Constitutional Court split on cost payment by former KCM Liquidator, Lungu

The Constitutional Court faced a split decision regarding whether former Provisional Liquidator of Konkola Copper Mines (KCM), Milingo Lungu, should pay costs to the State after challenging the lifting of his immunity from prosecution.

The majority judgment, passed by six judges, declined to impose costs on Lungu, stating that decisions on costs in previous applications were final and that the court’s authority over the matter had ceased.

They emphasized the importance of promoting out-of-court settlements and avoiding unnecessary expenses.

The judges in the majority included Annie Sitali, Palan Mulonda, Mathew Chisunka, Martin Musaluke, Mugeni Mulenga, and Mudford Mwandenga.

They noted that the guiding principles in Article 118(2)(d) of the constitution were mandatory but can be applied at any stage before judgment.

“The constitution does not prescribe when this principle should be applied,” the majority stated.

“Given that the parties seem intent on settling this matter out of court, the court should promote such endeavors and be slow in condemning the petitioner in costs,” they affirmed.

However, five judges dissented, arguing that Lungu had caused significant expense to the respondents.

Judges Margaret Munalula, Arnold Shilimi, Judy Mulongoti, Maria Kawimbe, and Kenneth Mulife contended that it would be unjust for taxpayers to bear the costs of the proceedings.

“The first respondent’s prayer for costs is based on Order X Rule 3 of the CCR on discontinuance of suits,” they stated.

“This provision is independent of previous applications or rulings on costs. It empowers the court to allow parties to discontinue their suits subject to the allocation of costs.”

The dissenters argued that awarding costs at this stage would not be a review or reversal of any previous orders but a necessary step to ensure justice.

Ultimately, the majority ruled that the interlocutory applications made by Lungu could not serve as a basis for condemning him in costs upon discontinuance.

They stressed the importance of bringing litigation to finality and maintaining public confidence in the judicial system’s authority.

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