TO impede the National Assembly from declaring the Petauke Central parliamentary seat vacant today, Zambian Civil Liberties Union chief executive officer Isaac Mwanza is now challenging the seven-day ultimatum given to fugitive lawmaker Emmanuel Jay Banda to show up for work, or give up on his job.
Mwanza says the parliamentary committee on privileges and absences as well as the National Assembly, usurped the authority of the High Court in hearing and resolving that the Petauke Parliamentary seat shall become vacant within a week from November 19, 2024 in line with Article 134(a) of the Constitution as read together with Section 96(1)(b) of the Electoral Process Act, in contravention of Article 134(a) of the Constitution.
Mwanza has filed a petition in the Constitutional Court seeking a conservatory order restraining the National Assembly from informing the Electoral Commission of Zambia of a vacancy in Petauke Central Constituency, including taking any further action pending the hearing and determination of the Petition.
Banda escaped from lawful custody on August 5, 2024 whilst he was undergoing treatment at Chipata Central Hospital after he was arrested on a non-bailable offense of aggravated robbery and attempted murder.
Mwanza said following Banda’s escape on October 15, 2024, Katombora parliamentary constituency lawmaker, Clement Andeleki, raised a point of order questioning the status of the Petauke Central lawmaker following his disappearance from Chipata Central Hospital and continued absence from the sittings of Parliament.
He said the second deputy speaker of the National Assembly Malungo Chisangano, in her ruling referred the matter to the Committee
on Priviliges and Absences for determination of Banda’s status.
On November 19, 2024, speaker of the National Assembly, Nellie Mutti, updated the National Assembly on the Committee’s deliberations and subsequent recommendations that ; her office instructs the Attorney-General to commence
legal action in the Constitutional Court to have the Petauke Central Parliamentary seat declared vacant for breach of a prescribed code of conduct as provided by Article 72(2)(c) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia.
The Speaker gave Banda seven days within which to attend business of the House, failure to which she would invoke Article 72(8) of the Constitution by informing the Electoral Commission of Zambia of the occurrence of the vacancy in Petauke Central Parliamentary Constituency.
“The speaker informed the House that the Committee on Privileges and Absences made, among others, the findings that Mr. Emmanual Jay Banda, had been absent from sittings without permissions since August 4, 2024
and that his absence without permission breached the prescribed Code of Conduct, that
is, Standing Order 223 of the National Assembly of Zamba Standing Orders, 2024,”Mwanza stated.
“The Speaker of the National Assembly called
for the House to pass a resolution on the course of action to be taken against Mr. Emmanual Jay Banda, and the House resolved by a division of 42 votes voting to give the Petauke Central lawmaker seven days within which to attend the business of the House, failing to which the Speaker’s Office would invoke Article 72(8) of the Constitution by informing the Electoral Commission of Zambia of the occurrence of a vacancy in the Petauke Central Parliamentary seat while 25 voted against the resolution and three abstained from voting.”
Mwanza said Banda was informed about the action to be taken against him in absentia.
He argues that Article 72(2) of the Constitution of Zambia provides for instances under which a
member of parliament is to vacate from his seat, among which when a member has acted contrary to a prescribed code of conduct.
“Section 96(1)(b) of the Electoral Process Act No. 35 of 2016 provides for questions which may arise as to whether the seat of an elected Member of Parliament has become vacant, other than a question arising from the election of a candidate as a member of the parliament, to be heard and determined by the High Court,” Mwanza said.
He argued that the act and decision by the Privileges and Absences Committee of the
National Assembly to hear the breaches of the Code of Conduct is allocating power to itself which has not been allocated by the Constitution and the law, and is in contravention of Article 5(2) of the Constitution as read together with Article 72(2)(c) and Section 13 and 14 of the Parliamentary and Ministerial Code of Conduct Act.
Mwanza said the decision to be taken by the Parliamentary Committee on Privileges and Absences as well as the National Assembly of Zambia to declare Banda’s seat vacant usurps the unlimited and original jurisdiction of the High Court to hear civil matters under Article 134(a) of the Constitution as read together with Section 96(1)(b) of the Electoral Process Act, in contravention of Article 134(a) of the Constitution.
He is seeking a declaration that pursuant to Articles 72(2) and 72(8) of the Constitution as
read with Section 96(1) of the Electoral Process Act, a seat of an elected member of parliament becomes vacant upon the determination by the High Court and the speaker’s duty is limited to informing the Electoral Commission of the existence of a vacancy.
Mwanza wants the Concourt to declare that the prescribed Code of Conduct referred to in Article 72(2)(c) refers to the parliamentary and ministerial Code of Conduct whose enforcement is done by a complaint filed with the Chief Justice by any person and determined by the properly constituted Tribunal appointed by the Chief Justice.
He is seeking a declaration that the office of a member of parliament dos not become vacant
when a member is perpetually absent, by virtue of a determination made by the Parliamentary Committee on Privileges and Absences by virtue of Standing Order 223 of the Standing Orders of the National Assembly of Zambia, including
or Section 28 of the Powers and Privileges (Powers and Privileges) Act.
By Mwaka Ndawa
Kalemba November 29, 2024.
