Thursday, June 20, 2024

The Speaker is undermining the Judiciary – UNZA Don

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A University of Zambia lecturer says it is lawless and wrong for Speaker of the National Assembly Nelly Mutti to bar opposition PF MPs whose seats were nullified by the High Court from attending parliament when their appeals to the Constitutional Court remain undetermined.

Responding to questions on Twitter, Dr. Sishuwa Sishuwa urged the Speaker to familiarise herself with the ruling of the ConCourt in the case of Margaret Mwanakatwe v Charlotte Scott where justice Enoch Mulembe ruled that “where there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the Constitutional Court” stands.

He argued that the Speaker made a mistake to venture into constitutional interpretation using the law within herself, and urged her to accept that she made a mistake and reverse her decision.

 

 

Below are a series of the academic’s tweets on the subject as monitored by Lusaka Times.

“The decision by the Speaker of the National Assembly to bar MPs whose election were nullified by the High Court from attending Parliament until their appeals to the Constitutional Court are determined is wrong and undermines the judiciary and the principle of separation of powers.

“The ConCourt ruled in 2016 in the case of Mwanakatwe v Charlotte Scott that by operation of Article 73 (4) of the constitution, an appeal to the ConCourt acts as a stay of the decision of the High Court. This means until the case relating to an election petition is disposed of in the Constitutional Court, the matter is considered active or undetermined, and the affected MPs have the right to remain in parliament. Nelly Mutti either did not read the judgement in the Mwanakatwe case or is out to undermine the judiciary, which would make her the female version of Patrick Matibini!

“If you remember, in 2016, the High Court nullified the election of Mwanakatwe as MP for Lusaka Central constituency. Mwanakatwe then appealed against the verdict to the Constitutional Court. While waiting for her appeal case to be determined, she applied for a stay of the High Court’s decision so that she could remain in parliament. The ConCourt via a single judge, Enoch Mulembe, ruled that there was no need for her to seek a stay because her appeal served as one and allowed her to remain in parliament until the matter was conclusively decided by the Constitutional Court. This is the precedence on this subject, one that may explain why the affected MPs this time did not apply for a stay.

“The purpose of that constitutional provision that allows an MP to remain in parliament pending the determination of their petition was to prevent the creation of a vacuum in the office of MP while the case remained undetermined by the courts. If the High Court verdict was final, despite an appeal, the result would have been a vacancy in the affected constituency.

“Now can you imagine a scenario where a by-election is held after the High Court nullifies a sitting MP’s election only for the ConCourt to overturn the ruling of the lower court on appeal by the affected MP but after the by-election has already taken place? There will be chaos.

“There is no finality to an election petition decided by the High Court, once an appeal against the ruling has been filed in the ConCourt, until after the determination of that appeal by the superior court. By making that ruling, the Speaker either genuinely misread the law, is unforgivably ignorant of the fact that the word ‘determination’ as used in Article 73 (4) has been interpreted by the ConCourt to include the appeal, or is simply incompetent.

“Her main mistake was to venture into constitutional interpretation using the law within herself. Ati “practical application” monga ni kumushi pa nsaka? The Speaker should read the Mwanakatwe v Charlotte ruling by Enoch Mulembe (l doubt she would have come to that ruling if she had read the case), swallow her pride and reverse her ruling. That would be the right thing to do.

“Unless the ConCourt vacates its decision in the Charlotte v Mwanakatwe case (and for that to happen, someone will have to apply to the full bench to reverse the ruling of a single judge), its decision that “where there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the constitutional court” stands.

“We can criticise the ConCourt for its bad decisions, but that is the institution with the power to interpret the constitution. It is lawless for another institution, the Speaker, or indeed anyone else, to assume the Court’s functions for whatever reasons, or ignore its decisions.”

39 COMMENTS

  1. And you can imagine she is a Lawyer….she’s 66 years old…..which law school did she go to???? Together with Anne Mushipe

  2. Jigga Kayama Simangulungwa (formerly Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee) Jigga Kayama Simangulungwa (formerly Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee)

    Agree with you Dr Sishuwa as always. Ms Nelly Mutti is a respected lawyer and she shouldn’t allow herself to be used as a political doormat.

    However, that Constitution clause as written is not clear cut and is a bir vague and thus still leaves room for misinterpretation.

    I think think the ruling is perhaps what we have to rely on here for precedence… but then again that court under Lungu was more of a political Kangaroo court with some shocking decisions that were designed to favour Lungu and perpetuate his stay.
    I think we either need to disband this court or replace the judges (are they life judges).

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  3. The Zambian laws need to be respected by all sides whether one is speaker or opposition.No one should be above the law.Misinterpretation for political points should be avoided.

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  4. It’s very sad that political vindictiveness has continued even after being assured of a complete new leaf by the new people in power. From independence we have been busy trying to silence other people.

  5. Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”-Justice Sonia Sotomayor. she asked Mississippi’s solicitor general. “I don’t see how it is possible.”

    We should start pausing the same questions.

    The UPND administration is in a difficult position thanks to the PF administration undermining the judicial system.

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  6. It wasn’t necessary for Nelly Kashumba to put up such a stunt, this is just negative energy. Unfortunately I have noticed that quite a good number of lawyers and politicians especially those that hail from the new Bantu Botatwe (Southern, Western & North Western provinces) don’t see anything wrong with that ruling. What I wait to see is what will happen to Nelly when the ConCourt re-pronounce itself on the same matter as petitioned by LAZ.

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  7. Jigga Kayama Simangulungwa (formerly Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee) Jigga Kayama Simangulungwa (formerly Corruption scandals: 48 Houses Social Security Cash Luxury Presidential Jet Ambulances Fire Trucks Mukula Trees Ndola-Lusaka Rd Malawi Maizegate Fuelgate Swaziland landgate Zesco Loans Honeybee)

    Ayatollah, no need to go tribal ape… it is this type of archaic stoneage b@rbaric thinking that is destroying this country.
    I have noticed…“? Which evidence do you have to come up with such kind of venom spewing as to scandalise an entire people? You are better than that mate! Restrict your debate on the subjectxl, the person and her political grouping who is doing cheap politicking!
    Lusambo, no sympathy for this sun of a gun, but we are condemning Ms Nellie Mutti for the Constitutional blunder, not because of Lusambo or where he comes from.

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  8. There was nothing wrong with the Speaker, Nelly Mutti, making a ruling on the matter because it was raised as a point of order and, in accordance with parliamentary procedures, she was required to give a ruling based on her interpretation of the impugned constitutional provisions. There is no such thing as a wrong or right interpretation of a law; an interpretation only becomes right or wrong when a court with the jurisdictional authority makes its own interpretation. Sometimes courts arrive at interpretations that were never intended by parliament, or in this case a constitutional assembly, but the courts decision becomes binding. Nellt Mutti was just doing her job.

  9. Some of these dons also, the speaker has not pronounced the affected as having lost their seats, she has just said they should not attend parliament until their cases are disposed off by the courts, what is difficult to understand. These chaps whose seats were nullified now sit between their seats being lost or their seats being restored, until then let them keep off parliament, that’s what the speaker is saying

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  10. Speaker is on firm ground, its just that some people are relying on defective precedents, this speaker does a deep analysis before arriving at decisions, she will turn out as the most effective speaker this country will ever have. Watch the space…..

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  11. President Lungu abused the judiciary and the Constitution. THERE’S NO way A petition for an MP can TAKE 5yrs to be concluded like that of Luo and Mwanakatwe. 60days is ENOUGH. Mutti is 200% RIGHT. Those MPs are voted by us and their cases are more of fast track THAN ANY OTHER CASES that maybe presented to courts. There shouldn’t be any “shadow boxing” like what happens in other civil cases which can drug 4,5 or 10yrs.

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  12. When I told you that this b.i.t.c.h nelli is just a political prostitute, many of you said that I was bitter. Even the author of this article, who is very critical of pf, agrees with my sentiments. It is embarrassing to see a speaker being so politically biased. Is she that cheap? We thought she was rich to not be used?

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  13. What is shocking to me is that Mr Mundubile who is calling for current speaker’s impeachment supported former speaker- Dr Matibini on exactly a similar case. It ends up to me this is just politics…

  14. #10 Please respect women especially those who have husbands. Let’s debate issues with the intention to improve governance of our country.

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  15. Why is Lusaka Times allowing this chap called Kaizar Zulu insulting the Speaker? This is not freedom of speech, no, it’s idiocy of the highest order. You can criticize the Speaker without resorting to insults.

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  16. SOME I*D10T DOESNT RESPECT ANYONE
    SO WHAT IS HE ON ABOUT
    He keeps learning more and more about less and less now he knows everything about nothing
    He may talk like a f00l and act like a f00l, but don’t get the wrong idea about him — he is a f00l

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  17. #6, the truth hurts. How many lawyers and retired politicians have said Nelly is on firm ground? Check their names and background! Some are freedom fighters, we’ll see their reaction when the ConCourt finally settles this matter

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  18. I think the problem the speaker is trying to sort out is the lack of a time frame to dispose of petitions in the Constitutional Court. A case in point is the Nkandu Luo case which took almost 5 years to be concluded. What happens to all the emolutions and payments made to an MP when after the said period, they lose the petition?

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  19. #16 During Mwanawasa’s time some twenty PF MPs were expelled from the party. They appealed and the case dragged on until these MPs like Dr Muchungwa completed their terms. I’m not sure of what caused this delay other than speculations.

  20. So speaker’s ruling clearly unconstitutional. Bring those goons back to parliament but please expedite their appeals. That is the key.

  21. Lacunas that were deliberately created to advantage people who wanted to be in power forever. Why should someone who lost a petition continue to illegitimately continue sitting in parliament getting a huge salary and allowances?. Let them wait for their appeals to a higher court to come out. If their is a de-nullification, then they can be refunded their dues. How can money illegitimately received be recovered from someone who lost a petition?. The politicians should learn that there is life outside the parliament milking parlour.

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  22. Both Hon. Nelly Mutti and Hon. Patrick Matibini are very brilliant & well experienced lawyers, but unfortunately they both are shamelessly unprincipled party carders

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  23. You are true dinosaurs! One @KZ condescends woman & calls them bitches, because the only value he sees in them is sexual gratification. Do you realise ‘bitch’ is a female dog? You just insulted that lady. Is it all worth it? The other @DejaVu begs for – respecting women – only, & ‘especially’ if they are married! What??? Can you hear yourselves?? Do you have mothers, sisters and daughters? I cannot believe this mentality by any decent human being, or, are we in Taliban country? Don’t bash the woman – address the issues raised. LT, where is your moderation – a bit off line, isn’t it? Unbelievable!

    # plant a tree now please!

  24. Yep, here we go again! Your usual nonsensical moderation! You let some people perpetually use pretty offensive language, yet moderate where you don’t need moderation. You are lost!

    #plant a tree now please!

  25. “Equality means each individual or group of people is given the same resources or opportunities. Equity recognizes that each person has different circumstances and allocates the exact resources and opportunities needed to reach an equal outcome.”

    UPND administration Be on the right side of history!

    “If we are unjust, we will be forever judged in history as a low point in time, and if we are magnificent, we will be celebrated for the rest of time, by historical documentation. (Unless that historical documentation is destroyed, or humanity becomes extinct,”

  26. Putting Mitti in the first place was wrong move…..she is very emotional lawyer to say the least…..She ignore the fact that previously similar circumstance was settled….but now it confirms UPND having an agenda …Even after other scholars say she was wrong she goes public to say her judgement is final….we in for a rie

  27. I’m not a Lawyer but what about the injustice that comes with delayed rulings by the ConCourt? Suppose the ConCourt takes 4 years to determine the matter and uphold the High Court ruling, this means the petitioner (losing candidate) has lost out. So it is the ConCourt that should do it’s job expeditiously. Nelly has simply called for speedy decision by the ConCourt. ConCourt Judges no doubt will work hard knowing that constituencies in question are not being represented and need MPs to get back to the house quickly.

  28. @Ayatolla. You want everyone to think like you or you are intimidating people to take your side. That can’t be accepted. To me the speaker is 100 % right. She has not nullified any seat as alluded to by Kambwili. Its up to the concourt to start doing their work expeditiously so that constituencies get representation after a competent court nullifies an election.

  29. The speaker is on solid ground for now. We just want those mps to stay away from parley business because their seats are nullified at this point. They can come back later if they win their case in the jeopardy concourt

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  30. HOLD UP. HOLP UP.
    U CAN DISAGREE OR AGREE WITH THE INTERPRETATION. WHAT U CAN NOT DO IS ACCUSE THE SPEAKER OF UNDERMINING THE JUDICIARY. THAT’S RUDICLOUS AT BEST.
    WHETHER SHE SUSPENDS OR DOES NOT SUSPEND THESE MPS, SHE IS INTERPRETING THE LAW. HER JOB BY DEFINITION IS TO INTERPRET THE LAW EVERYDAY BECAUSE SHE IS DEALING AND MAKING DECISIONS ON LEGAL MATTERS.
    THEREFORE IT’S UP TO THE RELEVANT JUDICIAL WINGS (COURTS) TO CLARIFY IF HER INTERPRETATION IS WRONG OR RIGHT.
    AGAIN ANY LEGAL DECISIONS MADE BY THE SPEAKER (AS A MATTER OF FACT BY ANY CITIZEN) IS AN INTERPRETATION OF THE LAW,

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