Green Party president Peter Sinkamba has insisted that Mrs Margret Mwanakatwe is serving as Member of Parliament (MP) and holding office of Minister unconstitutionally and has demanded that she should vacate her office.
Mr Sinkamba said her continued holding on to the two offices is prolonging an illegality, as she did when parliament was dissolved from May to August this year.
“We demand that she stops abusing State resources under the guise of minister when, according to the constitution, she is not qualified to do so. This is inimical to the economy. Further, she should continue using the prestige of office of minister to advance private interests or interests of members her family, when she is not qualified to be minister,” Mr Sinkamba noted.
He said her acts are a gross misconduct.
The Green Party president pointed out that the argument by senior Lusaka lawyer Hobday Kabwe that the law allows Ms. Mwanakatwe to be in office and represent her constituency because the people could not be deprived of representation in parliament at the hands of petitions is misplaced.
He said there is no law which provide for an MP to continue holding an office when an election petition is determined by High Court, and no stay is granted.
“Perhaps that is the more reason why Counsel Kabwe has not cited any constitutional provision to support his argument,” he said.
Mr Sinkamba said the Constitution of Zambia binds all persons in Zambia, including the Executive and other State organs and State institutions.
“And Counsel Kabwe, as lawyer, knows or ought to know this. The issue of people being deprived of representation in parliament is irrelevant if the vacancy is created by invoking provisions of the Constitution itself,” Mr Sinkamba noted.
He cited Petauke Central Constituency and Mulobezi Constituencies as good examples of constituencies that remained vacant for over one year in the last sitting of parliament because of constitutional requirements.
“What we are saying is that since Judge Siavwapa invoked Article 70 to nullify Lusaka Central Parliamentary seat, therefore, constitutionally, there is no MP for the Constituency. In other words, Ms. Mwanakatwe is not MP. Since the Judge also refused to grant a stay, constitutionally is not qualified to hold office of Minister under the 2016 Constitutional Amendment. According to Article 116 (1), only MPs are qualified to hold the office of Minister,” He said.
He said the fact that she has appealed the decision of the High Court to the Constitutional Court neither reinstates her status as MP nor Minister.
Mr Sinkamba said an appeal to the Constitutional Court cannot operate as a stay.
“Rule No.7 of the Constitutional Court Rules, 2016, as provided under the Constitutional Court Rules Act, 2016 (Act, NO.8 of 2016), Statutory Instrument No. 37 of 2016 provides that an appeal shall not operate as a stay of execution or of proceedings under the judgment appealed against unless the High Court or the Court so orders and no intermediate act or proceeding shall be invalidated, except so far as the Court may direct,” Mr Sinkamba disclosed.
He said in this instance the High Court has already decided that she is not an MP and has refused to stay its decision and the Constitutional Court has not pronounced itself on the matter.
“Therefore, according to Rule 7 stated above, it is not contemptuous for the Speaker or the Election Commission of Zambia to declare the seat vacant and run the bye-election for Lusaka Central Constituency,” he said.
Mr Sinkamba pointed out that the omission by the Speaker not to declare the seat vacant by now does not in any way reinstate her as MP for Lusaka Central and up to this point, she is not the MP for Lusaka Central.
He said she was disqualified for the election under Article 70 of the Constitution and she is not qualified to hold office of minister whether or not the Speaker has formally declared her seat vacant.
“Her election remains nullified, and therefore the seat is vacant constitutionally,” he noted.