ConCourt has jurisdiction to hear my motion for costs, insists Sangwa


CONSTITUTIONAL lawyer John Sangwa argued that the Constitutional Court has the requisite jurisdiction to rule on the case in which he challenges his decision to award costs in his petition against ECZ and others.

This is a case in which Sangwa applied to the Court of Justice for an order annulment of Article 30 of the Law on the Constitutional Court which provides that the said court has the discretion to award costs in the framework of the procedure.

This was after the Attorney General and Lewis Mosho wrote separately to Sangwa requesting a total sum of K9,500,000 in costs following the Court’s decision to dismiss his claim against ECZ and others. .

However, in his response, Attorney General Likando Kalaluka said that the court had already ruled on the issue of costs and was not competent to hear and order variable costs or to rehear the same.

He said he was convinced that section 30 of the Court Act No. 8 of 2016 was not unconstitutional and allowed the court to award costs in deserving cases.

The Attorney General also raised a preliminary issue arguing that the Constitutional Court did not have jurisdiction to rule on the petition and that it should therefore be dismissed with costs.

But according to skeletal arguments in opposition to the notice of motion to raise a preliminary question, filed on Friday, Sangwa argued that the root of his opposition to the preliminary question was that the Court of Justice never determined the constitutionality of the ‘Article 30 of the Law on the Court in case number 2021 / ccz / 0021 and, secondly, that the petition did not raise or ask the Court to decide on substantive issues or facts which have been raised and determined in the main case.

He also argued that the doctrine of functus officio does not apply to this case, as the petition seeks to preserve and protect the jurisdictional forum of governance and to maintain decorum and integrity within the framework of the administration of justice.

“We should also be quick to mention that the defendant’s invocation of Article 128 (4) of the Constitution which categorically prevents the decisions of this tribunal from being subject to appeal to the Supreme Court, since the authority of this tribunal being functus officio is erroneous, because the petitioner has not appealed against the decision of this court in case no. 0021 to the Supreme Court. This case was raised by way of application to this court and not by way of appeal to the Supreme Court as provided for in Article 128 (4). We therefore consider that the invocation of Article 128 (4) of the Constitution by the Respondent is inappropriate and therefore inapplicable in this case, ”Sangwa said.

He further argued that the tribunal cannot be regarded as functus officio where a party has raised issues which do not arise from the substantive facts or issues raised and decided by a tribunal and therefore argued that the tribunal has the competence required to rule on his request.

Sangwa further prayed that the preliminary issue be dismissed as the petition was duly submitted to the court and should be heard and decided.

“We have shown that the Respondent’s preliminary question is without merit and should be dismissed by the court for the reasons already given. We pray accordingly, ”Sangwa said.

In this petition, Sangwa requests a declaration that Article 30 of the Constitutional Court Act insofar as it confers discretionary power on the Constitutional Court to award costs violates Articles 2, 52 (4), 67 (3), 101 (4), 103 (1) and 128 (3) of the Constitution and therefore null and void.

He also requests a declaration that the award of costs by the Constitutional Court in a case in which he requested an amendment of the affidavit for presidential candidates violated Articles 2, 52 (4), 67 (3), 101 (4), 103 (1) and 128 (3) of the Constitution and, therefore, the award of costs is null and void.

Sangwa, who cited the Attorney General as the defendant in the case, further seeks an order (de certiorari) setting aside Article 30 of the Law on the Constitutional Court and the award of costs in the said case.


Thelma J. Longworth