A CONSTITUTIONAL court is a higher court that deals primarily with constitutional law or any other constitutional matter related to human rights.
Its main authority is to rule on whether or not laws that are challenged are in fact unconstitutional such as whether or not they are in conflict with constitutionally established rights and freedoms.
Many countries like Zambia nowadays do not have separate Constitutional Courts, but instead delegate constitutional judicial authority to the High court and appeals to the Supreme Court if not happy with the verdict.
The court is also an independent and autonomous state authority which carries out constitutional review and is the highest body of the judiciary for the protection of human rights and fundamental freedoms of citizens.
Mr justice Annel Silungwe head of the Technical Committee on drafting the Constitution has in its first draft recommended for the establishment of a Constitutional court which would eventually be devolved to all provinces and progressively to the districts.
If adopted, Zambia would join the list of other countries that have a separate constitutional court which would deal exclusively with constitutional matters.
Mr Justice Silungwe said when he appeared on a special draft constitution programme on ZNBC TV that his team has recommended for the introduction of a Constitutional court in Zambia because the system has worked well in other countries in handling human rights related issues in other countries.
Mr Justice Silungwe is of the view that a proposed Constitutional court would handle all human rights violation related cases, presidential election petitions and other constitutional related matters.
This in essence will then reduce the pressure or backlog of cases the high courts or supreme courts courts are having to handle in an event of a constituitional issue arising on a disputed point of law.
He said the establishment of the court would in turn reduce the Back-log of cases in current courts in the country and enhance justice to the accused and the petitioners.
Mr Justice Silungwe said the constitutional court was working well in South Africa adding that because of this precedence , South Africa has made great strides
in the development of law and jurisprudence.
"The Constitutional court has exclusive responsibility of dealing with human rights violations, Constitutional related cases and presidential election petitions.
"The court if adopted will handle presidential elections and not parliamentary ones because the draft Constitution has also recommended the doing away of parliamentarian by-elections through the proportional representation system (PRS) of electing members of parliament (MPs) said Mr Justice Silungwe.
According to the draft constitution, the Constitutional Court would rank the same with the Supreme Court in the exercise of their judicial powers, under their respective jurisdictions and would be equal in precedence.
The Supreme Court is currently the highest ranking court in the country and mostly hears last appeals of cases.
The Constitutional court if adopted would be headed by a president who would be responsible for the efficient administration of the court and shall further in respect with judges of the Constitutional court, exercise the functions of the Chief Justice specified in Article 166 (3).
In short, the president of the Constitutional court would have similar powers and recognition as the present day Chief Justice.
The court would also have a deputy president who would take care of the administration of the court in the absence of the president.
The draft Constitution has also recommended that the Constitutional Court should upon hearing of and determining a matter other than an interlocutory one be duly constituted by an uneven number of not less than three judges.
The court would be deemed to be a full bench if not less than five judges sit to determine any matter.
Further, the court would have original and final jurisdiction in all matters of interpretation of the Constitution, to hear and determine a question of violation of the Constitution, to hear and determine any matter relating to the office of president, vice president or an election of a president or president-elect.
The court shall also have original and final jurisdiction to hear and determine whether an Act of Parliament, a Bill or statutory instrument contravenes the Constitution or to determine whether or not a matter fell within the jurisdiction of the court.
The Zambian Parliament is expected to enact legislation to give effect to the court.
Lusaka based Professor Patrick Mvunga (Senior State Counsel) who welcomed the idea of setting up a Constitutional court in the country said that the move was long over due.
Prof Mvunga said that the Constitution commissions that have come and gone have all recommended for the establishment of the court because it was good to the enhancement of democracy.
He said that there has been persistent demands by the people of Zambia that a Constitutional court be established as it was made in the (Mvunga, Mwanakatwe, Mung'omba Commissions) as well as the National Constitution Conference (NCCC).
Prof Mvunga said that it was a demand on which they have been a lot of debate for over 20 years.
He said South Africa has been a leading model on the court further explaining that the court if adopted would exclusively be responsible for the interpretation of Constitutional matters, human rights and any other related cases.
The Prof said that the court was a specialist court which would compromise of experts in human rights , constitutional law with a history background of at least 15 years of standing in bar.
Prof Mvunga said the constitutional was a core for any democracy as it was more than welcome to be established.
He said that the whole idea was for the court to act expeditiously in disposing constitutional related matters adding that citizens would have direct access to the court without meandering through appeals on matters of human rights and constitution.
Prof Mvunga said that the move would shorten the process of determining matters and easy the burden on the current existing courts.
He said in matter of public interest litigation, they would be no requirement that litigants should pay security fees although he was quick to mention about the challenge faced by many Zambians in access justice due to legal costs.
Prof Mvunga said that the court if established would be at par with the Supreme court and one could not appeal to the Supreme court about its decision and visa-vis.
"The recommendation of establishing a Constitutional court is a novel idea because in old democracies you would not learn about them as it is a developing concept but they have worked so well in countries which have them like SA, Kenya and Nambia and would add to the quality of justice," said Prof Mvunga.
He summed up his interview by urging Zambians to take the opportunity for them to reflect on the draft and react on it so that when the final Constitution was achieved they would claim ownership to a people driven Constitution that would last a test of time.
Women in Law in Southern Africa Executive Director Matrine Chulu said that the recommendation to set up a Constitutional court was a welcome development because the court has a special area of interest.
Ms Chulu said that the establishment of the Constitutional court in Zambia if adopted would set a precedent to other countries that do not have the system especially those within the region.
She said the proposal of such a court was timely to the present day situation of the country especially that it would handle matters expeditiously.
She said "If the proposal to set up the court is adopted, there would be no more delays in handling cases as they would be a court that will directly be dealing with Constitutional related matters".She said.
Ms Chulu said that it would be better and interesting for Zambia to have a special court for human rights abuse related cases especially that the country has had such cases delayed in other courts for a long time.
She said that it was gratifying to note that the court would also help women and children because most abuses they faced were in line with violation of their Constitutional rights.
Further, Ms Chulu called on government to domesticate international instruments to effectively deal with matters referred to the court in an event that the proposal was adopted.
She called on members of the public to actively participate by submitting comments to the draft Constitution in order to have a solid and people driven Constitution that would stand the test of time.
"As WLSA, we would urge all communities to participate and comment on the draft Constitution in order to have a solid and people driven Constitution in the end," said Ms Chulu.
Southern African Centre for the Constructive Resolution of Disputes (SACCORD) Information and Publicity Officer Obby Chibuluma described the proposal as a good development because once included in the draft Constitutional document it would ease pressure on the High court and Supreme Court.
Mr Chibuluma said the recommendation was a welcome move in that court processes that require constitutional interpretation would be taken directly to the envisaged Constitutional Court for arbitration.
Taking a leaf from the proverbial 'Justice delayed, is justice denied.
The SACCORD officer argued that in that way citizens would be able to get judgments quicker that is the case now.
Mr Chibuluma said that since the proposed Constitutional court was deemed as a final court of appeal, it would have conclusive authority on matters tabled before it.
"This is a good development as it will ease the burden of resolving constitutional matters tabled before it. It is encouraging that as a final court of appeal, its verdicts will be deemed conclusive once passed," an elated Chibuluma said.
It goes without saying that once the constitutional court was eventually agreed to and actualized in the forth-coming Republican Constitution, the collective desire to accelerate resolution of constitutional and human rights related matters would lessen the burden currently pressed on the High Court and Supreme Court of Zambia.
Even aggrieved citizens whose constitutional rights were infringed upon and were reluctant to present their grievances to the courts for fear of being denied justice through delays, if the Constitutional court was adopted, they would find it worthwhile to the present their cases to the Constitutional Court for quicker and shorter remedies.