In his application, Chirambwe seeks a declaratory relief to
the effect that sections 58, 64 and 65(1) to (5) of the Legal Practitioners Act
are invalid and in violation of the Constitution.
According to the Act, one has to be a LSZ member before
they are registered by a High Court judge and allowed to practise as a lawyer.
In an opposing affidavit filed through lawyers Scanlen and
Holderness, LSZ executive secretary Edward Mapara said Chirambwe’s application
was unconstitutional.
“I am advised that in terms of section 85 of the
Constitution, the relief sought ought to be appropriate. In casu, the applicant
is asking this court to grant an order which enjoins the minister to repeal an
Act of Parliament,” Mapara said.
“In doing so, the minister would be replacing Parliaments’
law-making powers established in the Constitution. Suffice to say, the relief
sought is unconstitutional, unlawful, contrary to acceptable values in a
democracy and incapable of enforcement.”
Chirambwe cited LSZ, Justice minister Ziyambi Ziyambi and
Attorney-General Prince Machaya as respondents.
Mapara said Chirambwe’s application was premised on “an
erroneous interpretation of sections 52 and 74 of the Legal Practitioners Act
and an incorrect understanding of the scope and extent of the constitutional
rights that the applicant seeks to enforce.
“Section 52 does not preclude the formation of any lawyers
association.
“What even makes this more absurd is that the applicant is
self-employed as an advocate. He is not, therefore, employed at all and has no
real and substantial interest in matters concerning employment. Apart from
this, section 52 does not compel legal practitioners to become members in
second respondent (LSZ). It only offers
the right of membership to registered legal practitioners.”
Chirambwe’s court challenge followed threats by the
government to reform the LSZ. The government accuses the LSZ of being funded by
the West to push a regime change agenda.
Mapara added: “This application is improperly before this
court. The applicant alleges that he is acting in both his own interest as well
as public interest.
“I am advised that this issue has been put to rest by the
Constitutional Court on multiple occasions. The applicant cannot, as he sought
to do, act in his own interest as well as public interest. Under section 85(1)
of the Constitution, a person should act in one capacity in approaching a court
and not act in two or more capacities in one proceeding.”
The matter has not yet been set down for a hearing. Newsday
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