Brian Mundubile and Anor v Hakainde Hichilema and Anor (2025/CCZ/0026) [2025] ZMCC 28 (5 December 2025)

IN THE CONSTITUTIONAL COURT OF ZAMBIA IN THE CONSTITUTIONAL COURT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL COURT JURISDICTION) 2025/CCZ/0026 IN THE MATTER OF: ARTICLES 1(2),2 AND 128 OF THE CONSTITUTION OF ZAMBIA (AM ENDMENT) ACT NO. 2 OF 2016 IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLES 8(c) & (e), 9(1) (a), 90, 91{3){a) & (f) and 92 OF THE CONSTITUTION OF ZAMBIA {AMENDMENT) ACT NO. 2 OF 2016 IN TH E MATTER OF: SECTION 3 OF THE OFFICIAL OATHS ACT CHAPTER 5 OF THE LAWS OF ZAMBIA IN THE MATTER OF: MUNIR ZULU AND CELESTINE MUKANDILA V THE ATTORNEY- GENERAL- 2025/CCZ/009 IN THE MATTER OF: THE CONSTITUTION {AMENDMENT) BILL NO.7 OF 2025 IN THE MATTER OF: THE EFFECT OF A BREACH OF THE CONSTITUTION OF ZAMBIA BY TH E REPUBLICAN PRESIDENT IN THE MATTER OF: THE IN ELIG IBILTY OF HAKAINDE HICH ILEMA TO CONTEST REPUBLIC ~ ZAM~!A CONSTITUTIONAL cour~r O'F lAMRIA BETWEEN: BRIAN MUNDUBILE CELESTINE MUKANDILA AND HAKAINDE HICHILEMA THE ATTORNEY GENERAL ~ o s ~~ ,_. 2~2s [ta ~ ------J REGISTRY t p O BOX 50067. LUSAKA Rl 1st PETITIONER 2nd PETITIONER 1st RESPONDENT 2nd RESPONDENT Coram: Mwandenga JC on the 27th November, 2025 and 5th December, 202For the Petitioner: Mr. J. Phiri and Mr. F. S. Chipompela from Messrs. Joseph Chirwa and Company For the Respondent: Mr. Mulilo Kabesha, SC the Attorney General appearing with Mr. C. Mulonda, Deputy Chief State Advocate and Mr. N. Mwiya Principal State Advocate from the Attorney- ~EPtmuc ~ co,vsnTunoNAt co ~A~SfA Gene al's Chambers urn OF Z,(V,tf11A I I RULING Cases referred to: ~ """-------·- 1. Chapter One Foundation Limited v President Edgar Chagwa Lungu and the Attorney General2021/CCZ/0036 2. Godfrey Miyanda v Attorney General SCZ Judgment No.9 of 2009 3. Mike Hamusonde Mweemba v Obote Kasongo, Zambia State Insurance Corporation Limited (2006) ZR 101 4. Abel Mulenga and Others v Mabvuto Avuta Chikumbi and Others (2006) ZR 33 5. Michela Chizombe v Edgar Chagwa Lungu and Others 2023/CCZ/0024 6. Legal Resources Foundation and Others v Edgar Chagwa Lungu and Attorney General 2021/CCZ/0025 7. Dr. Daniel Pule and Others v The Attorney Genera l and Others Selected Judgment No.60 of 2018 8. Sean Tembo v The Attorney- General 2025/CCZ/007 9. Donald Trump v The United States No.23-939 10. Honourable Attorney-General and Two Others v David Ndii and 79 Others Petition No.12 of2021 11. Yubraj Chanjdeo Caday v DPP and the Attorney-Genera l 2024/CCZ/001 12. Necor Zambia Limited v Slyvester Nthenge (2008) 2 ZR 189 13. Hakainde Hichilema and Godfrey Bwalya Mwamba v Edgar Chagwa Lungu and the Attorney-General 2016/CC/0034 14. Deyness Muriithi, Alexande r Muchemi, Ana Cherono Konuche, Paul Kariba Kibiku and Kimani Wawer & 28 Others v Law Society of Kenya and the Registrar of the High Court [2016] KESC 13{KLR) 15. Sean Tembo (Suing in his capacity as Spokesperson of the Tonse Alliance) v The Attorney Genera l 2025/CCZ/ 007 R2 • Statutes referred to: 1. The Constitution of Zambia, 1991 2. The Constitution of Zambia (Amendment) Act, No. 2 of 2016 3. The Constitutional Court Rules, Statutory Instrument No. 37 of 2016 4. The State Proceedings Act, Cap 71 of the Laws of Zambia Other works referred to: 1. The Constitution of Zambia (Amendment) Bill No. 7 of 2025 Introduction and background [1] Brian Mundubile (the 1st petitioner) who is a Zambian National, a member of the Patriotic Front (PF) which is the largest political party in the Republic of Zambia (Zambia) and a sitting Member of Parliament for Mporokoso Constituency and Celestine Mukandila (the 2nd petitioner) who is also a Zambian National and the National Youth Chairman of the Tense Alliance, a political alliance comprising of opposition political parties within Zambia, commenced these proceedings via a petition filed on the 3rd November, 2025 against Hakainde Hichilema (the ist Respondent), the current President of the United Party for National Development (UPND) who is its declared candidate for the 2026 Presidential and General Elections and who was sued in his individual capacity as a candidate for the said elections and the Attorney- General (the 2nd Respondent) who is the Chief Legal Advisor of the Government of Zambia (the Government) in line with Article 177(5) of the R3 Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by Act No.2 of 2016 (the Constitution) and who was sued pursuant to the provisions of section 12 of the State Proceedings Act, Cap 71 of the Laws of Zambia (the State Proceedings Act). [2] The Court takes judicial notice that the petitioners are also advocates of the High Court for Zambia. The significance of their being advocates of the High Court will be taken into consideration when considering a certain aspect of this ruling. [3] The petition (the main action) alleges the contravention of Articles 8(c) and (e), 9, 90,91(3)(a) and 92(1) of the Constitution. [4] The reliefs sought are couched in the following manner: i. A declaration that the actions of the Respondents to initiate a constitutional amendment Bill in contravention of the Constitution by failing to undertake wide and inclusive consultations directly with the citizens of the Republic or through various stakeholders representing their interests is contrary to Articles 8(c), 9,90,91(3)(a) and 92(1) of the Constitution, and thereby unconstitutional; A declaration that the 1st Respondent breached his oath of office to protect the Constitution; A declaration that by virtue of the ist Respondent's constitutional breaches under (i) and (ii), the ist Respondent is disqualified from being nominated for election as a candidate for Republican President; Costs; Any other relief the court may deem fit. ii. iii. iv. v. R4 • The application [S] During the early part of the interlocutory stage of this matter on the 20th November, 2025 the 2nd Respondent filed a summons for misjoinder of a party to proceedings pursuant to Order V Rule (4)(a) of the Constitutional Court Rules, Statutory Instrument No. 37 of 2016 (the CCR) as read with Article 98(1) of the Constitution (the application). In the application the 2nd Respondent sought the orders and directions framed in the following fashion: 1. 2. 3. An Order that the ist Respondent be mis-joined from the Petition in respect of anything alleged to have been done or omitted to be done in his private Capacity pursuant to Article 98(1) of the Constitution of Zambia Chapter 1 of the Constitution of Zambia of the Laws of Zambia as amended by the Constitution of Zambia {Amendment) Act No. 1 of 2016; An order substituting the 1st Respondent with the 2nd Respondent for anything alleged to have been done or omitted to be done in his Official Capacity as President of the Republic of Zambia pursuant to Article 177{S)(c) of the Constitution ... as read with Section 12 of the State Proceedings Act of the Laws of Zambia; Costs .... The significance of the 2nd Respondent fi ling the application will be of importance in the determination of a certain aspect of this ruling. [6] The application is supported by an affidavit sworn by Marshal Mubambe Muchende, SC the Solicitor General of Zambia (the affidavit in support) and a list of authorities and skeleton arguments. RS [7] The 2nd Petitioner opposed the application. On the 27th November, 2025 he filed an affidavit styled as an affidavit in opposition to the affidavit in support of summons for misjoinder of a party to proceedings sworn by the 2nd Petitioner himself (the affidavit in opposition) and a list of authorities and skeleton arguments in support of the affidavit in opposition. [8] I momentarily pose here to record the fact that from the affidavit in opposition, it is clear that the 2nd Petitioner swore the affidavit in opposition for and on his behalf only as there is no averment therein that shows or suggests that he also swore the same on behalf of the ist Petitioner. Therefore, on the material before me there is nothing that shows or suggests that the 1st Petitioner was opposed to the 2nd Respondent's application. So, in this ruling I shall proceed on the basis that the 1st Petitioner is not opposing the application more so that during the hearing of the application when I asked Counsel for the Petitioners about this state of affairs, they confirmed that to be so. The significance of the 1st Petitioner not opposing the application will be of importance in the determination of a certa in aspect of this ruling. R6 The 2nd Respondent's case [9] The Attorney General's case as set out in the affidavit in support is that the Petitioners joined the p t Respondent in the main action for various reliefs in respect of things that relate to both his private and official capacity. That the 1st Respondent is the current President of Zambia who is performing executive functions in Zambia. (10] The affiant of affidavit in support then deposes, for ease of reference, as follows: 5. That I verily believe that the Constitution of Zambia proscribes the 6. 7. institution or continuation, of civil proceedings against the President or a person performing Executive functions in respect of things done or omitted to be done in a Private capacity and Counsel shall submit; That I verily believe that the 2nd Respondent represents the Government in civil proceedings to which [the] Government is a party and therefore that it is the 2nd Respondent who must be Petitioned for any alleged acts or omissions of the 1st Respondent in the performance of his executive functions and Counsel shall submit; That I verily believe that this is a suitable matter for the pt Respondent to be dis-joined from tlhe Petition for any allegations against him in his Private Capacity and for the 1st Respondent to be substituted by the 2nd Respondent in respect of any alleged acts or omissions in the performance of his executive functions. (11) In the skeleton arguments, it was posited that the application was made pursuant to Order V rule 4 (a) of the CCR which gives the Court authority to R7 • mis-join any person improperly joined to proceedings. The Order provides that: 4. The Court may, at any stage of the proceedings, upon or without the application of a party, and on such terms as may appear just order- (a) that the name of a party improperly joined be struck out; and (b) any person who ought to have been joined, or whose presence before the Court may be necessary in order to enable it adjudicate upon and settle the matter be added. [12] Furthermore my attention was drawn to Article 177 of the Constitution which clothes the 2nd Respondent with the requisite jurisdiction to represe nt Government in all civil proceedings. The Article in material respects provides that: (5) The Attorney General is the Chief Legal Advisor to the Government and shall- (c) represent the Government in civil proceedings to which Government is a party. (Emphasis supplied by the 2nd Respondent. [13) According to the 2nd Respondent the position aforesaid was reinforced by the provisions of section 12 of the State Proceedings Act, which provides that: Subject to the provisions of any other written law, civil proceedings by or against the State shall be instituted by or against the Attorney General as the case may be. [14] The 2nd Respondent posited that the State Proceedings Act provides the statutory framework for civil proceedings by and against the State. That according to section 12 of the State Proceedings Act, subject to any other R8 written law, civil proceedings by or against the State should be instituted by or against the Attorney-General. Therefore, where the State or someone acting in an official capacity on behalf of the State is exposed to civil liability, the proper defendant or claimant is the Attorney-General. It was further posited that the interplay of the Constitution and State Proceedings Act thus yields the legal proposition that if the cause of action arises from the discharge of public duty or the exercise of official functions, the suit should be directed against the Attorney-General, and not the office-holder personally. [15] Given the fact that the petition indicates that it was anchored on alleged breaches of the Constitution by t he 1st Respondent during the exercise of his public duty as the President of Zambia and not in his personal capacity it was posited that on the strength of the authorities cited above, the 2nd Respondent was the only correct party. [16) The 2nd Respondent in an effort to make a case of the misjoinder of the 1st Respondent calls in aid Article 98{1) of the Constitution which proscribes the institution or continuation of civil proceedings against the President of Zambia. Article 98(1) of the Constitution provides that: A person shall not institute or continue civil proceedings against the President or a person performing executi've functions, as provided in Article 109, in respect R9 of anything done or omitted to be done by the President or person in their private capacity during the tenure of the office as president. [17) The 2nd Respondent isolated the third relief in the petition which seeks a declaration that the ist Respondent was disqualified from being nominated for election as a candidate for the Republican President and posited that the relief was private in nature and goes against the letter and spirit of Article 98 (1) of the Constitution. This relief, it was posited, stemmed from the allegations against the President in furtherance of his presidential or executive functions and therefore the correct party to these proceedings was the Attorney-General. [18] The 2nd Respondent in his arguments further points out that the other purported acts or omissions complained of were carried out by the i5t Respondent in the performance of presidential or executive functions and that therefore, the 1st Respondent had been sued for what were essentially official acts. This, it was posited was inconsistent with the provisions of the State Proceedings Act which according to the 2nd Respondent, channels such claims to the Attorney-General. [19] In the circumstances, it was posited that the correct remedy was striking out the 1st Respondent from these proceedings who had been improperly joined RlO so that only the 2nd Respondent would be the party in these proceedings. In this regard, the 2nd Respondent called in aid the ruling of my sister, Mulongoti JC dated 9th July, 2021 in the case of Chapter One Foundation Limited v President Edgar Chagwa Lungu and the Attorney General 1 where she said: 28. The Supreme Court elucidated that the doctrine of immunity for some public officers including the president has been recognized on the ground that it serves a public interest by enabling such official to perform their functions effectively without fear that their decisions will give rise to personal liability. 31. It is noteworthy that the prov1s1ons of Article 43(1) of the 1991 Constitution (now repealed) are similar to the provisions of Article 98(1) of the Constitution. I am persuaded by the Supreme Court decision in the Godfrey Miyanda v Attorney General case supra. I am therefore, inclined to grant the application for misjoinder and joinder as prayed. I am of the considered view that the proceedings in this matter should have been instituted against the Attorney General pursuant to Article 177(S)(c) of the Constitution and Section 12 of the State Proceedings Act. [20] The 2nd Respondent also cited an excerpt from the case of Godfrey Miyanda v Attorney General2 where the Supreme Court of Zambia said that: The rationale for the immunity is to avoid the president being unduly cautious in the discharge of his official duties. Such immunity can only be lifted in accordance with the provisions of the Constitution. The provision granting immunity stands alone and it is not subject to any other provisions of the Constitution. It is a specific provision. [21) The 2nd Respondent ends his skeleton arguments by positing that based on the above authorities, it was clear that the Court had inherent jurisdiction to find that the 1st Respondent was improperly joined to these proceedings and Rll to order that all proceedings of such nature should be against the 2nd Respondent as the Chief Legal Advisor to the Government as provided for in Article 177 of the Constitution and find that the 1st Respondent cannot be sued for acts done in his personal capacity as provided for in Article 98 of the Constitution. [22] It was the 2nd Respondent's prayer that this was an appropriate case for the Court to grant the application with costs to the Respondents. The 1st Petitioner's case [23] As pointed out earlier on the material before me there is nothing to show or suggest that the 1st Petitioner was opposed to the 2nd Respondent's application. I therefore indeed take it that he does not oppose the application. The 2nd Petitioner's case [24] The 2nd Petitioner opposed the application and to this end, on the 27th November, 2025, he filed an affidavit styled affidavit in opposition to the affidavit in support of summons for misjoinder of a party to proceedings (the affidavit in opposition). The same was accompanied by a list of authorities and skeleton arguments. R12 .l [25J The affiant of the affidavit in opposition deposes in material respects as follows: S. 6. 7. 8. That in response to Paragraph 3 the ist Respondent herein was joined to this suit on account of the fact that he bears direct interest in the subject matter of this suit, and may be directly affected by its final outcome, thus he is entitled as of right to be heard by this Honourable Court. That in response to Paragraph S I am advised by my advocates Messrs. Joseph Chirwa and Company that the matter herein relates to alleged constitutional breaches, of which the pt Respondent does not possess any immunity from. That Paragraph 6 is only admitted to the extent that the 2nd Respondent represents in civil proceedings, however, the pt Respondent [sic] is not competent to represent the pt Respondent where an action is brought against him as a candidate in the General Election. the Government of the Republic of Zambia [26] In the skeleton arguments it was posited that the jurisdiction to remove a party wrongly added to proceedings was not exercised in a vacu+um but ought to be done upon a close analysis of the underlying facts of a case. [27] The 2nd Petitioner called in aid of the criteria for joinder of a party by citing the case of Mike Hamusonde Mweemba v Obote Kasongo and Zambia State Insurance Corporation Limited3 where the Supreme Court stated that: A court can only order joinder if it appears to the court or judge that all persons who may be entitled to or claim some share or interest in the subject matter of the suit or who may be likely to be affected by the results require to be joined and be part of the proceedings. (Emphasis supplied by the 2nd Petitioner) R13 [28] Further support was drawn from the case of Abel Mulenga and Others v Mabvuto Avuta Chikumbi and Others 4 where it was stated that: In order for the applicant to be joined as a party to the action, the applicant ought to have shown that they have an interest in the subject matter of the action and that the mere fact that applicant may have been affected by the decision of the court below does not clothe them with the sufficient interest or locus standing entitling them to be joined to the dispute. [29] It was posited that the Petitioners were conscious of the fact that the pt Respondent holds the office of President of Zambia, who enjoys immunity from civil proceedings during the tenure of office as per provisions of Article 98 of the Constitution. [30] It was asserted that the provisions of Article 98 of the Constitution do not apply in this case as the proceedings herein were not purely civil, but raise constitutional questions which are sui generis as they relate to matters directly derived from the Constitution. [31] It was asserted that in establishing the locus standi of the 1st Respondent he bore a direct interest in these proceedings by having publicly declared his candidature for the Presidency on the United Party for National Development (UPND) ticket. Accordingly, it was posited that as can be ascertained from the reliefs sought in the Petition, the pt Respondent's candidature may be disqualified should the Court agree with the Petitioners. R14 (32] Despite the 2nd Petitioner being conscious that nominations were not yet open for official declarations of candidature he nonetheless purportedly drew inspiration from the case of Michela Chizombe v Edgar Chagwa Lungu and Others5 for him to mount his opposition to the application. (33] The cases of Legal Resources Foundation and Others v Edgar Chagwa Lungu and Attorney General6 and Dr. Daniel Pule and Others v The Attorney General and Others7 were called in aid to support the proposition that a sitting President's candidacy, in an election can be brought into question and according to the 2nd Petitioner to that end the then sitting President had been duly given the opportunity to make submissions on his own behalf, as he was likely to be directly affected by the decisions of the Court in those matters. (34] The arguments were concluded by stating that on the foregoing, the 1st Respondent possesses sufficient interest in this matter " ... rendering his voice in the ongoing proceedings essential to the final decision" which this Court may render. It was therefore, prayed that the application should be dismissed. RlS The hearing [35] At the hearing the Attorney-General himself submitted on the same lines as was contained in the filed written arguments and therefore I shall not rehash most of the oral arguments save to say that the Attorney-General emphasized the need for the immunity of the President in his official capacity. This immunity according to the Attorney-General was basically meant for the President to carry out his duties without distraction, without disturbance, or without fear. [36] The Attorney-General submitted that these types of personal suits against the President should not be encouraged by the Court. [37] The Attorney-General submitted that there was a distinction between this case and the cases referred to by the 2nd Petitioner in his skeleton arguments particularly at paragraph 1.9 thereof namely: (a) The Legal Resources Foundation and Others v Edgar Chagwa Lungu and the Attorney-Genera1 6 ; and (b) Dr. Daniel Pule and Others v The Attorney General and Others 7. [38] In his oral arguments the Attorney-General, only distinguished the Legal Resources Foundation and Others v Edgar Chagwa Lungu and the Attorney- R16 General6 case by submitting that that case was a petition challenging the nomination filed by the former President Edgar Chagwa Lungu (the 6t h Republican President) and that it was filed pursuant to Article 52 of the Constitution. [39] It was the Attorney-General' s prayer that the application be granted with costs. That costs should be awarded against the Petitioners, according to the Attorney General, wa s on account of the fact that the Petitioners were lawyers represented by lawyers who should have the notorious fact imbedded in their thoughts that the President cannot be sued in his personal capacity. The Attorney-General even suggested that this was an exceptional case where costs could be awarded against Counsel. [40] Mr. Mulonda inter alia in support of costs being awarded to the Respondents, brought to my attention the case of Sean Tembo v The Attorney- General8 where the Constitutional Court dismissed the Petition and awarded costs against the Petitioner on account of the fact that the Petition was frivolous and vexatious. He submitted that the Supreme Court and the Constitutional Court have all consistently held that the Republican President cannot be sued in his individual capacity. R17 [41] Mr. Mulonda also drew to my attention the case of Donald Trump v the United States9 where the US Supreme Court held that presidential immunity in so far as the President is concerned extends to all acts done in exercise of the presidential powers. [42] Mr. Mwiya inter afia referred me to a Kenyan Supreme Court case of the Honourable Attorney-General and Two Others v David Ndii and 79 Others10 for the holding that civil proceedings cannot be instituted against the president or a person performing functions of the President during the tenure of office in respect of anything done or not done contrary to the Constitution. It was his submission that I should adopt this persuasive judgment. [43] It was also Mr. Mwiya's submi ssion that by virtue of Article 98 of the Constitution, it was safe to say that the jurisdiction of this Court was overthrown so as to enable the President to execute his functions without any distractions. [44] Mr. Mwiya also debunked the 2nd Petitioner's assertion that proceedings herein w ere not purely civil but raise constitutional questions by referring me to the case Yubraj Chanjdeo Caday v DPP and the Attorney-General 11 where Sitali JC (as she then was), according to Counsel, declined arguments R18 that proceedings therein were not civil proceedings but constitutional in nature. I pose here momentarily to observe that Mr. Mwiya may have misunderstood Sita Ii JC. Sita Ii JC at page R9 of the ruling under reference was merely but in the process of setting out the petitioners' case, when she said: [18] ... Further, that the matter before this Court is not civil in nature and is not intended to arrest criminal proceedings but that the petitioners seek the intervention of this Court on matters of constitutional law procedure. [45] Mr. Phiri on behalf of the 2nd Petitioner made submissions that were also on similar lines as those contained in the written arguments. Therefore, I shall not rehash them save to say that Mr. Phiri, inter alia, submitted that whilst they were willing to admit that the Attorney-General was the correct party to defend the question as to whether there was in fact a breach of the Constitution by the President in line with his constitutional mandate as read with section 12 of the State Proceedings Act, they were however not willing to admit that the Attorney-General was competent to answer the question as to the pt Respondent's eligibility to run for the 2026 Presidential and General Elections. [46] Mr. Phiri also submitted that should, I grant an order in favour of the application, such an order would have a direct effect on the 1st Respondent without according him a hearing in a matter where a relief sought in the R19 !. J! Petition would have a direct and serious effect on him. According to Mr. Phiri, such a situation would be a direct abrogation of the rules of natural justice. [47] Mr. Phiri also debunked the Attorney-General's position in distinguishing the Legal Resources Foundation7 case by stating that in this case we were dealing with a case where the President had declared his candidacy for the 2026 Presidential and General Elections and going by the Michela Chizombe5 case where according to Mr. Phiri this Court openly and willing pronounced upon the eligibility of a candidate outside the nomination period, this Court should hear the matter with the pt Respondent as a party. [48] It was Mr. Phiri's prayer that the Court should step in and stop the attempted assault on the rights of the 1st Respondent by not removing him from these proceedings. (49] On the question of costs, Mr. Phiri reminded me that this Court deals with constitutional matters which are generally of public interest and which guide not only the parties but the nation at large. And that costs were usually to be borne by the respective parties. [SO] Specific to the contention that costs may be ordered to be borne by Counsel personally, Mr. Phiri submitted the aspect of wasted costs was well adjudicated upon in the case of Necor Zambia Limited v Slyvester Nthenge12 R20 where it was established, according to Mr. Phiri, that a legal representative could be held liable for costs firstly if he acted improperly, unreasonably or negligently. Secondly if he caused the applicant to incur unnecessary costs. Lastly when it is in all circumstances just to order the legal representative to compensate the applicant. Mr. Phiri argued that none of the instances set out above were satisfied in this matter. [51] Mr. Chipompela augmented Mr. Phiri's submissions and prayed that application be dismissed . [52] In reply Mr. Mulonda on behalf of the 2nd Respondent submitted inter alia that he wished to distinguish the cases that the 2nd Petitioner was relying on namely: (a) Abel Mulenga and Others v Mabvuto Avuta Chikumbi and Others 4; and (b) Mike Hamusonde Mweemba v Obote Kasongo and Zambia State Insurance Corporation Limited.3 [53] According to Mr. Mulonda those two cases discussed the principles relating to joinder and misjoinder although in general context. According to Mr. Mulonda the subject of the two cases did not relate to the misjoinder or joinder of the Republican President. The current case, he submitted, was R21 about the immunity that was given to the President by Article 98 of the Constitution. [54] Mr. Mwiya additionally submitted on behalf of the 2nd Respondent in reply to the submissions by the 2nd Petitioner that the President would be affected by the decision of this Court if he was mis-joined, that that was immaterial because in the present case, the Constitution itself prohibits the President from being a party to any proceedings and that the Constitution being the supreme law of the land, should prevail over personal interests. [55) On the submission on the eligibility of the President or his candidacy, Mr. Mwiya submitted that the same had not yet crystallised and was not ripe for determination. [56) On the submission that the President ought to have had his day in the Court, Mr. Mwiya submitted that the framers of the Constitution through Article 98 of the Constitution intended the President not to be a party to any proceedings at least during his tenure of office. Consideration [57] I have seriously considered the summons for the application, affidavit in support thereof, the skeleton arguments by the 2nd Respondent and the affidavit in opposition, list of authorities and skeleton arguments by the 2nd R22 Petitioner. I have also considered the spirited arguments by Counsel for the parties. I am indebted to them for their exertions. [58] The application was made pursuant to Order V Rule 4(a) of the CCR as read together with Article 98(1) of the Constitution. I am satisfied that the application is properly before me as a single judge. The orders sought have been set out in paragraph 5. The issues that present themselves for determination are: (a) whether the Attorney General is the proper party to represent the 1st Respondent qua the current sitting President of Zambia in proceedings challenging the 1st Respondent's alleged breaches of the Constitution vis-a-vis the Constitution of Zambia (Amendment) Bill No. 7 of 2025 (Bill No.7) and (b) whether in view of the fact that a declaration for his disqualification is sought for allegedly breaching the Constitution, would necessitate the sitting President being directly a party in these proceedings instead of the Attorney-General. A peripheral issue is whether an order for costs would be proper in this matter. As the first two issues are inter-l inked I shall deal with them together. [59] The thrust of the 2nd Respondent's arguments was essentially that Article 177(5 )(c) of the Constitution provides that the Attorney-General, as the Chief Legal Advisor to the Government, should represent Government in all civil R23 .. proceedings to which the Government is party. Additionally, that section 12 of the State Proceedings Act provides that: Subject to the provision of any written law, civil proceedings by or against the State shall be instituted by or against the Attorney General as the case may be. [60] Therefore, the 1st Respondent ought not to be a party in this suit but that the 2nd Respondent shou Id be the sole Respondent. [61] The Attorney-General prayed that the application be granted with costs. The Attorney General argued that a costs order would be in order in that, there was an established principle that the Attorney-General should represent Government Officials including the President for anything done in their official capacities. And that an order for costs could be made against Counsel for the Petitioners because the Petitioners are lawyers who were represented by lawyers and they ought to have known this elementary fact. [62] On the other hand the 2nd Petitioner vehemently opposed the application. The thrust of opposition, while admitting that the Attorney-General was the correct party to defend the question as to whether there was a breach of the Constitution by the 1st Respondent, was that as the 1st Respondent was more likely to be adversely affected by the decision that he was not eligible to be nominated as a candidate for the 13th August,2026 Presidential and General Elections, he needed to be heard by the Court. R24 [63] The 2nd Petitioner in another breath argued that as this matter ra ised a constitutional question, the proceedings were not entirely civil in nature and therefore section 12 of the State Proceedings Act did not apply to this case. [64] The 2nd Petitioner vigorously opposed the request by the State that costs should be ordered in favour of the State and that the costs order could in fact be made against Counsel for the Petitioners. The 2nd Petitioner was of the view that this matter raised constitut ional issues and that if an order for costs were to be made the same should be that each party bears their own respective costs in keeping with the established principles by this Court. [65] Against the State's position that costs could in fact be ordered against Counsel for the Petitioners, the 2nd Petitioner argued that the grounds upon which an order for costs could be made against Counsel had not been met and therefore it would not be appropriate to award costs against Counse l. [66] I am of the considered view that the starting point for me to consider in this matter, has to be Article 98(1) of the Constitution. As the text of the provision has been set out above, I do not deem it necessary to rehash it here. (67] The marginal note of Article 98 of the Constitution states that: "Protection of the President from legal proceedings." R25 Therefore, upon reading Article 98(1) of the Constitution it is clear to me that the Article provides protection to the President from civil proceedings in respect of anything done or omitted t o be done by the President in his or her private capacity during the tenure of office as President. [68] According to the 2nd Respondent the Constitution proscribes the institution or continuation of civil proceedings against the President performing executive functions in respect of things done or omitted to be done in a private capacity. Further that as the 2nd Respondent represents the Government in civil proceedings to which the Government is a party therefore, it is the 2nd Respondent who should be petitioned for any alleged acts or omissions of the pt Respondent in the performance of his executive functions. [69] Consequently therefore this was a suitable case for the 1st Respondent to be dis-joined from the Petition and that the 2nd Respondent should be the sole Respondent to answer any alleged acts or omissions in the performance of the executive functions of the 1st Respondent. [70] On the other hand the 2nd Petitioner posits that the 1st Respondent was joined to this suit because he bears a direct interest in the subject matter of R26 this suit and that he may be directly affected by its final outcome and therefore he was entitled to be heard by the Court. [71] It was posited by the 2nd Petitioner that the subject matter in the Petition related to the alleged constitutional breaches which were not covered by the immunity provided for under the Constit ution . [72] While admitting that the 2nd Respondent represents Government in civil proceedings, the 2nd Petitioner nonetheless argues that the 2nd Respondent is not competent to represent the pt Respondent in an action which is brought against the 1st Respondent as a candidate in a Presidential and General Election. [73] Upon considering these rival positions and taking into consideration the fact that the controversy in the Petition relates to the issues surrounding Bill No. 7 of 2025, I come to the conclusion that the actions or omissions complained of were essentially issues that concern or touch the Government. Therefore, in my view if there is any one that must answer for the acts or omissions complained of, it must be the Government itself. And in keeping with the provisions of section 12 of the State Proceedings Act, the Government must be represented by t he 2nd Respondent. R27 • [74] Further it is important to mention that the office of the Attorney-General is in fact established and constituted by Article 177 of the Constitution and its functions were spelt out in same provision. Pertinent to this matter was the function provided for in Article 177(5)(c) of the Constitution which provides that: The Attorney-General is the chief legal advisor to the Government and shall- (c) represent the Government in civil proceedings to which the Government is a party; ... [75] With the foregoing matters in mind, I must agree with the 2nd Respondent that the Government and the p t Respondent should be represented by the 2nd Respondent in the Petition. The 2nd Petitioner seems to be agreeable w ith this position but he stretches the issue further as I shall discuss below. [76] It was the position by the 2nd Petitioner that breaches of the Constitution were not covered by the immunity bestowed on the President and/or that these proceedings were not civil proceedings in the sense of Article 98(1) of the Constitution. In essence the 2nd Petitioner seems to suggest that constitutional matters were not civil matters. [77] Though technically there are differences between constitutional law proceedings and civil proceedings and they remain distinct in their primary focus they nonetheless overlap. The overlap arises because constitutional R28 • principles permeate civil disputes, and civil procedure provides the framework through which constitutional claims are litigated. Therefore, the differences that may exist between the two types of proceedings do not mean that constitutional proceedings are not covered by Article 98(1) of the Constitution in the manner espoused by the 2nd Petitioner. Constitutional proceedings in my view are nonetheless civil proceedings in nature. My position in this regard is bolstered by the fact this court has had occasion to pronounce itself on the definition of civil proceedings in the case of Hakainde Hichilema and Godfrey Bwalya Mwamba v Edgar Chagwa Lungu and the Attorney-General. 13 In that case Mulenga JC (as she then was) in her ruling at page R8 stated as follows: This definition (civil proceedings) is very wide ... it does not exclude issues of compliance or non-compliance to the Constitution. It also does not only apply to proceedings before the High Court and Subordinate Courts to the exclusion of all other courts. The fact that the Constitutional Court was not in existence at the passing of the State Proceedings Act does not mean that it is not appropriately covered under the wide definition of civil proceedings for the purposes of the Act. [78] In this regard it is opportune that I take a leaf from a case decided by the Kenyan Supreme Court of Deyness Muriithi, Alexander Muchemi, Ana Cherono Konuche, Paul Kariba Kibiku and Kimani Wawer & 28 Others v Law Society of Kenya and the Registrar of the High Court14 where the Supreme Court of Kenya said proceedings commenced by way of constitutional R29 , • petitions were more than not in the nature of civil proceedings. I resort to this case for its persuasive value. [79] In my view therefore this Petition is a civil proceeding. Meaning therefore, these proceedings in so far as they concern or touch the pt Respondent, are caught up by the mandatory provisions of Article 98(1) of the Constitution and the proceedings must be against the Attorney-General in keeping with Article 177(5)(c) of the Constitution and section 12 of the State Proceedings Act. [80] The Supreme Court of Zambia had occasion to consider the provisions of Article 43(1) of the 1991 Constitution now repealed in the case of Godfrey Miyanda v Attorney General2 which was a case that dealt with the issue whether the then sitting President Mwanawasa could be sued bearing in mind the said provisions. Article 43(1) of the 1991 Constitution was similarly worded as Article 98(1) of the Constitution. Article 43(1) of the 1991 Constitution provided that: No civil proceedings shall not be instituted or continued against the person holding office of President or performing the functions of that office in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity. [81] The Supreme Court explained the importance of the doctrine of immunity under the said Article 43 for public officers including the President as being R30 • that it serves public interests in that such officers would perform their functions without fear that their actions, omissions or decisions will give rise to personal liability. The Supreme Court went on to state: The rationale for immunity is to avoid the President being unduly cautious in the discharge of his official duties .... The provision granting immunity stands alone and is not subject to any other provisions of the Constitution. It is a specific provision. I am in total agreement with this explanation and in my view it applies to Article 98(3) of the Constitution with equal force. [82] I must however hasten to say that because of the immunity bestowed on the President it does not mean that he is beyond judicial scrutiny vis-a-vis the discharge of his official functions. His actions or omissions can be questioned in Court of law but not in his personal capacity but through the office of the Attorney General in keeping with Article 177(5) (c) of the Constitution and section 12 of the State Proceedings Act. In this regard I wish to refer to the observation of the Supreme Court in the case of Godfrey Miyanda v Attorney General2 where it was stated: Notwithstanding the immunity granted by Article 43 to a sitting President, there is nothing to stop a Court from determining whether the President in the discharge of his duties had acted within the law, and granting any remedies found to be appropriate against the government, this position is fortified by the State Proceedings Act, which has brought the President within the realm of a public officer. The President is not above the law. The Attorney General on behalf of the government is answerable for the actions of the President. R31 • 83. As Article 98(3) of the Constitution is similarly worded with Article 43(3) of the 1991 Constitution, I am of the considered view that this excerpt applies with equal force to Article 93(3) of the Constitution. So indeed, in th is case t he Attorney-Genera l is the proper party to answer for the alleged acts or omissions of the ist Respondent. [84) I am not oblivious of the fact that in the written arguments the 2nd Petitioner posits that the 1st Respondent has locus standi to be party in these proceedings and this on account of the fact that he has publicly declared his candidature for the Presidency on the UPND ticket and that he might be disqualified shou ld the Court side with the Petitioners. While acknowledging the fact that nominations are yet to be opened for the official declarations of candidature the 2nd Petit ioner ca lls in aid, the case of Michela Chizambe v Edgar Chagwa Lungu5 to supposedly champion the fact t hat an eligibility challenge can be mounted before the official nominations are done. [85) Recourse to the M ichela Chizambe v Edgar Chagwa Lungu5 case in my view is misconceived . It is misconceived because that case was about eligibility of the 6th Republican President, who had been elected twice and twice held office, for future elections. In the case of Sean Temba (Suing in his capacity R32 ,, as Spokesperson of the Tonse Alliance) v The Attorney-General15 the full Constitutional Court said: 5.9 ... we wish to state that the gravamen of the Michela Chizombe Petition was the applicability of Article 106 of the Constitution to Mr. Lungu's first term. It was not concerned with Article 52 of the Constitution on nominations. In our judgment in that case, it was our finding and decision that Mr. Lungu's first term was "saved" by the transitional clauses and in particular section 2 and 7 of the Act and continued in accordance with the repealed Article 35 of the Constitution as amended in 1996 ... The declaration that Mr. Lungu having been elected twice and twice held office was ineligible to participate in any future elections as a presidential candidate was consequential as pleaded. The Petition had nothing to do with nominations and Article 52(4) of the Constitution is therefore irrelevant in the circumstances of that case. [86] In this case the Petitioners are intent on challenging the eligibility of the p t Respondent on alleged acts or omissions of certain provisions in the Constitution The case of Michele Chizombe5 and this case are totally different from each other. Therefore the 2nd Petitioner cannot use it, to champion the case of theist Respondent being a party in these proceedings. [87] In an apparent attempt to champion the position that recent court matters before the Constitutional Court show that it has been the practice //where a matter touches on constitutional interpretations, rights and breaches with bias t [sic] matters relating to elections that a party who has declared candidacy be sighted [sic] in any action bordering the eligibility of such R33 candidacy" the 2nd Petitioner out of context referred me to the following cases: (a) Leg~I Resources Foundation and Others v Edgar Chagwa Lungu and the Attorney-General6; and (b) Dr. Daniel Pule and Others v The Attorney General and Others.7 [88] According to the 2nd Petitioner " ... the above listed cases all relate to actions where a sitting President's candidacy in an election was brought into question, which the President was duly given the opportunity to make submissions on his own behalf, as he was directly affected by the outcome of the decision." [89] In paragraph 87, I state that the cases listed therein were referred to me out of context and briefly here is why I said so. Firstly, the case of Legal Resources Foundation and Others v Edgar Chagwa Lungu and the Attorney Genera16 was a nomination challenge under Article 52(4) of the Constitution. Article 52(4) of the Constitution provides that: A person may challenge before a Court or Tribunal as prescribed, the nomination of a candidate within seven days of the close of nomination and the Court shall hear the case within twenty-one days of its lodgement. R34 ., t' /) (90) A nomination challenge requires that the person whose nomination is being challenged be a party to the proceedings. That would perhaps explain why the 6th Republican President (then a sitting President) was a party to those proceedings. The proceedings in the present case in the main allege the contravention of Articles 8(c) and (e), 9(1)(a), 90,91(3)(a) and (f) and 92 of the Constitution because of certain acts or omissions in connection with Bill No. 7 of 2025 by the Government and the pt Respondent in the exercise of his executive functions as the President. (91) On the other hand the case of Dr. Daniel Pule and Others v The Attorney General and Others 7 was a legal tussle concerning or touching the eligibility of Edgar Chagwa Lungu while he was the sitting 6th Republican President, vis a-vis the 2021 Presidential Elections. That legal tussle evolved around Article 106 of the Constitution. But relevant to the present case is the fact that in that legal tussle Edgar Chagwa Lungu was not a party to the proceedings. (92) With matters in the immediate preceding paragraphs in mind, I do not see how the cases listed in paragraph 87 can assist the 2nd Petitioner. They have been indeed referred to out of context. R35 [93) In the circumstances I come to the ineluctable conclusion that those cases cannot be used to champion the position that the p t Respondent should be a party in these proceedings. [94) Further, in my view, the fact that a declaration that by virtue of the 1st Respondent's alleged constitutional breaches, the p t Respondent is disqualified from being nominated for election as a candidate for Republican President was being sought in the Petition, does not warrant the 1st Respondent being party to the Petition. This is on account of the fact that (without delving into the merits of the case which I cannot do as a single judge) the underlying issue in the Petition is that the Petitioners allege that the Respondents' action of promulgating a draft constitutional amendment in a manner which is unconstitutional is in direct contravention of Articles 8(c) and (e), 9, 90,91(3)(a), and 92(1) of the Constitution. In my view the Attorney-General is well and properly placed to deal with or defend the alleged contravention of the mentioned Articles without the 1st Respondent being a party in these proceedings. [95) The bottom-line therefore is that this a proper case in which the 1st Respondent should be removed from the proceedings and therefore the matter should proceed w ith the Attorney General as a sole Respondent. For R36 the avoidance of doubt, I do not think it is necessary for me to order the substitution of the 1st Respondent with the 2nd Respondent as prayed in the summons for the application as it will serve no useful purpose. [96] During the hearing I was treated to a very animated discourse on the issue of costs. The 2nd Respondent prayed for costs and even suggested that in the circumstances of this case, costs could in fact be awarded against Counsel for the Petitioners. Counsel for the 2nd Petitioner valiantly opposed the application for costs. [97] The issue of costs lies in the discretion of the Court which must be judiciously exercised. Therefore, the fact that the Petitioners were lawyers represented by lawyers who know that the President has immunity against legal proceedings should not be the basis upon which costs should be awarded against them as suggested by the Attorney-General. Such an approach would set a very bad precedent for lawyers as litigants and/or advocates who may end up being vulnerable to costs orders. This is more so that by and large lawyers act for and on behalf of their clients who may be lawyers and/or lay persons. [98] I now have to address myself to the issue of costs as prayed by the Attorney- R37 General. In this case the summons relating to the application, indicates that the application was made by the 2nd Respondent alone and the record shows that the 1st Respondent did not file any process or document in this matter and neither did he attend in person or by an advocate at the hearing and therefore even if I was be so minded to do, I would not be in a position to grant theist Respondent an order for costs no matter what can be said about the application and/or the opposition to the application. As indicated earlier on in this ruling the application was not opposed by the 1st Petitioner, so an order for costs cannot be made against him. Further as the 2nd Petitioner has brought out some very pertinent issues I am of the considered view that this would not be a proper case in which to award the 2nd Respondent costs. Therefore, the application for costs by the 2nd Respondent is declined. Conclusion and Orders [99] With the foregoing matters in mind, the 2nd Respondent's application is by and large granted and therefore I order that: (a) the ist Respondent be removed or mis-joined from the petition in respect of anything alleged to have been done or omitted to be done in his private capacity, pursuant to Article 98(1) of the Constitution; R38 (b) the proceedings should continue against the 2nd Respondent who shall be the sole Respondent in the petition; (c) the parties will bear their own respective costs of and incidental to the application. Z M ANDENGA CONSTITUTIONAL COURT JUD R39 I