RULING BY THE HON MR SPEAKER ON A POINT OF ORDER RAISED BY HON M ZULU, MP, MINISTER FOR EASTERN PROVINCE, ON THURSDAY, 21ST FEBRUARY, 2019, AGAINST DR C KAMBWILI, MEMBER OF PARLIAMENT FOR ROAN PARLIAMENTARY CONSTITUENCY FOR ALLEGEDLY CROSSING THE FLOOR BY BEING A MEMBER OF THE NATIONAL DEMOCRATIC CONGRESS (NDC) PARTY, WHILE STILL BEING A MEMBER OF PARLIAMENT UNDER THE PATRIOTIC FRONT (PF) PARTY UNDER WHOSE TICKET HE WAS ELECTED TO THE NATIONAL ASSEMBLY
Hon Members will recall that on Thursday 21st February, 2019, when the House was considering Question for Oral Answer No. 262, and Mrs R C Fundanga, Member of Parliament for Chilubi Parliamentary Constituency was about to ask a supplementary question, the Hon Minister for Eastern Province, Hon M Zulu, MP, raised a Point of Order as follows:
“ Mr Speaker, I thank you for this opportunity to raise this Point of Order. I sincerely apologise to the hon. Member for Chilubi for coming in her way.
Mr Speaker, I rise on a very serious Point of Order relating to Article 72 of the Constitution of Zambia. This is in light of the recent developments that have been going on pretty much in the press. As of yesterday, there was a news item to the effect that Mr Mwenya Musenge had relieved Hon. Chishimba Kambwili of his position as Consultant of the National Democratic Congress (NDC). Following that item, this morning on the University of Zambia (UNZA) Radio, Mr Mwenya Musenge did confirm that position.
Mr Speaker, earlier today, Hon. Kambwili was in the news and I have a video – which I will avail to the Office of the Clerk of the National Assembly almost immediately – in which he referred to himself when declining the decision by Mr Musenge. He said that the Secretary-General of the NDC cannot fire the leader of the party. He expressed such displeasure.
Mr Speaker, with that self-confession and in line with Article 72 of the Constitution which requires that where a Member has been elected on a particular party ticket, he/she cannot then join another party or become independent as he/she will be deemed to have crossed the Floor. In the case of the Attorney-General and the
Movement for Multiparty Democracy, Akashambatwa Mbikusita Lewanika and four Others, Judgment No. 2 of 1994, this position was upheld by the Supreme Court.
Mr Speaker, in view of what I have stated, is Hon. Kambwili, who has since confessed that he is leader of the NDC, in order to be in this House when he belongs to another party and not the Patriotic Front (PF) upon whose ticket he is sitting in Parliament as Roan Member of Parliament?
Mr Speaker, I seek your serious ruling.”
In my immediate reaction to the Point of Order, I reserved my ruling to study the legal and factual issues it raised, which I have since done and I will now render my ruling.
Hon Members, I would like to state from the outset that coincidentally, the legal status of Dr Kambwili, MP, in the House has been under my careful scrutiny and reflection following an article that appeared in the Daily Nation Newspaper Vol. 4. Issue No. 2168, of Friday 4th January, 2019, entitled ‘ I RUN MY OWN PARTY-KAMBWILI’ . The essence of the article is that it contained a statement attributed to Dr Kambwili, MP, to the effect that he ran his own political party.
Following the publication of the article, I instigated investigations into the matter. To this end, the Clerk of the National Assembly on 7th January, 2019, wrote to Dr C Kambwili, MP, requesting him to confirm whether or not the article in question was correctly attributed to him.
In response, Dr C Kambwili, MP, in a letter dated 10th January, 2019, denied altogether having made the statement in question. He further indicated that he had since instructed his lawyers to demand that the Daily Nation Newspaper retracts the article, else, he would take legal action against the Editor- in-Chief of the newspaper, Mr Richard Sakala, because, in any case, it was not the first time that the Newspaper and its Editor- in-Chief had defamed him. He accordingly attached to his letter dated 10th January, 2019, a copy of the demand letter from his lawyers, Messrs C. L. Mundia & Company, addressed to the Editor-in-Chief of the Daily Nation Newspaper, threatening to take legal action against the Newspaper.
Hon Members, in the same vein, the Office of the Clerk also wrote to the Editor-in-Chief of the Daily Nation Newspaper, requesting him to confirm whether or not the statement in the article had been correctly attributed to Dr C Kambwili, MP. The Daily Nation Newspaper responded in the affirmative, and went on to enclose an audio recording of the interview that Dr C Kambwili, MP had with the reporter of the Daily Nation Newspaper. The recording which I had an opportunity to listen to, was later transcribed by the Office of the Clerk, and is in the following terms:
Dr Kambwili: It’ s fake news [referring to the statement] . I have never issued that statement. By the way, let me make it very clear, there is nowhere where the Alliance has discussed how we are going to approach the elections in 2021, and who is going to run. We’ ve never discussed those issues in our meetings. What we are discussing in our meetings is to speak together on national issues; the ten (10) national issues that we outlined in our communiqué..
Dr Kambwili: We have not discussed these issues. People are saying HH is using me. Using who? I am not being used by HH. I am being used by the people of Zambia. HH is just my alliance partner, and he is not using me. Using me for what?
Dr Kambwili: This idea of wanting to bring confusion among people that want to help the people of Zambia must come to an end. Life is dynamic and we don’ t know what will happen in 2021. So for people to start saying Kambwili has pulled out of the Alliance and he wants to…I run a political party of our own. I consult with a political party and it’s an independent political party, just like UPND is an independent political party and all the Alliance partners are independent political parties. We made it very clear in the communiqué, we still remain, but I think we need one voice on national issues.
Dr Kambwili: Should this culminate into coming together in future, we shall cross the bridge when we get there. But as far as we are today, we are independent political parties speaking one language on national issues.
That’ s what the Alliance is all about and I have never issued a statement that I have pulled out of the Alliance. Just yesterday I was issuing a statement that we shall forge ahead with the Alliance.
Reporter: Okay, thank you honourable.
Dr Kambwili: I have never issued that statement. That isfake news.”
Reporter: Okay, thank you honourable.”
To revert to the Point of Order by Hon M Zulu, MP, I wish to inform the House that I also listened to the audio clips presented to my office in support of the Point of Order by Hon M Zulu, MP. The first audio clip is an excerpt of an interview of the Secretary General for NDC, Mr Mwenya Musenge, with an unidentified person. The audio clip was transcribed by the Office of the Clerk, and is in the following terms:
“Mr Mwenya Musenge: We are saying we have not dismissed you, but we just feel that for the time being, let us run our own affairs, as a party. We will be communicated to for a Central Committee meeting where we will be able to meet. And, for those that feel, “ No, but us we want this to be this way; we want to work with Kambwili” , they are free to do that, but not under the name of NDC. NDC has its own leadership and its own members. The NDC is bigger than an individual, and we expect that all those who are members of NDC will respect the decision that has been taken. I want to re-emphasise that we do not hate our dear brother, Kambwili, but we feel we need to have a figure-head. We need to have a President whom we can call with confidence that, “ This is our man” , not a situation where, today, you are being told, “ No, I’ m being quoted by NDC, but I have not made a decision whether to accept or not” . Not where I make a pronouncement to say, “ No, 2021, we are going to field Chishimba Kambwili as our Presidential candidate, and he is able to respond to say, “ No, ask Musenge. He is the one who has formed that party. I don’ t know about those things” . You know, we’ ve been getting ourselves in that. So, this decision has just been taken to try and see how we can rectify this thing. Our relationship, as brothers, with Chishimba Kambwili still remains. We can share a nice moment, we can drink tea together.
But as a party, as NDC, we’ll have nothing, and we’ll ? And we want to appeal to him also that he will respect the decision that we’ve taken as a party, and that he cannot, from now onwards, issue statements on behalf of NDC. That shall only be done by myself, as Secretary-General of the party, and the party spokesperson, who is Mr Moyo, and the Vice-President, who is Mr Akafumba.
Interviewer: Thank you so so very much honourable.”
Further, Hon Members, I also had recourse to the second audio clip referred to by Hon M Zulu, MP, in his Point of Order. The context of the audio is that Dr Kambwili, MP, was addressing journalists at the Magistrate Courts Complex who wanted to elicit his reaction to the communication made by the Secretary General, Mr Mwenya Musenge, to the effect that Dr Kambwili, MP, had been expelled from the party. The video clip was also transcribed by the Office of the Clerk, and is in the following terms:
“Question: … your Secretary-General. What is your comment?
Dr Kambwili: First and foremost, we do not discuss internal political matters in the press. As I stand, no one has served me a letter of expulsion; no one has communicated to me. So, why should we discuss internal matters of the party in the press? Internal matters of a political nature are discussed internally and anyone who goes to discuss those issues in the press is foolish.
Question: But, Sir, the SG’s statement has gone awash (But, Sir, the media is awash with the SG’s statement). Every media institution is talking about your expulsion.
Dr Kambwili: I have said, and I want to repeat, that we do not discuss internal matters in the press. I do not mind whether they have gone viral or whatever and I do not want to discuss the issues pertaining to NDC because NDC has a Central Committee, and structures where issues are discussed. But away from NDC, have you ever seen a situation where the Secretary-General of an organisation – not NDC, not PF, not anything – can expel the leader? What a joke!”
Hon Members, the investigations conducted by my office following the publication of the statement by the Daily Nation Newspaper attributed to Dr Kambwili, MP, and the Point of Order by Hon M Zulu, MP, raises the following cardinal issues:
- Whether Dr Kambwili, MP, is a member of the NDC party; and
- If he is a member of the NDC party, has he crossed the Floor. And, consequently, the Roan Constituency seat should be declared vacant.
I will proceed to deal with the two issues seriatim.
(First, whether Dr Kambwili, MP, is a member of the National Democratic Congress (NDC) party. Hon Members, in order to address this question, it is imperative, at this juncture, to consider the circumstances under which a person can become a member of a political party.
In a ruling on Points of Orders that alleged that some members had crossed the Floor, including Mr G B Mwamba, former Member of Parliament for Kasama Central Constituency, (National Assembly Parliamentary Debates, 16th June – 31st July 2015, pages 1148-1155), I explained the various ways in which a person could become a member of a political party. I pointed out that, first, a person could become a member of a political party by enlisting or subscribing.
Second, a person could be deemed a member of a political party by operation of the law, if, for instance, that person was an office holder of the political party as envisaged by section 2 of the Societies Act, Chapter 119 of the Laws of Zambia. To this end, section 2 of the Act defines “Member”, in relation to a society, to include an office-bearer of such society. It then goes todefine“officebearer” asfollows:
“Office-bearer”, in relation to any society or any committee or governing or executive body of a society, means any person who is the president, vice-president, chairman, deputy chairman, secretary or treasurer of such society, committee or body, or who holds therein any office or position analogous to any of those mentioned above.”
Clearly, section 2 illustrates who the office-bearers may be in any society. Namely, the President, Vice-President, Chairman, Deputy Chairman, Secretary or Treasurer. But this list of possible office-bearers is not exhaustive. It is not exhaustive, because towards the end of section 2, are the following words; “ …. or who holds therein any office or position analogous to any of those mentioned above.”
The Longman Dictionary of Contemporary English New Edition for Advanced Learners, Fifth Edition (Essex, England, Pearson Education Limited, 2009), defines the word “analogous” at page 54, as: “ Similar to another situation or thing so that a comparison can be made.”
The Macmillan English Dictionary for Advanced Learners New Edition, Second Edition (Oxford, Macmillan Publishers Limited, 2007) defines the word “analogous” at page 48 as follows: “ Similar to another situation, process, etc so that the same things are true of or relevant to both.”
Hon Members the net effect of the meaning of the word “ analogous” in the context of this discourse is, in my considered view, that a person holding a position in a society other than those listed in section 2, as long as it is similar, at least functionally, to the offices or positions itemised in section 2, will be considered an officer-bearer, and by extension a member of the society. Hon Members, it is therefore my considered view that the position of Dr Kambwili, MP, as a consultant of, specifically, the NDC, is analogous to the offices or positions illustrated in section 2 of the Societies Act.
In view of the foregoing, Hon Members, I am of the further considered view that from the moment that Dr Kambwili, MP, accepted a senior leadership position – of Consultant – specifically for NDC, (inspite of the ongoing legal challenge of his expulsion from the Patriotic Front), he became not only an office-bearer of NDC, but also a member of the NDC.
In reaching the preceding conclusion, Hon Members, I draw inspiration from the case of Mwamba v Attorney General (2016) Vol 2, Z.R. 296. This is what Siavwapa, J, said at page 311 in construing the term “ office-bearer:”
“ It is clear from the above definitions that the Petitioner became an office-bearer in the UPND upon accepting the position of Vice-President by virtue of which he became its member.”
Siavwapa, J, went on to observe at page 314 as follows:
“The seat was declared vacant on account of the petitioner’ s decision to become a member of the opposition United Party for National Development when he accepted his appointment as its Vice-President for Administration on 22nd July, 2015.”
Hon Members, to augment or buttress the preceding conclusion, Dr Kambwili, MP, has on his own volition, vehemently and unreservedly declared as follows:
(a) First, that he runs his own independent political party;
(b) Second, that he is in fact the leader of the NDC. Little wonder he considered it incredible that he could be dismissed from the NDC; his party, by a subordinate; Secretary-General, Mwenya Musenge; and
(c) Third, that he is a member of the Alliance of Opposition political parties, and he will forge ahead with the Alliance.
In the circumstances, I therefore find and hold that Dr C Kambwili, MP, by virtue of being a member of the NDC, he has clearly crossed the floor.
The second question that falls to be determined is whether Dr Kambwili, MP, having crossed the Floor, as adumbrated above, the Roan Parliamentary seat falls to be declared vacant.
Hon Members, the law governing the circumstances under which a Member of Parliament may vacate his or her seat in the National Assembly are outlined in Article 72 of the Constitution of Zambia, Chapter 1 of the Laws of Zambia. Article 72 is couched in the following terms:
“72. (1) A Member of Parliament shall, except the Speaker and the First Deputy Speaker, vacate the seat in the National Assembly upon dissolution of Parliament.
(2) The office of Member of Parliament becomes vacant if the member—
(a) resigns by notice, in writing, to the Speaker;
(b) becomes disqualified for election in accordance with Article 70;
(c) acts contrary to a prescribed code of conduct;
(d) resigns from the political party which sponsored the member for election to the National Assembly;
(e) is expelled from the political party which sponsored the member for election to the National Assembly;
(f) ceases to be a citizen;
(g) having been elected to the National Assembly, as an independent candidate, joins a political party;
(h) is disqualified as a result of a decision of the
Constitutional Court; or
(underlining for emphasis sake)
It is instructive to note that the provision relating to a Member losing his or her seat on account of crossing the Floor is provided for in Articles 72 (2) (d) and (2) (g) cited above. To recapitulate, Article 72 (2) (d) makes it mandatory for a Member who resigns from the political party, which sponsored him/her for election to the National Assembly, to vacate his or her seat.
Similarly, an independent Member who joins a political party vacates his or her seat under Article 72 (2) (g). It is, however, noteworthy, Hon Members, that Article 72 does not provide any guidance to a member who while in the House elects to join another political party.
Apparently, a Member who is elected to the Assembly on one party’ s ticket and during the tenure of that parliament joins another political party does not lose his or her seat. I say apparently, advisedly. But such an interpretation of Article 72 is clearly discriminatory, particularly against independent Members of Parliament.
This is so, because, it prima facie, implies or suggests that only independent Members are proscribed from crossing the floor. Such an interpretation not only flies in the teeth of Article 23 of the Constitution that outlaws or proscribes discriminatory practices, but also produces an absurdity.
In order to resolve this absurdity and lacuna in the Constitution, Hon Members, it is necessary to take recourse to the case of Attorney General and Movement of Multiparty Democracy (MMD) v Lewanika and Others (1993-1994) Z.R 164, a case referred to by Hon M Zulu, MP in his point of order.
The brief facts of the case are that Mr Akashambatwa Lewanika and others were members of the Movement for Multiparty Democracy (MMD). On 31st October 1991, they stood for elections, on the MMD ticket. They won the elections, and took their seats in the National Assembly, but later, they resigned from the ruling MMD. Consequently, the National Secretary for the MMD wrote to the Speaker of the National Assembly informing him that the Members were no longer members of the Party. In consequence of that official notification by the National Secretary for the MMD, the Speaker wrote to the Members that in terms of Article 71(2)(c) of the Constitution of the Republic of Zambia, they ceased to be members of Parliament with effect from 13th August, 1993; the date when the National Secretary notified the Speaker.
The Members dissatisfied with the Speaker’ s decision, commenced an action in the High Court contending that although they had resigned from the party on whose tickets they won the elections, they were still Members of Parliament as independents. They asked the court to declare the Speaker’s decision that their seats were vacant, null and void.
After hearing the evidence from the parties, the High Court held that the four respondents who had joined the National Party, had vacated their seats when the party came into existence on 10th September, 1993.
In response, the appellants appealed against the portion of the judgment which applied the literal interpretation to the provision of Article 71 (2) (c) of the Constitution. The respondents also cross-appealed against the finding that they joined the National party.
Eventually, the Supreme Court held that Article 71 (2) (c) was intended to prohibit floor-crossing generally, and it was discriminatory against an Independent member who resigned from one party, and joined another party. Further, the Supreme Court held that by employing a “ purposive” approach, and reading words into the Article, it was possible to achieve Parliament’ s intention. Thus at pages 179 to 180 of the judgment, Acting Chief Justice Bweupe made the following observation:
It is perfectly clear on the face of it that Article 71(2) (c) is intended to prohibit floor-crossing generally. In the event, the wording of it does not clearly carry out that intention. If we were to follow the construction contended by Mr Shamwana, the result would be discriminatory in favour of party members who become independent.
Both Maxwell and Craies on Statutes [say] only where there is an absurdity or repugnance can the court come in to modify the language used in statute. We are, therefore, satisfied that Article 71(2) (c) is discriminatory in itself against an independent member who joins any party and against a member who resigns from one party and joins another party. It is discriminatory and, therefore, unreasonable and unfair and it is the duty of the court to make it reasonable as it offends against Article 23 of the Republican Constitution.
In the instant case, we have studied the judgment of the court below, and we find it sound and correct in applying the literal interpretation.
However, it is clear from the Shariz and Nothman cases that the present trend is to move away from the rule of literal interpretation to ‘ purposive approach’ in order to promote the general legislative purpose underlying the provision. Had the learned trial judge adopted the purposive approach, she would undoubtedly have come to a different conclusion.
It follows, therefore, that whenever the strict interpretation of a statute gives rise to an unreasonable and unjust situation, it is our view that judges can and should use their good common sense to remedy it – that is by reading words in if necessary – so as to do what Parliament would have done had they had the situation in mind. We, therefore, propose to remedy the situation in this case by reading in the necessary words so as to make the Constitutional provision fair and nondiscriminatory. Consequently, the necessary words to be read in are “vice versa” hence Article71(2)(c)should now read:
“ 71(2) A member of the National Assembly shall vacate his seat in the Assembly –
(c) In the case of an elected member if he becomes a member of a political party other than the party of which he was an authorised candidate when he was elected to the National Assembly or if having been an independent candidate, he joins a political party or vice versa.”
Hon Members, it is self-evident that in the Lewanika case, by using the purposive approach, the Supreme Court read into the statute the words“or Vice versa to prevent discriminatory and absurd result of an independent member who joins a political party having to vacate his or her seat, while a member of a political party who leaves his political party retains his or her seat as an independent.
In the instant case, applying the purposive approach to statutory construction, I similarly construe Articles 72 (2) (d) and (2) (g) of the Constitution to mean that a Member of the National Assembly shall vacate his or her seat in the Assembly, if the Member resigns from the political party, which sponsored the Member for election to the National Assembly, and becomes an independent or, a Member having been elected to the National Assembly, as an Independent candidate, joins a political party or, if a Member becomes a member of a political party other than the party on whose ticket he was elected to the National Assembly.
Therefore, Hon Members, a member who leaves the political party on whose ticket he or she was elected to the House, to join another political party, loses his or her seat.
Hon Members, in view of the fact that Dr Kambwili, MP, who was elected to this House on a ticket of the Patriotic Front party has become an office-bearer and consequently, member of the NDC, by virtue of assuming the position of Consultant of the NDC, he has crossed the floor. And, accordingly, vacated the Roan Parliamentary seat. I accordingly declare the Roan Parliamentary seat vacant. Therefore, Dr C Kambwili, MP, was, out of order to sit in the House.
I, therefore, order you Dr C Kambwili, MP, to leave the House and its precincts immediately. I thank you.
To be announced on: Copies to:
Wednesday, 27th February, 2019
Clerk’ s office
Chief Hansard Editor