By Peter Sinkamba

ADVICE TO UPND ON BILL 10: AFTER DISMISSAL OF JACK MWIIMBU’S COURT CASE FOCUS ON WALK OUTS

It is quite saddening that an application by Monze Central UPND Member of Parliament Jack Mwiimbu who sought leave to commence judicial review proceedings to challenge the decision of the Speaker of the National Assembly Dr. Matibini to allow the restoration to the Order Paper for consideration of Constitution (Amendment) Bill No.10 of 2019 was dismissed at preliminary level. How I wish the application was heard and dismissed on merits after a thorough, rigorous interrogation.

This application was dismissed because the Zambian legal system of has two sets of opposite laws. We have duality in the Zambian legal system. One set of laws stipulates that if one intends to challenge an administrative decision of a Government official, and seeks reliefs such as mandamus, prohibition or certiorari, then an application for judicial review must be made to the High Court. This set of laws stipulates further that no application for order of mandamus, and other reliefs, must be made without leave of the High Court. And that if leave is denied, the furthest one can go in pursuing such reliefs is by way of renewal of the application for judicial review in the Court of Appeal.

Now, suppose the relief sought is constitutional in nature, can one apply for judicial review directly in the Constitutional Court? The answer is no. The court of first instance in judicial review proceedings is the High Court. If one skips the High Court, and goes to the Court of Appeal, then such an application will be thrown out. Again, if one applies for judicial review directly in the Constitutional Court, most likely the application will be thrown out on a jurisdiction technicality. First of all, it is important to note that rules of the Constitutional Court only provide for an application to review an administrative decision if that decision concerns the Electoral Commission of Zambia in the delimitation of constituencies and wards. Anything else, Order 53 of the Supreme Court Rules (White Book) whereby on must apply to the High Court is mandatory.

To make matters worse, judicial review is discretional power of the court which the High Court and Court of Appeal are extremely reluctant to exercise. That is reason why, for example, the Judge Sharon Newa in this case of Jack Mwiimbu did not refer the matter to the Constitutional Court even though Article 128(2) of the Constitution provides that where a question relating to the Constitution arises in a court, then the person presiding in that court should refer the question to the Constitutional Court.

It is these kinds of dualities and contradictions we need to sort as matter of priority if the Green Party is elected into Government next year.

Justice Sharon Newa ruled that the matter which Mwiimbu brought before court raises issues of a constitutional nature and therefore she had no authority to determine it as it was the preserve of the Constitutional Court.

“Even if I had jurisdiction to interrogate the exercise of the Speaker’s powers pursuant to the internal practices and procedure of the National Assembly as submitted by the Attorney General, it would ultimately involve interpretation of the Constitution from which the said powers are derived. As [can be] seen, I have no such jurisdiction as it is vested in the Constitutional Court,” said judge Newa.

“On that basis, I find that this is not a case that is fit for further investigation and I accordingly decline to grant leave to commence judicial review proceedings and dismiss the matter,” she added.

In this country we have dualism in our legal system. As dualism stands today, the legal system is incapable of substantially restraining top government officials from overreach through the judicial review processes, and does not protect the rights of citizens from their government or indeed hold their government accountable.

We need to have a constitution and laws that impose strict limits on some powers of government officials, especially the President, Chief Justice and Speaker. But, as we have discovered in the past three decades, no constitution can interpret or enforce itself. It must be interpreted by men and women. But the question is: which men and women? If the ultimate power to interpret the constitution and laws is given to the government’s own courts to exercise discretional power, then the inevitable tendency is to continue to place ever-broader powers for court’s own government. The ultimate result is that the highly touted “checks and balances” and “separation of powers” in a government system is rendered flimsy indeed. We need to change this.

Mwiimbu wanted an order of certiorari to quash Dr Patrick Matibini’s decision to allow the deferment of the proceedings relating to the controversial Constitution (Amendment) Bill No.10 of 2019 to a date yet to be advised within the fourth session of 12thassembly.

He was also seeking an order of mandamus, directing the Speaker to discontinue any or further consideration, debate or other proceedings relating to Bill No.10.

In addition, he wanted a declaration that Dr Matibini’s decision was invalid, null and void and of no effect, and an order that all proceedings in the National Assembly relating to the bill be stayed until after the determination of the matter or further order of the court.

Mwimbu sought reliefs on grounds that Dr Matibini’s decision was unreasonable and irrational without justifiable reason following the lapse of the Bill on June 4, 2020 and was not amenable to further consideration, debate or process in Parliament.

All the reliefs sought make sense. However, our legal system is like being trapped between a rock and hard place: same difference.

Advise to UPND, focus on walk out. At least on that aspect the Speaker has ruled it is within your rights.