The history of this appeal is that the Petitioner, the Law Association of Zambia, filed, into court, a petition pursuant to the following
provisions: the Protection of Fundamental Rights Regulations of 1969; Articles 1, 23, 28, 44, 76 and 94 of the Constitution of Zambia, Cap. 1 of the
Laws of Zambia; Section 25 of the Electoral Act No. 12 of 2006; and the Electoral Commission Act, Cap. 17 of the Laws of Zambia.
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The Petition contained detailed grounds and thirty-four paragraphs of reliefs sought. The Petitioner prayed for declarations that
Section 25(1) of the Electoral Act No. 12 of 2006, to the extent of which it purports to confer power on the President to determine the polling day, when Parliament is dissolved in
line with the provisions of Article 88 of the Constitution, violates and continues to violate Articles 23, 44 and 76(1) of the Constitution and hence null and void. The Petitioner also prayed for an Order that Section 25(1) of the Electoral Act No. 12 of 2006, to the extent to which it violates Articles 23, 44 and 76(1) of the Constitution is invalid, hence null and void; a declaration that the power vested in the Electoral Commission under Article 76(1) of the Constitution to conduct elections includes the power to set polling dates; and the Petitioner also prayed for an interim order restraining the
President from exercising the powers conferred on him under Section 25(1) of the Electoral Act No. 12 of 2006 until after the final determination of the matter or until further order of the Court.
Before the petition could be heard, the Petitioner filed an Ex parte application pursuant to Article 28 of the Constitution for an interim order to restrain the President from exercising the power to set polling dates conferred on him by Section 25(1) of the Electoral Act No. 12 of 2006. The application
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was supported by an affidavit. The Court, however, decided to hear the application inter parties.
But before the application for an interim order could be heard inter parties, the Attorney-General filed a notice to raise four preliminary
issues; namely: (1) that Act No. 12 of 2006 is not in force and consequently no cause of action has been disclosed against the Respondent; (2) that the restraining order or
injunctive relief being sought is not tenable in view of Section 16 (i)(ii) of the State Proceedings Act, Cap. 71 of the Laws of Zambia; (3) that the Petitioner herein has no locus standi to proceed under Article 28 of the Constitution because there is no discrimination against it in terms of Article 23 of the Constitution, further that the petition does not fall within public interest litigation; and (4) that the Petitioner ought to have commenced an
action for statutory interpretation by way of an Originating Summons and not by petition. On the basis of the preliminary issues
set out in (1), (2), (3) and (4) above, the Respondent applied for the dismissal of the application for a restraining order or injunctive
relief and the dismissal of the whole petition for incompetence.
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The learned Judge heard and considered the arguments and submissions on the preliminary issues. He dismissed the preliminary issues
on the validity of the Electoral Act No. 12 of 2006; on the locus standi of the Petitioner and on the commencement of the action by an originating summons.
The Court upheld the preliminary issue that the restraining order or injunctive relief
being sought was not tenable in view of Section 16(i) and (ii) of the State Proceedings Act, Cap 71 of the Laws of Zambia.
The Respondent appealed against the dismissal of the three preliminary issues, while
the petitioner cross-appealed on the preliminary issue upheld by the trial Judge.
The Respondent filed a memorandum of appeal containing three grounds; namely: (1) that the trial Judge misdirected himself when he
held that the Petitioner is any person described in Article 28(1) of the Constitution and it therefore featured that the Petitioner had locus standi to commence the action under Article 28(1) of the Constitution, but in the same vein hold that whether there is discrimination against the Petitioner to warrant it commencing the proceedings is
an issue that could be determined during the hearing of the main action; (2) that the trial Judge below erred in law when he held
that
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since the matters raised by the Petitioner are constitutional or touch on the Constitution, the action was properly commenced by way
of petition; and (3) that the trial Judge misdirected himself when he held that the petition was properly commenced by way of a petition
because the Petitioner was also seeking declaratory orders.
The Respondent filed written heads of argument and authorities based on the three grounds of appeal.
The gist of the written heads of argument on ground one, relating to locus standi of the Petitioner, was that Article 28(1(a) of the Constitution as couched was in clear terms that a person must demonstrate that he or she has been or is likely to be directly affected by the
right alleged to be infringed or violated under Articles 11 to 23 of the Constitution; and that in the present case, the right being alleged is the right not to be discriminated against under Article 23 of the Constitution. It was submitted that the discrimination was, on the face of the record, not demonstrated by the Petitioner.
On the question of being directly affected, the case of Attorney- General v. Lawrence (1) was cited in which the Court of Appeal of St. Christopher and Nevis Court held, inter alia that:
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“No one but whose rights are directly affected by a law can raise the question of the constitutionality of that law. A corporation
has a legal entity separate from that of its shareholders. Hence, in the case of a corporation, whether the corporation itself or
the shareholders would be entitled to impeach the validity of the statute will depend upon the question whether the rights of the
corporation or of the shareholders have been affected by the impugned statute.”
It was submitted that the Petitioner was not directly affected by Section 25(1) of Act No. 12 of 2006.
Further or in the alternative, it was argued that it was necessary for the trial court to have determined or inquired into the issue
of discrimination vis a viz locus standi at the preliminary stage with the possibility of the petition ending there and then if found that discrimination against the Petitioner
was not present.
On the question of determination of actions on the preliminary issue either in part or whole if the preliminary point is upheld and
especially if it goes to the root of the matter, the subject of the proceedings, the case of Kalyoto Mahalyo Paluku v. Granny’s Bakery Limited, Ishaq Musa,
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Attorney- General and Lusaka City Council,(2) was cited. It was submitted that it was patently clear from the record that the President, who exercises a statutory function under
Section 25(1) of Act No. 12 of 2006, was not in a situation analogous to that of the Petitioner for discrimination to stand and for the Petitioner to have locus standi under Article 28 of the Constitution. The case of Wandworth London Borough Council v. Michalak(3) was cited in support of the submissions. It was further submitted that the Petitioner was and is not a political party with the right to participate in an election envisaged
in 
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