MAZABUKA member of parliament Garry Nkombo has argued that the judiciary cannot determine the impeachment motion against President Edgar Lungu which is properly before the National Assembly as its procedures cannot be determined by another arm of government.
Nkombo says the application for judicial review by The Post Liquidation manager Robert Chabinga and Henry Mulenga to challenge the Speaker’s decision to table the impeachment motion should be dismissed as the applicants are completely strangers to parliamentary procedures.
The lawmaker said Mulenga and Chabinga do not qualify as persons of interest to sustain the judicial review proceedings.
In this matter, Chabinga and Mulenga, who cited the Attorney General, argued that the decision by the Speaker of the National Assembly Patrick Matibini to accept the motion of impeachment of President Lungu moved by Kambwili and Nkombo was unreasonable, procedurally improper and illegal.
According to an affidavit for an application for leave to apply for judicial review, the two applicants argued that the decision by the speaker of the national assembly to table the impeachment motion, whose grounds were based on matters before the court, was illegal, unreasonable and procedurally improper.
Chabinnga and Mulenga argued that although members of parliament enjoy the freedom of speech and have privileges and immunities of their debate in the national assembly, Parliament was not meant to shield itself with privileges which undermine the Constitution in accordance with its mandate to exercise its power.
They further stated that the motion was illegal, null and void because the Speaker should not have entertained receipt and notice of matters that were pending determination under various causes before the courts, or indeed were not of sufficient gravitas to warrant the impeachment of a sitting President.
The applicants claimed that Parliament could be challenged in court when it made decisions that impinged the constitution and that the National Assembly was not meant to shield itself with privileges which glaringly undermined the constitution.
Chabinga and Mulenga said the Speaker’s decision to table the motion was unreasonable insofar as he should have known that some of the issues were irrelevant as they related to decisions made by independent organisations such as Kawambwa Tea and ZAFFICO operating under the Industrial Development Corporation (IDC), which entities were audited by the Auditor General and were therefore, accountable to the central treasury.
The two further contended that the motion that was raised to impeach the Head of State was unreasonable because all the signatories were members of the UPND, hence the Speaker should have exercised reasonable observation of partisanship.
But in an affidavit in opposition to the application for judicial review, Nkombo, on behalf of Chishimba Kambwili, argued that the motion for impeachment was properly before the National Assembly for determination of all the grounds as parliamentary procedure was followed in tabling the motion.
He said the applicants have not shown their interest in the proceedings because an impeachment motion against the President is a preserve of the National Assembly and only members of the National Assembly have standing in such matters and the applicants are not members of the house.
“The applicants are not directly affected by the speaker’s decision on the tabling of the motion as it is exclusively a function of the parliamentary practice and procedure,” Nkombo said
He stated that the Constitutional Court did not determine the substantive questions in the Presidential Election petition and in the case relating to the eligibility of the President to contest the 2021 general elections on their merits.
Nkombo stated that the core of the Judicial Review proceedings was to have the decision of the Speaker to entertain the motion declared null and void and quashed because the motion contained grounds that were subject of proceedings that were pending before the Constitutional Court( Eligibility case and the Presidential election petition) which have since been determined by the courts of law.
“There are currently no issues pending determination before the courts under the impeachment process pending before the National Assembly which is the subject matter of the Judicial Review proceedings before this court. In the premise, it is fit and proper for this court to dismiss the judicial review proceedings before it,” he said.
Nkombo stated that there would be no prejudice that would be occasioned on the applicants by such dismissal.
In their skeleton arguments, Nkombo and Kambwili argued that the grounds for the Impeachment motion were sufficient for the matter to be determined by the National Assembly within its own procedures set out in Article 77 of the Constitution and National Assembly standing orders of 2016.
“Parliament must regulate its own processes and there is no room for the court to interfere with the internal regulation of parliamentary processes,” the duo stated.
“It is our submission that the provisions of Article 108 of the constitution make it clear that a motion for impeachment of the Republic President is a privilege preserved for the National Assembly. To this end, a member of the public who is not a member of the National Assembly has no standing in such a matter.”
They submitted that the grounds for impeachment motion were still valid and warranted the motion to be determined by the National Assembly.
The two said there was nothing unreasonable, procedurally improper and illegal in the speaker tabling the impeachment motion as it was a preserve of the National Assembly.
“Nothing prevents the National Assembly from impeaching the president on any or all of the grounds of the motion and the motion cannot be impinged as awhile even if one ground contained therein is considered to be untenable for one reason or the other,” stated Nkombo and Kambwili