Law Association of Zambia & Another v Attorney-General (2019/CCZ/0013; 2019/CCZ/0014) [2019] ZMCC 27 (25 November 2019)

IN THE CO NSTITUTIOAL COU RT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) 2019/CCZ/00 13 2019/CCZ/001 4 REPuBLJc O COHsTlTUTlONAL_ F ZAMBIA COURT OF ZAMBIA IN THE MATTER OF THE DECISION BY THE: (a) PRESIDENT PURSUANT TO A RTICLE 92(2)(1) OF THE CO mr- Tl6~ {\g~~ Ah E A..~ THE CONSTITUTION OF ZAMBIA IN THE MANNER P OVID CONSTITUTION OF ZAMBIA (AMENDMENT) BILL NO. 10 F 20;1%, RIOIST~y ~ ~~M(eo~ x~t. Oo6;;~7 ~. L~uistA:KA:_j (b) ATTORNEY GENERAL TO SIGN THE CONSTITUTION OF ZAMBIA(~ BILL NO. 10 OF 2019 FOR PRESENTATION TO THE NATIONAL ASSEMBLY PURSUANT TO ARTICLE 177(5)(b) OF THE CONSTITUTION OF ZAMBIA; (c) NATIONAL ASSEMBLY TO PUBLISH THE CONSTITUTION OF ZAMBIA (AMENDMENT) BILL NO. 10 OF 2019 IN THE GOVERNMENT GAZETTE PURSUANT TO ARTICLE 79(2) OF THE CONSTITUTION ; AND (d) NATIONAL ASSEMBLY OF 2ND AUGUST 201 9 TO TABLE THE CONSTITUTION OF ZAMBIA (AMENDMENT) BILL NO. 10 OF 2019 FOR THE FIRST READING IN THE MATTER OF THE PETITION PURSUANT TO ARTICLE 128(3) OF THE CONSTITUTION OF ZAMBIA IN THE MATTER OF THE ALLEGED CONTRAVENTION OF : (a) Article 1 (2) ; (b) Article 8 ; (c ) Article 9 ; (d) Artic le 6 1; (e) Article 90; (f) Article 91 ; (g) Article 92; and (h) Article 79 of the Constitution IN THE MATTER OF THE PETITION PUR SUA NT TO SECTION 8(3) OF THE CONSTITUTIONAL COURT ACT NO. 8 OF 201 6 AND IN THE MATTER OF THE PETITION PU RSUANT T O ORDER 4, RULE 1 OF THE CONSTITUTIONAL COURT RULES 201 6. BETWEEN : THE LAW ASSOCIATION OF ZAMBIA CHAPTER ONE FOUNDATION LIMITED AND 1st PETITIONER 2nd PETITIONER THE ATTORN EY GENERAL RESPONDENT R1 Coram : Chibomba, PC, Sitali, Mulenga, Mulembe, Mulonda, Munalula and Musaluke, JJC On 14t h November, 2019 and 20t h November, 2019 For the 1 st Petitioner: Mr. J. Chimankata Mr. L. Mwamba Ms. M. Nalusenga of Simeza Sangwa & Associates For the 2 nd Petitioner: Ms. L. C. Kasonde Mr. J. Kalala of LCK Chambers For the Respondent: Mr. L. Kalaluka, SC, Attorney General Mr. A . Mwansa , SC, Solicitor General Mr. F. K. Mwale, Principal State Advocate Mr. S. Mujuda, Principal State Advocate Ms. J. Mazulanyika, Assistant Senior State Advocate Mr. J. Sianyabu, State Advocate Ms. N. K. Chango, State Advocate RULING Mulembe, JC, delivered the Ruling of the Court. - Cases referred to: 1 . Attorney General of Zambia and on behalf of the Republic of Zambia v Meer Care & Desai (a firm) & Others [2007] EWHC 952 (Ch) 2. Benjamin Mwelwa v Attorney General 2017/CCZ/0010 3. Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture SCZ/8/52/2014 4. The People v Patents and Companies Registration Agency Selected Judgment No. 28 of 2018 5. Vedanta Resources PLC and another v Lungowe and others [2019] UKSC 20 Legislation referred to : The Constitution of Zambia (Amendment) Act No. 2 of 2016 The Constitution Court Rules Statutory Instrument No . 37 of 2016 Other works referred to : The Supreme Court Practice 1999 Edition Volume 1, Sweet & Maxwell R2 At the time of hearing this application, our learned sister Justice Professor Munalula sat with us. However, a t the time of concluding this Ruling Justice Munalula was out of jurisdiction. Therefore, this is a Ruling of the majority. When the matter came up for continued hearing on 14th November, 2019 learned counsel, Ms. Kasonde, stated that the 2 nd Petitioner wished to call two witnesses via video link. The Court was referred to Order VIII rule 1 ( 1) of the Constitutional Court Rules (hereinafter "the Court's Rules"), which requires the examination of witnesses orally and in open court. Ms. Kasonde submitted that Order VIII rule 1(1) does not restrict the manner in which the witness gives testimony in open court. She argued that this was the digital age in which all barriers to communication have been lifted and that whether or not a witness appeared physically or virtually in court was a m ere technicality, and that pursuant to Article 118(2)(e) of the Constitution of Zambia (Amendment) Act No. 2 of 2016 (hereinafter "the Constitution"), it should not be a bar to accessing justice. Ms. Kasonde submitted that as a court of first and last instance in all constitutional matters outside the Bill of Rights , R3 every citizen should have access to this Court. That precedents abound in other jurisdictions, such as India , where courts had dispensed with formal applications to a llow access to the court. Referring to Article 2 of the Constitution, counsel argued that if the 2 nd Petitioner 's witnesses were not allowed their day in court, the right and duty to defend the Constitution would be com promised and that the instant application was not without p r ecedent. To support this point, Ms. Kasonde referred the Court to th e case of Attorney General of Zambia v Meer Care & Desai (a firm) & Others1 (referred to in the submissions as "the Chiluba case") in which she said equipment for satellite link was procured to allow witnesses to testify. It was Ms . Kasonde's s ubmission that she could not think of a legal issue more important than the defence of the Constitution a nd therefore prayed that the 2 nd Petitioner's application b e granted. Further, Ms . Kasonde s ubmitted that in t h e Indian situation she h a d r eferred to earlier, the court had decided to relax procedural rules for making a pplications to the court and th at a litigant could make the a pplication by letter or other kind of informal application; that there was no procedural rule constraining the format of the application to the court. R4 In relation to the opening words of Order VIII rule 1 ( 1) of the Court's Rules, which read "in the absence of an agreement between the parties" , Ms. Kasonde informed the Court that she had conferred with the Attorney General whose position was that the Court's Rules did not allow calling witnesses via video link. She argued that barriers to justice were not insurmountable and that the Court could allow access to the Court as it saw fit; that technicalities should not stand in the way of the defence of the Cons ti tu tion. At the prompting of the Court, Ms. Kasonde submitted that the two witnesses in question were academics living abroad and that their teaching schedule did not give them flexibility to attend physically and that the 2 n d Petitioner did not have the resources to bring them in. She maintained that there was no bar in Order VIII rule 1 for witnesses to testify via video link; tha t what was key was that the witness be examined orally and in open court and that the Respondent would suffer no prejudice. Mr. Mwamba, counsel for the 1st Petitioner, supported the 2 nd Petitioner's a pplication, adding that all evid ence s h ould be brough t before the Court so that it can render an informed d ecision. RS The learned Attorney Gen eral, Mr. Kalaluka, SC., opposed the 2 nd Petitioner's application, first, on the ground that it was out of time and should h ave b een made on or before 5 th November, 2019 as directed by the Court. Second, that the 2 nd Petitioner h ad failed to file witness statements in line with the Court's Ruling dated 4 t h October, 2019, albeit, the 2 nd Petitioner 's petition was not yet consolidated with t h e 1s t Petitioner's. It was the Attorney General's position that after consolidation , it was prudent for counsel for th e 2 nd Petitioner to read every thing on r ecord. With respect to Order VIII rule 1(1), it was Mr. Kalaluka, SC's contention that every witness is supposed to b e examined orally and in open court unless there was an a greement between th e parties. He opined that 'orally' and in 'open' court meant th e witness must b e present in court and that orally did not mean electr onically. He further submitted t h at Order VIII rule 1 requ ired an agreement b etween the parties, adding that it was a rare provision in law. Mr. Kalaluka, SC. , submitted that the rationale was that if a witness was allowed to testify via video lin k , the Court and th e other party would n ot be able to tell if the witness was being coach ed or wh ether the video link was tampered with. R6 Referring the Court to rules 1 (2) and 1 (3) of Order VIII, which allow the filing of witness affidavits to prove particular facts and the Court, for some sufficient cause, to dispense with any witness's attendance before court and to be examined by interrogatories, respectively, Mr. Kalaluka, SC, submitted that the rules referred to provided comfort to the 2 nd Petitioner and that it would not be denied the opportunity to defend the Constitution as it had a chance to prepare the said affidavit. Further, Mr. Kalaluka, SC, submitted that rule 1(4) of Order VIII buttressed the position that rule 1(1) could not be interpreted in the manner suggested by the 2 nd Petitioner. He opined that the import of rule 1 (4) aforesaid was that even if the Court has discretion to order that certain facts be proved by affidavit, if the other party desired the production of a witness for cross examination, then the Court would not order that the fact(s) be proved by affidavit. Mr. Kalaluka, SC, contended that a reading of Order VIII rule 1 ( 1) made it clear that a witness had to be examined orally and not electronically as suggested by the 2 nd Petitioner and that to give effect to such an interpretation would be equivalent to allowing witnesses to testify via a telephone call. It was his prayer that the application be dismissed. R7 The learned Solicitor General, Mr. Mwansa, SC, added that the Court had ruled on 4 th October, 2019 that witness statements and skeleton arguments were to be filed by 7 th October, 20 19. That even if the Court permitted the 2 nd Petitioner to have its witnesses testify by video link, the 2 nd Petitioner was first required to file witness statements, which had not be done and the application ought not to be granted. On Order VIII rule 1 (1) on which the 2 nd Petitioner anchored its application, Mr. Mwansa, SC's view was that the rule required a witness to be present in court and does not extend to eviden ce proffered via video link. Mr. Mwansa, SC, suggested that what could be useful to the 2 n d Petitioner was Order I rule 1 of the Court's Rules read together with Order 38 rule 3 of the Rules of the Supreme Court of England (RSC) 1999 edition, which , he submitted, provides for video conferencing with the Court's permission. It was his submission that the challenge was that there was no developed procedure to guide litigants in the use of that particular mode of producing evidence . That in accordance with Order 38 rule 3(2) RSC, a protocol n eeded to be in place and that not until such procedures and guides were in place in this RB jurisdiction could litigants take advantage of calling witnesses via video link. Mr. Mwansa, SC, submitted tha t the 2 n d Petitioner did not comply with directions of this Court and d id not make an application asking the Court to vary its directions which required the parties to file witness statements. It was his prayer that the application be dismissed . Learned Principal State Advocate, Mr. Mwale , reiterated the • Respondent's· contention that on 29th October, 2019 the Court directed that all documents needed to be filed by 5 th November, 20 19 a nd that the consolidated record of proceedings was supposed to be filed by 6 th November, 2019. That it was the Respondent's understanding that the Court's directions included filing of witness statements tha t the parties wished to rely on and the 2 nd Petitioner h a d not done so or a pplied by or b efore 5 th November, 2019 to file the same out of time . To support his point, Mr. Mwale referred the Court to the case of Benjamin Mwelwa v Attorney General 2 in which this Court did not allow the presentation of witnesses in the absence of the filing of witness statements as directed by the Court. R9 On Article 2 of the Constitution, Mr. Mwale argued that the defence of the Constitution cannot be done whilst disregarding the Court's Rules and orders. That when that happens, it is not only an inconvenience to the Court but also to the party who complies with the Rules, citing the case of Access Bank (Zambia) Limited v Group Five/ZCON Business Park Joint Venture 3 for authority. Mr. Mwale submitted that the Court's Rules and the orders of the Court cannot be circumvented on the basis of Article l 18(2)(e) of the Constitution and prayed that the application be dismissed. Mr. Mujuda, Principal State Advocate, submitted that 1n Attorney General of Zambia v Meer Care & Desai (a firm) & Others 1 relied on by the 2 nd Petitioner, there was an agreement on how the video link was to be transmitted to London and equipment was procured and set up. Mr. Mujuda supported the Attorney General's view that in the absence of an agreement by the parties which gives comfort that the signal would not be tampered with, the application was opposed. And Senior State Advocate, Ms. Mazulanyika, added that reliance on Article l 18(2)(e) of the Constitution does not oust the procedure and practice of the Court. She submitted that Article l 18(2)(e) merely restricts undue regard to technicalities, citing The R10 People v Patents and Companies Registration Agency4 for authority. Ms. Mazulanyika submitted that Order VIII rule 1 goes to the core of the process of this Court by requiring that all witnesses are physically present before the Court and it could not be done away with as a procedural technicality. In reply, Ms. Kasonde submitted that the instant application was prompted by the Court and that the 2 nd Petitioner had merely • sought guidance from the Court on how the taking of video link evidence would be facilitated. She maintained that Order VIII rule 1 did not restrict testimony via video link as there was no specific prohibition. Further, Ms. Kasonde contended that the Court's directions issued on 4 th October, 2019 did not specifically address the 2 nd Petitioner ordering it to file witness statements. It was Ms. Kasonde's position that there was a misapprehension of the nature of the consolidation and that the two petitions remained separate and retained their cause numbers but were to be argued at the same time. Ms. Kasonde further submitted that Order VIII of the Court's Rules does not require the filing of witness statements and that the only petition in which parties are obliged to file witness statements is the presidential election petition pursuant to Order R11 XIV of the Court's Rules. She contended that the 2 nd Petitioner h ad not contraven ed any rules or directions of the Court with regard to the filing of witness statem ents. On the point advanced by Mr. Kalaluka, SC, that the Court would not know if the witness t estifying via video link was being coached or whether the link was tampered with, Ms. Kasonde countered by submitting that the witness would b e testifying in I real time and the risk of anything b eing tampered with did not arise . She also argued tha t even where affidavit evidence was produced the Attorney General would not be a ble to tell whether the witness had b een coach ed . Ms. Kasonde submitted that the witnesses would take an oath and that there were consequences for lying on oath. On the submission by the Attorney General that rules 1 (2 ) and 1 (3) of Order VIII of the Court's Rules provide comfort to the 2 nd Petitioner , Ms. Kasonde's response was that the Respondent h a d argued that no further documents could b e filed pursuant to the Court's orders for directions of 29 th October, 20 19 and s h e won der ed how the provisions ref erred to give comfort to the 2 nd Petitioner. Ms. Kasonde also submitted that filing an affidavit of evid ence in the alternative could actually prejudice th e Respondent R12 because it would not have the opportunity to engage the witness. Further, that filing of an affidavit in eviden ce was a clear contradiction to the Respondent's argument under Order VIII rule 1(4) whereby the same cannot be ordered where the other party desires the production of a witness for cross-examination, adding that the 2 nd Petitioner had already indicated th at it was unable to produce the witnesses physically. Citing the case of Vedanta Resources PLC and another v Lungowe and others 5 Ms. Kasonde I s ubmitted that the challenges of indigent litigants h ad already been adjudicated upon by the United Kingdom court and that this Court could prove wrong the notion that indigent litigants would not be able to access justice fully in this country. Ms. Kasonde maintained that evidence by video link was admissible in this Court and was grateful for the Solicitor General's reference to Order I rule 1 as read together with Order 38 rule 3 RSC . However, she disagreed with the Solicitor General's submission that there were no developed procedures to facilitate the video link, arguing that even in the Attorney General of Zambia v Meer Care & Desai (a firm) & Others1 case there were no d eveloped procedures but the London court used the same based on its own procedures th at allowed for the same. R13 On Mr. Mwale's reference to Benjamin Mwelwa v Attorney General 2 , Ms. Kasonde's contention was that that case was distinguishable as in the instant case there were no orders for directions for the 2 n d Petitioner to file witness statements and , she maintained, that Order VIII rule 1 makes no requirem ent for witness s t atements. Ms . Kasonde argued that the 2 nd Petitioner had not contravened a n y order or rule of the Court; that the I Respondent had not d emonstrated any harm it would suffer. On the absence of agr eement by the parties on the use of the video link, Ms. Kasonde submitted that the key question was whether the video link could be used and that if the decision of the Court was in the a ffirmative, it is at that point that the parties can agree on how it is to b e used . And on the argument that Article 118(2)(e) of the Constitution cannot be cir cumvented by disregarding the Court's Rules, Ms. Kasonde m aintaine d t hat the 2 n d Petitioner had not breached any rules or orders for directions. That ther e was no requirement in Order VIII rule 1 for the physical appearance of a witness and that this Court s hould allow justice to b e served. We have given careful consider ation t o t h e s ubmissions by the parties and the authorities referred to in s upport of their R14 resp ective positions in this a pplication. The central qu estion, as we s ee it, that falls for our consideration is whether the Rules of this Court, and in particular Order VIII rule 1 ( 1) , allow for a witness to testify via video link. The 2 nd Petitioner contended that Order VIII rule 1 ( 1) does not restrict the manner in which a witness gives testimony in open court . That this being t h e digital age, all barriers to communication h ave been lifted and a witness could appear in open court physically or virtually via video link. Counsel for the 2 nd • Petitioner submitted that the witn esses the 2 nd Petitioner wished to call were a broad and h ad tight schedules and unable to attend court physically . It was submitted that there was no ba r under Order VIII rule 1 ( 1) for witnesses to testify via video link and that what was k ey was that the witness was examined orally and in open court. In oppos ing the 2 nd Petition er's a p plication, the Respondent contended, among other things, that th e 2 n d Petitioner 's a pplica tion was out of time as it did n ot comply with the Court's directions to make all application s by or b efore 5 th November , 2 01 9 . It was submitted that open court in Order VIII rule 1(1) m eant that the witness had to be in court physically as, if a witness R15 was allowed to testify by video link, the Court and the other party would be unable to know whether the witness was being coached or the video link was tampered with. Further, that though Order I rule 1 of the Court's Rules as r ead togeth er with Order 38 rule 3 RSC could provide some comfort to the 2 nd Petitioner, the challenge was that t h er e was no developed p rocedure to guide litigants to call witnesses via video link. I Or der VIII rule 1 ( 1) of t h e Cou rt's Rules r eads as follows: 1 .(1) In the absence of an agreement betwe en the parti es, and subject to these Rules, a witness at the trial of any suit shall be examined orally and in open court. As it stands, Or der VIII rule 1(1) is clear. It provides that a witness at a trial shall b e examined orally and in open court, unless there is an agreemen t between the parties. In the present case, and as submitted by the parties, there is no agreement between th e parties within the ambit of rule 1(1) aforesaid. The question that confronts us is whether Order VIII rule 1 ( 1) imports the use of video conferencing in the examination of a witness as contended by the 2 nd Petitioner. In her submission, Ms . Kasonde argued that in other jurisdictions the courts had r elaxed the rules to allow for access to the court. In effect, we understood h er submission to m ean that we should dispense with th e physical R16 appearance of the 2 nd Petitioner's witnesses to give oral testimony. Th at Order VIII rule 1 ( 1) a llowed for a witness to b e examined virtually via video link. We disagree. Our careful reading of Order VIII rule 1 ( 1) does not s u ggest virtu al appearance of witnesses or video confer encing. Our firm view is that to give Order VIII ru le 1 ( 1) an interpretation th at suggests video conferencing would be stretching the rule • b eyond wh at was intended . We hold th e view t h at r ule 1(1), in its current form , envisages th e physical p resentation of a witness for or al examina tion in open cour t . Further, we note that the Attorney General called our attention to ru les 1 (2 ) and 1 (3) of Order VIII. The same state as follows: (2) The Court may, at any time , for suffici ent reason , order that any particular fact or facts may be proved by affid avit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable . (3) The Court may dispense with any witness whos e attendance in Court ou ht for som e sufficient cause to be d is ensed with and the witness shall be examined by interrogatories or otherwise before an officer of the Court or oth er person . (emphasis added) Our firm view is that the 2 nd Petitioner had sufficient time to fall back on rules 1 (2 ) and 1 (3) the moment it r ealised that its witnesses cou ld not b e physically in attendance before court. It seems to us that the 2 nd Petitioner shut its eyes to the r est of Order R1 7 VIII rule 1 and missed t h e op p ortu n ity to m ake t h e arrangem en ts expressly a vailed in rules 1 (2 ) and 1 (3 ). In our view, Order VIII ru le 1 does make s ufficient provis ions to cat er for witnes ses who may not b e availa b le to p h ysically attend court such a s in t h e circumstances of t his ca se. The foregoin g n otwith s tandin g, we note that 1n his • sub m ission, Mr. Mwansa, SC, sugge sted th a t w h at would h ave b een u seful wa s for the 2 nd Pe titioner to invoke Order I rule 1 of the Court's Rule s a s read togeth er with Or der 38 rule 3 of the Rules of t h e Su p r eme Court of En gland 1999 edition . As w e h a ve said in previous decisions of this Cou rt, Or d er I of th e Court's Rules a llows this Cou rt to invoke the d efa u lt procedure in the even t of any la cuna in our own practice and procedure . Or d er I rule 1( 1) is couch ed in thes e t erms : 1 .(1) The jurisdiction vested in the Court shall , as regards practice and procedure, be exercised in the manner provided by the Act and these Rules , the Criminal Procedure Code or any other written law, or by such rules , orders or directions of the Court as may be made under the Act, the Criminal Procedure Code or such written law, and in default thereof in substantial conformity with the Supreme Court Practice , 1999 (White Book) of Engla nd and the law and practic e applicable in England in th e Court of Appeal up to 31 s t Decemb er, 1999. As m en tion e d , we were r eferre d to Order 38 rule 3 RSC, s p ecifically Note 38/3/ 2 which rea d s : Video confer encing - Since oral evid ence of an overs eas witness r ecord ed on video ta pe would b e admissib le as a docu ment under ss . 2 R18 and 10 of Civil Evidence Act 1968, the transmission of such evidence by television fell squarely within the wording of the former 0.38, r.28 ... and the court had discretion to admit the evidence .. .. A protocol has been prepared as a guide to all persons who are involved in the use of video-conferencing equipment in civil proceedings in the High Court. It covers its use in courtrooms where the equipment may be installed, and also the situation where the court assembles in a commercial studio or conference room containing video-conferencing equipment, such as, for example, the studio operated by the Bar Council. ... (emphasis added) We h ave given careful consideration t o the foregoing provisions. What immediately stands out in Note 38/3/2 is that a guide or protocol must be availa ble to guide the u sers of th e video confer encing facilities or equipment. Clearly, it is to ensure that all t h e necessary safeguards are in place and are known in advance by the end users to act as a guide. We have no such guide or protocol in place. We, thus, agree with the learned Solicitor General that n ot until s u ch procedures and guid es are in p lace in this jurisdiction could litigants take advantage of calling witnesses via video link. In countries su ch as Australia and India they have detailed rules regarding the use of video conferencing and su ch r equire prior application for leave. We are alive to the need to ensure that justice in our Court is as accessible as possible. However, our firm view is that the practice and procedure of this Court, which aids in achieving the ends of justice, must be free from any questions of integrity in the R19 I I • process. The absence of a guide or protocol to assist the Court and the parties renders resort to Note 38/3/2 RSC in the present circumstances irrelevant. We can only urge the drafters of our laws and rules to work on provisions that will enable trial p r oceedin gs in this cou ntry to catch up with the d igital age. This a pplication is u n m eritorious and it is dismissed. Each party s h all b ear th eir own costs. H. Chibomba President Constitutional Court A. M. Sitali M. S. Mulenga Constitutional Court Judge Constitutional Court Judge ······ ····~ ·~ · ..... E. Mulembe P. Mulonda Constitutional Court Judge M. Musa ke Constitutional Court Judge R20