By Isaac Mwanza
Following the filing of the motion on 22nd March, 2018 in an attempt to impeach the President of the Republic of Zambia by the opposition United Party for National Development (UPND), through the Mazabuka Member of Parliament, Hon Garry Nkombo, this author wrote to the Clerk of the National Assembly regarding grounds 1.1, 1.2 and 2.1.5 which are active matters before the courts of law. Further, I have heard the National Democratic Party Consultant, and Roan Member of Parliament, Hon. Chishimba Kambwili, stating that the vote on the impeachment motion is by secret ballot. That is not correct, correct, as I discussed in Series 5.
In this series, we discuss the role of the courts in Zambia regarding Parliamentary business, such as the impeachment motion.
The question is, if the National Assembly had responded that it would still go ahead and entertain the motion irrespective of the fact that some matters contained in the impeachment motion, are in court, what recourse do I have? What recourse would the movers of the motion have if the Speaker denied them the right to have a secret ballot in the first round?
The Question of the law
The relevant provisions of the law are Article 1(5), 76(1), 77(1) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia as well Section 34 of the National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia. One may however not forget to look for judicial precedent on how the courts have dealt with questions regarding decisions by the Speaker of the National Assembly.
“Article 1. (5) of CAP 1
A matter relating to this Constitution shall be heard by the Constitutional Court.
Article 76. (1)
A Member of Parliament has freedom of speech and debate in the National Assembly and that freedom shall not be ousted or questioned in a court or tribunal.
Article 77. (1)
Subject to this Article and Article 78, the National Assembly shall regulate its own procedure and make Standing Orders for the conduct of its business.
Section 34 of CAP 12
Neither the Assembly, the Speaker nor any officer shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Assembly, the Speaker or such officer by or under the Constitution, the Standing Orders and this Act.”
At this stage, I must categorically state that Zambia’s constitutional democracy comes with it the doctrine of separation of powers where the legislative authority exercised by our National Assembly is the power to make, amend and repeal laws, while the Judicial authority exercised by our courts, such as the Constitutional Court, grants them the exclusive power, if there is a dispute, to determine what the law is and how it should be applied in the disputes.
The UPND have taken the question regarding whether President Lungu should have ceased to perform the executive functions and if the Speaker should instead have assumed the performance of the executive functions, during the period when the 2016 Presidential election petition was before the Constitutional Court, which matter is active before that court and has never been decided in any case.
At the same time, the main opposition party would like Parliament, through the impeachment motion, to authorise an inferior Tribunal to investigate the same matter. As per Article 1(5), the power to interpret the provisions for power hand over lies in the Constitutional Court and no other.
On the Question of dragging the Speaker to Court
On the question as to what I would do if the National Assembly responded in the negative and proceeded to table the motion on the floor of the House. The answer may lie in seeking judicial review but the chances of success of such an action, being an action to use the courts to compel the Speaker to strike out any matter from parliamentary business, would be extremely slim.
The same applies if Hon. Kambwili and those who moved the motion sought to take the route they had been planning of seeking the intervention of the Court to compel the Speaker to conduct a secret ballot would draw a blank, as the Court would in all probability, rule that the power to do so, is by our constitution, vested in the office of the Speaker of the National Assembly.
As seen from Articles 76 (1) and 77 (1) of the Constitution and Section 34 of the National Assembly (Powers and Privileges) Act, the National Assembly enjoys autonomy to make decisions regarding regulation of its own procedure, the freedom of lawmakers to debate cannot be ousted or questioned in a court or tribunal.
In addition, the Speaker of the National Assembly of Zambia is not subject to the jurisdiction of any court in the exercise of any power conferred on the Assembly and the Speaker under the Constitution, the Standing Orders and National Assembly (Powers and Privileges) Act. If the National Assembly decided to table the impeachment motion or if the Speaker decided not to take a secret ballot in the first round where no secret ballot is provided, an action in judicial review will do little to overturn such decision.
However, the position of the law that the Speaker is not subject to the jurisdiction of any court in respect of the exercise of any power conferred on him under the Constitution, the Standing Orders and the National Assembly (Powers and Privileges) Act, does not mean that the Speaker’s decision is not amenable to judicial review by the Courts. It is.
In the case of the Attorney-General v. The Speaker of the National Assembly and Dr. Ludwig Sondashi, MP (SCZ Judgement No. 6 of 2003), the Supreme Court held that the High Court of Zambia has Constitutional Jurisdiction to hear applications for judicial review in matters involving parliament. Earlier the learned trial judge observed that in the United Kingdom, the High Court would most likely have held that it lacked jurisdiction in an application for judicial review of a decision of Parliament.
Indeed, many have exercised that right to challenge the decisions made by the Speaker. It must be noted that when judicial review is commenced before a decision has been made by the decision-maker, the action becomes prematurely before the court as there would be nothing for the court to review. In the current case, it is the submission of this author that the decision whether to table or not to table the motion has not been made by Parliament,
In the case of Fredrick Jacob Titus Chiluba v Attorney-General (Appeal Number 125 of 2002), former President Chiluba (deceased), appealed against the judgment of the High Court dismissing his application for Judicial Review of the decision of the National Assembly to remove his immunity, the Supreme Court held that the remedy of Judicial Review is concerned with reviewing, not the merits of the decision in respect of which the application for Judicial Review is made, but the decision-making process itself.
The Court was very clear that the purpose of Judicial Review is to ensure an individual is given fair treatment by the authority to which he has been subjected. Indeed, it is not – I repeat – it is not the purpose of the judicial review to substitute the opinion of the Speaker of the National to decide the question of the impeachment motion or not to have a secret ballot with that of the judiciary or individual judges.
The big question we must seek to address at this juncture is whether any court action, in form of a judicial review, is capable of stopping the motion of impeachment. The Courts have frowned upon litigants (people) who run to court to use the mechanism of judicial review as a way of impeaching the National Assembly from going ahead with the debates on proposed legislation or other parliamentary business.
In the case of Zambia Democratic Congress v. Attorney-General (SCZ Judgment No. 37 of 1999), the Supreme Court categorically stated:
“In Zambia, legislative process…cannot be arrested by commencing proceedings for judicial review. On ground of procedure alone, the application was misconceived and ought to have failed ab initio.”
In March, 2013, the member of Parliament for Monze Central, Hon. Jack Mwiimbu, rose on a point of order to stop Speaker Matibini from proceeding with the motion to lift former president Rupiah’s Banda’s immunity as he had successfully obtained an injunction from the High Court which sought to stop parliament from proceeding with the motion until the case had been disposed of in the courts of law.
In his ruling. Speaker Matibini stated that he could not follow the injunction because it was irregularly issued. Among reasons given by Speaker Matibini is that “parliament enjoys protection of its internal processes, and these processes cannot be subjected to judicial interference.”
This decision by Speaker Matibini was criticised by many. NAREP President, Elias Chipimo stated that the action by the Speaker was both surprising and concerning because as a former Judge, the Speaker did not accord due respect to the notion of separation of powers, because the effect of rushing the decision on the motion of lifting the immunity created the impression that the impartiality of parliament may be open to question.
The criticism was not of the Speaker exercising his powers within the provisions of the law and in view of the doctrine of separation of powers; rather, the problem was that many saw the action of the Speaker as having passed judgment on an order of a proper court when neither the Speaker nor parliament itself, can exercise judicial power for the simple reason that they do not have the power of a court.
Parliament does not, indeed, have the power of a court nor does the Speaker have the power of a judge. In the case in issue, namely the Speaker’s disregard of a court order on lifting the immunity of former President Rupiah Banda, some have argued that the Speaker fell into grave error by purporting to exercise the power of a court in dismissing the restraining order against him. It has persuasively been argued that since, in a constitutional democracy like ours, courts exist to check on the exercise powers of the legislature, the correct course of action by the Speaker ought to have been for Parliament to obey the court order and wait for its determination by the court itself.
On the contrary, it can also be argued that the Speaker’s decision in handling of the restraining order in the Rupiah Bwezani Banda challenge was in line with what the Court held in the ZADECO case that legislative process cannot be arrested by commencing proceedings for judicial review. The question is how does the Speaker decide which court cases to respect and which ones to ignore in performance of legislative process?
There is no doubt that by the decisions in the cited ZADECO and FTJ Chiluba cases, the courts themselves had held that the business of parliament cannot be arrested by way of orders of the courts. Therefore, in the matter where former President Rupiah Banda had successfully obtained a court order to restrain the Speaker from proceeding with the motion to remove his immunity, the court would have ruled that Parliament should proceed with the motion to remove former president Rupiah Banda’s immunity, and would have vacated its own restraining order or injunction.
In another instance, assuming the movers of the impeachment motion were informed that the Speaker would table the motion but that there would be no secret ballot when voting in the first round, and they went ahead to get an injunction to prevent the motion from being debated, would the injunction stop the legislative process of tabling and debating the motion? Suppose this author who petitioned the Clerk of the National Assembly obtained an injunction to stop the Speaker from debating matters that are before the court, could the Speaker be bound by such a decision?
The answer lies in the very concept of separation of powers. The Speaker would, in that instance, ask himself whether debating matters which are pending determination by the courts would turn Parliament into a “court” that may altogether produce a judgment different from what the court would do.
There is a significant difference between the Speaker taking notice of matters which are already before a competent court so as to preclude Parliament or him exercising jurisdiction to have the legislature debating and determine them, and avoiding attempts by litigants to arrest Parliamentary business using the tool of judicial reviews and restraining orders.
Similarly, the Speaker will also weigh whether a judicial review to determine the issue of secret ballot in the first ground would interfere with the internal processes, especially that the courts have ruled that the process of judicial review does not seek to replace the decision of the decision – maker (in this case the Speaker’s decision) with that of the court or Judges.
In summary, the rule that judicial review cannot be used to stop the legislative process is well-grounded in law as shown above. The Speaker has unfettered power to make decisions on parliamentary business provided such decisions are not ultra vires his power. The Speaker may refuse to table the motion, not because of any process of judicial review, but based on the fact that while it met the constitutional requirement of one-third of members endorsing it, the motion fails the test of admissibility. He would have done so within his powers and provisions of the law.
In the event that the Speaker allows such a motion, he may also direct the striking out of matters which are before the courts, or matters which have already been decided by the House, or matters which seek to debate persons who cannot defend themselves. At the very least, the entire motion can be tabled and a demand for a secret ballot in the first round, rejected because the law expressly states that voting in the first round, shall not be by secret ballot. The Speaker’s decision is, in those instances, “not subject to the jurisdiction of any court in respect of the exercise of such power conferred on him under the Constitution, the Standing Orders and National Assembly (Powers and Privileges) Act.
AUTHOR’s NOTE: In the last and final Series 8, the focus will be made on the dialogue process in view of the effect this impeachment motion and a focus will be made on the way forward for the dialogue