28th Session: Commissioner Nyameko Pityana 29th Session: Commissioner Nyameko Pityana SUMMARY OF FACTS 1. The Complainant, an NGO that has Observer Status with the African Commission and is based in Zambia, is bringing this complaint against a State Party to the Charter, Zambia. 2. The Complainant alleges that the Zambian Government has enacted into law, a constitution which is discriminatory, divisive and violates the human rights of 35 percent of the entire population. The Constitution (Amendment) Act of 1996, it is alleged, has not only violated the rights of its citizens, but has also taken away the accrued rights of other citizens, including the first President, Dr. Kenneth Kaunda. 3. The Complainant alleges that the said Constitution of Zambia Amendment Act of 1996 provides inter- alia, that anyone who wants to contest the office of the president has to prove that both parents are/were Zambians by birth or descent. 4. Article 35 of the said Constitution Amendment Act further provides that nobody who has served two five-year terms as President shall be eligible for re-election to that office. 5. Complainant alleges that the amended constitutional provisions are in contravention of international human rights instruments in general and the African Charter on Human and Peoples' Rights in particular. 6. Complainant has taken the case to the Supreme Court of Zambia between May and August 1996 seeking: • A declaration that Articles 34 and 35 of the amended Constitution are discriminatory. • A declaration that Parliament lacks the power to adopt a new constitution; and • An injunction restraining the President from assenting to the constitution. 7. Complainant alleges that while the case was pending in court, the ruling party dominated parliament went ahead to adopt and enact the controversial constitution which the President assented to one week later. 8. The Complainant's case was therefore thrown out of court. 9. The Supreme Court of Zambia is the highest Court of jurisdiction in the land, thus all local remedies have been exhausted. COMPLAINT 10. The Complainant alleges that the following provisions of the African Charter have been violated; • Article 2 - which prohibits discrimination of any kind including place of birth, social origin and other status;