THE Constitutional Court has ruled that the Speaker of the National Assembly Patrick Matibini exceeded his powers when he declared the Roan Constituency seat vacant on allegations that NDC leader Chishimba Kambwili crossed the floor.
Meanwhile, the court has thrown out the petition by Kambwili challenging the Speaker’s decision to declare his Roan Constituency seat vacant.
Dr Matibini, on February 27, 2019, declared the Roan seat vacant after Malambo PF member of parliament Makebi Zulu raised a point of order that Kambwili had crossed the floor by being a consultant of NDC which did not sponsor him for the parliamentary election.
Kambwili petitioned the court and cited the Attorney General in the matter seeking a declaration that the purported decision by the Speaker of the National Assembly to declare his seat vacant does not conform with the provision of Article 72 (2) of the Laws of Zambia and as such is not only undemocratic but also illegal, unreasonable, procedurally improper and unconstitutional.
Constitutional Court president Hildah Chibomba on behalf of Ann Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke said granting the relief Kambwili prayed for will not only lead to a constitutional crisis, but will also lead to an absurd state of affairs as it will result in the NDC leader returning to the National Assembly as Roan member of parliament when Joseph Chishala is already serving as MP for the same constituency.
During hearing of the petition Solicitor General Abraham Mwansa argued that the Speaker of the National Assembly acted within his mandate to declare the Roan Constituency parliamentary seat vacant.
But Kambwili’s lawyer Christopher Mundia submitted that where a member of parliament belonging to a party joins another party the Speaker of the National Assembly in declaring that Kambwili crossed the floor based on the case of the Attorney General versus Akashambatwa Mbikusita Lewanika, the particular precedents in so far as floor crossing has been superseded by article 72 of the Constitution and the said floor crossing does not exist anymore.
Mundia submitted that the case cited of Akashambatwa Mbikusita Lewanika of floor crossing was pronounced upon 22 years before the provision of the new article 72 was effected.
He contended that while the National Assembly has powers under article 77 (1), the exercise of such powers must not be done in a manner that contravened other articles of the Constitution adding that the prayer by Kambwili be granted.
In his response the Solicitor General said Article 77 of the Constitution as read with section 24 of the National Assemblies powers and privileges Act of 2016, states that the National Assembly has powers to regulate its practice and procedure.
Mwansa said a motion was raised on the floor of the House and the Speaker of the House was constitutionally mandated to make a decision on the motion to declare the Roan seat vacant.
He said the Speaker properly exercised his jurisdiction as the Court is being invited to consider Article 23 which deals with discrimination. Mwansa argued that matters relating to Article 13 to 28 can only be brought by way of petition or in the High court.
The Solicitor General said it would not have been the intention of the legislature to allow a member of the National Assembly elected by a certain party to join another party and remain a member of the National Assembly, as there are no provisions of the National Assembly that permits duo membership.
He indicated that it was a notorious act that after the Roan seat was declared vacant, elections were held and Joseph Chishala was chosen as member of parliament, if the court declared the decision of the Speaker illegal.
He said such would entail that Kambwili would remain an MP and so will Chishala, and this would create an absurdity and a crisis by increasing the number of MP’s in Parliament.
“We invite the court to pronounce itself with regards to the jurisdiction of the National Assembly on practice and procedure, we urge the court to dismiss the petition with costs as it is an academic exercise,” said Mwansa.
In his response, Mundia said the notion that the petition be dismissed for being an academic exercise is contradictive as the Solicitor General was inviting the court to make pronouncements on matters which have never been pronounced on.
“If it was the intention of the drafters that a Member of Parliament belonging to another party would have been deemed to have crossed the floor by joining another party should have been shown. The lacunas cured by the Akashambatwa case is not applicable in this instance as the legislature should have been alive to the problems emanating from Article 71 of the Constitution. The drafters ought to have known this but left it out,” said Mundia.
Delivering judgment, justice Chibomba said while the Speaker was within his power to respond to the point of order that was raised on the floor of the House, he exceeded his powers when he interpreted the Constitution in order to ‘cure’ the lacuna that he identified in Article 72 of the Constitution as amended.
“We find that the Speaker exceeded his powers as the function of interpreting the law and the Constitution is vested in the judiciary as provided by Article 119 of the Constitution. The interpretation of the Constitution as a legal instrument is the function of the courts, the branch of government whom is assigned the delicate task,” she said.
Justice Chibomba ruled that by ruling as he did, Dr Matibini exceeded his Constitutional power as he strayed and or encroached into the adjudicative function of the Courts of Zambia which are mandated to exercise judicial authority by interpreting the law and the Constitution.
She said the provisions of Article 77 (1) of the Constitution as amended and section 34 of the National Assembly (powers and privileges) Act cannot be relied upon as defence as the Speaker was aware of the court case.
Justice Chibomba ruled that following the point of order and the ruling by the Speaker to declare Kambwili’s seat vacant a by-election for Roan Constituency was held on April 11, 2019 and Joseph Chishala emerged winner and Kambwili campaigned for him, but in his petition he did not mention Chishala making his prayer for a declaratory order falling foul of the principle that the court will not grant a declaration unless all interested parties are before court.
She said Chishala was not a party to the proceedings but he was an interested party and he was not heard, therefore the effect of granting the declaration sought by Kambwili would have the effect of nullifying Chishala’s election as current MP as there cannot be two members of parliament for the same constituency under the law.
“Granting such a declaration will not serve any useful purpose as the seat has been taken by another person,” she said.
Justice Chibomba indicated that the court had no authority to delve into whether or not Kambwili crossed the floor or whether the seat fell vacant as the matter was pending determination before the High Court and it would not usurp powers of the High Court.
“Considering and determining the issues raised under the reliefs sought would amount to this court acting as an appellate court from the ruling of the Speaker. All in all, this petition has failed and is dismissed,” she said.
justice Chibomba ruled that since the matter raised constitutional issues each party would bear its own costs.