IN THE CONSTITUTIONAL COURT OF ZAMBIA 2021/CCZ/0034

AT THE CONSTITUTIONAL COURT REGISTRY

HOLDEN AT LUSAKA
(Constitutional Jurisdiction)

IN THE MATTER OF: ORDER IV OF THE CONSTITUTIONAL COURT

RULES 2016 STATUTORY INSTRUMENT NO. 37
OF 2016;

IN THE MATTER OF: THE PETITION PURSUANT TO ARTICLE 128 (1)

(a) AND (b) OF THE CONSTITUTION OF ZAMBIA
(AMENDMENT) ACT NO. 2 OF 2016;

IN THE MATTER OF: ARTICLE 187 (1), (2) AND (3) OF THE
CONSTITUTION OF ZAMBIA (AMENDMENT) ACT
NO. 2 OF 2016;

IN THE MATTER OF: ARTICLE 189 (1) AND (2) OF THE

CONSTITUTION OF ZAMBIA (AMENDMENT) ACT
NO. 2 OF 2016; AND

IN THE MATTER OF: ARTICLE 266 OF THE CONSTITUTION OF

ZAMBIA (AMENDMENT) ACT NO. 2 OF 2016.

BETWEEN: j£G 2 7 JAN 2022 I

LIEUTENANT CHRISPINE S. MUCHINDU PETITIONER
REGISTRY 7
I P O BOX 50067. LUSAKA
AND
THE ATTORNEY GENERAL RESPONDENT
Coram: Mulenga, Mulonda and Musaluke, JJC

On 8th December, 2021 and 27th January, 2022

For the Petitioner: Ms. D. Chisengalumbwe of Messrs. K. Mwale

and Company

For the Respondent: Mr. N. Nyambe, Principal State Advocate and

Lt. Colonel S. Sikazwe, State Advocate of
Attorney General.

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 JUDGMENT

Mulonda, JC, delivered the Judgment of the Court.

Cases referred to:

1. Lubunda Ngala and Jason Chulu v Anti-Corruption Commission

CCZ Selected Judgment No. 4 of 2018.
2. Levy Mwale v Zambia National Broadcasting Corporation
2019/CCZ/0012.
3. Owen Mayapi and 4 Others v Attorney General 2019/CCZ/003.
4. Anderson Mwale Bichisa Mwalongo, Kola Odubote v Zambia
Open University 2021/CCZ/001.
5. Rosemary Chisala Molobeka v Attorney General 2019/ITK/399.
6. Khaled Mohammed v Attorney General (1982) Z. R. 49.
7. Wilson Masauso Zulu v Avondale Housing Project (1982) Z. R.
172.

Legislation referred to:

1. Defence Act, Chapter 1056 of the Laws of Zambia.

2. Public Service Pensions Act No. 35 of 1996.
3. The Constitution of Zambia (Amendment) Act No. 2 of 2016

INTRODUCTION:

[1] This Judgment follows a petition filed on 7th June, 2021 by

one Lt Col Chrispine Siasinyanga Muchindu (Rtd) - the

petitioner - pursuant to Article 128 (1) (a) and (b) of the

Constitution of Zambia (Amendment) Act No. 2 of 2016

(Constitution) alleging violation of Articles 187, 188, 189 and

266 of the Constitution.

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BACKGROUND

[2] The petitioner underwent attestation upon joining the Zambia

Air Force (ZAF) on 14th February, 2010 and subsequently

went on to join ZAF as a commissioned officer on 15th July,

2011. He served in this role until he was retired from

Regular Air Force with effect from 3rd February 2017 in

accordance with the provisions of the Defence (Regular Force)

(officers) Regulations; Regulation 9 (2) of the Defence Act

Chapter 106 of the Laws of Zambia.

[3] The petitioner was upon retirement entitled to a pension

benefit calculated in accordance with section 41 of the Public

Service Pensions Act No. 35 of 1996. In addition, to the

pension benefit, the petitioner was to be paid other

allowances, namely:

(a) Six months salary in lieu of notice,

(b) Six months housing allowance,

(c) Six months service allowance,

(d) Six months utility allowance,

(e) Leave days, and

(f) Repatriation allowance.

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[4] Before the disbursement of the pension benefit, the petitioner

was retained on the payroll from the 3rd February, 2017 to

March, 2019, two months before the liquidation of the pension

benefit in May, 2019 by the Public Service Pensions Fund

(PSPF). The petitioner was not in receipt of a salary , housing

and utility allowances for two months, April and May, 2019

respectively.

The Petitioner's case -

[5] The petitioner commenced his case with a claim of a liquidated

sum of ZMW116,687.85 being his alleged entitlement at

retirement in accordance with section 41 of the Public

Service Pensions Act No. 35 of 1996. The petitioner further

alleges that the respondent has unlawfully withheld his

constitutional entitlement to a pension benefit despite

numerous demand letters to be paid or in the alternative to

maintain him on payroll until such a time when pension

benefits are paid in full.

[6] It is alleged that the respondent has collectively violated Part

XIV of the Constitution with respect to Pension Benefits.

That in that respect, the petitioner is entitled to remedial

measures against the respondent and in this regard prays for:

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 (i) An order that the petitioner be retained on active payroll

until he is paid all his pension benefits in full;

(ii) An order that the petitioner be paid all salary arrears

from the 3rd day of February, 2017 to date;

(iii) Interest on the amounts so ordered by the Court;

(iv) Costs; and

(v) Such other order that may be made as the Court shall

deem fit.

[7] The petitioner in his submissions requests the Court to

determine the following questions namely:

(i) Whether the petitioner was entitled to be retained on the

Respondent's payroll following his retirement until

payment of his pension benefit;

(ii) Whether the petitioner is entitled to be paid his salary

arrears from March, 2019 to date.

[8] In his submissions, the petitioner argued that having being

retired in accordance with the Defence Act, he was entitled to

a pension benefit calculated in accordance with section 41 of

the Public Service Pension Act No. 35 of 1996 and that the

respondent was under an obligation to pay terminal benefits in

form of allowances due at retirement.

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[9] The petitioner submitted that having been retired on 3rd

February, 2017, he was retained on payroll until March, 2019

though he only received his pension benefit in form of a refund

from the Public Service Pensions Fund (PSPF) in the sum of

ZMW 59,569.18 in May 2019. That at the time of removal

from the payroll, he had not yet received his retirement benefit

in accordance with the Defence (Regular Force) Officers

Regulations Reg 9 (2) of the Defence Act.

[10] That by removing the petitioner from the payroll while his

pension benefit remained unpaid in full, the respondent acted

contrary to Article 189 (1) and (2) of the Constitution. In this

respect the case of Lubunda Ngala and Jason Chulu v Anti­

Corruption Commission1 was cited, where we observed as

follows:

"The words "promptly" used in Article 189 (1) means that the
benefit must be paid without delay while "regularly" means
that it must be paid to the beneficiaries when due and not
intermittently."

11] It was the petitioner's submission that his pension benefits

were not paid promptly and regularly as defined by this Court

in the Lubunda Ngala1 case above. That efforts to have his

retirement benefits paid proved futile and that it was only after

engaging Counsel and commencing these proceedings that the

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 respondent remitted a lump sum payment of K109,987.85 and

followed by a payment of K6,700 on 15th July, 2021 as

repatriation allowance. That the last pay certificate was

issued on 20th July, 2021.

[12] That the none payment of the benefits upon retirement way

after the petitioner was removed from the payroll was delayed

and irregular entitling the petitioner's retention on the payroll.

Our decision in the matter of Levy Mwale v Zambia National

Broadcasting Corporation2 was cited where we stated that if

an employee was not paid his pension benefit on their last

working day, they ought to be retained on payroll until the

pension benefit is liquidated.

[13] The petitioner submitted that his pension benefits remained

unpaid in full, from the date of his retirement, 3rd February,

2017 to the time these proceedings were commenced. That

under the circumstances the petitioner was entitled by law to

remain on the respondent's payroll until full payment of his

pension benefits. Our opinion on retention on payroll in the

Owen Mayapi and 4 Others v Attorney-General3 case was

cited where in this Court stated that:

"The phrase "retained on payroll" means that such retirees will

continue to be paid what they were getting through the payroll
at the time of their retirement. This we opine, is premised on
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 the need to maintain the status quo of a retiree who, for no
fault of his/her own, has not accessed his/her pension
benefits."

[14] That in the Lubunda Ngala1 and Mayapi3 cases this Court

pronounced itself on the rationale behind the enactment of

Article 189 which is that the provision is meant to cushion

pensioners and retrenchees from the hardships they were

experiencing as a result of delayed payment of their pension

benefits. That the respondent in its affidavit in opposition

does in fact admit to the delayed payment of the petitioner's

pension benefits. As a consequence the petitioner submitted

that he had been subjected to hardships he never encountered

before he was struck off the payroll in March, 2019.

[15] The petitioner went on to submit that his removal off the

payroll was unconstitutional and clearly went against the

spirit of Article 189 as expressed in the Lubunda Ngala1 case

which was to cushion pensioners from financial hardships

encountered as a result of delayed disbursement of pension

benefits.

[16] In conclusion, it was submitted that the petitioner having been

retired without notice was entitled to his pension benefits from

the respondent on the date of retirement.

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[17] In response to the petitioner's submissions, the respondent

did not dispute the fact that the petitioner was on 3rd

February, 2017 retired from the Regular Zambia Air Force in

accordance with the provisions of the Defence (Regular Force)

(Officers) Regulations; Regulation 9 (2) of the Defence Act

Chapter 106 of the Laws of Zambia.

[18] That the petitioner in addition to being entitled to a pension

benefit in accordance with section 41 of the Public Service

Pensions Act No. 35 of 1996 was also entitled to terminal

benefits from the employer in form of allowances. The

respondent submitted that the key question for consideration

by this Court is whether or not in terms of Article 189 (2) of

the Constitution a person who has not been paid his other

terminal benefits outside the pension benefits is entitled to be

retained on the payroll.

[19] The respondent quoted Articles 187 (1), (2) and (3), 188 and

189 (l)and (2) of the Constitution and submitted that these

provisions were clear on the fact that only a person who has

not been paid his pension benefit on his last working day is

eligible for retention on the payroll. That the petitioner was

paid his pension benefit in full by PSPF as per his entitlement.

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 This, it was submitted , was followed by a directive from PSPF

to ZAF to have the petitioner's name removed from the payroll

in accordance with the law.

[20] The case of Lubunda Ngala and Jason Chulu v The Anti

Corruption Commission1 was cited where we had occasion

to consider whether terminal benefits accrued in respect of

a person's service fell within the contemplation of the

definition of pension benefit under Article 266 of the

Constitution. Secondly, whether a person who has not been

paid his/her terminal benefits on that person's last working

day is entitled to be retained on the payroll and lastly whether

a failure or unwillingness to retain a person on the payroll not

yet paid his/ her terminal benefits is an infringement on the

rights of that person.

[21] The respondent submitted that this Court stated in the

Lubunda Ngala1 case at page J32 that;

" It would be wrong to say that all terminal benefits simply

because they arise from the termination or coming to an
end of the employment contract, should be considered or
interpreted to be the same as a pension benefit and that a
pension benefit is triggered by retirement due to age or
other circumstances."

[22] It was submitted that, as was the case in the Lubunda Ngala1

matter were the Court stated that leave days, uniform and
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 settling allowances do not amount to pension benefits, in

casu, the petitioner is claiming for outstanding payments

outside the ambit of pension benefits. It was submitted that

pension benefits are separate and distinct from terminal

benefits being claimed by the petitioner which are a basis for

retention on payroll as envisaged by Article 266 of the

Constitution.

[23] The respondent went to submit that terminal benefits are the

outstanding monies due to the petitioner as outlined in his

retirement letter on record in the Affidavit in Opposition

marked HM2. That the said terminal benefits are within

benefits that can be paid as one off payments and are

distinguishable from pension benefits which require to be paid

promptly and regularly.

[24] The respondent submitted that the petitioner's name could

have been retained on payroll only if the credit balance due to

him was falling within the ambit or part of pension benefits.

That the petitioner has not canvassed this aspect before this

Court. Further, that what the petitioner is owed by ZAF are

terminal benefits falling outside the ambit of pension

benefits.

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[25] The case of Anderson Mwale, Buchisa Mwalongo, Kola

Odubole v Zambia Open University was cited and

particularly page J58 where this Court stated that the pension

benefit referred to in Articles 187, 188 and 189 of the

Constitution is a pension benefit granted by or under a

relevant pension law or other law.

[26] The respondent cited our view on the burden of proof in civil

actions as highlighted in the above case at page J63 where we

agreed with the learned author Phipson on Evidence, 17th

edition, paragraph 6 - 06 at page 157 on where the burden of

proof lies and that the party with this burden who fails to

discharge it must have the decision against him. This principle

was also highlighted as settled in the cases of Khaled

Mohammed v Attorney General1 and Wilson Masauso Zulu

v Avondale Housing Project7.

[27] In light of the above authorities, it was the respondent's

position that the petitioner had failed to discharge the burden

of proof that he was not paid his pension benefit. The case of

Levy Mwale v Zambia National Broadcasting Corporation2

was cited where we at page J17 stated that ;

" Retention on the payroll is meant for continued

payment of one's salary until the pension benefit

J12
 is liquidated in full and not for the purpose of
disbursing pension benefit by installment.''

That the pension benefit from PSPF was paid in full and not

disbursed in installments to warrant retention of the petitioner

on payroll until full payment.

[28] Further, the case of Rosemary Chisala Molobeka v Attorney

General5, was cited where we had occasion to pronounce

ourselves that an employer could only remove an employee

from the payroll after liquidating the employees' pension

benefits and not any other benefit attendant upon

retirement. That based on this authority, the petitioner was

only entitled to be retained on payroll before the payment of

the pension benefit by PSPF. That the pension benefit having

been paid, the petitioner could not be retained beyond May

2019 when PSPF paid him the pension benefits.

[29] In conclusion, the respondent submitted that the petitioner

had been in receipt of his salary for the entire period before

payment of the pension benefit, save for two months of

Housing and Utility allowances arrears for April and May

2019 due from ZAF which were still outstanding.

It was the respondent's prayer that we find that the petitioner

does not qualify for retention on the payroll and should not
J13
 grant the reliefs sought and accordingly dismiss the petition

with costs to the respondent.

[30] In his reply to the respondent's affidavit in opposition, the

petitioner, acknowledges receiving payments towards his

terminal benefits but insists these were sporadic and at the

time of petitioning this Court had not been fully paid.

[31] The petitioner, while agreeing with the respondent that the

Public Service Pensions Fund released ZMW60,279.00 as his

pension benefit refund out of which ZMW59,569.10 was

deducted as government debt and the balance of ZMW710.10

paid into his account said he was struck off the payroll in

March, 2019.

[32] That he was struck off the payroll before payment of his

pension benefit from Public Service Pension Fund and

liquidation of his terminal benefits done under his letter of

retirement.

[33] It was further averred by the petitioner that the outstanding

amount of ZMW24,661.60 for the months of April and May,

2019 in respect of salary, housing and utility was correct save

to say that this was not the only amount outstanding and as

such this entitled the petitioner to be retained on payroll.

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[34] The petitioner also averred that the payments of his terminal

benefits were delayed, a fact admitted by the respondent, and

were paid in instalments of ZMW10,000.00 over a long period

of time.

[35] That following the institution of proceeding against the

respondent on 7th June, 2021, the respondent made a

payment of ZMW109,987.85 as 6 months pay in lieu of notice

and last pay certificate.

DECISION

[36] We have considered the submissions by both parties and what

requires our consideration is whether the matter before us

raises any constitutional question for determination.

[37] This Court has had occasion to pronounce itself on the import

of Articles 187(1) (2) and (3), 188(1) and (2), 189(1) and (2) and

266 being the articles alleged to have been collectively violated

by the respondent.

[38] Article 187 provides that:

(1) An employee, including a public officer and constitutional office

holder, has a right to a pension benefit.
(2) A pension benefit shall not be withheld or altered to that
employee's disadvantage.
(3) The law to be applied with respect to a pension benefit -
(a) before the commencement of this Constitution, shall be the
law that was in force immediately before the date on which
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 the pension benefit was granted or the law in force at a later
date that is not less favourable to that employee; and

(b) after the commencement of this Constitution, shall be the

law in force on the date on which the pension benefit was
granted or the law in force at a later date that is not less
favourable to that employee.

[39] Article 189 provides as follows:

(1) A pension benefit shall be paid promptly and regularly.

(2) Where a pension benefit is not paid on a person's last working
day, that person shall stop work but the person's name shall be
retained on the payroll, until payment of the pension benefit
based on the last salary received by that person while on the
payroll.

[40] Article 266 of the Constitution provides a definition of pension

benefit as follows:

266. In this Constitution, unless the content otherwise requires -

"pension benefit" includes a pension compensation, gratuity or
similar allowance in respect of a person's service.

[41] In the case at hand, it is not in dispute that the petitioner's

pension benefit was to be calculated according to section 41 of

the Public Service Pensions Act No. 35 of 1996. However,

what appears to be in dispute is whether the terminal benefits

at retirement equally constitute a pension benefit within the

contemplation of Article 189 of the Constitution.

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[42] This Court had occasion to pronounce itself on what a pension

benefit amounts to in the case of Anderson Mwale and

Others v Zambia Open University4 at paragraphs 116 - 117

where we stated as follows:

116. Therefore, in this case, the definition of pension benefit should

be interpreted in the light of the substantive provisions of
Articles 187 and 189 of the Constitution. As we already stated
earlier in this judgment, Article 187(3) of the Constitution
sheds clear light on what pension benefits the framers of the
Constitution intended to provide for in Articles 187 and 189 of
the Constitution by referring to the law to be applied to a
pension benefit.

117. The framers of the Constitution provided for an employee's

right to a pension benefit in broad terms in the Constitution
and left the details of the pension benefit to be stated in an Act
of Parliament as clearly implied by Article 187(3). The plain
language of Article 187(3) reveals that the provisions of the
Constitution relating to a pension benefit must be read
together with relevant pension laws. This is because Article
187(3) makes it plain that there is a law to be applied to a
pension benefit referred to in clauses (1) and (2) of Article 187
and clearly states which law that is in paragraphs (a) and (b) of
clause 3 of Article 187.
[43] We further stated in paragraph 118 at page J58 that:

118. In that regard, we take judicial notice that there are several
pension laws contained in Acts of Parliament including the
Public Services Pensions Act, Chapter 260 of the Laws of
Zambia, relating to pensions and other benefits for persons
employed in the public service . Our taking judicial notice

J17
 of the pension laws is based on the provision of section 6(1) of
the Interpretation and General Provisions Act, Chapter 2 of the
Laws of Zambia, which states that every Act, Applied Act or
British Act shall be a public Act and shall be judicially noticed
as such.

[44] We went on to state in paragraph 119 at page J58 as follows:

119. Given that the pension benefits referred to in Articles 187,

188 and 189 of the Constitution, is a pension benefit granted
by or under a relevant pension law or other laws, it follows that
for an employee to be retained on the employer's payroll under
Article 189(2) of the Constitution, the pension benefit which is
not paid to an employee on the last day of work should be a
pension benefit granted by or under the relevant pension law or
other law applicable to that employee's service.

[45] In the case of Lubunda Ngala and Jason Chulu v Anti­

Corruption Commission1 where the question of whether in

terms of Article 266, terminal benefits due to a person at

separation fell within the definition of a 'pension benefit'. We

stated at page J32 that:

It would be wrong to say that all terminal benefits simply because

they arise from that termination or coming to an end of the
employment contract, should be considered or interpreted to be the
same as a pension benefit and that a pension benefit is triggered by
retirement due to age or other circumstances.

[46] The above cited authorities clearly demonstrate, firstly that a

pension benefit within the contemplation of Article 189 of the

J18
 Constitution is that given under a pension law. Secondly that

not all benefits accruing at termination of service are pension

benefits.

[47] In the case at hand, the law applicable to the petitioner is the

Public Service Pensions Act No. 35 of 1996, particularly section

41. This pension benefit until liquidated entitled the petitioner

to be retained on payroll. As the record shows, the petitioner

was retained on payroll from the 3rd February, 2017 to March,

2019, two months before the liquidation of the pension benefit

in May, 2019. At the time when the petitioner was struck off

the payroll, there was some outstanding pension benefit under

the Public Service Pensions Act which entitled him to be

retained on the payroll based on Article 189(2). This issue

remained unresolved until the terminal benefit was liquidated

in May, 2021.

[48] It follows therefore that at the time the petition was filed on 7th

June 2021, no pension benefit was due and as such no

constitutional question could arise. The argument that there

was a violation of the Constitution due to the none liquidation

of terminal benefits due at separation does not hold going by

what we stated in the Lubunda Ngala1 case.

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[49] Under the circumstances, it is our considered view that the

petition does not raise any constitutional question for our

determination within the meaning of Article 187, 188, 189 and

266 of the Constitution. We accordingly dismiss it for want of

jurisdiction.

Each party to bear their own costs.

M.S MULENGA
CONSTITUTIONAL COURT JUDG

M LU^E
CONSTITUTIONAL COURT JUDGE CONSTITUTI COURT JUDGE

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