By McDonald Chipenzi, Electoral Expert.
It is a known fact that the murder charge slapped on Keith Mukata is one of the three remaining crimes that are non-bailable in Zambia after treason and aggravated robbery.
Whether incidentally, coincidentally or intentionally, all these cases have been slapped on and affected three prominent opposition leaders in Zambia namely Obvious Mwaliteta (Aggravated Robbery), Hakainde Hichilema (Treason) and more recently Keith Mukata (Murder). The last time such cases where heard of and slapped on politicians where during Dr. Kenneth Kaunda and Dr. Fredrick Chiluba’s reigns two decades ago.
I will not delve into the details and circumstances of how each one of them got into the situation in which they are today but suffice to say that it is strange to see the speedy at which such tools of oppression of opposition leaders in most cases are resurfacing in this country. It seems we had move on and away from such under Levy Mwanawasa and to some extent Rupiah Banda as most predominant cases and victims were corruption and corrupt people respectively. These frequented and crowded the now renamed Correctional Facilities Centres across the country.
However my interest today is the implication of Hon Mukata’s predicament and its implication on his Chilanga Seat. Being charged with a nonbailable offence means he is going to spend much of his time in and at the Correctional Facility Centre as long as the case is undischarged by the courts. If it will take a year or more, he will have to be there till that period especially taking into account the slow justice system in this country.
The constitution of 1996 was comprehensive in guiding the nation on the course of action to be taken when an elected MP is found in such a quagmire situation. It stated that such a member of parliament vacated office once his freedom of movement was restricted for six months and more.
Under Article 71 (g) of the 1996 constitution it states “if, under the authority of any such law as is referred…
i) his freedom of movement has been restricted or he has been detained for a continuous period exceeding six months;
ii) his freedom of movement has been restricted and he has immediately thereafter been detained and the total period of restriction and detention together exceeds six months;
iii) he has been detained and immediately thereafter his freedom of movement has been restricted and the total period of detention and restriction together exceeds six months.”
The amended constitution 2016 seems not to have taken care of Hon Mukata’s predicament and assumes that Hon Mukata remains MP till his term ends whether restricted in his movement, convicted, sentenced or not. The constitution under Article 70 through to 72 of 2016 does not mention anything to do with an elected MP’s freedom of movement restriction as a basis to vacate office or lose one’s seat. It only deals with death, resignation, expulsion, disqualification by the Constitutional Court and loss of citizenship as parameters for one to lose a parliamentary seat. This is where this constitution becomes problematic to implement.
The electoral process Act No. 35 of 2016 is also silent on an elected member who is restricted or unable to do his job for a period of six months. I am not sure whether the National Assembly rules would come in to salvage the situation should it be out of hand using the existing laws.
Nonetheless, the case of Keith Mukata has already exposed and added to many observable weaknesses in the current constitution. This constitutional oversight may create a representation crisis in Chilanga constituency as Keith Mukata may continue to be an absentee elected representative of the people of Chilanga regardless of the final decision of the courts on his case. This will leave the people of Chilanga without an effective representation. This is the beginning of electoral problems in Chilanga and in other areas that may be in the similar situation in future if this constitution lacuna in this constitution of 2016, hastily assented to by the President on January 5 2016 for political expedience, is not addressed.
With the current constitutional provision and quagmire, the people of Chilanga will be at Keith Mukata’s mercy and discretion to either resign his seat should he feel unable to discharge his duties as Chilanga MP due to the situation in which he is so as to facilitate the holding of by-election to elect an able person represent the people in the National Assembly or become selfish and legally so to continue enjoying his parliamentary privileges until 2021.
The ball now is in Keith Mukata’s hands and his benevolence will be required at some point during his journey to regain his freedom after the charge of a non-bailable crime of murder.
The people of Chilanga will remain in limbo, caused by the the constitutional inadequacies, for years to come if not until 2021.