The Constitutional Court has dismissed the case in which Lusaka resident Fresher Siwale sued the State regarding the legality of the August 11, 2016 referendum for lack of merit. The Constitutional Court ruled that there were irregularities in the use of the referendum regulations 2016 but that it did not negatively affect the result of the referendum.

Delivering judgment on behalf of judge president Hildah Chibomba, justices Annie Sitali, Enock Mulembe and Palan Mulonda, Master of the Constitutional Court Mable Mwaba said the court found that indeed there were procedural irregularity in the use of the referendum regulations 2016 that had not yet come into effect at the time that the referendum was held.

“We agree with counsel for the appellant that S.I No. 64 of 2016 had no retrospective effect…we, however, find that the change in symbols or the use of ballot papers that had a different frame did not in any way have a significant negative impact on the referendum so as to render it irregular and unconstitutional. We are of the firm view that the said irregularities did not depart from the essence of the referendum,” Mwaba said.

“The net result of this matter is that an interpretation of Article 79(3) of the Constitution of Zambia reveals that the provisions of the Constitution were complied with in the holding of the national referendum to the extent that the proposed Bill was put to the people.

Mwaba, however, said in terms of process, there were irregularities in the use of the referendum regulations, 2016 but that such irregularities did not negatively affect the result if the Referendum.

“As this matter raised important constitutional issues, we order that each party bears own costs,” said the court.

Siwale, who is New Labour Party president, sought the court’s determination of whether the 2016 Referendum meant to alter Part III and Article 79 of the Constitution can, in fact, proceed to be held without a Bill to be voted on having been put to the said Referendum required by Article 79 (3) of the Constitution.

Siwale was also seeking a determination on whether it was not unconstitutional and illegal for the national referendum to have proceeded in the manner it was suggested without a Bill to be voted on having been put to the national referendum as required by Article 79 (3) of the Constitution.

The petitioner also asked why the outcome of the national referendum should not be declared null and void or illegal due to the process not having complied with the provisions of Constitution, among other issues.

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