3rd Zambia Moot Court Competition

University of Lusaka
17 18 November 2016
______________________________________________________________________________
IN THE COURT OF APPEAL
FOR ZAMBIA

IN THE MATTER BETWEEN

NATIONAL WOMEN'S EMPOWERMENT GROUP

APPELLANT
AND
THE ATTORNEY GENERAL
RESPONDENT

______________________________________________________________________________
NOTICE OF APPEAL

The above named appellants, appeal to the Court of Appeal against the whole judgment in the
case of National Women Empowerment Group v The Attorney General on the following grounds
namely:
GROUNDS: (see attached) here we have set out what part of the judgment we wish to ratify.

Dated at Lusaka the..Day of 2016

IN THE COURT OF APPEAL FOR ZAMBIA

IN THE MATTER BETWEEN
NATIONAL WOMEN EMPOWERMENT GROUP

APPELLANTS

AND
THE ATTORNEY GENERAL

RESPONDENT

(Civil Jurisdiction)

IN THE MATTER OF:

ARTICLE 28(1) OF THE CONSTITUION OF ZAMBIA,

CHAPTER 1 OF THE LAWS OF ZAMBIA

and
IN THE MATTER OF:

ARTICLE 15 OF THE CONSTITUTION OF ZAMBIA,

CHAPTER 1 OF THE LAWS OF ZAMBIA

and
IN THE MATTER OF:

ARTICLE 12(1) OF THE CONSTITUTION OF ZAMBIA,

CHAPTER 1 OF THE LAWS OF ZAMBIA

and
IN THE MATTER OF:

ARTICLE 21 OF THE CONSTITUTION OF ZAMBIA,

CHAPTER 1 OF THE LAWS OF ZAMBIA

and
IN THE MATTER OF:

ARTICLE 23 OF THE CONSTITUTION OF ZAMBIA,

CHAPTER 1 OF THE LAWS OF ZAMBIA

IN THE MATTER OF:

A PETITION

BETWEEN:
NATIONAL WOMENS EMPOWERMENT GROUP (NWEG)Petitioner
AND
THE ATTORNEY GENERAL

Respondent
RECORDS OF APPEAL

THE PETITION OF NATIONAL WOMENS EMPOWERMENT GROUP showeth that:

1. Your Petitioner is National Women Empowerment Group

2. Your Petitioner is a Non-Governmental Organization founded in 1991, following

Zambias transition from a one-party state to a multi-party democracy, by a group of 100
womens rights activists protesting the lack of equal representation in all levels of the
Zambian government.
3. Your Petitioner was accordingly registered under Section 7(1) of the Societies Act Cap.
119 of the Laws of Zambia
4. Your Petitioner since its inception, has become one of the leading forces for womens
rights in Zambia, and has been formally recognized by the government as the lead NGO
for these issues.
5. Your Petitioner has made the Respondent a party to this petition pursuant to Section 12(1)
of the State Proceedings Act Cap. 71 of the Laws of Zambia.
6. Your Petitioner in a Press briefing that appeared on all print and electronic media
sometime in 2015 the Petitioner, stated that As NWEG we have gathered empirical data
through research that in Zambia, women and girls suffer from widespread and multiple
forms of violence. It takes place in the home, on the streets, in schools, the workplace,
during conflict and in time peace. It manifests itself in its most prevalent forms of
domestic and sexual violence. This violence prevents women and girls around the world
to live in dignity, violates their fundamental human rights and impedes them from
achieving their full potential. It is one of the most potent obstacles to the advancement of
women, has social and economic costs and seriously jeopardizes the progress and
prosperity of the world. Adopting the strong laws, backed by implementation and services
for protection and prevention, is vital to guaranteeing respect for the fundamental rights
of women and girls, most notably their right to security and to a lie of violence.
7. On or about 16 March 2016 Political Cadres from a known Ruling Political Party stripped
naked a female cadre, PriscaNamonga, during Youth Day celebrations at the Freedom
Statue in Lusaka. The act was strongly condemned by the womens movement in the
form of both the Non-Governmental Organisations Coordinating Council (NGOCC) and

the Women for Change (WfC). The two organisations called it barbaric, lawless, an
affront to democracy, and pointed out that it was unconstitutional. They therefore
demanded for the culprits to be brought to book, which should be relatively easy, as video
clip of the incident is circulating on social media. The NGOCC also demanded an
apology from the said ruling party. Later in the week, Namonga lodged an official
complaint with the police: I was stripped naked in full view of police officers; they
happily watched me as those stupid cadres took away my pride as a woman, she stated.
The police are yet to comment or react. So is government.
8. In another incident on 9 July 2016 Police in Lusaka killed one female supporter of the
Opposition United We Stand Party (UWSP) after they ambushed a group of supporters
that were marching on the Central Business District in protest of the cancelation of a
planned rally in Chimutengo Township South of Lusaka. ChibotuMonze was
prounounced dead on arrival at UTH and male UWSP cadre is seriously injured and
admitted to UTH. The NWEG called on the Inspector General of police NinshiChipasha
to immediately institute an inquiry into the killing of ChibotuMonze and ensure that the
officer who pulled the trigger is arrested. The Inspector General issued a brief response to
the effect that the Police used the maximum force required to stop the unruly opposition
members from violating the Public Order Act and the loss of the life though regretted
would be investigated. Three months down the line nothing has happened and we cannot
wait until kingdom come to do something about this.
9. On 6 October 2016 Police in Lusaka allegedly beat up the Proprietor of Kaya Radio
Station Ma. Peggy Kakoma. Ms Kakoma was beaten and and allegedly stripped naked by
three police officers on Wednesday in Kamwala area where the studios of kaya radio are
situated the NEW has expressed shock at the incident and charged that the behaviour of
the police was unacceptable.
10. In a Press Statement dated 10 October 2016, NWEG stated that we are appealed by the
latest incident of police brutality involving Ms. Kakoma on the evening of Wednesday
5th October 2016. It is unaccepted that three male armed police officers can resolve to
beating and stripping naked one woman as the only way of dealing with whatever
situation may have been threatening peace at the time. Ms. Kakoma is among the many

women who have fallen victim to police brutality in 2016. There is little or no
information in the public domain on punitive action, legally or otherwise taken against
the erring officers.
11. In Press Statement however, released on 11th October 2016 the State through the
Government State person Dr. Chimba Lukasu has clarified that the reported incidence of
violence are the resultant effect of the brazen provocation of the Police and the Ruling
Party by unscrupulous members of the public who think that they are beyond reproach.
The Police has power to use reasonable force to deal with civil disobedience and what is
reasonable is dependent on the situation at hand. Government shall not sit idle and
condone the violation the Public Oder Act or any form of civil disobedience. It is the duty
of Government to maintain law and order and in so doing there is always some collateral
damage. Any person aggrieved by the manner we are protecting the peace of this Country
can go anywhere or to any Court and we shall vigorously defeat our selves through the
competent office learned Attorney General
High Court verdict:
On 12th October 2016, the High Court of Zambia agreed with the learned Atorney General
that the complainant had no locus standi in the matter because the Petitioner was the victim
of the alleged brutality and fatality inflicted on the alleged victims suo motu the High Court
stated that with the passing of the Constitution of Zambia(Amendment) Act No. 2 of 2016
the jurisdiction to interpret and adjudicate on matters of the Constitution is vest absolutely in
the Constitutional Court and therefore his hands are shackled to deal with this matter and
issue the orders sought of him. The High Court further held that even on the merits of the
case he was satisfied that-in the case of Prisca Namonga the Complainant hadnot
demonstrated a cause of action against the state because the alleged assault was inflicted on
the alleged victim by a member of a Political Party and the State cannot be held responsible
for the acts of a Political Party with regard Chibotu Monzi and Peggy Kakoma, the judge
stated that the duo have themselves to blame because they provocate the Police and the
Police used reasonable force to avert the imminent danger or mischief paused by the duo
respectively which mischief is the conduct that is likely to cause breach of peace.

3 rd Zambia Moot Court Competition

University of Lusaka
17 18 November 2016
_____________________________________________________________________________________
IN THE COURT OF APPEAL

FOR ZAMBIA

IN THE MATTER BETWEEN

NATIONAL WOMEN'S EMPOWERMENT GROUP

APPELLANT
AND
THE ATTORNEY GENERAL
RESPONDENT

_____________________________________________________________________________________
MEMORANDUM OF APPEAL

GROUND ONE
The Court below erred in law and in fact in holding that the Petitioner had no locus standi in the
matter.
GROUND TWO
The Court further misapprehended the law and fell into grave error by holding that the
Constitution of Zambia (Amendment) Act No. 2 of 2016 vests absolute power for interpretation
of the Constitutional Court and therefore, his hands are shackled
GROUND THREE
The Learned Court below erred in law and in fact when it held that there was no cause of action
against the State in the alleged assault against Prisca Namonga, during Youth Day Celebrations at
the Freedom Statue in Lusaka because the alleged assailants where members of a Political Party.
GROUND FOUR
The Court erred in law and in fact by not granting the prayers of the Petitioner as contained in
the endorsement to the Petition.

3rd Zambia Moot Court Competition

University of Lusaka
17 18 November 2016

______________________________________________________________________________
IN THE COURT OF APPEAL
FOR ZAMBIA

IN THE MATTER BETWEEN

NATIONAL WOMEN'S EMPOWERMENT GROUP

APPELLANT
AND
THE ATTORNEY GENERAL
RESPONDENT

______________________________________________________________________________
APPELLANTS HEADS OF ARGUMENTS
_____________________________________________________________________________

Per CAVENDISH UNIVERSITY ZAMBIA

CNR GREAT NORTH ROAD/WASHAMA ROAD
VILLA ELIZABETHA
LUSAKA
ADVOCATES FOR THE APPELLANT

May it please this honorable Court

The Appellants have four grounds of appeal as follows:

1. My Lords, the lower court erred in law and in fact when it held that the petitioner had no
locus standi in the matter.
2. My Lords, the trial court misapprehended the law and fell into grave err by holding that
the Constitution (Amendment Act No. 2 of 2016) of Zambia, (hereinafter referred to as
the Constitution) vests absolute power for interpretation of the constitution in the
Constitutional Court.
3. The learned court below erred in law and in fact when it held that there was no cause of
action against the State in the alleged assault of Prisca Namonga, during Youth Day
Celebrations at the freedom Statue in Lusaka because the Alleged assailants where
members of a political party.
4. My Lords, the trial Court misled itself in law and in fact by not granting the prayers of
the Petitioner as contained in the endorsement to the Petition.

GROUND ONE
My Lords, the National Women Empowerment Group (NWEG) is a society created under section
7 (1) of the Societies Act, CAP 119 of the Laws of Zambia (hereinafter referred to as the Act).
A society is defined under section 2(1) of the Act as any club, company, or other association of
ten or more persons whatever its nature or object, formed or established in Zambia, having its
headquarters within Zambia.
My Lords, the excess of case law defining the jurisprudence of Article 28, shows that locus
standiis not limited to victims whose human rights have been, are being or are likely to be
violated but extends to any person with sufficient interest in the matter. My Lords, Locus Standi
is the ability of the party to demonstrate to the court sufficient connection to the matter.
Article 28 (1), subject to clause (5), of the constitution of Zambia, states that if any person
alleges that any of the provisions of Articles 11 to 26 inclusive had been, is being or is likely to
be contravened in relation to him, then, without prejudice to any other action with respect to the
same matter which is lawfully available, that person may apply for redress to the High Court
which shall,
(a) hear and determine any such application;

(b) determine any question arising in the case of any person which is referred to it in
pursuance of clause (2);
and which may, make such order, issue such writs and give such directions as it may
consider appropriate for the purpose of enforcing, or securing the enforcement of, any of
the provisions of Articles 11 to 26 inclusive.
My Lords, in order to have capacity to commence an action under Article 28, one has to be a
person. A person, as defined under Article 266 of the Constitution of Zambia, includes a society
as defined under section 2(1) of the Act, in that Article 266, a person includes an individual, a
company, an association or body of persons, corporate or incorporate. Therefore, the petitioner,
being a society and constitutionally a person, has capacity and locus standi in the matter.
My Lords, we have to be alive to the fact that locus standi is the capacity of a party to bring an
action before the court, and that party must have sufficient interest in the matter. How the issues
of standing are decided have a bearing on who has access to the Courts. Therefore, Care needs to
be taken on how issues of standing are decided so that bonafide public interest litigations such as
this one are not rejected in the name of saving little or scarce judicial resources.
May I bring the Courts attention to the case of Attorney General v Law Association of Zambia
(2008) in which the Court held that; Article 28 of the Constitution does not require a person to
demonstrate that the matter complained of should directly affect them. In that case, the Court
observed that the Law Association of Zambia having regard to their objectives as provided in the
Law Association of Zambia Act had locus standi in the matter. Based on this holding, it can,
therefore, be contended that the appellant herein as an association whose objectives inter alia
include promoting respect for human rights of women through changes in attitudes, language,
procedure and laws, has locus standi in casu.
My Lords, in an English case of R v Secretary of State for Foreign Affairs Ex-parte World
Development (1995), a similar question was determined by the Court of Appeals.

The issue

before the Court of Appeals was whether an Organization other than an individual(s) affected
had sufficient interest in the matter. The Court, having regard to the merits of the challenge and
considering the importance of the issue raised and that there was absence of any other reasonable
challenge, held that the applicants had locus standi to make the applications. In arriving at that

decision, the Court had regard to the nature of the breach of the duty which the relief sought and
the prominent role of the applicants with national and international expertise and interest in
promoting and protecting the under-developed nations.
We, therefore, submit that this honorable court declares,
1. that the lower court erred in law and in fact in holding that the petitioner had no locus
standi in the matter
2. that the police were involved in extra judicial killing and therefore were in violation of
Article 12(1).

GROUND TWO
My Lords, the trial court misapprehended the law and fell into grave err by holding that the
Constitution (Amendment Act No. 2 of 2016) of Zambia, (hereinafter referred to as the
Constitution) vests absolute power for interpretation of the constitution in the Constitutional
Court.
My Lords, DIPLOCK, L.J. in Garthwaite v Garthwaite (1964) 2 ALL E.R. 233. (1) At pages 241
to 242 stated the following: "The High Court is the creation of statute, and its jurisdiction is
statutory further, in the case of Miyanda v The High Court (1984) Z.R. 62, the Court stated at
page 64 as follows, "The term "jurisdiction" should first be understood. In the one sense, it is the
authority which a Court has to decide matters that are litigated before it; in another sense, it is the
authority which a Court has to take cognizance of matters presented in a formal way for its
decision. The limits of authority of each of the Courts in Zambia are stated in the appropriate
legislation. Such limits may relate to the kind and nature of the actions and matters of which the
particular Court has cognizance or to the area over which the jurisdiction extends, or both.
May l draw the Courts attention to Article 134 of the Constitution which provides for the
jurisdiction of the High Court and it reads as follows:
The High Court has, subject to Article 128
(a) Unlimited and original jurisdiction in civil and criminal matters;

(b) Appellate and supervisory jurisdiction, as prescribed; and

(c) Jurisdiction to review decisions, as prescribed.
This tells us that, the High Court still retains certain jurisdictions to hear and determine matters
arising from the Constitution particularly those in the Bill of Rights as contained in Article 28
and matters that involve mala- administration of constitutional offices and Presidential Election
Petition lie to the Constitutional Court. Therefore, the trial judge in the Court below erred when
he stated that, the constitution vests all matters arising from the constitution to the
Constitutional Court, therefore his hands were shackled, and could not grant an order
declaratory of the Petitioners right as stated in section 16 of the State Proceedings Act, CAP 71
of the Laws of Zambia.
My Lords, the High Court is vested with powers to hear and determine the petitioners
application within Article 28.
My Lords, it is trite law that the primary rule of interpretation is that words should be given their
ordinary grammatical and natural meaning. Where there is ambiguity in the natural meaning of
the words and the intention of the legislature cannot be ascertained from the words used by the
legislature, then recourse can be had to other legal maxims and principles of interpretation.
May I take this honorable court to the case of Seaford Court Estates Ltd v. Asher (1949) 2 KB
481, were Lord Denning stated the following:
... in all cases now in the interpretation of statutes we adopt such a construction as will promote
the general legislative purpose' underlying the provision. It is no longer necessary for judges to
wring their hands and say: "There is nothing we can do about it." Whenever strict interpretation
of a statute gives rise to absurdity and an unjust situation, the judges can and should use their
good sense to remedy it by reading words in, if necessary, so as to do what Parliament would
have done, had they had the situation in mind."
In casu the High Court misapprehended the law in holding that the interpretation of the
Constitution is vested in the Constitutional Court and consequently, its hands were shackled.
My Lords, there is a plethora of authorities which have established the principles and rules of
constitutional and statutory interpretation that have been applied by the Zambian courts in either

their original or appellate jurisdiction. As illustrated in the case of the Attorney General v Nigel
Kasonde Mutuna and 2 Others- Appeal No. 088/2012in which the Supreme Court of Zambia
stated that there are a number of schools of thought on the legal interpretation of legal contexts.
The first school of thought provides that the legal interpretation of a legal context is totally
dependent on the nature of that legal context. This school of thought provides for example that
the system of interpretation which applies to the Constitutional interpretation is different from
the system of interpretation which applies to other legal documents such as wills, contracts,
deeds, etc. The other school of thought is known as the purposive system which is, that, there is a
general approach of interpreting all legal documents. In Zambia, our approach has been to apply
the first school of thought which is that the legal context of a document dictates the method of
interpretation. According to this approach, the primary rule of interpretation applicable in
construing the Constitution is that the words should be given the ordinary grammatical and
natural meaning and that it is only where there is ambiguity in the natural meaning of the words
used that the Court may resort to purposive interpretation of the Constitution."
Therefore, within the wording of Article 28, it is clear that the High Court has jurisdiction to hear
and determine any such application made by any person alleging that any of the provisions of
Articles 11 to 26 has been, is being or is likely to be contravened in relation to him.
We, therefore, submit that, the lower court misdirected its self by holding that, the Constitution
of Zambia (Amendment Act No. 2 of 2016) vests absolute power for interpretation of the
Constitution to the Constitutional Courts.
Prayer
In line with the provisions of Article 28 of the Constitution, the petitioner prays that this question
be remitted to the High Court for determination as it has jurisdiction over this matter.

GROUND THREE

The Learned Court below erred in law and in fact when it held that there was no cause of action
against the State in the alleged assault of Prisca Namonga, during Youth Day Celebrations at the
freedom Statue in Lusaka because the alleged assailants where members of a political party.
My Lords, as the record shows, the petitioner, in the original action, sought for an order of
prohibition for the State to put a stop to the violation of the rights and freedoms which are
contained under part III of the Constitution of Zambia and specifically, Article 15 which provides
for protection from torture, or inhuman or degrading punishment or like treatment against
citizens. Further, that the States failure to take positive measures to protect women and girls
from violence is a violation of Article 23 of the Constitution of Zambia.
The said petition, My Lords, was premised on facts including that, on 16 March,2016, political
cadres from a known political partystripped naked a female cadre identified as Prisca Namonga
belonging to another political party, during Youth Day Celebrations at the freedom statue in
Lusaka. The act was not only condemned by some of the Women organizations such as the NonGovernmental Organizations Coding Council (NGOCC)and the Women for Change (WfC) but
also appealed to the State and demanded that the culprits be brought to book.
My Lords,the State has a duty under Article 2 of the International Covenant on Civil and
Political Rights (ICCPR) to protect women, without discrimination on the basis of sex, from
cruel and inhuman treatment and from violations of their rights to life, liberty, and security of
person. The state also has a duty under the Convention on the Elimination of Discrimination
Against Women (CEDAW) to pursue without delay a policy of eliminating discrimination
against women. The U.N. Committee on the Elimination of Discrimination Against Women has
explained that gender-based violence is a form of discrimination that seriously inhibits womens
ability to enjoy basic freedoms on a basis of equality with men. All gender-based violence,
violates fundamental human rights such as the rights to life; health; liberty; security of person;
not to be subjected to torture or cruel, inhuman, or degrading treatment or punishment and equal
protection under the law.
Furthermore, my Lords, it is the duty of the state under section 5(4) of the Public Order Act,
CAP 113 of the Laws of Zambia (herein referred to as the Act), to ensure that police officers
are appointed to regulate assemblies, public meetings and processions. In the case, of Law
Association of Zambia v the Attorney General (Supreme Court Judgement Appeal No. 08

of 2014) the court held, inter alia; that the requirement for notice is necessary as this is the only
way the police can perform their regulatory function and maintain law and order in our society. It
is a mandatory requirement under Section 5(4) of Act that the convener of a public meeting,
procession or demonstration to give notice at least seven days before a public meeting,
procession and demonstration for the sole purpose of maintaining peace. When giving
permission for certain events the police ask for the list of who would be speakers, in our
submission, this is meant to guarantee the safety of people in attendance as the police have a
constitutional obligation to carry out their function as outlined in the constitution.
Further, Article 193(2) of the Constitution of Zambia (Amendment Act No.2 of 2016), provides
that, the Zambia police service has a duty to:
(a) protect life and property
(b) preserve peace and maintain law and order,
(c) ensure the security of people,
(d) detect and prevent crime uphold the bill of rights etc.
Thus, police officers are agents of the State and in accordance with section 4 of the States
Proceedings Act CAP 71 of the Laws of Zambia, the State can be held liable for the torts
committed by its servants or agents.
Further, Section 5 of the Zambia Police Act, CAP 107 of the Laws of Zambia states that;
The Force shall be employed in and throughout Zambia for preserving the peace, for the
prevention and detection of crime, and for the apprehension of offenders against the peace and,
for the performance of such duties, may carry arms.
We, therefore, submit that, the police officers present at the Youth Day Celebrations bywatching
cadres strip the alleged victim naked and not doing anything to prevent such action were in
contravention of the Act, as there are under a duty to regulate public meetings, demonstrations
and precessions for the perseveration of public peace and order.

We, therefore, submit to this honorable Court, that the learned trial judge from the Court below
had erred in law, when he stated that there was no cause of action against the State, as provisions
outlined above are regulatory functions necessary for the police to maintain public peace and
order, which they failed to do during Youth Day Celebrations at the Freedom Statue in Lusaka.

GROUND FOUR
My Lords, the trial Court misled itself in law and in fact by not granting the prayers of the
Petitioner as contained in the endorsement to the Petition.
As my learned colleagues contended earlier, your Lordship the trial Court erred in law and in fact
when it held that the petitioner had no locus standi in the alleged human rights violation.
Pursuant to Article 266 of the Constitution (Amendment Act no. 2 of 2016), a person includes
any company or association or body of persons, incorporated or unincorporated.
According to section 7(1) of the Societies Act, CAP 119 of the Laws of Zambia (hereinafter
referred to as the Societies Act), the word society means any club, company, partnership or
other association of ten or more persons, whatever its nature or objectives. This, my Lords,
means that a society may have legal personality capable to sue or be sued. The mission of the
NWEG is to promote womens rights through increased participation and representation; this
confers the interest on the society to represent the victims. My lords in the case of Attorney
General v Law Association of Zambia (2008) Z.R. 21 vol.1 (S.C), it was held that the
Association had locus standi, pursuant to its objectives as set in Section 3 of the Law
Association of Zambia Act, Cap 31 of theLaws of Zambia, thisis, therefore, means that the
Law Association of Zambia is capable of suing and beingsued. It was submitted that the
Petitioner, on the basis of the objects as per Section 4 of the Act, the objects for which the
Association is established are(a) to further the development of law as an instrument of social order and social justice and as an
essential element in the growth of society.
Your Lordship the language in Article 28 does not require a person to demonstrate that the matter
complained of should directly affect him. My Lord, locus standi under article 28 is not limited to
the victims of human rights violations but it extends to any person alleging a violation of human

right. Article 28 (1) subject to clause (5) of the constitution of Zambia, states that if any person
alleges that any of the provisions of Articles 11 to 26 inclusive has been, is being or is likely to
be contravened in relation to them, then, without prejudice to any other action with respect to the
same matter which is lawfully available, that person may apply for redress to the High Court
which shall,
(a) hear and determine any such application;
(b) determine any question arising in the case of any person which is referred to it in
pursuance of clause (2);
and which may, make such order, issue such writs and give such directions as it may
consider appropriate for the purpose of enforcing, or securing the enforcement of, any of
the provisions of Articles 11 to 26 inclusive.
May I bring your Lordships attention to the wording in article 28(5), the word THEM, tells us
that the Zambian Constitution provides for actiopopularis to the citizens to petition the Court
even without necessarily the rights of the petitioner being violated, meaning class actions are not
the only ones envisaged but includes public interest litigations. (Authority awaited)
Secondly,my Lords, The Learned judge in the Court below erred in law and in fact when he held
that there was no cause of action against the State in the alleged assault of Prisca Namonga,
during Youth Day celebrations at the Freedom Statue in Lusaka, because the alleged assailants
where members of a Political Party. Your Lordships,Article 60 of the constitution (Amendment
Act no.2 of 2016) of Zambia prescribes the conduct of political parties. The consequence of
Article 60 is that state agents, in particular, law enforcement agents, must ensure that political
parties adhere to the supreme law of the land. Article 60 (2)(a) provides that, A political party
shallpromote the values and principles specified in this Constitution;and the national values
referred to in Article 60 aforesaid are found in article 8(d). These include,human dignity, equity,
social justice, equality and non-discrimination; which the cadres of the ruling party violated in
the day light and presence of the police. In the case of Social and Economic Rights Action Centre
(SERAC)and another v Nigeria (2001) AHRLR 60 (ACHPR 2001) ,the African court of human
rights stated that the state has the duty to protect, respect and fulfil their obligation under human
rights instruments.

My Lords, the government has a duty to protect its citizens, not only through
appropriate legislation and effective enforcement, but also from damaging
acts that may be perpetrated by private parties. This duty calls for positive
action on the part of government in fulfilling their obligation under human
rights instruments. In the landmark judgement ofVelasquez Rodriguez v
Honduras 1988, Inter-Am.Ct.H.R. , the Inter-American Court of Human Rights
held that when a state allows private persons or groups to act freely and with
impunity to the detriment of the rights recognised, it would be in clear
violation of its obligations to protect the human rights of its citizens.
Similarly, in the case of X and Y v Netherlands [1985] ECHR 4 this obligation
of the state was further emphasised in the practice of the European Court of
Human Rights. In that case, the Court pronounced that there was an
obligation on authorities to take steps to make sure that the enjoyment of
the rights is not interfered with by any other private person. For this reason,
in the case at hand, the state failed to take positive measures to protect
womens right and was therefore in violation of Article 23 of the Zambian
constitution.
Further My Lords, the petitioner sought for an order of prohibition for the state to put a stop to
the violation of the rights and freedomswhich are contained under part III of the constitution of
Zambia specifically Article 15, which is protection from torture, or inhuman or degrading
punishment or like treatment against the citizens. Your Lordships, we acknowledge the
provisions of the State Proceedings Act in section 16, however an order declaratoryof the partys
right may be issued. Article 16(ii) states thatin any proceedings against the State for the
recovery of land or other property, the court shall not make an order for the recovery of the land
or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff
is entitled as against the State to the land or property or to the possession thereof. For this
reason, the court below erred in law and in fact by not granting an order declaratory of the
petitioners right to stop the police from violating human rights as contained in Article15 of the
Zambian Constitution. Your Lordships, pursuant to the aforementioned Article 16, the trial court
should have granted the petitioners prayer and for not doing so it was in violation of Article 118

(2)(a) of the constitution of Zambia which states that, Justice shall be done to all without
discrimination.
Thirdly your Lordships, the petition by the Appellant was purely based on declaratory orders as
opposed to an order seeking compensation as envisaged in the article 28 of the Constitution. My
Lords will note that with regard to the constitution, original and final jurisdiction to interpret the
constitution is given to the Constitutional Court except in instances of article 28 when parties
want to claim damages as a result of being directly injured by an act of the State or its agents.
The action by the Appellant was seeking the courts intervention for the State to put a stop to the
violation of the rights and freedoms contained under Part III of the Constitution of Zambia. This
in effect was requesting the State to come up with steps and programmes which may require the
State to monitor and regulate various sectors including aspects of funding and other requirements
which are antecedent to the protection of rights and freedoms. As we noted earlier in the State
Proceedings Act an order of injunction cannot be issued against the state but an order declaratory
of the partys right may be granted for this reason the trial judge mislead himself by holding that
the Constitution of Zambia (Amendment) Act No. 2 of 2016 vests absolute power for
interpretation of the Constitution to the Constitutional Court and therefore his hands are
shackled. The lower court erred in law and in fact when it was of the view that the appellant was
seeking interpretation of the constitution but rather a declaration to grant the prayers of the
Petitioner as contained in the endorsement to the Petition.
Having labored to show before this honorable court that the court below misdirected itself in law
and in fact when it held that as it did, it is our humble prayer that this honorable Court may quash
the judgment of the court below and grant the prayers of the petitioners with regard to section 17
of the States Proceedings Act and grant any other relief that the Court may deem fit with costs.

3rd Zambia Moot Court Competition

University of Lusaka
17 18 November 2016
______________________________________________________________________________
_______ IN THE COURT OF APPEAL
FOR ZAMBIA

IN THE MATTER BETWEEN

NATIONAL WOMEN'S EMPOWERMENT GROUP

APPELLANT
AND
THE ATTORNEY GENERAL
RESPONDENT

______________________________________________________________________________
_______
APPELLANTS HEADS OF ARGUMENTS
______________________________________________________________________________
_______

Per CAVENDISH UNIVERSITY ZAMBIA

CNR GREAT NORTH ROAD/WASHAMA ROAD
VILLA ELIZABETHA
LUSAKA
ADVOCATES FOR THE APPELLANT

3rd Zambia Moot Court Competition

University of Lusaka
17 18 November 2016
_____________________________________________________________________________________
IN THE COURT OF APPEAL
FOR ZAMBIA

IN THE MATTER BETWEEN

NATIONAL WOMEN'S EMPOWERMENT GROUP

APPELLANT
AND
THE ATTORNEY GENERAL
RESPONDENT

_____________________________________________________________________________________
RESPONDENT'S HEADS OF RESPONSE
_____________________________________________________________________________________

Per CAVENDISH UNIVERSITY ZAMBIA

CNR GREAT NORTH ROAD/WASHAMA ROAD
VILLA ELIZABETHA
LUSAKA
ADVOCATES FOR THE RESPONDENT

May it please this Honorable Court

The Respondent has raised four grounds of response as follows:
1. The lower court was on firm ground when it held that the petitioner had no locus
standi in the matter, as Article 28 of the constitution provides that only the
person whose rights have been contravened in relation to them can bring the
matter before the High Court.
2. The Court below did not misapprehend the law and thus it did not fall into grave
error when it held that the Constitution of Zambia (Amendment) Act No. 2 of
2016 vests absolute power for interpretation of the Constitution to the
Constitutional Court, as the matters which were subject of the petition
transcended and included articles other than Part III.
3. The Learned trial judge did not err in law and in fact when he held that there was
no cause of action against the State in the alleged assault against Prisca
Namonga, during the subject Youth Day Celebrations at the Freedom Statue in
Lusaka, because the alleged assailants where members of a political party and
did not therefore fall within the ambits of section 4 of the States Proceedings Act,
CAP 71 of the Laws of Zambia.
4. The trial court did not err in law and in fact by not granting the prayers of the
petitioner as contained in the endorsement to the petition because, as shown in
the earlier grounds and antecedent arguments, the petition lacked merit both at
law or in fact.

GROUND ONE
The lower court was on firm ground when it held that, the petitioner had no locus
standi in the matter, as Article 28 of the constitution provides that only that person
whose rights have been contravened in relation to them can bring the matter before the
high court.
My Lords, the main issue concerning this ground is whether the petitioner who was not
a victim of any of the alleged violations has locus standi pursuant to Article 28 of the
constitution of Zambia.

According to The Black Law Dictionary 2004, 8 th Edition, Page 2996 the word Locus
Standi is a Latin word meaning
Place of Standing . The right to bring an action or to be heard in a given forum
My Lords, Locus Standi is, therefore, the ability of the party to demonstrate to the
court the right to bring an action or to be heard in a given forum. Locus standi
under Article 28 of the constitution of Zambia is limited only to the person whose human
rights have been, are likely to be or are being violated in relation to that person.
It must be acknowledged that Courts have always adopted an open-door policy in
dealing with fundamental rights and freedoms. However, the courts have provided
guidelines so that not every person can appear and seek redress for the violation of
Articles 11 to 26 inclusive. May I draw the courts attention to the case of Attorney
General v Law Association of Zambia (S.C.Z No 3 of 2008),

where the Supreme

Court dealt with the issue of who has locus standi to petition the court to seek the
protection and upholding of fundamental rights and freedoms. The Attorney
General's contention that the petitioner did not have locus standi either in Its own right
or through public interest litigation (.) was rejected by the Supreme Court on the basis
of the petitioner's objects in section 4 of its Act which demonstrated that the petitioner
had the mandate to further the Development of the law, and identify itself with the
citizenry and advance the rule of law and the rights and liberties of the individual.
My Lords, in the case of Richard Mumba and others v Electoral commission of
Zambia and four others (2015) HP/0967, an argument was considered and adopted
by the Courts and it is my prayer that it will be of persuasive value before this Court. In
that matter, it was considered that, despite Zambian Courts, both in their original and
appellate jurisdictions, having an open-door policy when it comes to commencement of
an action on behalf of persons who seek to protect and uphold fundamental rights and
freedoms, guidance to the Courts with regard to such persons is that any other
individual or entity that seeks to bring an action has to show a connection to such
person. The questions that are to be posed are
(a) Does the Petitioner have sufficient interest?

(B) Can it be rightly argued that a person whose rights they are alleging have

been

infringed cannot come to court?"

My Lords, the response to first questions is that the petitioner did not have sufficient
interest in the matter. The petitioner failed to show how its objectives of attaining to
matters that promote it the interest of women when all the activities allegedly referred to
relate to activities of political parties and not necessarily of women. The Articles cited in
the petition as allegedly violated by the State, such as right to freedom of movement
and association under Article 21, rights to freedom of movement and association did not
relate to activities of women but of political parties and its membership.
Furthermore, My Lords, the facts in this matter show that Prisca Namonga and not the
petitioner was a victim of the alleged assault. The facts further show that Prisca
Namonga had lodged a complaint before a police station and the matter was
undergoing investigation. It can thus be argued as was held in the Mumba case cited
above that Prisca Namonga had capacity to take the matter before a judicial court and
in this regard the role of the appellant was rendered nugatory. Thereto, the appellant
had no locus standi in this matter as Article 28 of the constitution only limits the liberty to
the person whose rights are likely to be violated or are been violated . In the case of
Maxwell Mumba and Stora Solomon Mbuzi v The Attorney General 1993/SCZ/10
(Unreported), Judge Musumali in giving judgment held inter alia,
My firm view is that a citizen has a right to sue on Constitutional issues unless the
Constitution itself explicitly or by necessary implication has taken away that liberty. For
instance, in cases of human rights of the person who "alleges that any of the provisions
of Articles 11 to 26 has been, is being or is likely to be contravened in relation to
him. . .." has locus.
The case of Mumba v The Electoral Commission of Zambia , Law Association of
Zambia and Others at Page R 39 were the court, concluded inter alia
in order to bring an action relating to the violation of human rights under Article 28
concerning the violation of provisions such as Articles 12,15 or 23, the petitioner must
be able to disclose how their human rights are likely to be or violated against and failure
to show which rights are likely to be violated means you do not have locus standi.

My Lords, we do not deny the fact that the Petitioner has legal personality. Despite this,
we still hold that the petitioner had no locus standi in the matter as the petitioner failed
to demonstrate how their rights and freedoms were violated or were likely to be violated
in relation to them.
PRAYER
The respondent therefore prays:
(i)

That it may be upheld that the lower court was on firm ground and did
not err in law and in fact when it held that the petitioner had no locus
standi in the matter.

(ii)

That the costs of and incidental to this proceeding be borne by the

appellants.

GROUND TWO
The Court below did not misapprehend the law and thus it did not fall into grave error
when it held that the Constitution of Zambia (Amendment) Act No. 2 of 2016 vests
absolute power for interpretation of the Constitution to the Constitutional Court.
The jurisdiction of the Constitutional Court is provided for under Article 128 of the
Constitution of Zambia Amendment Act No. 2 of 2016 and it reads in part as follows:
(1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to
hear
(a) a matter relating to the interpretation of this Constitution;
(b) a matter relating to a violation or contravention of this Constitution;
(c) a matter relating to the President, Vice-President or an election of a President;
(d) appeals relating to election of Members of Parliament and councilors; and
(e) whether or not a matter falls within the jurisdiction of the Constitutional Court

In the light of the foregoing the Constitutional Court has original and final jurisdiction to
hear inter alia(a) a matter relating to the interpretation of this Constitution;
(b) a matter relating to a violation or contravention of this Constitution
(c)whether or not a matter falls within the jurisdiction of the Constitutional Court

Article 28 of the Constitution of Zambia, to which Article 128 is subject, provides as

follows:
(1) Subject to clause (5), if any person alleges that any of the provisions of Articles
11 to 26 inclusive has been, is being or is likely to be contravened in relation to him,
then, without prejudice to any other action with respect to the same matter which is
lawfully available, that person may apply for redress to the High Court which shall -(a) hear and determine any such application;
(b) determine any question arising in the case of any person which is referred to it in
pursuance of clause (2);
and which may, make such order, issue such writs and give such directions as it may
consider appropriate for the purpose of enforcing, or securing the enforcement of,
any of the provisions of Articles 11 to 26 inclusive
According to this provision, any aggrieved person who brings an action before the High
Court pursuant to Article 28 aforesaid is clearly seeking for redress of the alleged
violation. The word redress is defined in Blacks Law dictionary 8 th edition (2004) at
page 4001, as relief; remedy: money damages as opposed to equitable relief.
However, the petition in casu my Lords, is purely based on equitable orders as opposed
to an order seeking compensation for the injury as was envisaged in Article 28 of the
Constitution of Zambia. This my Lords, is evidenced by the Petitioners action seeking
the Courts intervention for the State to put a stop to the violation of the rights and

freedoms contained under Part III of the Constitution of Zambia in general and in
particular:
a) An order of Prohibition against the State apparatus here being the Police from
violating Article 15 of the Constitution of Zambia for the protection of torture, or
inhuman or degrading punishment or like treatment against the citizenry.
b) A further Declaration that the Police engaged in extra judicial killing thereby
violating the provisions of Article 12 (1) of the Constitution of Zambia in relation to
the life of Chibotu Monze who dies on 9 July 2016.
c) A Declaration that the decision of the Police to cancel a planned rally in
Chimutengo Township South of Lusaka that was to be attended by the Chibotu
Monze was in violation of Article 21 of the Constitution of Zambia and therefore
unconstitutional and null and void.
d) A Declaration that the failure of the State to take positive measures to protect
women and girls from violence is a violation of Article 23 of the Constitution of
Zambia.
In this respect my Lords, the action by the Appellant seeking a declaratory order for the
state to put a stop to the violation of the rights and freedoms contained under Part III of
the Constitution of Zambia, was in effect a request for the State to come up with steps
and programmers that will protect citizens against violations of rights and freedoms
contained in the bill of rights. Such a step, my Lords, would require the State to monitor
and regulate various sectors including aspects of funding and other requirements which
are antecedent to the protection of rights and freedoms.
My Lords are alive to the position of the constitution with regard to the constitutional
court in which it vests original and final jurisdiction to interpret the constitution. The only
limitation is found in Article 28 which relates to compensatory reliefs which parties may
claim when their fundamental Rights and Freedoms as contained in Articles 11 to 26
inclusive are allegedly violated. It can be argued that, the ultimate and overall
jurisdiction to interpret the constitution in its totality is the constitutional court. In this

regard Article 128 (1)(e) gives the constitutional court power to determine questions
whether or not a matter falls within the jurisdiction of the Constitutional Court.
In an attempt to understand the appellants prayer for an order to compel the state to
put a stop to violations of human rights, which can be interpreted as a prayer for the
protection of human rights, regard was had to the UN guidelines on the matter, as
reproduced on the USAID website which includes the following:
Preventing or avoiding rights violations by the state, such as:

Protection of human rights defenders.

Increasing the capacity of vulnerable populations (including victims of torture or

war trauma, people with disabilities, indigenous or tribal peoples, LGBT
individuals, labor activists, detainees, women and children) to defend their rights
and advocate for themselves.

Atrocity prevention, aimed at preventing attacks on vulnerable or marginalized

populations.

Efforts to stop human trafficking and protect its victims.

From the UN guidelines shown above, it can be argued that an order to put a stop to
violation of human rights is an order that can include activities beyond a requirement for
compensation of victims. It therefore follows that the declaratory order sought by the
petitioner, calls for the government of Zambia to commit to the total implementation of
the bill of rights which can include introduction of further amendments to the
Constitution, and the sensitization and capacity building of the members of the
executive, judiciary, and the legislature to address violence against women, girls and
the citizenry at large. Such a declaratory order may require the state to improve access
to justice for vulnerable women, survivors of domestic violence, and other forms of
human rights violation by eliminating unaffordable court fees and by enhancing free
legal aid services. And In support of the goals and objects of the Petitioner, it may be
required of the State to undertake regular awareness-raising and educational

campaigns to make violence against women socially unacceptable and involve men and
boys in combating violence against women and girls. Such venture my Lords go beyond
the scope of Article 28.
It may be added my Lords, that the Constitution of Zambia is a carefully balanced
document. It is designed to provide for a national government sufficiently strong and
flexible to meet the needs of the republic, yet sufficiently limited and just to protect the
guaranteed rights of citizens. To assure these ends, the Framers of the Constitution
created three independent and separate branches of government, thus being the
executive, the legislature, and the judiciary.
Such action by the petitioner does not refer to Article 28 only but transcends the whole
constitution including parts on finance, parliament, and the directives on state policies.
Such a comprehensive and interlocking approach to the constitution, my Lords, cannot
be a preserve of the High Court. It can be argued and is hereby contended that the
Constitutional Court is the only court with original and final jurisdiction to interpret the
constitution in its totality.
To press this point further, it is imperative to cite the following cases from other
jurisdictions for persuasive reasons:
1. In the case of South Dakota v. North Carolina (1904))', the United States
Supreme Court stated that no single provision of the constitution was to be
segregated from the others but that all provisions bearing on a particular subject
were to be brought into view and to be so interpreted as to give effect to the
greater purpose of the instrument; and,
2. In another case of Major General David Tinyefuza v. The Attorney General of
Uganda, the Constitutional Court of Uganda held that the entire constitution was
to be read as an integral whole with no one provision destroying the other but
each sustaining the other.
Bearing in mind that the appellant is seeking the Court to issue declaratory orders for
the state to put a stop to the violation of human rights, no single provision of the
constitution is to be segregated from the others but all provisions bearing on the

particular subject are to be brought into view and to be so interpreted as to give effect to
the orders being sought by the appellant.
Borrowing the words of the Court of Appeal of Botswana in Attorney General v. Unity
Dow (1992), where the court stated that the Constitution was the supreme law of the
land meant to serve not only a current generation but generations yet unborn and that
the courts must breathe life into it as occasion may arise to assure the healthy growth of
the state through it. And that while a constitutional provision may be able to meet the
designs of the society of a certain age, it was the primary duty of judges to make the
Constitution grow and develop in order to meet the just demands and aspirations of an
ever developing society which was part of the wider society governed by acceptable
concepts of human dignity.
Allow me, my Lords, to refer to Article 276 (1) of the Constitution Amendment Act No.2
of 2016 which provides for the interpretation of the Constitution and it reads in its
entirety as follows:
This Constitution shall be interpreted in accordance with the Bill of Rights and in a
manner that
(a) promotes its purposes, values and principles;
(b) permits the development of the law; and
(c) Contributes to good governance
This entails that the Constitutional Court upholds and promotes the bill of rights as it
interprets the Constitution. And it therefore interprets matters that have an interplay
between the bill of rights and the Constitution in its totality.
In the light of the foregoing, we therefore submit before this honorable Court, that the
decision of the lower Court to dismiss this petition and consequently direct it to the
Constitutional Court as it had no jurisdiction over it was not a misapprehension of the
law and thus it did not fall into grave error.

PRAYER
We hereby pray:
I.
II.

That this petition be dismissed with costs.

That the Court grants the respondents any other remedy as it dims fit

GROUND THREE
The Learned trial judge did not err in law and in fact when he held that there was no
cause of action against the State in the alleged assault against Prisca Namonga, during
Youth Day Celebrations at the Freedom Statue in Lusaka because the alleged
assailants where members of a political party, and did not therefore fall within the ambits
of section 4 of the States Proceedings Act.
The issue to be considered is whether;
(a) The state and a political party are one and if so, can it be held accountable for
the actions of a political party?
(b) Are the police by not preventing violence by political Cadres contravening Article
15 and 23 of the Constitution?
To start with, My Lords, A political party has been defined under Article266 of the
Constitution of Zambia (Amendment No. 2 of 2016), as an association whose
objectives include, the contesting of elections in order to form government or influence
the policy of the national or local government. Further, in the case of Dr. Ludwig
Sondashi V Brigadier General Godfrey Miyanda, Mp (Sued as National Secretary
of The Movement for Multi-Party Democracy) (1995) S.J. 1 (S.C.), the Court defined
a political party as a private association registered under the Societies Act, CAP 119 of
the Laws of Zambia and its concerns are private matters. Therefore, it can be concluded
that, a political party and the state are two different entities as a political party mainly
performs private activities whereas, the state mainly performs public activates.

My Lords, we strongly affirm that, the learned judge from the Court below, stood on firm
ground when he held that there was no action against the state as Section 4 (1)of the
State Proceedings Act, CAP 71 of the Laws of Zambia, provides that, the State shall be
subject to all those liabilities in tort to which, if it were a private person of full age and
capacity, it would be subject in respect of torts committed by its servants or agents.The
victim alleged that she was stripped naked and the police did not take any action to
prevent the cadres.
We, therefore submit my Lords, that the government cannot be sued for the actions of
members of political parties unless, the acts complained of have been committed by an
agent of the State and in the course execution of his/her duties.
Further, My Lords in Harry MwaangaNkumbula And Simon MwansaKapwepwe V
United National Independence Party (high court judgement) (1972) ,Z.R 204 when
determining whether the attorney General had the rights to represent the party, the
Court stated that the government and a political party even if that political party is the
one forming government are different and that;
1. The attorney general can only come in, to represent the party if the outcome of
the litigation against the party will affect public interest, reason being the
attorney general is a government official and not a representative of a party
and in such cannot represent a political party.
Furthermore, my Lords, the petitioners issued a petition for the State to put a stop to the
violation of the rights and freedoms contained under the Constitution of Zambia. In
particular,
(a) an order of prohibition against the state apparatus here being the police from
violating article 15 of the constitution of Zambia for the protection of torture, or
inhuman or degrading punishment or like treatment against the citizen. And also,
that,
(b) the failure of the State to take positive measures to protect women and girls from
violence is a violation of Article 23 of the Constitution of Zambia.

My Lords, the police officers did not contravene Articles 15 and 23. They can only be in
contravention of Article 15 and 23 if they are the ones that carried out the contravening
acts under Articles 15 and 23 of the Constitution as it was the cadres who stripped her
naked and not the police. We therefore, submit to this honorable court, that the
Petitioner had not demonstrated the cause of action against the state, as the State
cannot be held liable for the actions of members of a political party.

GROUND FOUR
My Lords, the Court below did not err in law and in fact by holding that the Petitioner
had no locus standi in the matter.
Article 28 (1) of the Zambian Constitution, limits the right to complain to the person
claiming that a provision of the Constitution had been, or is likely to be, contravened in
relation to him or her. It provides that:
28 (1) subject to clause (5), if any person alleges that any of the provisions of Articles 11
to 26 inclusive has been, is being or is likely to be contravened in relation to him, then
without prejudice to any other action with respect to the same matter which is lawfully
available, that person may apply for redress to the High Court which shall(a)

Hear and determine any such application

(b)

Determine any question arising in the case of any person which is referred to it in

pursuance of clause (2); and which may, make such order, issue such writs and give
such directions as it may consider appropriate for the purpose of enforcing or securing
the enforcement of any of the provisions, of Articles 11 to 26, inclusive.
My Lords, havingcited the said provision, it is clear that locus standi under Article 28 of
the constitution is limited only to the person who is alleging that any of the Articles 1126 are being or likely to be contravened in relation to that person only.
The petitioner had not disclosed or exhibited, in its petition, how Articles 11 to 26 of the
Constitution had been, were being and/or were likely to be contravened in relation to it
and had therefore no locus standi to commence this action. Therefore, even though the

mission of the Petitioner is to promote Womens rights through increased participation

and representation, Article 28 is not applicable to the Petitioner because there is no link
between the Petitioner to any breach of Articles 11-26 of the Constitution.
May I bring the Courts attention to the case of Mumba v The Electoral Commission of
Zambia, Law Association of Zambia and Others at Page R 39 were the Court concluded
inter alia
in order to bring an action relating to the violation of human rights under Article 28
concerning the violation of provisions such as Article 23, Article 12 or Article 15, the
petitioner must be able to disclose how their human rights are likely to be or
contravened against and failure to show which rights are likely to be violated means you
do not have locus standi.
Thus,these requirements are not met as the Petitioner had not disclosed or exhibited, in
the petition, how Articles 11 to 26 of the Constitution had been, were being and/or were
likely to be contravened in relation to it and therefore,
has no locus standi to commence this action.

Secondly my Lordships, the Court below did not err in law and fact by holding that there
was no cause of action against the State in the alleged Assault of Prisca Namonga,
during Youth Day Celebrations in Lusaka at the Freedom Statue because the alleged
assailants were members of a political party. In the case of Dr. Ludwig Sondashi V
Brigadier General Godfrey Miyanda, Mp (Sued as National Secretary of The
Movement for Multi-Party Democracy) (1995) S.J. 1 (S.C.), a political party was
defined as a private association registered under the Societies Act, CAP 119 of the
Laws of Zambia and whose concern are private matters.
Furthermore, My Lords, in the case of Harry Mwaanga Nkumbula & Simon Mwansa
Kapwepwe V United National Independence Party (high court judgement) when
determining whether the attorney General had the rights to represent the party, the
Court stated that the government and a political party, even if that political party is the
one forming government are different.

Therefore, it can be concluded that, a political party and the State are two separate
entities as a political party mainly carries out activities that are private in nature while a
state mainly carries out activates that are public in nature.
My Lordships, Section 4 (1) of the State Proceedings Act, Chapter 71 of the Laws of
Zambia limits liabilities of the State in tort to those committed by its servants or agents.
Therefore, the State cannot be sued for the actions of members of a political party as
they are neither its agents nor servants. Thus, the State cannot be held liable for actions
of members belonging to a political party.
Further my Lords, the High Court did not fall into grave error and misapprehend itself
when it held that the Constitution of Zambia (Amendment) Act No. 2 of 2016 (herein
after referred to as Constitution) vests absolute power for the interpretation of the
provisions of the Constitution to the Constitutional Court. This is provided for under
Article 128 (1) of the Constitution which states that:
Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear
(a) a matter relating to the interpretation of this Constitution;
(b) a matter relating to a violation or contravention of this Constitution;
(c) a matter relating to the President, Vice-President or an election of a President;
(d) appeals relating to election of Members of Parliament and councillors; and
(e) whether or not a matter falls within the jurisdiction of the Constitutional Court.

This, my Lordships,
therefore means that the Constitutional Court has original and final jurisdiction to hear a
nd determine matters in respect of interpretation of any provision of the Constitution, an
y matters relating to the election of the President and Vicepresident as well as any matt
ers relating to appeals on petitions of election of Members of Parliament and Councilors
as well as matters to determine whether an issue is a Constitutional issue or not. Howev
er, enforcement of violation of Human Rights as enshrined in the Bill of Rights,

that is under part three of the Constitution,will be within the Jurisdiction of the High Cour
t in accordance with Article 28 of the Constitution of Zambia.
In support of the above contentions, we further cite the case of Zambia National
Holdings Limited & Another v. The Attorney General 1, were the Supreme Court observed
that the jurisdiction of the High Court under Article 94 is unlimited but not limitless since
the Court must exercise its jurisdiction in accordance with the law.
Therefore,the Court belowexercised it's jurisdiction in accordance with the law when it h
eld that with the passing of the Constitution of Zambia (Amendment) Act No. 2 of 2016,
the jurisdiction to interpret and adjudicate on matters of the Constitution is vest
absolutely in Constitutional Court and as a result could not deal with the matter.

PRAYER
Having laboured to persuade this Honorable Court on the fact that the Court below did
not err in law and fact by not granting the prayers of the Petitioner as contained in the
endorsement to the Petition, it is our humble prayer that this Honorable Court upholds
the decision of the lower Court.

1 (1994) S.J. 22 (S.C.)

3rd Zambia Moot Court Competition

University of Lusaka
17 18 November 2016
_____________________________________________________________________________________
IN THE COURT OF APPEAL
FOR ZAMBIA

IN THE MATTER BETWEEN

NATIONAL WOMEN'S EMPOWERMENT GROUP

APPELLANT
AND
THE ATTORNEY GENERAL
RESPONDENT

_____________________________________________________________________________________
RESPONDENT'S HEADS OF RESPONSE

Per CAVENDISH UNIVERSITY ZAMBIA

CNR GREAT NORTH ROAD/WASHAMA ROAD
VILLA ELIZABETHA
LUSAKA
ADVOCATES FOR THE RESPONDENT