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Constitutional Court Act, 2016

This provision gives the Act its short title: the Constitutional Court Act, 2016. This section defines terms used in the Act. The Court must sit with an uneven number of at least three judges, or one judge for…

appealsconstitutional jurisdictioncourt appearancescourt compositioncourt costscourt evidencecourt feescourt powers on appealcourt procedurecourt proceedingscourt processcourt sittingscustodydocument productionexpert evidencegovernanceinspectionjudicial administrationjudicial processlitigationlitigation costsoathspublic administrationrecords and evidenceregistry locationwitness allowanceswitness compliance
Jurisdiction
Zambia
Structure
32 provisions
Citation
Act 8 of 2016
Dates
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Dates
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01

Purpose and legislative effect

“This provision gives the Act its short title: the Constitutional Court Act, 2016.”

This provision gives the Act its short title: the Constitutional Court Act, 2016. This section defines terms used in the Act. The Court must sit with an uneven number of at least three judges, or one judge for interlocutory matters, and a full bench must have at least five judges. Court sittings are usually in Lusaka, but another place may be used if a circuit schedule issued by the Chief Justice allows it. The President may direct which judges sit in a sitting, subject to the Act. A single judge of the Court may exercise certain Court powers, except powers involving an appeal decision or a final decision in original jurisdiction.

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Short title

This provision gives the Act its short title: the Constitutional Court Act, 2016.

Section 1

Practice and procedure

The Court must exercise its jurisdiction on practice and procedure in the way this Act and the rules provide.

Section 9

Allowances to witnesses

The Court may allow witness expenses to be paid, and the amount is prescribed by the Chief Justice with the Minister responsible for finance’s approval.

Section 17

Restrictions on appeals

This section limits appeals from several kinds of orders unless leave is granted, with a few listed exceptions.

Section 24

Transitional provisions

Pending proceedings in the High Court and pending appeals in the Supreme Court continue in those courts.

Section 32

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Showing 32 of 32 provisions

Provision 26Interpretation 2Short titleOffence

Part

PART I

§ 1Short titleShort title

This provision gives the Act its short title: the Constitutional Court Act, 2016.

1. This Act may be cited as the Constitutional Court Act, 2016. Short title
Section 1Verify source
§ 2InterpretationInterpretation

This section defines terms used in the Act.

2. In this Act, unless the context otherwise requires— Interpretation “appellant” means a party appealing from a judgment of— (a) the High Court relating to the election of a Member of Parliament; or (b) a local government elections tribunal; “Consolidated Fund” means the Consolidated Fund established under Article 200 of the Constitution; “councillor” has the meaning assigned to it in the Constitution; “Court” means the Constitutional Court established under Article 127 of the Constitution; “Deputy President” means the Deputy President of the Court appointed under Article 127 of the Constitution; “Electoral Commission of Zambia” means the Electoral Commission of Zambia established under Article 229 of the Constitution; “High Court” means the High Court established under Article 133 of the Constitution; “judgment” includes a decree, order, ruling, declaration, conviction, sentence and decision; Cap. 1 Cap. 1 Cap. 1 Cap. 1 Cap. 1 Cap. 1 362 No. 8 of 2016] Constitutional Court Cap. 1 Cap. 1 Cap. 1 Cap. 30 Cap. 1 Cap. 1 Cap. 1 “Member of Parliament” has the meaning assigned to it in the Constitution; “oath” has the meaning assigned to it in the Constitution; “petitioner” includes a person who files a petition in the Court in relation to a matter under Article 128 of the Constitution; “practitioner” has the meaning assigned to it in the Legal Practitioners Act; “President” means the President of the Court appointed under Article 127 of the Constitution; “Public Protector” means the public protector appointed under Article 243 of the Constitution; “Registrar” means the Registrar of the Court appointed under section twenty-six; “Republican President” means the President of the Republic; and “rules” means rules of Court made under section thirty-one. “tribunal” means a local government elections tribunal established in accordance with Article 159 of the Constitution; “Vice-President” means the Vice-President of the Republic; PART II CONSTITUTION AND GENERAL POWERS OF THE COURT Constitution of Court
Section 2Verify source

Part

PART II

§ 3Constitution of CourtProvision

The Court must sit with an uneven number of at least three judges, or one judge for interlocutory matters, and a full bench must have at least five judges.

3. (1) Subject to subsections (2) and (3), the Court shall, when the Court is determining a matter, be constituted by an uneven number of not less than three judges. (2) The Court shall be constituted by one judge when hearing an interlocutory matter. (3) The full bench of the Court shall be constituted by an uneven number of not less than five judges when determining matters that require a full bench. (4) The Court shall be presided over by— (a) the President; (b) in the absence of the President, the DeputyPresident; and (c) in the absence of the DeputyPresident, the most senior judge of the Court, as constituted. Constitutional Court [No. 8 of 2016 363 (5) The determination of any question before the Court shall be according to the opinion of the majority of the judges of the Court hearing the case.
Section 3Verify source
§ 4Sittings of CourtProvision

Court sittings are usually in Lusaka, but another place may be used if a circuit schedule issued by the Chief Justice allows it. The President may direct which judges sit in a sitting, subject to the Act.

4. (1) The sittings of the Court shall usually be held at Lusaka but may be held at such other place in accordance with a circuit schedule issued by the Chief Justice. Sittings of Court (2) Subject to the provisions of this Act, the Court shall, at a sitting, be composed of such judges of the Court as the President may direct.
Section 4Verify source

Part

schedule issued by the Chief Justice.

§ 5Powers of single judge of CourtProvision

A single judge of the Court may exercise certain Court powers, except powers involving an appeal decision or a final decision in original jurisdiction.

5. A single judge of the Court may exercise a power vested in the Court not involving the decision of an appeal or a final decision in the exercise of its original jurisdiction. Powers of single judge of Court
Section 5Verify source
§ 6Restriction regarding sitting on appealsProvision

A judge of the Court must not hear an appeal or use section 5 power in an appeal from a judgment the judge gave, or from a court where the judge sat as a member.

6. A judge of the Court shall not sit on the hearing of an appeal or exercise power under section five in respect of an appeal from a judgment given by that judge or a judgment given by a court of which that judge sat as a member. Restriction regarding sitting on appeals
Section 6Verify source
§ 7SealProvision

The Court must have a seal, and the seal must be approved by the Chief Justice.

7. The Court shall have a seal approved by the Chief Justice. Seal
Section 7Verify source
§ 89. Practice and procedureInterpretation

The Court may decide certain constitutional and election-related matters, and courts must refer constitutional questions to it. A person alleging a constitutional breach may petition the Court for redress.

8. (1) Subject to Article 28 of the Constitution, the Court in exercise of its original and final jurisdiction may determine— (a) a matter relating to the interpretation of the Constitution; (b) a matter relating to a violation or contravention of the Constitution; Jurisdiction of Court Cap. 1 Cap. 1 Cap. 1 (c) a petition to challenge the nomination of a candidate for election as Republican President; (d) a matter relating to the Republican President, VicePresident or the election of a Republican President; (e) appeals relating to election of Members of Parliament and councillors; (f) an application to review a decision of the Electoral Commission of Zambia in the delimitation of constituencies and wards; (g) a matter referred to the Court by the Republican President pursuant to the Constitution; and Cap. 1 (h) whether or not a matter falls within the jurisdiction of the Court. (2) Subject to Article 28 (2) of the Constitution, where a question relating to the Constitution arises in a court, the person presiding in that court shall refer the question to the Court. Cap. 1 364 No. 8 of 2016] Constitutional Court Cap. 1 (3) Subject to Article 28 of the Constitution, a person who alleges that— (a) an Act of Parliament or statutory instrument; (b) an action, measure or decision taken under any written law; or (c) an act, omission, measure or decision by a person or an authority; Cap. 1 contravenes the Constitution, may petition the Court for redress. Cap. 1 Practice and procedure Process and execution of judgment of Court Right of audience (4) The Court shall hear and determine— (a) appeals from the High Court to challenge the election of a Member of Parliament; (b) appeals from a tribunal; and (c) any other matter as may be conferred upon it by or under the Constitution or any other written law.
Section 8Verify source
§ 9Practice and procedureProvision

The Court must exercise its jurisdiction on practice and procedure in the way this Act and the rules provide.

9. The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the manner provided by this Act and the rules.
Section 9Verify source
§ 10Process and execution of judgment of CourtProvision

Court process may be served throughout Zambia, and Court judgments must be executed and enforced as if they were High Court judgments.

10. Service of the process of the Court may be effected throughout Zambia and a judgment of the Court shall be executed and enforced in like manner as if it were a judgment of the High Court.
Section 10Verify source
§ 11Right of audienceProvision

Parties to a matter before the Court may appear in person or through a practitioner, and certain people or groups may start Court proceedings under the listed conditions.

11. (1) The parties to a matter before the Court may appear in person or be represented and appear by a practitioner. (2) Subject to subsection (1), a Court proceeding may be instituted by— (a) a person acting on behalf of another person who cannot act in their own name; (b) a person acting as a member of, or in the interest of, a group or class of persons; (c) a person acting in the public interest; or (d) an association acting in the interest of one or more of its members. (3) The Public Protector may bring an action before the Court Cap. 1 in accordance with the Constitution. Friend of Court
Section 11Verify source
§ 12Friend of CourtProvision

The Court may let an expert appear as a friend of the Court, either on application or on its own motion.

12. (1) The Court may allow a person with expertise in a particular matter which is before the Court to appear as a friend of the Court. Constitutional Court [No. 8 of 2016 365 (2) Leave to appear as a friend of the Court may be granted to a person on application orally or in writing. (3) The Court may, on its own motion, request a person with expertise to appear as a friend of the Court in a matter before it. PART III EVIDENCE
Section 12Verify source

Part

PART III

§ 13Summoning and compelling attendance of witnessesProvision

The Court may summon witnesses, require documents, and compel attendance in cases within its original jurisdiction.

13. (1) The Court may, in any suit or matter in which the Court is exercising original jurisdiction— (a) summon a person to give evidence or produce a document in that person’s possession or power; and (b) examine a person as a witness and require the person to produce any document in that person’s possession or power. (2) The Court may, at any stage of a suit or matter, exercise the power in subsection (1) on its own motion or on the application of a party to the suit or matter. (3) A person who is summoned and given reasonable notice of the time and place at which that person is required to attend, in accordance with subsection (1), but fails to attend without reasonable excuse commits contempt of court and may be proceeded against by warrant to compel that person’s attendance. Summoning and compelling attendance of witnesses
Section 13Verify source
§ 14Refusal to be sworn or to give evidenceProvision

A witness who appears under summons or warrant and refuses to take the oath, answer lawful questions, or produce documents may be committed to prison for contempt of court.

14. (1) A person who appears before the Court in obedience to a summons or under warrant and being required to give evidence refuses to— Refusal to be sworn or to give evidence (a) take an oath; (b) answer a question lawfully put to that person; or (c) produce a document in that person’s possession or power; commits contempt of court and may, by warrant, be committed to prison by the Court. (2) A person committed to prison under subsection (1) shall remain in prison until that person consents to take the necessary oath, answer the question or produce the document required under that subsection. (3) A person’s liability under subsection (1) does not affect any other liability that may attach to that person for a contravention of that subsection. 366 No. 8 of 2016] Constitutional Court Evidence of bystander Evidence of prisoner Allowances to witnesses Inspection Evidence of Zambian customary law
Section 14Verify source
§ 15Evidence of bystanderProvision

The Court may require a person present in Court to give evidence or produce documents, even if they are not a party.

15. A person who is present in Court, whether as a party in a matter or not, may be compelled by the Court to give evidence or to produce a document in that person’s possession or power, in the same manner and subject to the same rules as if that person had been duly summoned to attend and give evidence or to produce that document, and may be dealt with under the provisions of section fourteen for any refusal to obey the order of the Court.
Section 15Verify source
§ 16Evidence of prisonerProvision

A judge may issue a warrant to have a prisoner brought to court as a witness, and the jailer or person in charge must obey it.

16. A judge may issue a warrant under the judge’s hand to bring up a person confined as a prisoner under a sentence or otherwise, to be examined as a witness in any matter pending in the Court, and the jailer or person in whose charge that prisoner is shall obey the warrant by bringing up the prisoner in custody and delivering that prisoner to an officer of the Court.
Section 16Verify source
§ 17Allowances to witnessesProvision

The Court may allow witness expenses to be paid, and the amount is prescribed by the Chief Justice with the Minister responsible for finance’s approval.

17. (1) The Court may order, and allow to be paid to a person required to attend or be examined, as a witness, such sum of money as the Chief Justice may, with the approval of the Minister responsible for finance, prescribe for defraying the reasonable expenses of that person. (2) A sum of money allowed under subsection (1) shall be paid by the party on whose behalf the witness is called, and shall be recoverable as ordinary costs of the hearing unless the Court orders otherwise.
Section 17Verify source
§ 18InspectionProvision

The Court may order inspection of real or personal property and give directions about that inspection.

18. The Court may, in any matter, make an order for inspection by the Court, the parties or witnesses, of any real or personal property, the inspection of which may be material to the determination of the matter in dispute, and may give such directions with regard to that inspection as the Court considers necessary.
Section 18Verify source
§ 19Evidence of Zambian customary law and assessorsProvision

The Court may call a knowledgeable person or chief as an assessor on Zambian customary law, and the assessor must advise the Court and take the prescribed oath.

19. (1) The Court may, in any matter in which a question of Zambian customary law is material to the matter— (a) call as a witness a person whom the Court considers to have special knowledge of Zambian customary law; (b) call a chief or person, to the Court’s assistance, as an assessor of Zambian customary law; or (c) consult and, to the extent necessary, give effect to any book or publication which the Court considers to be an authority on Zambian customary law. (2) An assessor called as a witness under subsection (1) shall advise the Court on all matters of Zambian customary law, which may arise in the matter concerned, and tender the assessor’s opinion to the Court on the matter generally, but in reaching its decision the Court is not bound by the assessor’s opinion. Constitutional Court [No. 8 of 2016 367 (3) An assessor called under subsection (1) shall be paid such fees and allowances as the Chief Justice may prescribe, with the approval of the Minister responsible for finance. (4) The fees and allowances under subsection (3) shall be paid out of the Consolidated Fund unless the Court orders otherwise. (5) An assessor called under this section shall take an oath prescribed in the rules.
Section 19Verify source
§ 20Record of evidence, etcProvision

A party to a matter before the Court may get a copy of the record of evidence if the required fee is paid. Other persons do not have an automatic right to inspect the record or the Court’s notes, unless the rules expressly allow it.

20. (1) A party to a matter before the Court is, on payment of such fee as may be prescribed by the rules, entitled to a copy of the record of evidence given in that matter. Record of evidence (2) Despite subsection (1), a person is not entitled, as of right at any time or for any purpose, to inspect a copy of a record of evidence given in a matter before the Court, or to a copy of the notes of the Court, except where expressly provided by the rules.
Section 20Verify source
§ 21Recording of proceedingsProvision

Proceedings in a matter before the Court must be taken down and recorded according to the rules.

21. The proceedings in a matter before the Court shall be taken down and recorded in a manner prescribed by the rules.
Section 21Verify source
§ 22PerjuryOffence

If the Court thinks a person committed perjury in a proceeding before it, it may require that person to show cause, and if no cause is shown the Court must convict.

22. (1) Where it appears to the Court that a person has committed perjury in any proceeding before the Court, the Court may call that person to show cause why the person should not be convicted for perjury. (2) Where a person fails to show cause why the person should not be convicted for perjury, the Court shall convict the person. (3) A person convicted under subsection (2) is liable to a fine not exceeding fifty thousand penalty units or imprisonment for a term not exceeding six months, or to both. (4) A penalty imposed under this section is a bar to any other criminal proceedings in respect of the same offence. Recording of proceedings Perjury PART IV APPEAL
Section 22Verify source

Part

PART IV

§ 23Right of appealProvision

An appeal may be brought to the Court from a High Court judgment in a constitutional matter, and from a tribunal judgment.

23. (1) Subject to Article 28 of the Constitution and section twenty-four, an appeal shall lie to the Court from a judgment of the High Court in a constitutional matter. Right of appeal Cap. 1 (2) An appeal shall lie to the Court from a judgment of a tribunal.
Section 23Verify source
§ 24Restrictions on appealsProvision

This section limits appeals from several kinds of orders unless leave is granted, with a few listed exceptions.

24. (1) An appeal shall not lie— (a) from an order allowing an extension of time for appealing from a judgment; Restrictions on appeals 368 No. 8 of 2016] Constitutional Court (b) from an order of a judge of the Court giving unconditional leave to defend an action; (c) from a judgment given by the High Court in the exercise of its appellate or revisional jurisdiction without the leave of the High Court or, if that has been refused, without the leave of the Court; (d) from an order made with the consent of the parties or from an order as to costs only which by law is left to the discretion of the court or tribunal without the leave of the court or of the judge who, or tribunal which, made the order or, if that has been refused, without the leave of a judge of the Court; or (e) from an order made in chambers by a judge of the High Court or by a tribunal, or from an interlocutory order or interlocutory judgment made or given by a judge of the High Court or by a tribunal, without the leave of that judge or, if that has been refused, without the leave of a judge of the Court, except in the following cases: (i) where the liberty of the subject or the custody of infants is concerned; or (ii) where an injunction is granted or refused. Powers of Court on appeal (2) An order refusing unconditional leave to defend an action is not an interlocutory order or interlocutory judgment within the meaning of subsection (1)(e).
Section 24Verify source
§ 25Powers of Court on appealAmendment

On appeal, the Court may change the judgment, take further evidence steps, send the case back, or order a new trial.

25. (1) The Court may, on the hearing of an appeal— (a) confirm, vary, amend or set aside the judgment appealed from or give such judgment as the case may require; (b) where necessary or expedient in the interest of justice— (i) order the production of a document, exhibit or other thing connected with the proceedings, the production of which appears to the Court necessary for the determination of the case; (ii) order a witness who would have been a competent and compellable witness at the trial to attend and be examined before the Court, whether the witness was or was not called at the trial, or order the examination of the witness to be Constitutional Court [No. 8 of 2016 369 conducted in the manner provided by the rules before any judge of the Court or before an officer of the Court or other person appointed by the Court for the purpose, and allow the admission of a deposition so taken before the Court; (iii) receive the evidence, if tendered, of any witness or party who is a competent but not compellable witness, and if a party makes an application for the purpose, of the spouse of that party in cases where the evidence of the spouse could not have been given at the trial except on application to the trial court or tribunal; or (iv) remit the case to the High Court or tribunal for further hearing, with instructions regarding the taking of further evidence or otherwise, as necessary; or (c) set aside the judgment appealed against and order a new trial to be held where the Court determines that a new trial should be held. (2) The Court shall, where the Court gives instructions for the taking of further evidence under subsection (1)(b)(iv), make an order to allow the parties to the proceedings to examine a witness whose evidence is taken. PART V GENERAL PROVISIONS
Section 25Verify source

Part

PART V

§ 26Registrar and officers of CourtProvision

The Judicial Service Commission must appoint a Registrar of the Court and necessary officers. The Registrar is responsible for day-to-day Registry administration and must administer oaths and other functions prescribed by the Chief Justice or directed by special court order.

26. (1) The Judicial Service Commission shall appoint a Registrar of the Court and such other officers as may be necessary to give effect to the provisions of this Act. Registrar and officers of Court (2) The Registrar shall— (a) be responsible for the day-to-day administration of the Registry; and (b) administer oaths and perform such other functions as the Chief Justice may, by rules, prescribe or as may be directed by a special order of the Court.
Section 26Verify source
§ 27Establishment of RegistryProvision

The Court Registry must be located at Lusaka.

27. The Registry of the Court shall be at Lusaka. Establishment of Registry 370 No. 8 of 2016] Constitutional Court Administration of oaths Warrant for production of appellant before Court
Section 27Verify source
§ 28Administration of oathsProvision

The Court or a judge of the Court may require and administer an oath for this Act.

28. (1) The Court or a judge of the Court may require and administer an oath for purposes of this Act. (2) The form of an oath shall be as prescribed in the rules.
Section 28Verify source
§ 29Warrant for production of appellant before CourtProvision

A judge of the Court may issue a warrant to bring an appellant to the appeal hearing in limited custody-related circumstances.

29. When the presence of an appellant who is in custody in a habeas corpus matter is necessary or desirable at the hearing of an appeal or where the appellant exercises the right to be present at the hearing of the appeal, a judge of the Court may issue a warrant for the production of the appellant at the appeal. Costs
Section 29Verify source
§ 30CostsProvision

The Court may award costs in proceedings under this Act.

30. The Court has discretion to award costs in any proceedings under this Act. Rules of Court
Section 30Verify source
§ 31Rules of CourtProvision

The Chief Justice may make court rules by statutory instrument and may issue practice directions.

31. (1) The Chief Justice may, by statutory instrument, make rules for regulating— (a) the practice and procedure of the Court and with respect to appeals to, or reviews by, the Court; (b) the time within which any requirement of the rules is to be complied with; (c) the costs of, and incidental to, any proceedings in the Court; (d) the fees to be charged in respect of proceedings; and (e) any other matter which is necessary for purposes of this Act. (2) The Chief Justice may issue practice directions for the better carrying out of the rules. Transitional provisions Cap. 1
Section 31Verify source
§ 32Transitional provisionsCommencement

Pending proceedings in the High Court and pending appeals in the Supreme Court continue in those courts.

32. (1) Proceedings pending before the High Court which, under the Constitution are required to be commenced before the Court, shall continue to be heard and determined by the High Court. Cap. 1 (2) An appeal pending before the Supreme Court which, under the Constitution, is required to be heard by the Court shall continue to be heard and determined by the Supreme Court.
Section 32Verify source

Legislative relationships

3 referenced instruments

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A–F

3 instruments

  • Court (2) Subject to the provisions of this Act

    Section 4

  • Court and such other officers as may be necessary to give effect to the provisions of this Act

    Section 26

  • Court may require and administer an oath for this Act

    Section 28

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