It was not within Matibini’s power to declare Roan seat vacant – ConCourt


THE Constitutional Court has ruled that Speaker of the National Assembly Dr Patrick Matibini exceeded his Constitutional powers when he declared the Roan Parliamentary seat which was held by Chishimba Kambwili vacant.

Dr Matibini on February 27, 2019 declared Kambwili’s Parliamentary seat vacant on allegations that he crossed the floor of the House when he accepted the appointment of National Democratic Congress (NDC) consultant.

This was after Malambo Member of Parliament Makebi Zulu raised a point of order regarding the same.

But in a judgment delivered by Constitutional Court President President Hildah Chibomba, Judges Annie Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke, they stated that while the Speaker was well 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 proceeded to apply the purpose canon of interpretation of statute in order to cure the lacuna that he identified in Article 72 of the Constitution.

The judges stated that Dr Matibini exceeded his Power as the function of interpreting the law in the Constitution was vested in the judiciary, the branch of government to who he is assigned that delicate task.

“Therefore, by ruling as he did, the Speaker exceeded his Constitutional power as he strayed or encroached into the adjudicative function of the courts of the land which are mandated to exercise judicial authority of the Republic by interpreting the law and the Constitution,” they stated.

However, despite finding that the Speaker exceeded his powers, the court could not rule that his decsion was null and void as it would create a Constitutional crisis and absurd state of affairs by having two members of Parliament for Roan Constuency.

The Court could also not declare Dr Matibini’s decision null and void as the incumbent Roan Member of Parliament Joseph Chishala who was an interested party, was not added to the case and heard.

“The petitioner has not cited the said Joseph Chishala thereby making his prayer for declaratory order to fall foul of the principle that the court will not grant a declaration unless all the parties affected by or interested in the case are before court,” they stated.

With regard to a declaration that Kambwili crossed the floor and the seat fell vacant, the court stated that they had no jurisdiction to delve into such issues which at the material time were pending by the High Court under whose jurisdiction, and they fall.

“We do not thus want to fall into the same trap of usurping the powers of the High Court which was dealing with the matter in question,” they stated.

The Court could also not rule that Kambwili did not cross the floor and his seat did not fall vacant as considering and determining such issues could amount to Constitutional Court acting as if it were an appellate court from the ruling of the Speaker when in fact it was not.

“Consequently, the reliefs sought under the second and third prayers are not available to the petitioner. All in all, this petition is dismissed.
Meanwhile, the court held that there must always be recognition of what power a person or authority had and where it came from, where the source of power did not permit, it’s exercise beyond that conferred, then the person or authority must desist from exercising that power as the doctrine of separation of powers and the concept of checks and balances by the judiciary would scrutinize the exercise of that power as this was vital in the governance of the country if meaningful democracy was to be assured.

“It follows from the foregoing that although the Constitution gives the National Assembly powers to regulate its own procedure as well as to make standing orders of the conduct of its business as has been submitted by the Attorney General, this power is not absolute, as the courts of the land have the Constitutional mandate to scrutinize the acts of the legislature where it is alleged that the legislature or indeed the Speaker in the exercise of its power or his mandate has breached or exceeded his power as enabled by the Constitution,” the court stated.

Kambwili had based his argument on the doctrine of separation of powers and the need for each arm of government to confine itself to its own Constitutional mandate and not to encroach on others’ functions.

According to Article 119 of the Constitution, the court had been given the mandate to interpret the law and the Constitution.
The Court found that despite the National Assembly having exclusive Power and jurisdiction, such power was not limitless and could not be exercised in a manner that trespasses on the Constitutional mandate of another state organ.

“It is our firm view that the defence of exclusive cognizance is only available when the National Assembly or the Speaker is dealing with a procedural or internal matter. It is our firm view that the question whether or not the petitioner had crossed the floor thereby resulting into the nullification of his seat in Parliament is not an internal or procedural matter which falls squarely under Article 77(1) of the Constitution or capable of outsing the power of the court to scrtitinise that decision under section 34 of the National Assembly (powers and privileges) act as alleged by the Attorney General,” stated the judges.

Credit: Daily Revelation/Agness Changala-Katongo


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