You’ll create constitutional crisis if you rule Matibini out of order on Roan seat, Mwansa tells ConCourt

Solicitor General Abraham Mwansa has urged the Constitutional Court to dismiss, with costs, the matter in which former Roan PF member of parliament Chishimba Kambwili is challenging Speaker of the National Assembly Dr Patrick Matibini’s decision to declare his seat vacant for alleged floor crossing.

Mwansa has observed that in an event that the court declares the Speaker’s decision illegal, it will entail that Kambwili will remain Roan member of parliament.

He argued that since the newly elected lawmaker Joseph Chishala had already been sworn into office, that would create a Constitutional crisis.

And Mwansa has also argued that Kambwili’s petition is an academic exercise which takes away the precious time of the court to attend to other matters.

Meanwhile, Kambwili’s lawyer Christopher Mundia has urged the court to grant his client the reliefs he’s seeking.

In this matter, Kambwili who is also NDC leader, petitioned the Constitutional Court for a declaration and order that his seat did not fall vacant as ruled by the Speaker of the National Assembly and that he did not cross the floor as ruled, among other reliefs.

He sued the Attorney General and ECZ as first and second respondents respectively.

However, the court misjoined ECZ from the petition after Kambwili, through his lawyer Jaqueline Lungu, told the Court that he wished to remove it from the matter as it acted within its powers when it called for by-elections to elect a new Roan member of parliament, and was not a necessary party to the proceedings considering the reliefs he was seeking.

When the matter came up for hearing before Constitutional Court judges Hildah Chibomba, Annie Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke, Tuesday, Mundia argued that in declaring that Kambwili crossed the floor, Dr Matibini placed reliance on the case of the Attorney General, MMD Vs Akashambatwa Lewanika and others, which floor crossing referred in the case was pronounced 22 years ago before the provisions of the new Article 72, where floor crossing is not provided for.

“The Speaker of the National Assembly admits that there is a lacuna in so far as the provisions of article 72 of the Constitution where a member of parliament belonging to a political party joins another political party. In declaring that the petitioner crossed the floor, the Speaker placed reliance on the case of the Attorney General, MMD Vs Akashambatwa Mbikusita Lewanika and others 1993 to 1994 ZRA 164. We submit that that particular precedence in so far as floor crossing, has been superseded by the provisions of article 72 and the said envisaged floor crossing does not exist anymore,” he said.

“I further submit that the literal interpretation of article 72 demonstrates that the floor crossing in which the Speaker pronounced himself on, is not provided for in article 72 which article is not illustrative but conclusive. The floor crossing in the Akashambatwa case was pronounced upon 22 years before the provisions of the new article 72 took effect in February 2016.”

Mundia argued that Dr Matibini’s declaration was made in the manner which discriminate other provisions of the law, as such it was his prayer that the relief sought by his client, Kambwili, should be granted.

In response, the Solicitor General urged the court to dismiss the petition with costs, saying Dr Matibini properly exercised his jurisdiction when he declared Kambwili’s Roan seat vacant.

“A motion was raised on the floor of the House and the Speaker was Constitutionally mandated to make a decision on the motion, which decision essentially was a declaration of the Roan seat vacant. We submit that the Speaker properly exercised his jurisdiction,” Mwansa said.

He said he had gone through Article 72 and did not see anywhere where duo membership for a member of parliament was permitted.

Mwansa urged the court to interpret that when a member of the National Assembly elected on a particular political party elects to join another party, they should seize to be members of National Assembly.

“It is our submission that the case of the Attorney General, MMD Vs Akashambatwa Lewanika and others which we have cited in our submissions and also cited by the petitioner is still good law,” he said.

Mwansa further submitted that in an event that the court declared the Speaker’s decision illegal, it would entail that Kambwili would remain Roan member of parliament, together with the newly elected lawmaker, Joseph Chishala, thereby creating an absurdity and a Constitutional crisis.

Mundia, however, argued that Mwansa’s submissions urging the court to dismiss the petition were contradictory on the basis that the same Mwansa was asking the court to pronounce itself on important Constitution issues in the petition which had never been decided before by the Zambian courts.

The court reserved judgment in the matter, to a date to be announced.

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