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Friday, April 23, 2021

Does Romeo Kangombe Qualify to Stand for Election to Parliament in August 2021?

Columns Does Romeo Kangombe Qualify to Stand for Election to Parliament in August...

By Isaac Mwanza

Introduction

Following the sentencing of Sesheke Member of Parliament, Romeo Kang’ombe, to 12 months imprisonment with hard labour on charges of assault and abduction of two police officers, a sentence which the Subordinate Court suspended for 2 years, the question has arisen in the legal fraternity as to whether Mr. Kangombe can join the parliamentary race in the 2021 General Election. The simple and straightforward answer is NO, he is not eligible. Here is why.

What is a suspended sentence?

A suspended prison sentence is the term given to a custodial or prison sentence imposed by the court, and then suspended, that is, the execution of the sentence is delayed at the discretion of the court for a period of time determined by the court.

By virtue of Section 16 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, criminal courts in Zambia enjoy the inherent and discretionary power to suspend sentences prior to their execution. A suspended custodial sentence may be accompanied by a fine. If it becomes necessary for the court to impose a custodial sentence, it will fix the term of imprisonment according to the gravity of the offence, and then decide whether the case is one in which the prison sentence can properly be suspended.

Where the execution of a custodial or prison sentence has been suspended and the offender has, during the period of the suspension, observed all the conditions specified in the order, the sentence shall not be enforced. However, if the defendant breaches the terms of the suspended sentence, or commits another offence, they are likely to be sent to prison to serve the original prison term imposed. The fact is that a fine, a custodial sentence, suspension of sentence and any disqualification flowing therefrom, must all be considered as part of the total punishment

Constitutional Provision

The relevant constitutional provision is Article 70(2) (f) of the Constitution of Zambia which reads:

“A person is disqualified from being elected as a Member of Parliament if that person is serving a sentence of imprisonment for an offence under a written law.”

A sentence can be a sentence of imprisonment, one which can be served in or outside prison at the discretion of the court or a sentence where fine is paid or both or a sentence of death. The above provision is concerned with the serving of a sentence of imprisonment, which can be served in or outside prison.

From this point, it is important to define the key words in this provision. According to Oxford Dictionary, the term serving means “to spend a period of time doing something.” The Black’s Law Dictionary defines a sentence as “the judgment that a court formally pronounces after finding a criminal defendant guilty or the punishment imposed on a criminal wrongdoer” and imprisonment as “the act of confining a person, especially in a prison.”

The paraphrased version of Article 70(2) (f) of the Constitution of Zambia, therefore, means that a person who is serving a prison sentence, even if such sentence is suspended by the court for any period of time, is disqualified from being elected as a Member of Parliament. This is because that person is spending a period of time under sentence of a prison term following a judgment formally pronounced by a court after finding that person guilty as a criminal defendant and imposing such prison sentence as punishment imposed on a criminal wrongdoer, which includes confinement of that person, especially in a prison for an offence under a written law.

In effect, Mr. Kang’ombe is serving the 12-month prison sentence, except that the court has decided not to confine him to prison or a correctional facility, on condition that, over the next 2 years, he does not commit another offence or breach any of the conditions imposed by the sentencing court.

Historical Perspective of Article 70(2)(f)

Similar provisions of Article 70(2)(f) can be traced to Article 65(1)(c) of the 1991 Constitution of Zambia as well as in Article 65(1)(c) of the Constitution of Zambia (Amendment) Act No. 18 of 1996. The following articles read as follows:

“Article 65(1)(c) Constitution of Zambia, 1991
“No person shall be qualified to be elected as a member of the National Assembly who is under sentence of death imposed on him by a court in Zambia or a sentence of imprisonment, by whatever name called, imposed on him by such a court or substituted by a competent authority for some other sentence imposed on him by such court.”

Article 65(1)(c), Constitution of Zambia (Amendment) Act No. 18 of 1996

“A person shall not be qualified to be elected as a member of the National Assembly if that person is under a sentence of death imposed on him by a court in Zambia or a sentence of imprisonment, by whatever name called, imposed on him by such a court or substituted by a competent authority for some other sentence imposed on him by a court.”

However, in both the 1991 and 1996 Constitution, the law expressly excluded an instance where one is serving a suspended sentence, from being disqualified for election as a Member of Parliament. The law respectively enacted in clauses 6 and 8 of Article 65, the following independent clause:

“In this Article, the reference to a sentence of imprisonment shall be construed as not including a sentence of imprisonment the execution of which is suspended or a sentence of imprisonment in default of payment of a fine.”

During the amendment process to the Constitution of Zambia after 2011, the framers of the law attempted to retain this same provision as above that excluded one being barred from running for parliamentary office if one was under a sentence of imprisonment the execution of which has been suspended, or more simply put, when one was under a suspended prison sentence. The 2012 Draft Constitution had thus included the said provision in the proposed Article 137(4).

However, the provision was dropped from the Final Draft Constitution produced in 2013. The Constitution of Zambia as amended in 2016 no longer has a provision that excludes one from being disqualified if they are serving a suspended prison sentence.

The implication of the suspended sentence imposed on Mr. Kangombe

Let me remind the reader, that the Sesheke lawmaker was slapped with a sentence of 12 months imprisonment with hard labour on charges of assault and abduction of two police officers. This sentence has been suspended for 2 years. Can we say, therefore, that because the court suspended the prison sentence for 2 years, Mr. Kangombe is not serving that sentence? The answer is No!

Mr. Kang’ombe is very much under that sentence, and is serving it, except that the custodial portion has been delayed at the discretion of the court. If he breaches the conditions for the suspended sentence imposed by the court at any time over the next 2 years, then the suspension of the custodial portion, will be revoked by the court and Mr. Kang’ombe will “go in”, he would be arrested and taken into custody to serve the 12 months custodial sentence.

It may be argued that a suspended sentence means one is not “serving” a term of imprisonment but would only do so if the conditions for the suspension of the sentence are breached. The definition of “serving a sentence”, based on both the Oxford and Black’s Law Dictionary, is simply that serving a sentence means that one is spending a period of time under a judgment that a court formally pronounced after finding a criminal defendant guilty.

The sentence which was imposed on Mr. Kangombe by the court, is that of imprisonment, that is, 12 months’ imprisonment with hard labour for charges of assault and abduction, suspended to 2 years.

A suspended sentence means that one still has unfinished business with the convicting court for the duration of the sentence. Under a suspended sentence, one is serving a sentence, except that, that person is not incarcerated or placed in custody. Though not incarcerated, Mr. Kangombe has a sentence of imprisonment hovering over his head for the duration of the suspension of that sentence.

To be clear, Mr. Kangombe would have qualified to stand in an election if the 1991 and 1996 provisions which excluded a suspended sentence, were not taken out from the Constitution.

Conclusion

Here, it is shown that serving a sentence of imprisonment does not mean that one must be in prison. A sentence can be a sentence of imprisonment which can be served in or outside prison at the discretion of the court. One can serve a sentence of imprisonment outside prison, in a scenario in which execution of the sentence has been suspended or where one is doing community service or is probation as opposed to being placed in custody in a prison.

Clearly, it was not the intention of the framers of the law to say one must be in prison to be disqualified from running for parliamentary office, otherwise they would have expressly provided that one is not disqualified from running for office if one is under a suspended sentence of imprisonment. The intention was to exclude those who serve a sentence, either in prison or outside prison, provided such a sentence was one of imprisonment.

As can further be seen from the analysis, the provisions which excluded one from being barred when one is serving a suspended sentence, were excluded from the Constitution of Zambia as amended in 2016. If Mr. Kangombe wants to proceed with filing nominations, he is free to do so but he should certainly expect a legal challenge to his nomination and it would provide a good opportunity to test the law once again.

28 COMMENTS

  1. Sad for the young man. He was fighting a battle that is not his and now his career is ruined. He is walking on a very thin wire, he may just do one silly thing and boom, they will get him back behind bars. Kang’ombe stay away from UPND politics especially that it’s becoming clear UPND is losing 2021 Elections. Don’t ruin your life and business

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  2. Sad for the young man. He was fighting a battle that is not his and now his career is ruined. He is walking on a very thin wire, he may just do one silly thing and boom, they will get him back behind bars. Kang’ombe stay away from UPND politics especially that it’s becoming clear UPND is losing 2021 Elections. Don’t ruin your life and business.

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  3. ema lawyer aba, simple language, straightforward argument and on point. Kang’ombe ali ku wire. Good advice: Stay away from politics or u will be sacrificial lamb for HH. That man is heartless. Won’t even mind when you in prison, u will become part of his statistics for his campaign and yowa family will be suffering.

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  4. ema lawyer aba, simple language, straightforward argument and on point. Kang’ombe ali ku wire. Good advice: Stay away from politics or u will be sacrificial lamb for HH. That man is heartless. Won’t even mind when you in prison, u will become part of his statistics for his campaign and yowa family will be suffering. You too handsome to be in prison

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  5. The young man looks innocent. Look at those mimbulu behind him who spent time incarcerated for treason smiling. They are using you young man. Run for yo life. HH won’t be there at all to feed your family, time to throw a towel from politics, focus on building your business empire.

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  6. The young man looks innocent. Look at those mimbulu behind him who spent time incarcerated for treason smiling. They are using you young man. Run for yo life. HH won’t be there at all to feed your family, time to throw a towel from politics, focus on building your business empire! HH is not winning 2021

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  7. UPND youths must now be careful. HH uses people for own political ends. You all shall end up in prison for sake of him but his children are enjoying home.

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  8. UPND youths must now be careful. HH uses people for own political ends. You all shall end up in prison for sake of him but his children are enjoying home!

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  9. The law is an ass. So amendments are affecting everyone and everywhere. Kang’ombe must just leave politics. He will end up in prison if not careful.

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  10. There is nothing for Hon. Kangombe to worry about, this was expected and he can still contribute to UPND in many ways outside parliament. The fight continues as age is to his side.

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  11. Go out of politics or you will end up in jail. Remember the judiciary is in the pocket of PF, so as long as you are associated with any other party you are in immortal danger.

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  12. Very dull blogas at LT,Kangombe is still a saving MP because he was not handed a custodial sentence.He could be have lost his sit.hence he eligible to stand,Simple.

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  13. 90% of cases against any upnd are politically motivated yo fix the party……

    Just look how CKs bogus cases will die a silent death now he supports lungu……

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  14. He said being an MP is not helpful to the people as the MP gets gratuity but the government doesn’t take development to constituencies, even after MPs make proposals and development plans for them . Had the government been doing that constituencies with ruling party MPs would have been better developed, a case of Luapula and Muchinga provinces just for an example.
    The sad part is we all know who has the judiciary in his pocket and still think it is funny and normal.

  15. With or without Kangombe, the Sesheke seat still remains with UPND.
    In a general election, it will be impossible for the PF to ferry cadres from Lusaka to vote in another constituency.
    Besides, even with bus loads of imported voters,the PF still lost to Kangombe.

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  16. Was ECL not convicted when he stole a widow Pensioner’s Money when he was Practising as a lawyer? On his Third Term Bid, ECL still needs to be cleared as the Republican Constitution forbids him from standing:”A person who has held Office twice is not eligible for Election as President “. Having held Office twice, elected and sworn in twice ECL doesn’t qualify for a Third Term unless Concourt grants him a licence to Stand. We shall see how Concourt breaches the Constitution by giving ECL another illegal and unconstitutional Third Term. The whole World is watching.

  17. Kz the real criminal is you, the fact that the corrupt PF is shielding you from justice does not mean you are inoccent. Think of the many crimes you committed…. you supposed to be languishing in prison right now. But wait a minute, there is one who said shall never let the wicked go unpunished, yours kz is Divine justice, God will pronounce Himself on you.

  18. Yes you are right he is not eligible to stand as MP for the next election just like Lungu is not eligible to stand as president in the next election. But if lungu insists to stand on a technicality then let also this man stand on a technicality.

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  19. What are all the empty tins above saying now that the Speaker has ruled otherwise?Ati ba Isaac Mwanza ba lawyer, imyungulu sha PF, cimo cine na ba Tutwe Ingulube

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