Sean Tembo (Suing in his capacity as the President of the Patriots for Economic Progress) v Attorney General (2023/CCZ/009) [2024] ZMCC 16 (10 July 2024)

~ .f IN THE CONSTITUTIONAL COURT OF ZAMBIA HOLDEN AT LUSAKA (Constitutional Jurisdiction) 2023/CCZ/009 IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: IN THE MATTER OF: BETWEEN : AND ARTICLE 128(1 )(a) AND 128(3)(b) AND 128(3)(c) OF THE CONSTITUTION OF ZAMBIA CHAPTER 1 OF THE LAWS OF ZAMBIA ARTICLE 8(b), 8(d), 92(1 ), 92(2)(f), 185(1 )(a), 259(2) AND 270 OF THE CONSTITUTION OF ZAMBIA CHAPTER 1 OF THE LAWS OF ZAMBIA 8(d), ALLEGED CONTRAVENTION OF ARTICLE THE 8(b), CONSTITUTION OF ZAMBIA CHAPTER 1 OF THE LAWS OF ZAMBIA 259(2) OF 91 (3)(c), ALLEGED SYSTEMATIC REGIONALISM AND TRIBALISM PERPETRATED BY PRESIDENT HAKAINDE HICHILEMA FROM THE TIME HE 7TH WAS SWORN PRESIDENT OF THE REPUBLIC OF ZAMBIA INTO OFFICE AS PETITIONER ATTORNEY GENERAL RESPONDENT Coram: Shilimi DPC , Sitali, Mulonda, Mulenga, Musaluke~ulongoti , Mwandenga, JJC on 5th December, 2023 and 4th July, 2024 For the Petitioner: In Person For the Respondent: Mrs. K. N. Mundia - Deputy Chief State Advocate Mr. N. Mwiya - Principal State Advocate Mrs . C. Bwalya - State Advocate J1 JUDGMENT Mulonda, JC , delivered the Judgment of the Court. Cases referred to: 1. Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others (2014) eKLR. 2. Katiba Institute and Another v Attorney General and Another Constitutional 3. Petition No. 331 of 2016. Evans Ladtema Muswahili v Vihiga County Public Service Board & 2 Others; Marley Ezekiel Ayiegi (Interested Party) 2021 eKLR. 4. Jayesh Shah and Shaleetha Mahabeer v Attorney General 2021/CCZ/0017. 5. Nkandu Luo & Electoral Commission of Zambia v Doreen Sefuke Mwamba and Attorney General CCZ Selected Judgment No. 51 of 2018. 6. Chapter One Foundation Limited & the Non-Governmental Organisations Coordinating Committee for Gender and Development Registered Trustees & Harriet Chibuta v Attorney General 2020/CCZ/0013. 7. Chishimba Kambwili v Attorney General 2019/CCZ/009. 8. Bernard Mcdonald Christopher v Roosevelt Skerrit & Attorney General of Dominica Claim No. DOMHCV 2010.0287. 9. Michael Mbuyu Mutwena vf Attorney General 2021/CCZ/0038 10. Sidumo v Rustenburg Platinum Mines Ltd and Others CCT85/06 [2007] ZACC 22 11. Khalid Mohamed v Attorney General (1 982) Z. R. 49. 12. Sean Tembo v Attorney General Legislation referred to: 1. The Constitution of Zambia (Amendment) Act No. 2 of 2016 2. The Constitution Act, 2016. INTRODUCTION [l] This Judgment relates to a petition by Sean Tembo, the petitioner, 1n his capacity as Party President of the Patriots for Economic Progress (PEP), a political party registered under the Societies Act Chapter 119 J2 ' l of the Laws of Zambia . The respondent, the Attorney General is a party to the Petition in his capacity as the Government's legal advisor pursuant to Article 177 of the Constitution of Zambia (Amendment) Act No. 2 of 2016 (hereinafter the Constitution). [2] The petitioner asserts that his party is required under Article 60 of the Constitution to, among other roles, promote and defend the values and principles enshrined in the Constitution. These values include national unity, human dignity, equality, non-discrimination and good governance enumerated in Article 8 of the Constitution . Accord ing to the petitioner, these values and principles are a reflection of the nation's historical , economic, social, cultural and political realities and aspirations in building a patriotic nation. PETITIONER'S CASE [3] The petitioner states the constitutional mandate given to the Constitutional Court of promoting and protecting principles of the Constitution under Article 267. The petitioner also states the President's role as Head of State an9 Government in Article 91 (2) of the Constitution and his role of appointing persons in the Executive organ of State in Article 92(2)(f) of the Constitution . Additionally, the petitioner states the constitutional power of the President to terminate J3 the employment of public officers under Article 185(1 )(c) of the Constitution. [4] The petitioner alleges that President Hakainde Hichilema since assuming office in 2021 has through his actions and utterances sought to disadvantage or undermine the northern and eastern regions of the country that consist of Luapula , Northern, Muchinga and Eastern provinces and people hailing from these regions irrespective of location within the nation . The petitioner in this respect cites instances he considers as systematically perpetuating the marginalization of the northern and eastern regions of the nation by the President. [5] The first instance is said to have occurred on 7th November, 2021 at the Kenneth Kaunda International Airport upon the arrival of President Hakainde Hichilema from a foreign trip. The President is alleged to have registered his displeasure at the hold that hegemonists, through a clique of thieves , have had on the nation's resources from independence and their belief that none other than this clique could run the country better. The petitioner alleges that the remarks made by the President were in reference to his predecessors in office and had a regional connotation that did not promote national unity and J4 cohesion . [6] In the second instance, the petitioner alleges that at a press conference held at State House on or about the 25th April , 2022, President Hakainde Hichilema lamented on people complaining whenever he spoke Tonga while no complaints were heard whenever he spoke Bemba, a statement the petitioner asserts has tribal and regional connotations which do not promote national unity and cohesion. [7] The petitioner further asserts that President Hakainde Hichilema since assuming office has made appointments that are regionally biased within the Executive and the Judiciary. In this respect the petitioner alleges that when President Hakainde Hichilema dismissed the defence and security chiefs of the Zambia Army, Zambia Air Force, Zambia National Service, Zambia Security and Intell igence Service, Zambia Police Service, Zambia Correctional Service and Immigration Department, none of the subsequent appointees hail from the northern or eastern regions of the country, a development the petitioner considers tribal with regional connotations that do not promote national unity and cohesion . [8] The allegation of regionally biased appointments 1s also levelled JS against the President insofar as they relate to the appointments of the Minister of Justice, Attorney General, Solicitor General, Chairpersons of the Judicial Complaints Commission (JCC) and Judicial Service Commission (JSC) respectively and within the Judiciary, of the Chief Justice. [9] The allegation 1s also extended to appointments at Permanent Secretary level, heads of quasi-governmental institutions and parastatal bodies. The petitioner asserts that less than 15 per cent of appointees at Permanent Secretary level are from the northern and eastern regions, a figure the petitioner argues is disproportionately low compared to the population of the nation. [ 1 O] Similarly, it is alleged that less than 10 per cent of those heading quasi-governmental institutions and parastatal bodies are from the northern and eastern regions. Regarding the appointment of key staff at State House, the petitioner alleges that less than 8 per cent of persons occupying key positions at State House are from the northern and eastern regions. The petitioner argues that the appointments mentioned above have tribal and regional connotations that undermine national unity and cohesion . [1 1] In yet another allegation, the petitioner allegedly attributes remarks J6 made by the Minister of Health, Honourable Sylvia Masebo, to President Hakainde Hichilema to the effect that President Hakainde Hichilema would not attend the N'cwala Ceremony of the Ngoni people of Eastern Province on account of fears of contracting cholera . That after the said statement of non-attendance at N'cwala, the President a few weeks later happily attended a traditional ceremony in the Southern Province an act the petitioner alleges undermines national unity and cohesion. [ 12] The petitioner further refers to an article in the Socialist, a monthly newsletter published by the Socialist Party of Zambia under the headline ' Tribalism in Government: Facts Speak for Themselves ' where it is alleged that a list of appointments into Government on tribal and regional lines is produced. The petitioner asserts that such public concerns regarding tribalism and regionalism have also been registered within the ranks of President Hakainde Hichilema's party, the UPND from senior party officials hailing from the northern and eastern regions. Of particular interest to the petitioner is how a particular group of people in Luapula Province was unfavourably treated when in police custody while persons from Southern and Western Provinces are alleged to have received favourable treatment. J7 ( The petitioner asserts that public accusations by individuals from the northern and eastern regions occupying senior positions in President Hakainde Hichilema's Party and Government, are very telling and represent a threat to national unity and cohesion . [13] The petitioner alleged that the systematic remarks by the President already outlined above are divisive to the nation and calculated to promote tribalism and regionalism . That the said remarks do not promote national unity and cohesion and portray the President as lacking dignity and integrity and contravenes Articles 8(b), 91 (3)(c) and 92(1) of the Constitution. It is also alleged that the systematic biased actions by the President and his Government in appointing individuals in specific key national positions were divisive to the nation and calculated to promote tribalism and regionalism as they do not promote national unity and cohesion and contravene Articles 8(b), 8(c), 91 (3) (c), 92(1 ) and 259(2) of the Constitution. [ 14] In light of these allegations, the petitioner seeks the following relief: i. A declaration that the demeaning remarks made by the President on 7th November, 2021 at Kenneth Kaunda International Airport against his six predecessors being former late President Kenneth Kaunda, former late President Fredrick Chiluba, former late President Levy Mwanawasa, former late President Rupiah Banda, former late President Michael Sata and former President Edgar Lungu do not promote and achieve dignity, non-discrimination, equality, national unity and cohesion, are in contravention of Articles B(b), B(d), 91 (3)(c) and 92(2)(1) of the Constitution of Zambia, and are illegal. J8 ii. iii. A declaration that the demeaning remarks made by President Hakainde Hichilema on 25th April, 2022, while addressing a Press Conference at State House, against the Bemba and Nyanja speaking people of Zambia do not promote and achieve human dignity, non-discrimination, equality, national unity and cohesion, and do not portray the President as a person of dignity and high integrity and are in contravention of Articles B(b), B(d), 91 (3)(c) and 92(2)(1) of the Constitution of Zambia, and are illegal. A declaration that the appointments made by President Hakainde Hichilema to key positions of the heads of defence and security wings, being the Zambia Army, Zambia Air Force, Zambia National Service, Zambia Security and Intelligence Service, Zambia Police Service, Zambia Correctional Services and Zambia Immigrations Department are divisive to the nation, calculated to promote tribalism and regionalism, do not promote national unity and cohesion and contravene Articles B(b), B(d), 91 (3)(c) and 92(2)(1) of the Constitution of Zambia, as none of these heads of defence and security wings hail from the Northern or Eastern regions of Zambia. 1v. A declaration that the appointments made by President Hakainde Hichilema to key positions at the Ministry of Justice and Judiciary including those of the Minister of Justice, Attorney General, Solicitor General, Chief Justice, Chairman of the Judicial Complaints Commission and Chairman of the Judicial Service Commission are divisive to the nation, calculated to promote tribalism and regionalism, do not promote national unity and cohesion and contravene Articles B(b), B(d), 91 (3)(c) and 92(1) of the Constitution of Zambia and are illegal because the these Northern and Eastern regions are discriminated against in appointments. v. A declaration that the appointments made by President Hakainde Hichilema at Permanent Secretary level are divisive to the nation, calculated to promote tribalism and regionalism, do not promote national unity and cohesion and contravenes Articles B(b), B(d), 91 (3)(c) and 92(2)(1) of the Constitution of Zambia and are illegal because the Northern and Eastern regions are discriminated against in these appointments. vi. A declaration that the appointments made by the President Hakainde Hichilema at quasi-government body head and parastatal head level are divisive to the nation, calculated to promote tribalism and regionalism, do not promote national unity and cohesion and contravenes Articles B(b}, B(d), 91(3)(c) and 92(1) of the Constitution of Zambia and are illegal because the Northern and Eastern regions are discriminated against in these appointments. J9 vii. A declaration that the appointments made by President Hakainde Hichilema for key positions at State House are divisive to the nation, calculated to promote tribalism and regionalism, do not promote national unity and cohesion and contravenes Articles B(b), B(d), 91 (3)(c) and 92(1) of the Constitution of Zambia and are illegal because the Northern and Eastern regions are discriminated against in these appointments. viii. A declaration that the demeaning remarks against the people of the Eastern Province regarding the President's non-attendance at the 2023 N'cwala Traditional Ceremony of the Ngoni people of Eastern Province, and attributed to President Hakainde Hichilema by the Minister of Health, Honourable Sylvia Masebo, on or about 24th February, 2023 while addressing a Press Conference, do not promote and achieve human dignity, non-discrimination, equality national unity and cohesion, and do not portray the President as a person of dignity and high integrity and are in contravention of Articles B(b), B(d), 91 (3)(c) and 92(1) of the Constitution of Zambia and are illegal. ix. An order that costs for this Petition be borne by the Respondent; and x. Any other reliefs that the Court may deem necessary and appropriate. [15] The petitioner in skeleton arguments filed on 28th May, 2023 in large measure repeats what is alleged in the petition. In addition to what has already been stated , the petitioner in his arguments describes the Constitution as the mirror of the nation that reflects the soul , identity, ideals and aspirations of the nation while articulating the values that bond the people of Zambia and guide and regulate Government. In reference to Article 259 (2) of the Constitution, the petitioner asserts that the provision requires that appointments made to the public service achieve regional balancing which reflects historical, economic, social , cultural , and political realities and aspirations of the JlO nation which in the opinion of the petitioner are critical in building a robust, patriotic, united and prosperous Zambia. [1 6] The petitioner in reference to the President's tenure thus far argues that the President has made divisive remarks both at home and abroad that do not reflect patriotism nor promote national unity and the nation's good image. The petitioner further alleges that the President has portrayed a bad image of the country's past nationally and internationally with institutions such as the Judiciary having been described as run by corrupt persons and thieves. [ 17] In respect of appointments made by the President, the petitioner asserts that the eastern and northern regions of Zambia have been discriminated against in addition to the President having made disparaging remarks about these regions and the people who hail from them . [1 8] According to the petitioner, the constitutional principles and values which the President is alleged to have violated are provided for under Article 8(b) of the Constitution which qualifies patriotism and national unity as national values and principles and clause 8(d) which includes human dignity, equity, social justice, equality and non-discrimination. [ 19] In underscoring the concept of patriotism, the petitioner cited the case Jll of Communications Commission of Kenya and 5 Others v Royal Media Services Limited and 5 Others 1, wherein the Supreme Court of Kenya defined patriotism as entailing love for one's country with institutions carrying a constitutional obligation to love their country and not act against its interests. [20] The petitioner, cited Article 118(2)(f) of the Constitution which obliges the Judiciary to promote and safeguard the constitutional principles and values provided for under Article 8 of the Constitution and other similar provisions. [2 1] In this regard , the petitioner argues that the actions taken by the President, the Minister of Health and senior UPND members contravene Articles 8(b) and (d), 91 (3)(c), 92(1) and 259(2 ) of the Constitution and are illegal. In the petitioner's view, the President's remarks do not promote patriotism, the dignity of the former Presidents, the unity of the nation and the country's good image. [22] It is the Petitioner's submission that the President's failure to reprimand senior government officials promoting tribalism , regionalism and discrimination against the people of the northern and eastern regions of Zambia , contravenes Article 60(3)(a) of the Constitution. J12 [23] He further alleges that the President's tribal and regionally biased appointments fail to achieve regional balancing and national unity thereby contravening Articles 8(d),91 (3)(c), 92(1) and 259(2) of the Constitution. It is the petitioner's contention that the said appointments should be declared invalid on the basis that they defy regional balancing , entrench tribalism and regionalism as well as discriminate against persons from the eastern and northern regions. [24] It is further argued that a detailed analysis of the appointments to key positions as mentioned in the petition and the exhibits to the affidavit verifying facts show that the appointments made by President Hakainde Hichilema do not reflect the regional diversity of the people of Zambia except in circumstances that involve appointments at subordinate or junior levels. The petitioner contends such that appointments adversely affect persons from regions that are excluded and perpetuate disunity in the nation. [25] In support of his arguments, the petitioner cites the case of Katiba Institute and Another v Attorney General and Another2 where the selection and appointment by the President and his cabinet of persons and members to boards of various state bodies and parastatals were challenged on account of not being done in accordance with the J13 values and principles provided for under Articles 10 and 232 of the Kenyan Constitution. The High Court of Kenya held that the principles of good governance, values and principles of public service are not to be progressively realized and consequently declared all appointments made by the President or cabinet secretaries unconstitutional for violating Articles 10 and 232 of the Constitution and the Public Service (Values and Principles) Act. It is the petitioner's view that though the Kenyan decision is not binding but persuasive to this Court, we, as a Court should consider adopting it as sound law with respect to constitutional principles. [26 ] At the hearing, the petitioner entirely relied on the documents filed to support his petition and prayed that this Court grants the reliefs sought on account of the alleged breaches by the respondent. THE RESPONDENT'S CASE [27] The respondent filed an answer and an opposing affidavit on 28th September, 2023. Skeleton arguments were filed on 3rd November, 2023. In the respondent's answer, it was contended that the petition is frivolous, vexatious, and misconceived and that President Hakainde Hichilema did not act in a manner that seeks to undermine or J14 " ,. ' . disadvantage the northern and eastern regions of Zambia. [28] The respondent asserted that all provinces and regions of the nation are treated equitably, as evidenced by the unprecedented equal and equitable disbursement of the Constituency Development Fund (CDF). Further, that there was a representative balance in Cabinet and through the recruitment of 30,000 teachers and 11 ,000 health workers respectively. [29] The respondent refuted the petitioner's allegation that President Hakainde Hichilema has systematically perpetrated a tribal and regional agenda and describes the allegations as speculative. The respondent contended that the alleged disparaging remarks against the President's predecessors as being a clique of thieves are not supported by evidence, as there was no direct or implied mention of the six former presidents. [30] Addressing the petitioner's assertion regarding the President's alleged remarks against the Bemba and Nyanja-speaking people, the respondent asserted that Zambia is a country of diverse ethnicity, religion , and culture, where no one group is superior or inferior to the other. That the President's statement had no tribal or regional connotations, as implied by the petitioner. The respondent averred JlS that citizens have the liberty to express themselves in any language of their choice. [31] The respondent denied the alleged regionally biased appointments in the defence forces , security wings, Ministry of Justice, Judiciary, Judicial Complaints Commission and Judicial Service Commission , respectively, stating that all the appointments made in the respective institutions were done in accordance with Articles 92( e) and (f), 173(i), 197(d), 259, and 270 of the Constitution. [32] The respondent further disputed the allegation of partiality in the appointments at permanent secretary level, statutory bodies and parastatal heads levels as well as key staff at State House. The respondent contended that the appointments were made based on merit and involved Zambian citizens with the qualifications to discharge the functions of their offices and as such , the allegations of bias were unfounded. [33] The respondent further asserted that the petitioner's allegations on tribal and regional appointments, which were based on the Socialist Party's monthly newsletter, do not reflect the entire Government, and that the said political party had an interest to serve. [34] Regarding the remarks attributed to President Hakainde Hichilema J16 f , concerning the N'cwala traditional ceremony that was held in 2023, the respondent averred that it was not the first time in history that the Head of State had delegated a Minister to attend the ceremony on his behalf. The respondent further contended that the petitioner's assertions were frivolous, vexatious and misconceived as the President respected the diversity of all communities. [35] In the respondent's skeleton arguments, it is argued that contrary to the petitioner's allegations, the President had not taken any action that sought to undermine or disadvantage the northern and eastern regions. The respondent argued that all provinces and regions are treated equally and fairly as is noted from a balanced and representative Cabinet. [36] As regards the alleged derogatory remarks made against the President's predecessors, the respondent argued that the petitioner's claim was unfounded and had no factual basis. [37] The respondent referred the Court to the Kenyan case of Evans Ladtema Muswahili v Vihiga County Public Service Board & 2 Others; Marley Ezekiel Ayiegi (Interested Party)3 wherein it was held that: The foundation of the petitioner's case ought to be the facts upon which the petition is founded. A cause without a factual foundation or basis had no legs to stand on. A spectacular legal or constitutional basis cannot save it, for the constitutional or legal basis is, itself, supposed to be founded on a factual background. Lack of a factual basis embarrasses the J17 . , I . ,, respondents, in terms of what they are expected to respond to; and to the court in terms of understanding the actual or real issues in dispute. Parties should always be alive to the fact that they may, both sides, be privy to all the facts in the matter at hand but the court is never privy to the same, It should not be expected that the court would somehow get to discover or unearth those facts. Kenya is not a civil law jurisdiction. It is not for the court to dig out the facts. It is up to the parties to bring them out, so as to assist the court do justice based on those facts. [38] Further that in the case of Jayesh Shah and Shaleetha Mahabeer v Attorney Genera/4 it was held that: There must be clear substantive considerations as provided in Article 128 of the Constitution. issues that raise constitutional [39] In this regard, it is the respondent's argument that since there is no factual basis or evidence to support the claim that the President mentioned the six former presidents, the allegation is baseless. [40] Regarding the alleged derogatory remarks about the Bemba and Nyanja-speaking people of Zambia , it is the respondent's submission that the Constitution in Article 2 recognizes and upholds the nation's multi-ethnic, multi-racial, multi-religious, and multi-cultural character, a position that President Hakainde Hichilema upholds. [ 41] The respondent argues that citizens have the freedom to express themselves in any language of their choice , as it promotes national unity and cohesion. This is in line with the national motto 'One Zambia One Nation' as enshrined in Article 6(e) of the Constitution, read J18 together with the National Flag and Armorial Ensigns Act Chapter 6 of the Laws of Zambia. [42] Regarding the alleged remarks made about the people of the Eastern Province in relation to the Nc'wala traditional ceremony, the respondent argues that the petitioner has failed to provide any evidence to support his allegation of a constitutional breach by the President or proof that the President made any comments about the ·cholera outbreak. According to the respondent, the statement did not refer to the people of the Eastern Province as being dirty. [43] It was the respondent's submission that the petitioner's evidence is at variance with the pleadings and referred to the case of Nkandu Luo and Electoral Commission of Zambia v Doreen Sefuke Mwamba and Attorney General5 where it was held that where pleadings are at variance with the evidence adduced in court, the case fails. It was submitted that for a petitioner to succeed , an act, om ission , measure or decision leading to the contravention of the Constitution must be attributable to or made by a person or authority, in this case the President. The respondent reiterated that there was no evidence of an act, omission or decision of the President as alleged. J19 [44] With respect to the allegations of biased appointments in the defence and security wings , it is the respondent's argument that all the appointments made were in accordance with Articles 92(e) and (f), 173(i), 197(d) and 259 of the Constitution. Additionally, the respondent argues that these appointments were made based on merit and in compliance with the values and principles that govern such appointments. [45] In this regard , the respondent referred to the case of Chapter One Foundation Limited and the Non-Governmental Organisations Coordinating Committee for Gender and Development Registered Trustees and Harriet Chibuta v Attorney General6 wherein we stated that: The constitutional imperatives enshrined in Article 259( 1) are not absolute as the Constitution in that Article provides for exceptions under Article 259(1) (b) and (c) .... The power to make such appointments or nominations is a constitutional power conferred on the Republican President by the Constitution and is discretionary. This power is however guided by the Constitution as Article 259 itself has qualified this in the provisos stated in that Article namely that "unless it is not practicable to do SO. [46] It was submitted that the petitioner had not provided cogent evidence to support his allegations regard ing these appointments. [4 7] Responding to the arguments regarding alleged regionally biased appointments at the Ministry of Justice, the Judiciary, Judicial J20 ' ' . •, Complaints Commission , Judicial Service Commission , heads of statutory bodies and parastatals, permanent secretaries' level as well as key staff at State House, it is the respondent's submission that these appointments were made in conformity with the constitutional provisions establishing these offices. The respondent added that according to Articles 270, 92(e) and (f), 173(i) and 259 of the Constitution, all appointments were made on merit. [48] Reference was yet again made to the Chapter One Foundation7 case where this Court had occasion to pronounce itself on the guiding principles for appointments and nominations under Article 173 of the Constitution . It was held in that case that the constitutional provisions in Article 173 on guiding values and principles of the public service is a guide to the appointing and nominating authorities when making appointments to the public service and does not include nominations to Parliament or appointments of Cabinet or Provincial Min isters. [49] On the alleged biased appointments pertaining to permanent secretaries, it was argued that the composition of permanent secretaries currently represents all regions of Zambia. Reference was made to exhibit "OMK1" a newspaper article in the respondent's affidavit which according to the respondent, revealed that under J21 President Edgar Lungu , there were 34 Permanent Secretaries as of 12th August, 2021. Of these , 21 were from the northern region , while only one was from the Southern Province. [50) With regard to appointments in statutory bodies and parastatals, it was the respondent's submission that all appointments in these institutions covered Lusaka , Eastern , Southern, Western , and Northern Provinces, which is thus regionally balanced. It was highlighted that out of the 17 positions in 9 institutions listed , 13 were from Northern Province. A comparison was made with the position that was obtaining under the previous Government where out of 12 positions in Government agencies, 10 were from the Northern Province. [51] The respondent advanced similar arguments concerning the allegations of bias in the appointment of key staff at State House and contended that the appointments were regionally balanced. [52] The respondent further argued that the Kenyan case of Katiba Institute and Another v Attorney General and Anothei2 cited by the petitioner was distinguishable from the present case as the issues raised in casu are different and do not help the petitioner. To buttress this point, the respondent submitted that Article 10 of the Constitution J22 of Kenya provides for the application of national values and principles of governance which bind all State organs, State officers, public officers and all persons whenever any of them: (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. [53] It was contended that this could be distinguished from the Zambian Constitution's Article 8 which merely sets out what the national values and principles are. [54] It is the respondent's submission that the petitioner's allegations of tribal and regional appointments by President Hakainde Hichilema and his Government relied on a political party's newsletter as a source of information. Further, that the list in question did not represent the entire government and that the petitioner had selectively chosen a few ministries and institutions in order to push a tribal and regionalism agenda. [55] Regarding the alleged concerns about tribalism and regionalism among senior members of the United Party for National Development (UPND), the respondent contended that the UPND is not a party to these proceedings to enable them to respond to the allegations. That on account of this, the allegation should not be entertained by this J23 Court. [56] We were referred to our decision in the case of Chishimba Kambwili v Attorney Genera/7 wherein we stated the following: However, in his petition against the respondent, the petitioner has not cited the said Joseph Chisala thereby making his prayer for declaratory order to fall foul of the principle that the court will not grant a declaration unless all the parties affected by or interested in the case are before court. Mr. Joseph Chisala is not a party but he is an interested person and he has not been heard. [57] The respondent further submits that the petitioner, who 1s the President of a political party, was politicizing his petition. The respondent cited the case of Bernard Mcdonald Christopher v Roosevelt Skerrit and Attorney General of Dominica8 for persuasive value. In that case, the High Court of Dominica held that: In my view the 'claimant's case contains views that are political rather than justiciable questions which involves the question of voters list, the issue of Voter 10 cards as against the possible issue of National 10 cards and accordingly he has failed to plead or establish any cause of action for which the Defendants could be called to answer, further that the claim on the face of it does not raise issues of fact which can be properly determined at trial. I also find that the case as set out and the arguments presented by the Claimant was confusing, difficult to follow and does not properly present itself as a case that the Defendant could properly answer. [58] In light of this authority, the respondent argued that in like manner, the petitioner's case contains views that are political and confusing and must be dismissed. [59] The respondent finally argued that the President had not contravened J24 Articles 8(b) and (d), 91 (3)(c), 92 (1) and 259(2) of the Constitution and prayed that the petition be dismissed with costs. [60] At the hearing of the petition, the respondent made oral submissions to augment the skeleton arguments. On behalf of the respondent, Mrs. Mundia, submitted that the petitioner's allegations regarding the remarks made by the President were not based on facts but were his own insinuations and lacked factual evidence to support the allegations. She argued that this Court has been clear on the lack of factual basis or evidence in a matter. She cited the case of Michael Mbuyu Mutwena v Attorney Genera/9 to support her arguments and reiterated that there was no act or omission on the part of the President to warrant an allegation of a constitutional breach. Counsel prayed that the petition be dismissed with costs. [6 1] In response to allegations of tribal and regional appointments, Mr. Mwiya, argued that all of the appointments made by the President in the public service were based purely on merit and with due consideration to the provisions of the Constitution regarding appointments. He pointed out that according to Article 194 of the Constitution , the primary qualification for an appointment in the Defence and Security wings is citizenship. Counsel submitted that the J25 respondent had provided sufficient evidence to show that the appointments made in 2023 were more balanced throughout the regions when compared to the appointments made in 2021 under the previous Government. He reiterated that all of the appointments made by the President were done on merit and, as such, the petition should be dismissed with costs. PETITIONER'S REPLY [62] The petitioner in reply argued that the lack of regional balance in certain positions is a specific issue that he had raised and provided examples of instances where this was being perpetrated in 'the Socialist' , a Socialist Party Newsletter in Exhibit SET5 of the Affidavit verifying facts. He argued that the mere possession of qualifications for a position did not result in regional balancing. [63] The petitioner contended that his allegations on the President's statement were not speculative and that he had provided enough evidence to prove that appointments were not based on merit. He further stated that his allegations were supported by irrevocable audio video evidence. J26 . ' ANALYSIS AND DECISION [64] The petitioner pitched ten (10) alleged systematic remarks and actions attributed to President Hakainde Hichilema which he asserts are divisive to the nation and are calculated to promote tribalism and regionalism respectively. The petitioner further asserts that the remarks and actions in question do not promote national unity and cohesion and show President Hakainde Hichilema as lacking dignity and integrity. That the said remarks and actions run afoul Articles 8(b), 91 (3) (c), 92(1) and 259(2) of the Constitution . [65] The issue we consider as falling for our determination is whether Articles 8(b) and (d), 91 (3)(c), 92(1) and 259(2) were contravened by the respondent as a result of alleged regional and tribal appointments and remarks attributed to the President. [66] We shall begin by considering the import of the Constitutional provisions alleged to have been contravened by the respondent. We begin with Article 8(b) of the Constitution and in keeping with the principles of Constitutional interpretation as settled by this Court, other provisions having a bearing on the subject under consideration will equally be considered . We shall in like manner consider Articles 91 (3) (c), 92(1) and 259(2) of the Constitution. J27 ' . ' . ,, [67] Article 8(b) set out in Part 11 of the Constitution provides for national values, principles and economic policies. The national values and principles provided for under Article 8(b) are patriotism and national unity. The values and principles highlighted above are amplified in terms of application under Article 9(1) of the Constitution . Articles 9(1) of the Constitution stipulates that the national values and principles shall apply in the: (i) Interpretation of the Constitution ; (ii) Enactment and interpretation of the law; and (iii ) Development and implementation of State Policy [68] The above Article resonates with Article 267(1 ) (a) of the Constitution which equally provides that the Constitution shall be interpreted among others , in a manner that - (a) promotes its purposes, values and principles: (our Emphasis) [69] The Report of the Technical Committee on Drafting the Zambian Constitution - 30th December, 2013 at page 24 outlines the rationale for Article 8 as being to guide the Executive, Legislature and Judiciary in the development and implementation of State Policy, enactment of laws and interpretation of the Constitution. As a guide, the values and principles act as a reference point for all the three State organs in the J28 performance of their respective mandates. This position in our view resonates with the South African decision of Sidumo v Rustenburg Platinum Mines Ltd and Others10 , a case we refer to for persuasive value. In that case, Sachs J, as he then was, in explaining the essence of values in the South African Constitution had this to say at paragraph 149 of the Judgment: The values of the Constitution are strong, explicit and clearly intended to be considered part of the very texture of the constitutional project. They are implicit in the very structure and design of the new democratic order. Th e letter and the spirit of the Constitution cannot be separated; just as the values are not free floating, ready to alight as mere adornments on this or that provision, so is the text not self-supporting awaiting occasional evocative enhancements. The role of constitutional values is certainly not to provide a patina of virtue to otherwise bald, neutral and discrete legal propositions. Text and values work together in integral fashion to provide the protections promised bv the Constitution. [emphasis added] [70] It follows that the values and principles outlined in Article 8 (b) alongside others are contravened when not taken into account when performing a constitutional function or exercising authority granted under the Constitution . To prove the contravention of values and principles imbedded in the Constitution , it must be demonstrated that their serious consideration in the performance of a constitutional function or the exercise of constitutional authority was lacking . Article 8(b) therefore, demands that patriotism to the nation is exhibited when performing a constitutional function or exercising authority granted under the Constitution. In a similar manner the performance of a J29 constitutional function and exercise of constitutional authority must enhance national unity. [7 1] Article 91 (3)(c) sits in Part VII of the Constitution which provides for executive authority. The provision states that- (3) The President shall, in exercise of the executive authority of the State (c) promote democracy and enhance the unity of the Nation. [72] The value and principle in paragraph (c) of clause 3 of Article 91 set out above are those spelt out in Article 8(b) and (c) of the Constitution which, as we have stated above, must be considered by the President as a mandatory requirement in the exercise of executive authority. For the provision to be contravened, it must be demonstrated with cogent evidence, that the values and principles in question were not taken into account by the President in the exercise of executive authority that demanded their serious consideration . [73] In the same Part VII sits Article 92(1) of the Constitution which provides that- (1) The President shall perform, with dignity, leadership and integrity the acts that are necessary and expedient for, or reasonably incidental to, the exercise of the executive authority. [74] Article 8(e) of the Constitution spells out the requirement for good governance and integrity. A failure on the part of the President to show good governance and integrity in the performance of an executive J30 function is what would run afoul Article 92(1) of the Constitution. This is because as we have already stated, the provisions of Article 8 are to be considered together with Articles 91 (3) and 92(1) regarding the performance of executive functions. [75] The last provision alleged to have been violated by the President is Article 259(2) of the Constitution. This Article provides as follows: (1) Where a person is empowered to make a nomination or an appointment to a public office, that person shall ensure- (a) that the person being nominated or appointed has the requisite qualification to discharge the functions of the office, as prescribed or specified in public office circulars or establishment registe rs; (b) that fifty percent of each gender is nominated or appointed from the total available positions, unless it is not practicable to do so; and (c) equitable representation of the youth and persons with disabilities, where these qualify for nomination or appointment. (2) A person empowered to make a nomination or appointment to a public office shall. where possible, ensure that the nomination or appointment reflects the regional diversity of the people of Zambia. (Emphasis supplied) [76] We had occasion to look at Article 259 more specifically Article 259(1 ) (b) and (c) of the Constitution in the case of Chapter One Foundation Limited, the Non-Governmental Organisations Coordinating Committee for Gender and Development Registered Trustees and Harriet Chibuta (suing in her capacity as Executive Director of Young Women in Action) v The Attorney Generafd. [77] In that case we were called upon to give meaning to Article 259 of the J31 Constitution and we did state that the article is couched in mandatory terms as the word "shall" is used and connotes that all the four requirements should be taken into account. Namely, qualifications, gender parity, youth and persons with disabilities and regional diversity. [78) In that case , the petitioners only raised two issues, namely; the fifty percent gender parity and representation of youths and persons with disabilities. They did not raise the issue of requisite qualifications to discharge the functions of the office as prescribed or specified in public office circulars or established registers and the requirement, where possible, to ensure that the nomination or appointment reflects the regional diversity of the people of Zambia. [79) As can be observed , all the four requirements ought to be taken into account when nominating or appointing persons to public office save to state that three of the requ irements allow the nominating or appointing authority to exercise discretion , namely where, gender parity is not practicable to attain , the youths and persons with disabilities with requisite qualifications are not available and reg ional balancing is not possible under the circumstances. The requirement that ought to be met under all circumstances is the possession of J32 ' . requisite qualifications. Article 259(2) of the Constitution therefore cannot be considered in isolation , but ought to be considered with all other requirements on nomination or appointments to public office as we said in the Chapter One Foundation 6 case . [80) The question then is, has the petitioner proved that the respondent contravened the stated articles of the Constitution? It is settled law that the burden of proof lies with the petitioner and in this case he has to prove that the respondent acted in violation of the aforementioned Articles. [81 ) The learned authors of Phipson on Evidence 1Jlh Edition at page 151 have this to say on the burden of proof: So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. [82) This position of the law was also settled in the case of Khalid Mohamed v Attorney Genera/11 where Ngulube DCJ (as ·he then was) held inter alia that: An unqualified proposition that a plaintiff should succeed automatically whenever a defence has failed is unacceptable to me. A plaintiff must prove his case and if he fails to do so the mere failure of the opponent's defence does not entitle him to judgment J33 [83] As earlier pointed out in this judgment, the petitioner has put up ten (10) allegations which in his view are divisive to the nation, promote tribalism and regionalism and undermine national unity and cohesion . [84] The petition sets out ten (10) allegations five (5) of which concern alleged utterances made by President Hakainde Hichilema. In the first allegation , the petitioner alleges that President Hakainde Hichilema made disparaging remarks against his predecessors in office, when he registered his displeasure at the hold on power by hegemonists through what he termed , a clique of thieves since independence. That the remarks have regional connotations and do not promote national unity and cohesion . [85] In response , the respondent submitted that the petitioner's allegation is speculative as no mention of the former presidents is made anywhere in the statement. [86] We have carefully considered the allegation and note that the petitioner did not adduce any cogent evidence to prove that the remarks by the President which the petitioner complained of referred to the six former Presidents. [87] The second allegation concerns remarks allegedly made by President Hakainde Hichilema against the Bemba and Nyanja speaking people J34 ' . of Zambia at a Press Conference held at State House on or about the 25th April , 2022. In the alleged complaint, the President was quoted as saying no one complains when he speaks Bemba but complaints are registered when he speaks Tonga, a statement the petitioner finds tribal with the effect of undermining national unity and cohesion . [88] The third allegation attributes remarks to President Hakainde Hichilema against the people of Eastern Province in relation to the N'cwala traditional ceremony of 2023. In this allegation, the petitioner submits that the Minister of Health on or about 24th February, 2023, issued a statement to the effect that President Hakainde Hichilema would not be attending the N'cwala traditional ceremony on account of the risk of contracting cholera at the ceremony, a statement the Petitioner finds insulting to the traditional leadership considering that dirt and unhygienic conditions are associated with that disease. The respondent argues that the Petitioner's allegation is misconceived. [89] The fourth allegation speaks to concerns allegedly raised by a named senior member of President Hakainde Hichilema's UPND Party on what is termed as discrimination against people hailing from the northern region of Zambia by President Hichilema's government through the Zambia Police. J35 [90] The respondent's position is that the UPND is not a party to these proceedings and arguments by the petitioner ought not to be entertained on account of our decision in the case of Chishimba Kabwili v the Attorney Genera/7 wherein we stated that we would not grant a declaration unless all the parties affected by or interested in the case were before Court. [91] The petitioner anchors the fifth allegation on a publication styled the Socialist, a Socialist Party Newsletter, where it is alleged that there is public concern regarding tribal and regional appointments and acts by President Hakainde Hichilema and his Government. [92 ] We wish to state the following regarding the 2nd , 3rd , 4th and 5th allegations. The petitioner has made the allegations in question without laying cogent evidence before this Court to support the same . We, in the recent case of Sean Tembo v Attorney Genera/12 did state at page J29 paragraph 6.16 that - jurisdiction the law Zambia as a common adversarial system of justice which requires parties to adduce all the evidence they wish to rely on at trial before the Court. It is trite law that it is not the duty of the Court to fill the gaps in the evidence and thereby assist one party. follows [93] We wish to state that the petitioner has not adduced cogent evidence that proves the allegations recited above. We are of the considered J36 ,._ • . . . t view that the petitioner has failed to prove that the alleged utterances contravened Articles 8(b) and (d), 91(3)(c) and 92 (1) of the Constitution. We find no merit in the allegations and dismiss them. [94] The question of regional balancing is one that we have already referred to earlier in our Judgment at paragraph 70 where we refer to Article 259(2) of the Constitution . We fully note the provisions of clause (2) of Article 259 which enjoins nominating and appointing authorities to, where possible, ensure that nominations and appointments to public office reflect the regional diversity of the people of Zambia. [95] Further, we take judicial notice that the Public Service landscape of positions is wide and so are presidential appointees . The petitioner has picked some sectors of the Public Service to canvass the argument that the appointments are skewed towards certain reg ions while the respondent has attempted to catalogue the distribution of the Pubic Service jobs through its Exhibit marked as "OMK1 ". [96] We wish to state the following regarding the submissions by both parties, firstly the petitioner's cherry picking and listing of persons holding specific jobs does not assist him to prove that Article 259(2) was contravened when the President made the specified J37 • • appointments. In like manner, the respondent has not equally assisted this Court by exhibiting a comparison chart on appointments to public offices made under two different Presidents. This is not what, in our view, the petitioner's allegation is about. [97] The above notwithstanding, our considered view is that the petitioner has not proved to the required standard that the President's appointments in the public service are not balanced regionally, taking Article 259 of the Constitution holistically. Further, nothing is on record to prove that those appointments were made outside the constitutional provisions of Article 259. We find that this allegation has not been proved to the required standard of proof and is without merit for which we dismiss it. [98] Allegations 3.3.3, 3.3.4, 3.3.5, 3.3.6 and 3.3.7 as set out in the petition are in large measure similar and to a large extent addressed above. That notwithstanding , we shall deal with them together. In all the above allegations, the gravamen is that the Presidential appointments in the security and defence wings, justice sector, at permanent secretary level, quasi-government and parastatal organizations head level and State House are regionally biased and do not promote national unity and cohesion. The petitioner under these allegations J38 • ~. ' . \ . , .. partitions the country into regions where he clusters provinces together and in this creates the northern and eastern regions consisting of Northern and Luapula Provinces and Muchinga and Eastern Provinces respectively. He submits that these two regions have been marginalized in so far as appointments to the positions he outlines are concerned. In certain instances particularly, at Permanent Secretary level and State House staffing, he uses percentages. The petitioner asserts that the positions listed are occupied by persons who hail from regions other than the northern and eastern regions. That this state of affairs has only occurred since President Hakainde Hichilema's assumption of office. [99) The respondent on the other hand argues that the positions in question have all been filled in accordance with Articles 92(e) and (f), 173(i), 197(d), 259 and 270 of the Constitution and in conformity with the national values and principles which require appointments to be meritorious. [100) In determining these issues, we first wish to state the following in response to the argument pitched by the respondent on the binding nature of national values and principles. The respondent states that the Kenyan authority relied on by the petitioner, Katiba Institute and J39 • Another v Attorney General and Another2 is distinguishable for the simple reason that the Kenyan Constitution specifically provides in Article 10(1) for the binding nature of national values and principles of governance on state organs, state officers, public officers and all persons. That this is not the case under Article 8 of the Zambian Constitution which merely provides for national values and principles. [101] Our short answer to that argument is that Article 1 (3) of the Constitution clearly states that the Constitution binds all persons in Zambia , State organs and State institutions. Article 8 of the Constitution is not excepted from the binding force of the Constitution. [ 102] Coming back to the allegations, the petitioner has not proved that those appointed were not qualified for appointment to those positions but merely stated that they hail from the regions other than those the petitioner deems marginalized . As earlier pointed out in this Judgment, the Public Service landscape is expansive and so are Presidential appointees within the various institutions and organs of State that constitute the Public Service. [ 103] We take judicial notice that all the identified institutions and state organs have other appointees who have not been catalogued in order for this Court to have a clear picture of the composition of these J40 • entities but more importantly the petitioner has not demonstrated in evidence that there was a contravention , in the appointments, within the context of Article 259(2 ) of the Constitution. Further, we wish to state that the comparisons put up in the exhibit marked "OMK1" by the respondent are of no probative value as the allegations do not centre on which Government past or present has adhered to the tenor of Article 259(2) of the Constitution. [ 104] In sum , our view is that the petitioner has not proved that the respondent contravened Articles 8(b ), 91 (3 )( c ), 92( 1) and 259 (2 ) of the Constitution regarding the appointments in question and the remarks attributed to the President. We also find no merit in allegations at paragraphs 3.3.3, 3.3.4, 3.3.5, 3.3.6 and 3.3.7 of the petition and we dismiss them . [ 105 ] Having found no merit in all the ten (10) allegations made by the petitioner, we accordingly dismiss the petition in its entirety. [106 ] Each party shall bear its own costs. A. M. SHILIMI DEPUTY PRESIDENT CONSTITUTIONAL COURT J41 • ...... ~ . A. M. SITALI CONSTITUTIONAL COURT JUDGE P. MULOND CONSTITUTIONAL COURT JUDGE M. S. MULENGA CONSTITUTIONAL COURT JUDGE . . J.t;/lUi1f>y1 1~ ~ ..... J. Z. MULONGdTt CONSTITUTIONAL COURT JUDGE Aifiive?!CW ... ~~WAND ENG CONSTITUTIONAL COURT UDG J42