolve
the order for grant of leave to apply for judicial review granted on 16th July, 2002, on the strength of
the provisions of Section 34 of the National Assembly (Powers and Privileges) Act, that this court
cannot look into the manner in which the resolution of the National Assembly ‘lifting’ the
Applicant’s immunity was arrived at and satisfy itself whether indeed it was made pursuant to the
provisions of Article 43(3), it is the finding of this Court that the said section is inconsistent with
the provisions of Article 94(1) of the Constitution. It is the Court’s view that to the extent that the
said section purports to limit the jurisdiction of the High Court, it is null and void and therefore of
no effect on this Court.”

On behalf of the respondent written heads of argument in the cross- appeal were filed
supplemented by oral arguments and submissions.

The advocates for the appellant filed detailed written heads of arguments in response to the cross-
appeal. But in court, after hearing the arguments of Mr. Jalasi on the cross-appeal, Mr. Sangwa, on
behalf of the appellant, informed the court that there was no need for him to argue on the cross-
appeal.

The gist of the submissions on the cross-appeal is that, the learned judge’s holding on Section 34
had the effect of striking out that section. It was contended that a legislation in Zambia cannot be
impugned by way of judicial review proceedings but by way of a petition. Mr. Jalasi referred the
court to the case of Attorney-General and Another v The People (9). He submitted that Section 34
is not inconsistent with the provisions of Article 94(1) of the Constitution. Mr. Jalasi also referred
us to the case of Zambia National Holding and United National Independence Party v The
Attorney-General (10), where this court discussed the meaning of the word “unlimited” jurisdiction
of the High Court.

Our short answer to the cross-appeal is that the learned judge was never invited to make a
determination on the validity of Section 34 of the National Assembly (Powers and Privileges) Act
Cap.12 of the Laws of Zambia. The 21 Members of Parliament only asked him to set aside the
Order of the court granting leave to the appellant to apply for judicial review. He was not asked
to strike out Section 34.
In conclusion, for the reasons we have discussed in the appeal, although the application for judicial
review was not frivolous nor vexatious, all the five grounds having failed, the whole appeal also
fails. The whole appeal is accordingly dismissed.

The cross-appeal on the other hand, is allowed, we set aside the portion of the learned judge’s
ruling which has the effect of striking out Section 34 of the National Assembly (Powers and
Privileges) Act. Since the appeal raised, for the first time, a matter of general public importance,
each side will bear its own costs.

Appealed [Link] appeal allowed

2002