‘ROMEO MUST STAY IN PARLIAMENT’ – MATIBINI

Speaker of the National Assembly, Dr. Patrick Matibini has ruled that Sesheke Member of Parliament, Romeo Kang’ombe is not imprisoned and therefore legally remains in the house.

He says Kang’ombe – “although convicted and sentenced, (albeit the sentence has been suspended), is not serving a term of imprisonment” and therefore, cannot be deemed “to have vacated his seat.”

Matibini was ruling on a Point of Order from Deputy Government Chief Whip, Tutwa Ngulube against Kang’ombe’s stay in the national assembly after the Chinsali Magistrates Court sentenced him to 12 months for assault.

The court suspended the sentence for two years on condition that Kang’ombe pays a K10, 000 and does not commit a similar offense during the term of his sentence.

“Therefore, he has not vacated his seat and remains the Member of Parliament for Sesheke Parliamentary Constituency, unless and until such a time that he violates the conditions attached to the suspension of his sentence and he begins to serve his imprisonment term. Mr R Kang’ombe, MP, is therefore in order to remain a Member of this August House,” Matibini stated.

Matibini clarifies that once a sentence has been suspended, it has been postponed and the convict is not confined to a prison, unless he violates any other condition set by the court.

Ngulube, the Member of Parliament for Kabwe Central, relied on a subsection of Article 70 of the Constitution which disqualifies a Member of Parliament who “is serving a sentence of imprisonment for an offence under a written law.”

However, Matibini states that imprisonment is an act of confining a person especially in prison and does not apply in the case of Kang’ombe.

RULING BY THE HON MR SPEAKER ON THE POINT OF ORDER RAISED BY HON T S NGULUBE, MP, DEPUTY CHIEF WHIP AND MEMBER OF PARLIAMENT FOR KABWE CENTRAL PARLIAMENTARY
CONSTITUENCY, ON THE STATUS OF MR R KANG’OMBE, MEMBER OF PARLIAMENT FOR SESHEKE PARLIAMENTARY CONSTITUENCY, FOLLOWING HIS CONVICTION FOR ASSAULT AND SENTENCE TO IMPRISONMENT BY THE CHINSALI MAGISTRATES’ COURT

Hon Members will recall that on Tuesday, 13th April, 2021, when
the House was considering the Report of the Committee on
Media, Information and Communication Technologies and Mr E Muchima, Member of Parliament for Ikeleng’i Parliamentary Constituency was on the Floor, Hon T S Ngulube, Deputy Government Chief Whip and Member of Parliament for Kabwe Central Parliamentary Constituency raised a Point of Order against Mr R Kang’ombe, Member of Parliament for Sesheke Parliamentary Constituency.

The relevant excerpt of the Point of
Order is as follows:

“Mr Speaker, thank you for giving me this opportunity to raise this very important Constitutional point of order. I apologise most sincerely to my elder brother, the Hon Member for Ikeleng’i, for disturbing his line of thought.”

“Mr Speaker, yesterday, 12th April, 2021, apart from being my
birthday, the nation was treated to a rude shock by hearing
that one of us in this Chamber, the Hon Member for Sesheke, Mr Romeo Kang’ombe, was convicted by the Chinsali Magistrates’ Court and slapped with a two-year jail sentence, which was suspended for two years. We are also informed that he was also fined K10,000, which he paid.”

“Mr Speaker, my point of order is based on the provisions of
Article 70(2)(f) of the Constitution of Zambia. In my
understanding, when a person is convicted by a court of law, he becomes a convict and, as such, is disqualified from being an Hon Member of Parliament.”

“Therefore, is the Hon Member of Parliament for Sesheke, Mr Romeo Kangombe, in order to remain a Member of this August House after being convicted by the honourable court in Chinsali?”

“Sir, I seek your serious ruling on this matter.”

In my immediate response, I reserved my ruling to enable me
render a measured response. I have since studied the matter and now render my ruling.

Hon Members, the background to the Point of Order is that on
Wednesday, 7th April, 2021, Mr Romeo Kang’ombe, Member of
Parliament for Sesheke Parliamentary Constituency, was convicted by the Chinsali Magistrates’ Court for the assault of two police officers. On Monday 12th April, 2021, the Court sentenced him to twelve (12) months imprisonment with hard labour.

The Court, however, suspended the sentence for two (2) years on condition that Mr R Kang’ombe, MP, did not commit a similar
offence during that period.

Hon Members may wish to note that this Point of Order raises the issue of whether a Member of Parliament who is convicted of a criminal offence vacates his or her seat in the National Assembly by virtue of that conviction.

The law governing the vacation of a seat by a Member of
Parliament is encapsulated in Article 72(2) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia, and is expressed in the following terms:
“72. (2) The office of Member of Parliament becomes vacant
if the member—

(a) resigns by notice, in writing, to the Speaker;

(b) becomes disqualified for election in accordance with
Article 70;

(c) acts contrary to a prescribed code of conduct;

(d) resigns from the political party which sponsored the
member for election to the National Assembly;

(e) is expelled from the political party which sponsored the
member for election to the National Assembly;
(f) ceases to be a citizen;
(g) having been elected to the National Assembly, as an
independent candidate, joins a political party;
(h) is disqualified as a result of a decision of the
ConstitutionalCourt; or
(i) dies.”

Of particular relevance to this case is Article 72 (2) (b) which is couched as follows:
“72 (2) (b) The office of Member of Parliament becomes
vacant if the member becomes disqualified for election in
accordance with Article 70.”
Consequently, Article 70 (2) (f) provides as follows:

“70 (2) (f) A person is disqualified from being elected as a
Member of Parliament if that person is serving a sentence of
imprisonment for an offence under a written law.”

The effect of the foregoing provisions, when read together, is thata Member of Parliament vacates or loses his or her seat when he or she is serving a sentence of imprisonment.

Hon Members, Bryan A Garner, Editor-in-Chief of the Black’s Law Dictionary, Ninth Edition, (USA, Thomson Reuters 2009) defines
imprisonment, at page 825, “Imprisonment_. 1.

The act of confining a person especially in prison. 2. The state of being confined.”

Hon Members, I have had occasion to pronounce myself on the vacation of a seat by a member who is serving a sentence of imprisonment.

This was in my Ruling on A Point of Order Raised by Hon J J Mwiimbu, Member of Parliament for Monze Central
Parliamentary Constituency, Alleging That The National Assembly Has Treated Members Of Parliament Facing Various Court Cases in a Discriminatory Manner (Daily Parliamentary Debate of Wednesday, 21st March, 2018 at pages t to 12).

The Point of Order was precipitated by a letter I wrote to the Electoral Commission of Zambia on 7th March, 2018, to inform it of the vacancy in the Chilanga Parliamentary Constituency seat.

This followed the conviction and imprisonment of the then Member of Parliament for Chilanga, Mr K A Mukata, in accordance with Article 72 (2) (b). In my ruling, I took time to apprise the House of how a member vacates his seat under Article 70 (2) (f) of the
Constitution.

The background to the Mukata Case is that on Wednesday, 28th
February, 2018, the High Court delivered a judgment in the
criminal matter between; The People v Mukata and another,
cause No. HP/180/2017.

In that judgment, the High Court found Hon K A Mukata, erstwhile Member of Parliament for Chilanga Parliamentary Constituency, guilty of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia, and convicted him accordingly. The Certificate of Death Sentence was issued on that same day.

In rendering the ruling, I stated, inter alia, at page 10, as follows:
“A certificate of sentence of death is sufficient evidence that
Mr Mukata is serving a prison sentence, and that necessarily
means that his seat fell vacant by operation of Article 70 (2)
(f) of the Constitution.”

Thus, Mr Mukata, MP, vacated his seat, because he had not only
been convicted, but was also serving a prison sentence.

Hon Members, I now turn to address the question raised in Hon T S Ngulube’s Point of Order, that is, whether a conviction per se, is sufficient to warrant a member to vacate or lose his or her seat.

From the law adumbrated above, it is crystal clear that for a
member to vacate his or her seat under Article 70 (2) (f), it is not
sufficient that he or she has been merely convicted of an offence.

There must be something more; that is, the member must not only be convicted and sentenced, but must also be serving a sentence
of imprisonment. In other words, he or she must be lodged in a
prison, or incarcerated as was the case in the Mukata case.

Hon Members, I would like to point out that the Point of Order
under consideration also raises a novel question.

Namely, whether a Member of Parliament whose sentence has beensuspended can be said to be serving a sentence of imprisonment as envisioned by Article 70 (2) (f).

To begin with, I will address
the meaning of the term “suspended sentence”. Bryan A Garner (2009), supra, defines suspended sentence, at page 1486, in the following terms:

“A sentence postponed so that the convicted criminal is not
required to serve time unless he or she commits another
crime or violates some other court imposed condition. A
suspended sentence, in effect is a form of probation – also
termed withheld sentence.”

The import of the foregoing is that once a sentence has been
suspended, the sentence has been postponed.

That is, put in abeyance or withheld. As such, the person sentenced is not required to serve the sentence of imprisonment unless he commits another crime or violates any other condition set by the court.

Hon Members, as earlier noted, Mr R Kang’ombe, MP, was
convicted for assault and sentenced to twelve (12) months imprisonment with hard labour.

The Court, however, suspended
the sentence for two (2) years on condition that he does not
commit a similar offence during that period.

Having regard to the law elucidated above, Mr R Kang’ombe, MP’s sentence of imprisonment has been postponed or put in abeyance for two (2) years on condition that he does not commit a similar offence in the two (2) year period.

The implication of this is that he will only serve the term of imprisonment, in the event that he breaches the condition imposed by the Court. If he does not breach the condition, then he will not serve any sentence of imprisonment.

In this regard, it follows that Mr R Kang’ombe, MP, is currently not serving a sentence of imprisonment as envisioned by Article 70(2) (f) of the Constitution.

Hon Members, in view of the foregoing, it is clear that Mr R
Kang’ombe, MP, although convicted and sentenced, (albeit the sentence has been suspended), is not serving a term of imprisonment.

Therefore, he has not vacated his seat and remains the Member of Parliament for Sesheke Parliamentary Constituency, unless and until such a time that he violates the conditions attached to the suspension of his sentence and he begins to serve his imprisonment term.

Mr R Kang’ombe, MP, is
therefore in order to remain a Member of this August House.

I THANK YOU.
_____________________
To be announced on: Friday, 16th April 2021
Copies to: The Clerk
Chief Hansard Editor

3 COMMENTS

  1. So ba Tutwa cannot understand simple English. Now these are the people who give advice to the Pathetic Faeces, what do we expect? Wait until Sangwa petitions the other man.

  2. Shame to quack lawyers tutwa ngulube and Isaac Mwanza. They were quick to conclude that Romeo Kangombe did not qualify to be in parliament and recontest the Sesheke Parliamentary seat only to ruled out of order but mr speaker. This duo also misled people during the failed bill 10. Shame on you two!!

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