FODEP Executive Director McDonald Chipenzi
McDonald Chipenzi

By Macdonald Chipenzi

Following the decision by Roan Member of Parliament, Chishimba Kambwili, to challenge the decision of the Speaker of the National Assembly of Zambia to vacate his seat on account of alleged “floor crossing” bearing a day after the Electoral Commission of Zambia (ECZ) set the by-election date puts the by-election in Roan in limbo.

Mr. Kambwili is within his constitutional rights to challenge the Speaker’s decision especially that it was done without proof from the Registrar of Society (RoS) indicating that Mr. Kambwili was actually a National Democratic Congress office bearer.

Further, constitutionally, the only body mandated to nullify a seat of an elected member of parliament is the Court and not the Speaker of the National Assembly.

Like instructed in Article 73(1) of the Constitution of Zambia (Amendment) Act #2 of 2016, “a person may file an election petition with the High Court to challenge the election of a Member of Parliament.”

This provision above is also amplified in the Electoral process Act No 35 of 2016 which points to the fact that any question on an elected member shall be through the Court.

In addition, the Constitution guides in Subarticle 3 of Article 73 that “a person may appeal against the decision of the High Court to the Constitutional Court”

Once the seat is petitioned and appealed subarticle 4 of Article 73 stresses that a “a Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition.”

Therefore, the Speaker’s decision is not final and his role does not involve declaring seats of members of the National Assembly vacant but only the Courts are mandated to do so.

The Speaker’s role and function, in this regard, starts and ends at just informing the Electoral Commission of Zambia of an existing vacancy in the National Assembly for the purposes of filling in the vacancy through a by-election.

The causes of those vacancies are well articulated in article 72 of the Constitution and the Speaker is not given any mandate to declare any seat vacant.

Therefore, Mr Kambwili’s challenge of the Speaker’s alleged disorderly action is in order.

This means that the ECZ has to postpone the Roan parliamentary by-election to a later date to allow and until the Constitutional Court determines the matter.

I suspect the ECZ scheduled that date of 11 April, 2019 because Mr Kambwili might not have delivered his appeal papers yet esp that there was no leave for appeal against the Speaker’s ruling and no timeframe given for such an appeal.

However, the Constitution mandates the speaker to inform the ECZ within seven days on the existence of a vacancy in the membership in the National Assembly so that the Commission sets the date for the by-election as directed by Article 57.

Therefore, Roan Parliamentary Seat by-election is now been plunged into an electoral quagmire and limbo.

In this regard, ECZ has a statutory due to guide the nation, stakeholders and political parties on status of the Roan parliamentary by-election to curb misinformation.

I submit

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37 COMMENTS

  1. The PF has lawyer pre has a lawyer as a president surprisingly they have gone to appoint campaign managers even after knowing the said vacant seat in Roan is pending court determination.

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    • LT published a full article containing Dr Matibini’s decision to declare Roan seat vacant. I seem to recall LT patrons agreeing with Dr Matibini because his decision was convincing with citations, interpretations of the law and precedent. Now if he doesn’t have the authority to declare a seat vacant then that is unfortunate.
      That said, the seat will still be rendered vacant in court. So I would advise ba CK to not waste astronomical amounts of money on lawyers. He may end up destitute.

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    • @Olivia-Very true. CK is playing to the gallery at a very huge cost. The proprietors of Ngucha Energy have sued him for alleging the company belongs to ECL and the may walk away with a huge sum of money. Couple that with the fraud and corruption cases already in court his lawyers will milk him.

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    • All those articles this upnd cadre is quoting relate to petitions regarding an election of a member of parliament. There’s no contention concerning the election of the fat clown as Roan MP. It’s CROSSING THE FLOOR, which is dealt with in-house as parliament. The by-election will go ahead whether Chipenzi likes it or not. Ububi

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    • Impeach the Speaker Matibini, the worse laziest speaker in history of Zambia.
      It’s PF central committee who decide by-elections, even if Court say NO.

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    • Kaili they know Kambwili is just wasting their time. Even if he did an 11th hour run to the court it won’t work. One way or another in Roan there will be a bye election.

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  2. As long as there’s no injunction the by-election will go ahead. Those days when people used to perpetuate illegality by hiding behind prolonged court proceedings are now gone. Kambwili is NDC, why would anybody pretend otherwise? Chipenzi doesn’t think properly

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    • And from what I understand he cannot stand hence his panic. But why can’t he field one of his members? He’s just discovered that he’s about to fall into a ditch which has endless poverty.

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  3. Chipenzi you will die a bitter man. Your aim is not clear the air but to use the bafoon to cause confusion in the PF. Only a demented person like can support what this lost man is doing. Please just openly work with the Upnd instead of hiding in an obscure NGO

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  4. Chipenzi u are wrong. The articles that u referring to does not apply to Kambwili’s issue.

    Go back to school or look for other things to do. U misleading Kambwili

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  5. Chishimba Kambwili planned to kill the PF party. This time around, his alleged challenge on the Speaker to declare his Parliamentary seat vacant is an act that will crucify and kill the National Democratic Congress. Chipenzi’s article is merely a ploy by UPND to embarrass the Speaker of the National Assembly and the Electoral Commission of Zambia – and ultimately direct its guns to mock the integrity of the Zambian Courts.

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  6. Chimpanzee, please. Elections are not won in court but at the ballot. You are a upnd cadre who prefers to see CK cling on to his seat so he can disparage the president from within. But what about the NDC fracus that was in public domain last week?? How does a consultant fire the SG of a party??? The Roan election will go ahead and your CK will face the realities and tribulations of opposition politics.

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  7. HOGWASH
    THE CHINESE ARE BUSY TAKING OVER THE COUNTRY WHILE WE ARE BUSY WRITING OR, GOD FORBID, READING SUCH NONSENSE.
    KAMBWILI IS A PUBLIC NUISANCE ATTENTION SEEKING BUFFOON.
    BYE ELECTION SHOULD GO AHEAD

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  8. I didnt know that we still have fools who supports by elections using tax payers money. Ck will still get the seat.We voted for him he is our man. No wonder we are suffering because of you people who pretend to be educated. This government has brought suffering. A normal person can not support the speaker shame on you.

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  9. Pls allow me space. This man wants to show that he can articulate the constitution very well yet its from a frustration point. In all common sense one cant belong to two parties at the same time. Even in the bible Jesus said you cant serve two masters. You have to choice one. CK has chosen to belong to NDP by refusing to be fired.

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  10. Chipenzi is the little fragile chimpanzee who once applied to be adopted to stand on a tri.bal party UPND in some constituency in southern province but was not adopted and then decided to form some tri.bal NGO. Fortunately these criminals from southern province are so dull that they cant even read times.
    Zambians have made a decisive decision that HH will never rule them and all they do is waste their time and effort on something that cant bear results. This the reason why presidency will only be revolving around Central, Muchinga, Luapula, Northern, Eastern, Copperbelt and Lusaka. Maybe sometime in future from North Western Province too.

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  11. UPND cadres such as Chipenzi thinks they know everything, they behave like seventh day members who like to twist every verse in the bible to suite their opinion. look at what you have done to kambwili… you are misleading him, you are busy quoting election petition clauses yet the issue is about floor crossing. what kind of people are you. why do you like confussions so much, don’t let the people of Zambia start believing that the devils HQ is really Dundumwezi. no wonder it can’t rain in some areas, when we say let’s pray and you do the opposite what do you expect God to do to your people???

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  12. Chimpanzee or trib.al, which is applicable? Both.
    Never seen such ignorant rubbish in my life, but I guess with trib.als around there is still lots of pure ignorance to be served by trib.als to fellow trib.als. I really will not waste time commenting on this trib.al’s interpretation of the law. Suffice to say that the Courts would not allow a stay of execution in this hopeless case on the grounds that the appeal is not likely to succeed and the public interest is paramount. I said this the other day and I only repeat it for the sake of trib.als.

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  13. The Nuremberg Trials after WW2 established the principle that ‘following orders’ is not a legal defence. So, all those that are ‘following orders’ from a superior can be subsequently held to account.

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  14. The Lusaka High Court has ruled that Speaker of the National Assembly Dr. Patrick Matibini was wrong to declare the Kasama Central seat vacant.

    High Court Judge Florence Lengalenga has also ruled that Kasama Central Member of Parliament Geoffrey Bwalya Mwamba should be given all his emoluments from the time his seat was declared vacant by the Speaker.

    Judge Lengalenga says the Speaker crossed his jurisdiction by declaring the Kasama Central seat vacant.

    She has also ordered the state to bear all the legal costs for the Kasama Central lawmaker.

    This is in a case in which Mr. Mwamba challenged Dr Matibini’s decision to declare his seat vacant.

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  15. In his application, Mr. Mwamba said he already had a pending matter in the courts of law regarding his membership in the Patriotic Front.

    He said Dr Matibini’s decision to declare his seat vacant should have come after the outcome of this petition.

    Mr. Mwamba contended that Dr Matibini should have properly ruled over the issue of whether his Parliamentary seat was to become vacant after the determination by the Court over his membership.

    Mr. Mwamba’s seat was declared vacant on July 28 2015 by Dr Matibini following his decision to join the UPND and his subsequent appointment as vice-president for administration.

    And UPND has released the following Statement

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  16. In July last year when GBM was appointed Vice President for the UPND, the Speaker expelled GBM from Parliament through a point of order on the pretext that he had crossed the floor. What we do not understand is why the Speaker went above the law that regulates the expulsion of Members of Parliament from the National Assembly. There were two cases at the time in which the head of the LEGISLATURE decided to act as judge and legislator, the other involved Hon. Patrick Mucheleka who the Speaker claimed was an innocent by stander in that situation.

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  17. GBM did not state that he had left PF to join UPND, but rather that he was endorsing HH of the UPND. When Hon. Mwiimbu made that point of order the Speaker denied his assertion, but this court ruling has exonerated Hon. Mwiimbu.

    We have observed on several occasions how Speaker Matibini has applied the law and parliamentary procedures selectively to the advantage of the PF. This rests this matter of his perceived bias, which has included UPND MPs wearing PF regalia yet remaining in Parliament even when the party has written to him to expel them. Still posterity has now arrived early for Matibini.

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    • Spare us the nonsense. You can even imagine that a Upnd MP can wear PF regalia? If that happened it would spell the end of political violence. To any Upnd member the PF is anathema, a leper who should not be touched. Please stop these hallucinations.

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  18. Why is the so called Roan member of parliament still pretending to be PF when in reality not.Pliz spare Zambians from this dramma.Learn to make decisions u can stand by rather than wasting peoples time.Where is your integrity and honesty for Zambians to entrust u with this great country ?

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  19. In Zambia we have qualified lawyers and educated more than CHIPENZI, to my little surprise that he is the only one who sees that the speaker of National Assembly errored for ruling against CK in parley.
    The guy has a SMALL MOTIVE marred by hatred.When We talked about these guys (UPND zealots ) they say that we are tribal of tongas ,but look at CHIPENZI’S reasoning?

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  20. Chipenzi must be very dull, McDonald have you not heard about separation of powers in which organs of State should work independently and only check each other?. Why did Kambwili only rush to court after the date of elections was set, why didn’t he go to court before the day was set, he has now realized that a stitch in time saves nine when its too late. Chipenzi does not understand what crossing the floor is and I think Chipenzi njala yamukola afuna sponsership. Kambwili has just realized how difficult it is to be out of Parliament and losing out on entitlements of being an MP. It serves him better.

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  21. This speaker allowed this lawlessness in the first place by not assuming power now he wants to extend his powers beyond allowed by the constitution. How does someone who is just there to report empty seat have the power to nullify someone’s seat Without due process and wasting our money as the people can challenge his decisions in court. Cadres don’t care about a rogue speaker draining our coffers while many civil servants go unpaid for months. I think we should make cadres pay for our debts so that they’re in tune with reality

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