Attorney General Mulilo Kabesha has submitted to the Constitutional Court that President Hakainde Hichilema cannot be sued in his personal capacity for actions taken in the course of his official duties. The submission is in response to a petition filed by PF presidential hopeful Brian Mundubile and party member Celestine Mukandila. The petitioners are asking the court to declare President Hichilema ineligible to stand as a candidate in any future election, alleging that his actions in initiating a constitutional amendment process were unconstitutional.
They seek declarations that the President and the Attorney General acted unconstitutionally by initiating Constitutional Amendment Bill No. 7 of 2025 without conducting wide and inclusive consultations, arguing this contravenes several articles of the Constitution. They contend the President breached his oath of office, which should disqualify him from seeking re-election.
The petitioners referenced a prior Constitutional Court guidance which stated that a people-driven process led by an independent body of experts should be followed for constitutional amendments. In his submissions, the Attorney General argued that all matters arising from the President’s executive functions are the legal responsibility of the Attorney General, who is the proper party to be cited in court. He stated, “The 1st Respondent cannot be sued in his individual capacity for official acts within the exclusive Presidential authority… the 2nd Respondent is the legally permissible party to be cited for all official acts and omissions of the Republican President.” The Attorney General further argued that the court’s prior guidance does not limit the President’s constitutional power to initiate amendments.
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He stated, “The Judiciary cannot invent and legislate any procedures and processes or bodies such as an independent body of experts to represent the People of Zambia in conducting wide consultations outside of Article 79 of the Constitution.” He explained that Zambia’s Constitution distinguishes between the constituted power of elected representatives to propose amendments and the reserved constituent power of the people exercised via referendum. He noted the proposed amendments do not create a new constitution nor affect its basic structure. The Attorney General asked the court to dismiss the petition, declare that Articles 79, 64, 88, and 92 provide the sole procedure for amending the Constitution, and confirm that the Basic Structure Doctrine does not apply in Zambia. He also seeks costs.
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