SILUNGWE,
C.J.:
delivered the judgment of the Court.
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This
appeal arises out of a decision of the High Court wherein the
appellant's joint petition under art. 29, of the Constitution
was
dismissed.
The
background information of this case is that the first and second
appellants (hereinafter referred to as the appellants)
were duly
elected as members of the National Assembly for Chikankata and
Mazabuka Parliamentary Constituencies on 27th
November,
1988, under a one-party system which was introduced in Zambia at
the dawn of the Second Republic on 20th
December, 1972. Under art. 4 of the Second Republic Constitution,
the only political party recognised in the country was
the United
National Independence Party (hereinafter referred to as
''UNIP'').
The
then art. 4 of the Constitution read as follows:
''
4 (1) There shall be one and only one political party or
organisation in Zambia, namely, the United National Independence
Party (in the Constitution referred to as 'the Party').
(2)
Nothing construed in this Constitution shall be so construed as
to entitle any person lawfully to form or attempt to
form any
political party or organisation other than the Party, or to
belong to, assemble or associate with or express opinion
or to do
any other thing in sympathy with, such political party or
organisation.
(3) . .
. .''
And
art. 13 is in these terms:
''13 It
is recognised and declared that every person in Zambia has been
and shall continue to be entitled to the fundamental
rights and
freedoms of the individual, that is to say, the right, whatever
his race, place of origin, political opinions,
colour, creed or
sex, but subject to the limitations contained in art. 4 and in
this Part, to each and all of the following,
namely:
(a) Life,
liberty, security of the person and protection of the law;
(b) Freedom
of conscience, expression, assembly and association, and
(c) Protection
for the liberty of home and other property and from deprivation
of property without compensation;
and
the provisions of this Part shall have effect for the purpose of
affording protection to those rights and freedoms subject
to such
limitations of that protection as are contained in art. 4 and in
those provisions, being limitations designed to
ensure that the
enjoyment of the said rights and freedoms by any individual does
not prejudice the rights and freedoms
of others for the public
interest.''
On
17th
December, 1990, Act. 20 of that year was signed by the President,
thereby ushering in constitutional changes one of which - in
fact the most
crucial - was the reintroduction, once again, of
a multi-party system of government. Under the said Act. 20, the
old
art. 4 was repealed and a new art. 4A was introduced. This
article provides that:
''4A.
Notwithstanding the repeal of art. 4:
(a) The
institutions and the organs of the Party recognised under this
Constitution shall continue to exist until the next
dissolution
of Parliament; and
(b) Any
party formed as a consequence of the repeal of art. 4 shall only
participate in an election to the National Assembly
after the
next dissolution of Parliament.''
Following
the repeal of art. 4, the appellants tendered their resignation
from UNIP and became members of the Movement for
Multi-Party
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Democracy
(MMD) - a new political party that was formed on 20th
December, 1990.
In
an effort to forestall any possible action that might be taken to
remove them from Parliament, having relinquished their
membership
of UNIP, the appellants petitioned the High Court and prayed for
a declaration:
(a) That
the application to them of art. 71(2)(b) will contravene their
fundamental human rights as recognised under arts.
13, 22, 23 and
25 and that the said art. 71(2)(b) is, therefore, null and void;
(b) That
notwithstanding their resignation from UNIP, they will not be
required to vacate their respective seats in the
National
Assembly, and
(c) That
the current holders of the office of the Prime Minister and those
Cabinet Ministers of State who are nominated
members of
Parliament ceased constitutionally to be members of the National
Assembly and to hold their respective offices
from 17th
December, 1990, when the said Act came into force and that their
continued pretence to the said offices is unlawful.
In
regard to (a) and (b) above, the High Court found that, as the
petitioners had been elected to the National Assembly
by virtue
of their membership of UNIP and were fully aware that the
retention of their seats in the National Assembly was
dependent
upon their continued membership of UNIP, they cannot be heard to
complain against discrimination under arts.
13, 22 and 25 of the
Constitution as their resignation was an act of their own making.
On this basis, the High Court held
that the provisions of arts.
67(c) and 71(2)(b) do not contravene any of the fundamental
rights recognised under arts.
13, 22, 23 and 25 of the
Constitution and that the petitioners had automatically vacated
their seats in the National Assembly
when they ceased to be
members of UNIP on 1st
January, 1991.
The
High Court then considered (c) above and came to the conclusion
that, although the new art. 54 of the Constitution abolished
the
office of nominated member of the National Assembly, the position
of existing nominated members was nonetheless preserved
by art.
4A because they were members of the National Assembly which was
one of the institutions and organs of the Party
recognised under
the Constitution and which was allowed to continue until the next
dissolution of Parliament.
On
appeal, Mr
Mwanawasa,
learned counsel for the appellants, has argued three grounds
which we shall now consider.
In
the first ground, it is contended that the learned trial judge
misdirected himself in law by defining the expression
'the Party'
as meaning the United National Independence Party (UNIP) and
that membership of UNIP is, therefore, a pre-requisite
for
membership of the National Assembly under the provisions of arts.
4A, 67(c) and 71(2)(b) of the Constitution.
Article
67 sets out the qualifications for a person to be elected to the
National Assembly and provided, inter alia, under
paragraph (c)
that such a person must be a member of the Party. Article
71(2)(b) provides that a member shall vacate his
seat if he
ceases to be a member of the Party.
This
ground will be discussed in two parts: the first and main part
will
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relate
to the interpretation of the expression ''the Party'' under art.
4A(a) of the Constitution; and the second to the
interpretation
of art. 4A(b).
According
to Mr Mwanawasa's
submission, the expression ''the Party'' is not a reference to
UNIP only but also to any other political party because,
if the
reference were to be attributed to UNIP alone, this would create
confusion and conflict in that it would abolish
the right of an
individual who is not a member of UNIP to be elected to, or to
remain a member of, the National Assembly
in terms of arts. 67(c)
and 71(2)(b) of the Constitution. It is argued, moreover, that
the recognition of UNIP was removed
when art. 4 was repealed.
It
is not in dispute that the expression ''the Party'' under the
repealed art. 4 meant UNIP. As previously stated, clause
(1) of
the article recognised the establishment of 'one and only one
political party or organisation in Zambia, namely,
the United
Independence Party (in the Constitution referred to as "the
Party'').
Mr
Mukelabai,
learned State Advocate for the respondent, has rightly drawn
attention to s. 16 of the Interpretation and General Provisions
Act, Cap. 2, which reads:
''16.
When one written law amends another written law, the amending law
shall, so far as it is consistent with the tenor
thereof, be
construed as one with the amended written law.''
In
a limited context, we agree that art. 4A is consistent with the
tenor of art. 4 and that, as such, the two provisions
should be
construed as one. Under art. 4, UNIP was referred to as ''the
Party'' using a capital ''P''. And so did, and
still do, other
provisions of the Constitution, including the now art. 4A(a).
Actually, art. 4A(a) states that:
''4A(a)
the institutions and organs of the Party recognised under this
Constitution shall continue to exist until the next
dissolution
of Parliament.''
Firstly,
the phraseology: ''shall continue to exist until . . .'' can, and
does, only refer to the institutions and organs
of the only
political party then existing, namely, UNIP, since only something
that is already in existence can ''continue
to exist'', while
something that is non-existent can merely start to exist. This is
elementary logic. Secondly, Mr Mwanawasa
argues
that organs and institutions of UNIP, such as the Central
Committee, the National Council, and the General Conference
(now
Congress) are referred to in other parts of the Constitution but
that this reference is not a recognition of the Party,
it is a
recognition of its organs and institutions only. We are unable to
accept this argument as a recognition of UNIP's
organs and
institutions is tantamount to a recognition of UNIP itself since
its organs cannot exist in a vacuum. Indeed,
reading the
Constitution as a whole, any reference to the Party with a
capital ''P'' is a reference to UNIP.
We
are satisfied that the expression ''the Party'' in art. 4A(a)
means UNIP and that the learned trial judge did not misdirect
himself on this issue. This ground falls.
This
brings us to the second part of the first ground, namely, the
interpretation of art. 4A(b). As we have observed, clause
(b)
stipulates that:
''(b)
Any party formed as a consequence of the repeal of art. 4 shall
only
p51
participate
in an election to the National Assembly after the next
dissolution of Parliament.''
The
clause clearly purports to bar or exclude any political party
(note here the use of a small ''p'' in the expression
''any
party'') other than UNIP from participation in a by-election
prior to the dissolution of the present Parliament.
This
prohibition applies peculiarly to political parties only (other
than UNIP); it has no application to individuals
as such. There
is no prohibition against the participation of any independent
candidate in an election to the National
Assembly before (or
after) the dissolution of the current Parliament. For this
purpose, an independent candidate may be
a member of a political
party who stands as an unofficial candidate of his party; or a
person who does not belong to any
political party.
On
this point, we would agree with Mr Mwanawasa
but
it does not affect our finding above as to the meaning of the
term ''Party''.
The
second ground is that, since arts. 4A, 67(c) and 71(2)(b) are in
conflict with the fundamental human rights recognised
under
arts. 13, 22, 23 and 25 of the constitution, the latter should
prevail over the former. Articles 67(c) and 71(2)(b)
provide
that:
''67.
Subject to the provisions of the art. 68, a person shall be
qualified to be elected or nominated as a member of the
National
Assembly if, and shall not be qualified to be so elected or
nominated unless:
(c) He
is a member of the Party.
71(2)
Any member of the National Assembly shall vacate his seat in
the Assembly:
(b) If
he ceases to be a member of the Party.''
It
is argued on behalf of the appellants that arts. 4A, 67(c) and
71(2)(b) are discriminatory in themselves and in their
effect
because, by depriving non-members of UNIP the right to contest
Parliamentary elections and the right to remain members
of the
National Assembly, these provisions confer upon members of UNIP
privileges and advantages which are denied to non-members
of that
Party. Further, it is argued that the said provisions subject
non-UNIP members to disabilities or restrictions
to which UNIP
members are not made subject. Mr
Mwanawasa
urges us to find that arts 67(c) and 71(2)(b) are either null and
void or ineffectual, and that it could not have been
the
intention of Parliament to give the rights under arts. 13, 22, 23
and 25, only to have them taken away by arts. 67(c)
and 71(2)(b).
Like
the first ground, this one will also be divided into two parts,
that is whether, in light of art. 4A, arts. 67(c) and
71(2)(b)
are in conflict with arts. 13, 22, 23 and 25; and, if this is so,
whether arts. 67(c) and 71(2)(b) are discriminatory
either in
themselvesor in their effect.
In
the first place, arts. 13, 22, 23 and 25 all fall under Part III
of the Constitution which guarantees the protection
of
fundamental rights and freedom of the individual. Article 13
relates to fundamental rights and freedoms; art. 22 to
the
protection of freedom of expression; art. 23 to the protection of
freedom of assembly and association; and art 25 to
the protection
from discrimination on the grounds of race, tribe, place of
origin, political opinions, colour or creed.
For the purpose of
this case, it will suffice to set out clauses (1), (2) and (3) of
art. 25:
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''25 (1)
Subject to the provisions of clauses (4), (5) and (7), no law
shall make any provision that is discriminatory either
in itself
or in its effect.
(2)
Subject to the provisions of clauses (6), (7) and (8), no person
shall be treated in a discriminatory manner by any
person acting
by virtue of any law or in the performance of the functions of
any public office or any authority.
(3)
In this article, the expression 'discrimination' means affording
different treatment to different persons attributable
wholly or
mainly to their respective descriptions by race, tribe, place
of origin, political opinions, colour or creed
whereby persons of
one such description are subjected to disabilities or
restrictions to which persons of another such
description are not
made subject or are accorded privileges for disadvantages which
are not accorded to persons of another
such description.''
There
can be no doubt that art. 4 restricted the fundamental rights and
freedoms of the individual as enshrined in arts.
13, 22, 23 and
25. But when art. 4 was repealed, those fundamental rights and
freedoms were revived and given their full
effect. Consequently,
arts. 67(c) and 71(2)(b) are now in conflict wit those
fundamental rights and freedoms guaranteed
by arts. 13, 22, 23,
25 and are, therefore, ineffective.
Secondly,
and as the first question has been resolved in the affirmative,
it is necessary to determine whether arts. 67(c)
and 71(2)(b) are
discriminatory. As art. 4 which imposed restrictions on arts. 13,
22, 23 and 25, has since been repealed,
it is manifest that
arts. 67(c) and 71(2)(b) have become discriminatory in themselves
and in their effect, vis-Ã -vis
the provisions of art. 25(1), (2)
and (3), in that they restrict the rights of individuals to sit
in the National Assembly
unless they are members of UNIP.
As
the appellants' petition prays for a declaration that they
continue to remain as members of the National Assembly, despite
their resignation from UNIP, and art. 71(2)(b) is discriminatory
against them and, therefore, ineffective, now that art.
4 has
been repealed, we accordingly grant the declaration sought. The
appellants will thus continue to sit in the National
Assembly as
independent members for the duration of the existing Parliament,
notwithstanding their resignation from UNIP.
The
third and final ground is that the learned trial judge erred in
law in holding that the National Assembly was an institution
or
organ of UNIP recognised under the Constitution; and that as
such, nominated members of the National Assembly were entitled
to
continue to be members of the National Assembly, despite the
amendment to art. 54. By Act. 20 of 1990, art. 64 of the
Constitution was repealed and replaced. The repealed article
provided that:
''64.
The National Assembly shall consist of:
(a) One
hundred and twenty-five elected members; and
(b) Such
nominated members as may be appointed under art. 56; and
(c) The
Speaker of the National Assembly.''
The
new and present art. 64 reads:
''64.
The National Assembly shall consist of -
(a) One
hundred and fifty elected members; and
(b) The
Speaker of the National Assembly.''
The
findings of the learned trial judge on this issue were that :
(a)
By repealing art. 64, the intention of Parliament was to
increase the number of
p53
elected
members from one hundred and twenty-five to one hundred and
fifty;
(b) By
omitting to include nominated members from being part of the
National Assembly, the intention was to do away
with nominated
members; and
(c) Since
the effect of the new art. 64 was to, and did expressly,
abolish the position of nominated members, art. 66,
which makes
provision for the President to appoint up to a maximum of ten
nominated members, was superfluous and contrary
to the spirit
of the new article.
We
accept these findings as having been properly made. As the old
art. 64 established (inter
alia)
the office of nominated member, its repeal automatically
abolished that office since the new art. 64 makes no provision
for nominated members. Although art. 65 was not repealed, its
provisions were rendered otiose as their efficacy was dependent
on the repealed art. 64. The learned trial judge was, therefore,
correct to hold that nominated members can no longer be
appointed
since 17th
December, 1990 when the old art. 64 was repealed.
However,
it was a misdirection to hold that there was no need for
nominated members to vacate their seats as art. 4A(a)
of the
Constitution makes provision 'for the continuation of existing
institutions and organs of the Party until the next
dissolution
of Parliament.
It
seems to us that there was a misunderstanding on the part of the
learned trial judge with regard to the expressions ''existing
institutions and organs of the Party recognised under this
Constitution'', on one hand, and ''institutions recognised under
art. 68 of the Constitution'', on the other. This would seem to
be the position because, at page 49 of the record of appeal,
the
following extract from the judgment appears:
''The
National Assembly is one of the institutions recognised under
art.68 of the Zambian Constitution.''
Unquestionably,
the National Assembly is not an institution or organ of the
''Party'': it is one of the three important
organs or pillars of
Government, namely, the executive, the Legislature and the
judiciary.
As
to whether or not the existing nominated members should continue
to sit in the National Assembly, we are satisfied that,
as they
were properly appointed under the provisions of art. 66 and of
the old art. 64, they do not automatically cease
to be members of
the National Assembly on repeal of the old art. 64 because the
Constitution makes provision for the termination
of their
appointment by the President. In the circumstances, all current
members of the National Assembly, whether elected
or nominated,
are entitled to continue to sit in the National Assembly until
the dissolution of the current Parliament
or, in the case of
nominated members, their nomination is revoked by the President
under the provisions of art. 71(2)(b)
of the Constitution.
What
the appellants seek here is a declaration that the current
holders of the office of the Prime Minister and those Cabinet
Ministers of State who are nominated members of the National
Assembly ceased constitutionally to be members of the National
Assembly and to hold their respective offices from 17th
December, 1990, when Act. 20 of
p54
1990
came into force and that their continued pretence to the said
offices is unlawful. However, on the basis of what we
have said
in relation to the third ground, the declaration sought is
refused.
Having
regard to the fact that, of the two issues in this appeal, the
appellants are successful in one but unsuccessful
in the other,
we make no order as to costs.
Appeal
allowed in part.
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