By AUSTIN KALUBA –

A CONSTITUTION being a set of fundamental principles or established precedents according to which a State or an organisation is governed makes the document a very imperative one.
Since time immemorial, man has always strived to establish rules and regulations for guidance in life which seem to have no formula.
Surprisingly, excavations in modern-day Iraq made in 1877 found evidence of the earliest known code of justice, issued by the Sumerian king Urukagina of Lagash as early as 2300 BC.
This early code of justice among several regulations relieved tax for widows and orphans, and protected the poor from the usury of the rich.
However, it is Aristotle who is credited as the first person to make a formal distinction between ordinary law and constitutional law, establishing ideas of constitution and constitutionalism, and attempting to classify different forms of constitutional government.
In Africa which was guided by oral regulations, a form of unwritten constitution existed though historians steeped in Eurocentric yardsticks refuse to accept this.
The regulations were usually hinged on elderly mediation, consensus, checks and balances between the rulers; council of elder’s advice and priestly guidance.
The coming of Europeans replaced this with the Constitution steeped in colonial origins and thus championing the rights of settlers.
Over the years, efforts are being made to Zambianise the legal system to wean it from vestiges of colonial attitudes.
Thus the establishment of the Constitution Court as prescribed in clause 128 of the Constitutional Bill No. 17 of 2015 is welcome since it will improve the jurisprudence of the nation.
Now constitutional matters would be nativised since they will now be interpreted by specific lawyers and court.
Clause 128 states that: ‘‘There is established the Constitutional Court which consists of the President of the Constitutional Court, Deputy President of the Constitutional Court, and eleven other judges or a higher number of judges, as prescribed.’’
According to 129 (1) the Constitutional Court has original and final jurisdiction to hear a matter relating to the interpretation of the Constitution and other matters relating to a violation or contravention of the Constitution.
The Constitution court will also have the original and final jurisdiction to hear a matter relating to the President, Vice-President or an election of a President, appeals relating to election of Members of Parliament and councillors, and whether or not a matter falls within the jurisdiction of the Constitutional Court.
We can quote Lusaka-based lawyer Kelvin Fube who recently said the establishment of a Constitutional Court sends a right of protection against citizens’ constitutional rights and arbitral abuse.
He said it would also help resolve different matters relating to electoral petitioning.
“Under the current Constitution an election petition to with the President can take many years but the new Constitution allows such a petition to be heard within seven days. This means that a petition can be filed against a President and heard within seven days before being sworn in,” Mr Fube said.
He said the Constitutional Court would have seven days in which to determine the Presidential election petition as opposed to the lengthy period it took in the past.
Mr Fube said for parliamentary by-elections, days for hearing petitions would be reduced from 180 to 14 days which he described as a radical change.
“It will really speed up the hearing process of elections petitions. The Constitutional Court will help solve a lot of problems,” he said.
Mr Fube said countries like South Africa that had established Constitutional Courts had improved jurisprudence.
He said the Constitutional Court was universally accepted, adding that the judges who would be appointed on the panel must fully understand their task.
Fortunately, this fear has been addressed by President Edgar Lungu who recently swore in five judges to preside over the Constitutional Court.
The five are Justice Hilda Chibomba as President of the court, Justice Anne Sitali, Justice Mugeni Mulenga, Justice Enock Mulembe and Justice Palan Mulonda.
The appointed judges will be dealing with primarily constitutional law with its main authority being to rule on whether laws that are challenged are in fact unconstitutional, or whether they conflict with constitutionally-established rights and freedoms.
The Constitutional Court could not have come at the right time with the debate on the grade 12 requirement clause, running mate and 50 plus one clauses.
This is a giant leap in the legal history of Zambia since many countries do not have separate constitutional courts, but instead delegate constitutional judicial authority to their supreme court.
Nonetheless, such courts are sometimes also called “constitutional courts”; for example, some have called the Supreme Court of the United States “the world’s oldest constitutional court” because it was the first court in the world to invalidate a law as unconstitutional in the famous (Marbury v. Madison), even though it is not a separate constitutional court.
The First Austrian Republic, in 1919, established the first dedicated Constitutional Court, which however existed in name only until 10 October 1920, when the country’s new constitution came into effect, upon which the court gained the power to review the laws of Austria’s federal states.
The Czechoslovakian Constitution of 1920, which came into effect on 2 February 1920, was the first to provide for a dedicated court for judicial review of parliamentary laws, but the court did not convene until November 1921.
Before that, only the United States, Canada and Australia had adopted the concept of judicial review by their supreme courts following shared principles of their similar common law legal systems, which they, in turn, had inherited from British legal practice.
Now Zambia has joined other civilised nations with a detached constitution court to address constitutional matters in the country.