The Editor Zambia
The argument by Socialist Party leader Fred M’membe that a petition concerning the status of Chief Mukuni seeks to revive a colonial system of traditional leadership raises legitimate historical questions, but it appears to stretch the 2019 Constitutional Court judgment beyond what that judgment actually decided.
There is no dispute that colonial legislation influenced the administrative classification of traditional leaders in Northern Rhodesia. 
The 2019 case of Mulubisha v Attorney-General itself dealt extensively with the historical development of legislation governing chieftaincy, including the Native Authority Ordinance and the Barotse Native Authority Ordinance of 1936.
But acknowledging the colonial origins of an administrative classification does not, by itself, establish that every modern use of the term “Paramount Chief” is unconstitutional.
That distinction is important.
Article 165 of the Constitution provides that the institution of chieftaincy and traditional institutions are guaranteed and shall exist in accordance with the culture, customs, and traditions of the people to whom they apply.
It also prevents Parliament from enacting legislation that gives a person or authority the power to recognise or withdraw recognition of a chief or that derogates from the honour and dignity of chieftaincy.
The Constitutional protection, therefore, is directed principally at protecting traditional institutions from political or statutory interference.
It does not expressly abolish traditional hierarchies, titles, or distinctions that may exist within communities under their own customs.
Indeed, this is where the argument against the Mukuni petition becomes less straightforward than M’membe suggests.
The Constitutional Court in Mulubisha struck down sections 3 to 7 of the Chiefs Act because they gave the President powers relating to recognition, withdrawal of recognition, appointment of deputy chiefs and related matters.
The court ordered those provisions expunged because they conflicted with Article 165.
But the judgment was concerned with presidential recognition and statutory powers over chieftaincy. It did not declare every traditional title other than “chief” unconstitutional.
Nor did it abolish the concept of traditional institutions or rule that the words “Paramount Chief” have no place in contemporary Zambia.
In fact, a later 2021 Constitutional Court judgment specifically observed that the Mulubisha decision had a narrow focus on presidential recognition of chiefs and did not determine the status of Paramount Chiefs or traditional institutions generally.
That point significantly weakens any argument that the 2019 judgment automatically closes the constitutional door on the Mukuni petition.
There is also an important question about what exactly the petition before the court is asking. If the petition seeks to have the State simply manufacture a new traditional hierarchy and impose it upon the Leya people, then Article 165 presents obvious constitutional questions.
But if the petition asks the court to recognise or give effect to a traditional status claimed to arise from customary history, the constitutional question is materially different.
The courts exist precisely to determine such questions rather than political commentators deciding them in advance.
M’membe is also entitled to raise concerns about political perceptions surrounding Chief Mukuni’s reported support for President Hakainde Hichilema.
However, political association should not be converted into evidence of a constitutional violation without proof. The Constitution itself provides that chiefs may participate in public affairs while imposing restrictions where a chief seeks political-party office or certain State positions.
Ultimately, the strongest argument is not whether “Paramount Chief” sounds colonial. The real constitutional issue is who has the authority to determine traditional status and on what customary or legal basis.
If the status is rooted in genuine Leya custom, the Constitution appears designed to protect that customary institution rather than suppress it because colonial administrators once used similar terminology.
If, on the other hand, the proposed elevation depends upon the presidential or parliamentary creation of a traditional title, Article 165 would require serious scrutiny.
That is a question for the Constitutional Court to determine on the evidence before it. The 2019 judgment is important, but it should not be treated as having decided a question it expressly did not decide.
