The Constitutional Court has ruled that Speaker of the National Assembly Dr. Patrick Matibini exceeded his Constitutional powers when he declared the Roan Parliamentary seat which was held by Chishimba Kambwili vacant.
Dr Matibini on February 27, 2019 declared Kambwili’s Parliamentary seat vacant on allegations he crossed the floor of the House when he accepted the appointment of National Democratic Congress (NDC) consultant.
This was after Malambo member of Parliament Makebi Zulu raised a point of order regarding the same.
But in a landmark ruling delivered by Constitutional Court President Hildah Chibomba, Judges Annie Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke, they stated that while the Speaker was well within his power to respond to the point of order that was raised on the floor of the house, he exceeded his powers when he proceeded to apply the purpose canon of interpretation of statute in order to cure the lacuna that he identified in Article 72 of the Constitution.
The judges stated that Dr Matibini exceeded his in power as the function of interpreting the law in the Constitution was vested in the judiciary, the branch of government to who he is assigned that delicate task.
“Therefore, by ruling as he did, the Speaker exceeded his Constitutional power as he strayed or encroached into the adjudicative function of the courts of the land which are mandated to exercise judicial authority of the Republic by interpreting the law and the Constitution,” they stated.
However, despite finding that the Speaker exceeded his powers, the court could not rule that his decision was null and void as it would create a Constitutional crisis and absurd state of affairs by having two members of Parliament for Roan Constituency.
The Court could also not declare Dr Matibini’s decision null and void as the incumbent Roan member of parliament Joseph Chishala who was an interested party, was not added to the case and heard.
“The petitioner has not cited the said Joseph Chishala thereby making his prayer for declaratory order to fall foul of the principle that the court will not grant a declaration unless all the parties affected by or interested in the case are before the court,” they stated.
With regard to a declaration that Kambwili crossed the floor and the seat fell vacant, the court stated that they had no jurisdiction to delve into such issues which at the material time were pending by the High Court under whose jurisdiction, they fall.
“We do not thus want to fall into the same trap of usurping the powers of the High Court which were dealing with the matter in question,” they stated.
The Court could also not rule that Kambwili did not cross the floor and his seat did not fall vacant as considering and determining such issues could amount to Constitutional Court acting as if it were an appellate court from the ruling of the Speaker when in fact it was not.
“Consequently, the reliefs sought under the second and third prayers are not available to the petitioner. All in all, this petition is dismissed.
Kambwili had based his argument on the doctrine of separation of powers and the need for each arm of government to confine itself to its own Constitutional mandate and not to encroach on others’ functions.
According to Article 119 of the Constitution, the court had been given the mandate to interpret the law and the Constitution.
The Court found that despite the National Assembly having exclusive Power and jurisdiction, such power was not limitless and could not be exercised in a manner that tresspases on the Constitutional mandate of another state organ.
“It is our firm view that the defense of exclusive cognizance is only available when the National Assembly or the Speaker is dealing with a procedural or internal matter. It is our firm view that the question whether or not the petitioner had crossed the floor thereby resulting into the nullification of his seat in Parliament is not an internal or procedural matter which falls squarely under Article 77(1) of the Constitution or capable of outsing the power of the court to scrutinise that decision under section 34 of the National Assembly (Powers and privileges) act as alleged by the Attorney General,” stated the judges.
Yaba, political interference in Zed…total chaos
What I suggest is this…1. Kambwili goes back to parley 2. Since Matibini is proven lawless, he resigns. 3. Mr. Chishala becomes the speaker.
The speaker of the National Assembly normaly takes sides and when you hear him the way he deliberates issues in the assembly you will discover that he is PF sided. Catherine Namugala acts though she is the boss. She is fair and equal to the task.
No different from the mob justice which is acting as both judge and executioner!
So then what?? Kambwili back to parliament?
This case sounds like “warning and caution” for murdering someone.
Good move ,the Zambian courts are growing independent like Kenyan and Malawian courts which annulled presidential elections.
In serious jurisdictions the speaker would resign
Patrick Matibini knows the law very well because he applied it whn the the UPND tried to move a motion to begin impeachment proceedings against ECL. He guided that proceedings could not commence because some people had gone to court on that same matter. Similarly Chishimba Kambwili had sought court intervention on his expulsion from the PF. So why couldn’t this apply to Chishimba Kambwili? Those calling for Matibini’s impeachment hv a good case against him.
Resignation would be in order
Excellent. A clear sign that the rule of law is well and alive under pf. Surely the opposition are now running out of excuses and reasons to claim their vote will be stolen in 2021. Good luck is all I say. No crying in 2021 .kz
Not surprised at all. This is a regime anchored on lawlessness and disregard for court orders. Nothing can ever go right with such a government. And if these people are given another mandate to rule this country next year…….I shudder to think what will remain of this country by 2026
Where is UPND on this? This is where this party and our leaders fail us! Why cant they give people an appropriate immediate reaction to such an important issue. We have a bunch of totally dull clueless opposition leaders that cant even take a strong stand on such an issue of lawlessness!
Imagine if it was Michael Sata when he was in the opposition – Matibini would have already resigned and gone. The UPND thinks it is the incomprehensible 10 point plan that will us an election – this is totally misguided. It is the articulation of the impact if issues like this which wins elections. A speaker clearly breaks the law and even Lungu’s courts declare this but the Opposition remains mute – what a bunch of mules!
This inaction by the opposition especially UPND should be worrying us because…
Why electing new MP ilegally .
The court must just be honest, they’re a bunch of cowards, I mean, if the court could not rule that Matibini’s decision was null and void, they should have declared him a delinquent speacher and removed his sorry stinking ass from the speakership!
I think Chishimba Kambwili should be re-instated.
Firstly to those attacking the court. There is a pending case in the high court as they have stated. As such the constitutional court cannot act. Kambwili is still by definition the real MP of Roan. He needs to go through that court first, then Namugala Catherine needs to be the speaker of the National Assembly.
OTIONSE concept is truism with PF regime. Everything is meaningless in the eyes of PF, wrong national issues identifies are inconsequential, citizens killed at the behest of state machinery is collateral damage, dehumanising Zambians is of little effect AS LONG AS PF IS IN POWER. What a tragedy for Zambia.
What! I had hoped that the by-election would be postponed (if possible constitutionally) until the concourt pronounced itself to avoid exactly this ruling, which has now been overtaken by events. But it may haunt us if the implications are not corrected since it sets precedence in our case law system. We have still ruling on salaries of Ministers still haunting us. God knows what next.
Kuti waseka. Now what? So the court will make another ruling that will be ignored by the cabinet?
Clearly stated Kambwili is back in parliament as Roan MP. As for Chishala he has to be there too as an MP until he decides on his own what he should do to the Speaker. Sue him or what??? Total confusion and madness at its worst example. Now thats what happens when you decide to listen to PF. They are always on the wrong side of the coin – So long it pleases them and thats too dangerous for a country where we purported to be democrats. Total disaster!!!!
What is backlog of cases at concourt….why take this long…BUFFOON CK will make alot of money here, they inconvenienced him a lot, i hope he gets his dues up to 2021 plus legal expenses
With such people and you expect the national assembly to adjudicate matters fairly? That’s why he is pushing for bill 10 so that it can cocoon their misdeeds.
The court cannot on one hand state that Matibini exceeded his powers and on the other that Kambwili cannot be accorded relief. If the Concourt is waiting for the high court’s decision, they should merely have ended at stating that the speaker had erred. It is not up to the court to envisage a ‘Constitutional crisis’ and therefore refuse to apply the law. This is a mere issue of breaching the law not a matter of ‘life and death’ for the nation. You find a legal wrong in this case and then use reasons outside of the law (from your own political expediency whim) to nevertheless dismiss the petition. That’s absurdity! It shows that this court was created to serve a certain master by whatever possible lopsided ‘reasoning’.
Kambwili it’s time to sue parliament and put money in your pocket. That was wrongful termination by a hopeless ignorant employer who was instructed by the president to deliver the wrong unlawful determination.