Following the decision by Roan Member of Parliament, Chishimba Kambwili, to challenge the decision of the Speaker of the National Assembly of Zambia to vacate his seat on account of alleged “floor crossing” bearing a day after the Electoral Commission of Zambia (ECZ) set the by-election date puts the by-election in Roan in limbo.
Mr. Kambwili is within his constitutional rights to challenge the Speaker’s decision especially that it was done without proof from the Registrar of Society (RoS) indicating that Mr. Kambwili was actually a National Democratic Congress office bearer.
Further, constitutionally, the only body mandated to nullify a seat of an elected member of parliament is the Court and not the Speaker of the National Assembly.
Like instructed in Article 73(1) of the Constitution of Zambia (Amendment) Act #2 of 2016, “a person may file an election petition with the HighCourt to challenge the election of a Member of Parliament.”
This provision above is also amplified in the Electoral process Act No 35 of 2016 which points to the fact that any question on an elected member shall be through the Court.
In addition, the Constitution guides in Subarticle 3 of Article 73 that “a person may appeal against the decision of the High Court to the Constitutional Court”
Once the seat is petitioned and appealed subarticle 4 of Article 73 stresses that a “a Member of Parliament whose election is petitioned shallhold the seat in the National Assembly pending the determination of the election petition.”
Therefore, the Speaker’s decision is not final and his role does not involve declaring seats of members of the National Assembly vacant but only the Courts are mandated to do so.
The Speaker’s role and function, in this regard, starts and ends at just informing the Electoral Commission of Zambia of an existing vacancy in the National Assembly for the purposes of filling in the vacancy through a by-election.
The causes of those vacancies are well articulated in article 72 of the Constitution and the Speaker is not given any mandate to declare any seat vacant.
Therefore, Mr Kambwili’s challenge of the Speaker’s alleged disorderly action is in order.
This means that the ECZ has to postpone the Roan parliamentary by-election to a later date to allow and until the Constitutional Court determines the matter.
I suspect the ECZ scheduled that date of 11 April, 2019 because Mr Kambwili might not have delivered his appeal papers yet esp that there was no leave for appeal against the Speaker’s ruling and no timeframe given for such an appeal.
However, the Constitution mandates the speaker to inform the ECZ within seven days on the existence of a vacancy in the membership in the National Assembly so that the Commission sets the date for the by-election as directed by Article 57.
Therefore, Roan Parliamentary Seat by-election is now been plunged into an electoral quagmire and limbo.
In this regard, ECZ has a statutory due to guide the nation, stakeholders and political parties on status of the Roan parliamentary by-election to curb misinformation.