Lusaka lawyer Miza Phiri Junior has challenged the Constitutional Court’s jurisdiction to hear a matter seeking to decriminalize homosexuality.
In his petition filed today, Phiri contends that Article 128 of the Zambian Constitution is clear on which court has the constitutional mandate to handle matters related to the Bill of Rights and Part 3 of the Constitution.
The case, initiated by governance activist Isaac Mwanza and the Zambian Civil Liberties Union (ZCLU) is seeking a declaration to decriminalize homosexuality.
Mwanza and the ZCLU in their petition argue that Section 155(a)(c) of the Penal Code, as outlined in Chapter 87 of the Zambian Constitution, is fundamentally discriminatory and violates Article 8(d), which emphasizes human dignity.
They contend that the section fails to specify which acts of sexual conduct, whether between individuals of the same or different sexes, are deemed “contrary to the order of nature.”
This ambiguity, they claim, infringes upon the privacy of consenting adults engaged in sexual relations. Mwanza specifically points to the invasive nature of forensic anal examinations.
However, Phiri has stated that the Constitutional Court does not have the authority to interpret subordinate Acts of Parliament.
The lawyer further claims that the first and second respondents have violated Articles 128 and 1(5) of the Constitution by seeking an interpretation of an Act of Parliament, rather than the Constitution itself.
He argues that the petition contravenes Article 128(3)(c) of the Constitution, as well as the Constitutional Court’s interpretation that Articles 8 and 9 of the Constitution are non-justiciable, meaning they are incapable of being decided by law or a court.
Phiri is seeking a declaration and order that the actions of the first and second respondents in filing the petition have violated Articles 128 and 28 of the Constitution of Zambia.
He also requests that the said proceedings be declared a nullity due to the Constitutional Court lacking the jurisdiction to entertain the case.
