By Dickson Jere
Sweet and Sour – that is how I look at the recent Constitutional Court (Concourt) Judgment on the expulsion of Roan Constituency Member of Parliament Chishimba Kambwili. He won the case but also lost at the same time!
Let me begin by commending the Concourt for the bold stance taken in the Judgment. The Judges (unanimously) stated clearly that the Speaker breached the Constitution when he interpreted that Kambwili crossed the floor by being a “Consultant” of the opposition NDC. Only Courts of Law in Zambia can make such a determination especially that the Kambwili cases were pending before the Courts of Law on the same issue. Our Constitution is clear on how one loses Parliamentary Seats. If an MP is expelled from his/her party, until the Courts of Law makes a determination on that very expulsion, the MP remains in Parliament. It is not for the Speaker to decide – the Concourt ruled – rightly so.
The Concourt Judgment reiterated the doctrine of “Separation of Power” and emphasized that Courts have jurisdiction over Parliament in matters of Constitutional interpretation – a very contested issue in the Commonwealth! The Concourt Judges provided plethora of case law from different countries when arriving at that decision. For me, it is a plus for our constitutional democracy and rule of law. Simply put, the Judgment makes it clear that no one is above the law and in particular that the Constitution of Zambia is Supreme!
The above notwithstanding, I think the Concourt should have given clear direction in its conclusion. Having found that the Speaker did not have power to declare the Roan parliamentary Seat vacant, the Concourt should have gone further and reinstate Kambwili. However, the Court noted that another MP has since been elected in Roan and that MP was never made a party to the proceedings. Prima facie, the Concourt is right as the new MP ought to have been joined to the proceedings and heard since the outcome would certainly affect him. Why he was not joined is not clear. However, the Court also took Judicial Notice of the notorious fact that Kambwili actively participated in the by- election by supporting the NDC candidate – by implication he supported his own replacement – even though the Judgement does not categorically say so! Another reason for not reinstating Kambwili is that we cannot have two MPs in Roan Constituency at the same time…notwithstanding that the Speaker erred. So he could not be reinstated as it will create a constitutional crisis!
Further, the Concourt stated that Kambwili expulsion cases were before the High Court and Court of Appeal awaiting determination. What will happen then with those cases if the recent held by-election in Roan Constituency cannot be reversed as per Concourt reasoning?
Interesting jurisprudence right there! Will the outcomes be Paper Judgements?
You see, you can complain that roses have thorns or rejoice that thorns have roses. It is the mindset.
So I have decided to rejoice that the Concourt has made a very important decision in the protection of our Constitution and in particular the doctrine of Separation of Powers. I am not taking issue with the final outcome as the Concourt rightly said Kambwili asked for “declaratory orders” which are sparely given by Courts in our jurisdiction. Kambwili won and lost in one case! But the actual winner in this case is the supremacy of our Constitution!
And what happened to the “banning” of Kambwili’s NDC? i thought Pacra de-registered NDC?
The ConCourt is a joke and the Judiciary a bigger joke! How do they uphold an illegality triggered by an illegal decision? They don’t need to hear the current MP because he’s a product of an illegality. Do they expect Kambwili to walk into Parliament and tell Matibini that you were wrong Sir? And just why do they sit on these cases for indefinite periods of time?
Look who’s having the last laugh! Kambwili can now ask for his lost emoluments from Parliament to be paid in arrears and continue to psy him till Parliament is dissolved.
Sks, PACRA doesn’t register political parties, that is the exclusive mandate of the Registrar of Societies. Civic awareness and education please, utuntu! Brilliant analysis by Dickson. As our democracy evolves, God bless our nation.
The Speaker made a very bold decision to declare Kambwili’s seat vacant, of course on behalf of the courts who could have arrived at the same decision only that it would have taken a longer period for them to do so. The evidence was sufficient to point out that CK was NDC and not PF. Waiting for the courts who always take an eternity to conclude issues would have turned Parliament into an animal farm( with Kambwili’s presence in Parley).
I salute the Speaker of the National Assembly.
As in other cases, like the eligibility case of ECL the Concourt always leaves matters hanging, it does not go further by pronouncing what ought to be.
OKAY TO HELL WITH THIS….WHO CARES ABOUT KAMBWILI ANYWAY!!!!!!!! IS EDGAR LUNGU ELIGIBLE TO STAND IN 2021 ELECTIONS?????? NDIYE NKANI ZOLETA APA..ABOVE THAT HOW PREPARED ARE WE FOR THE COVID-19????