This question has remained part of the political and legal discourse in Zambia at all times. My answer to this question is simply, YES – even under the Constitution as amended and the Electoral Process Act, it is the Speaker who has to make a decision and a declaration.
PROVISIONS OF THE LAW
The relevant provisions of the Constitution is Article 72, which reads:
“72. (8) Where a vacancy occurs in the National Assembly, the Speaker shall, within seven days of the occurrence of the vacancy, inform the Electoral Commission of the vacancy, in writing, and a by-election shall be held in accordance with Article 57.”
The confusion comes in when people look into Section 96 of the Electoral Process Act which reads:
“96. (1)(b) A question which may arise as to whether the seat of an elected or nominated Member of Parliament, mayor, council chairperson or councillor, has become vacant, other than a question arising from the election of a candidate as a Member of the Parliament may be determined by the High Court or a tribunal, as the case may be.”
The plain reading of these Article 72(8) may leave laymen like me to conclude that the duty of the Speaker is limited to informing the Electoral Commission of the vacancy in the National Assembly but that is not the correct position at law.
Further the reading of Section 96(1)(b) of the Electoral Process Act may raise eyebrows in laymen like me to conclude that a declaration on whether the seat of an elected or nominated Member of Parliament has become vacant can only be made by the High Court; but that reasoning too is wrong at law.
First, there is nothing new about provisions of Section 96(1)(b) which are now contained in the Electoral Act. The same have existed to the stretch of my memory of reading the Constitution when I was a little boy. The exact words were also in repealed Article 72(1)(a) of the Constitution of Zambia, Act No. 18 of 1996. We have just moved that provision from the Constitution to a subordinate Act of Parliament, that is, the Electoral Process Act.
Equally, the need for the Speaker to notify the Commission has been part of our electoral laws. The repealed Electoral Act No. 2 of 1991 provided for the Speaker shall, upon a vacancy occurring in the elected membership of the National Assembly to inform the President and the Commission of such vacancy and repealed Electoral Act of 2016 also provided, in Section 108(1), for notification of the Vacancy was communicated by the Speaker and received by the Commission.
So the question that must be put to rest is whether the Speaker’s duty is limited to notifying the Electoral Commission but not to declare the seat vacant.
My readers may wish to know that the usage of the word, “may” in Section 96(1) (“… may be determined by the High Court or a tribunal”) of the current Electoral Process Act does not make it mandatory for the High Court to become a body of first instance to determine whether a seat of fallen vacant or not. Always note the usage of the word “may” or “shall” whenever you come across these words in the statutes. “shall” is mandatory but “may” is discretionary.
So who has the power to declare the seat vacant?
This matter was considered by both the High Court and Supreme Court of Zambia in the case of THE ATTORNEY GENERAL & THE MOVEMENT FOR MULTIPARTY DEMOCRACY vs AKASHAMBATWA MBIKUSITA LEWANIKA and 4 OTHERS in APPEAL NO. 67 OF 1993 and Supreme Court Judgment No. 2 of 1994.
In this case, “Counsel for Miss Kapwepwe contended that it was the duty of the High Court to declare the seats vacant. This was rejected because the High Court only comes in when there is a dispute.” The Supreme Court also did not overturn the High Court decision that states that it is the Speaker who has to make a decision and a declaration.
It is established law based on precedence that the High Court only comes in when there is a dispute. The Speaker. Speaker Matibini, has the power to declare the any other seat vacant. The dispute in his current declaration of the Chilanga seat vacant is based on the question as to when a person who had been sentenced to death can be said to be “serving” (as per Article 70(2)(f)) his sentence where an appeal or notice of intention to appeal has been made, and in view of provisions of Section 18(1) of the Supreme Court Act, Chapter 25 of the Laws of Zambia. The question is one that require the Constitutional Court to interpret but the power to make a decision and a declaration lies within the powers of Honourable Speaker Patrick Matibini.
(Views expressed in this article do not necessarily represent any institution I may be associated with and neither are they meant to offer a legal opinion. Those seeking a legal opinion can contact the Law Association of Zambia, which is an authority of legal matters in Zambia)
By Isaac Mwanza