And Mwila says Dr Matibini’s refusal to declare the seat vacant on the basis that he wanted to give the Courts freedom to deal with Chishimba Kambwili’s appeals conclusively, is unreasonable, illegal and amounts to use of discretion that the Speaker does not possess.
Mwila is therefore seeking an order, directing the Speaker to declare Kambwili’s Roan Constituency seat, vacant.
In an affidavit in support of application for leave to commence judicial review filed in the Lusaka High Court, Wednesday, Mwila who is an applicant in this matter and Attorney General as a respondent, stated that on July 22, 2017, the PF Central Committee resolved to expel Chishimba Kambwili from the party.
He stated that the decision was communicated to Kambwili by a letter dated July 24, 2017.
Mwila stated that by a letter dated July 26, 2017, the Speaker was informed of the decision to expel Kambwili and requested that he declared the Roan Constituency seat vacant.
He stated that in the same month, Kambwili challenged his expulsion in the Lusaka High Court, saying the due process was not followed by the Central Committee when the decision was made to expel him, but consequently, an application was made to dismiss his matter for want of prosecution, and it was dismissed in a ruling dated October 25, 2018.
Mwila further stated that he wrote another letter to the Speaker on October 26, 2018, requesting that the Roan seat be declared vacant since there was no matter pending determination before the High Court in respect of the decision to expel Kambwili from the party.
He disclosed that by a letter dated October 31, 2018, authored by Dorothy Kapumbu on behalf of the Speaker, Dr Matibini, citing Article 72(5) of the Constitution, refused to declare the seat vacant,
“This was on the basis that: (a) the Court has not pronounced itself on the merits of the case to confirm the expulsion or otherwise; and (b) in any case there was an appeal against the dismissal of the case pending before the Court of Appeal,” read the affidavit in part.
Mwila further disclosed that in response, he wrote another letter to the Speaker, reiterating his request to have the seat declared vacant and pointed out that the appeal pending before the Court of Appeal was in respect of the dismissal of the case and not the expulsion, but his request was again rejected.
“The Speaker writing through Dorothy Kapumbu refused to declare the seat vacant and reiterated that the matter had not been determined on the merits. And that since Kambwili may succeed in his appeals, the seat cannot be declared vacant in order to ‘give the Courts latitude to deal with the matters conclusively’,” read the affidavit further.
Mwila stated that he believed that the dismissal of Kambwili’s matter entailed that there was no challenge currently pending before the Courts.
“I am advised and do verily believe that the route honourable Kambwili has chosen to appeal the dismissal rather than commence a fresh action entails that his seat is liable to be declared vacant,” read the affidavit.
Mwila is seeking the following reliefs: a declaration that there is no suit on the part of Kambwili for Roan Constituency pending before the High Court to challenge his expulsion; an order of certiorari, removing the decision of the Speaker to declare the Roan seat vacant; and costs.
The grounds on which Mwila is seeking the relief are that; the decision of the Speaker to refuse to declare the Roan seat vacant is illegal as it is in contravention of Article 27 of the Constitution and; that the decision of the Speaker to refuse to declare the seat vacant in order to give the Courts latitude to deal with the matters conclusively, is unreasonable and illegal as it amounts to use of discretion that the Speaker does not possess.