THE Constitutional Court has ruled that Speaker of the National Assembly Dr Patrick Matibini exceeded his powers when in his ruling declaring Chishimba Kambwili’s Roan seat vacant, he proceeded to interpret statutes in order to “cure” the lacuna he identified in Article 72 of the Constitution as amended.
The court noted that the function of interpreting the law and the Constitution was vested in the Judiciary.
This came to light when the Court threw out a matter in which Kambwili, who is former Roan PF member of parliament, was challenging Dr Matibini’s decision to declare his seat vacant for allegedly floor crossing.
The court dismissed Kambwili’s petition after noting that granting him the relief to declare the Speaker’s decision null and void would have the effect of nullifying the current Roan NDC member of parliament Joseph Chishala’s election as there could not be two MPs for the same constituency under the law.
In this matter, Kambwili who is also NDC leader, petitioned the Constitutional Court for a declaration and order that the Speaker’s ruling dated February 27, 2019 is null and void; that his seat did not fall vacant as ruled by Dr Matibini and that he did not cross the floor as ruled.
He sued the Attorney General and ECZ as first and second respondents respectively.
However, ECZ was later misjoined.
The matter was heard by Constitutional Court president Hildah Chibomba and justices Annie Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke.
But in a judgement delivered on February 18 this year, Justice Chibomba on behalf of the four other judges dismissed Kambwili ‘s petition saying considering and entertaining issues raised under the last two reliefs would amount to the Constitutional Court acting as if it were an appellate court from the ruling of Dr Matibini, when in fact it was not.
Justice Chibomba, however, observed that while Dr Matibini 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 purposive canon of interpretation of statutes in order to cure the lacuna that he identified in Article 72 of the Constitution as amended.
“We find that the Speaker exceeded his power as the function of interpreting the law and the Constitution is vested in the Judiciary as provided by Article 119 of the Constitution. The interpretation of the Constitution as a legal instrument is the function of the courts, the branch of Government to whom is assigned that delicate task,” she said.
Justice Chibomba said by ruling as he did, Dr Matibini exceeded his constitutional power as he strayed or encroached into the adjudicate function of the courts of the land which were mandated to exercise judicial authority of the Republic by interpreting the law and the Constitution.
Regarding the contention that the Speaker breached the Constitution on ground that he went on to decide on a matter that was already before the courts and therefore sub judice, she said the Speaker by proceeding as he did, fell foul of the sub judice rule (a rule limiting comment relating to judicial proceedings, in order not to prejudge the issue).
Judge Chibomba, however, said it was in public domain that Kambwili took charge and fully campaigned for the current Roan member of parliament Joseph Chishala but in the petition, he did not cite Chishala as a party when he was an interested person.
Judge Chibomba said this as a result, made Kambwili’s prayer for a declaratory order to fall foul of the principle that the court would grant a declaration unless all the parties affected by or interested in the case were before court.
“Mr Joseph Chishala is not a party but is an interested person and he has not been heard. The effect of granting such a declaration would have the effect of nullifying his election as current member of parliament as there can not be two members of parliament for the same constituency under the law,” she observed.
Justice Chibomba added that granting such a declaration would not serve any useful purpose as the seat had been taken by another person.
She said the court also saw the mischief that would result if the declaration sought by Kambwili in his first prayer was granted.
Justice Chibomba agreed with Solicitor General, Abraham Mwansa ‘s submission that granting Kambwili the relief to declare the speaker’s decision null and void, would not only lead to a Constitutional crisis but it would also lead to an absurd state of affairs as it would result in Kambwili returning to the national assembly as Roan member of parliament when there was already a serving member of parliament for the same constituency thereby having two parliamentarians.
She said this would be contrary to Article 68 of the Constitution which stipulates the number of members of parliament.
“As regards to the petitioner’s second and third prayers for declarations and orders that the petitioner did not cross the floor and that his seat did not fall vacant, our firm view is that this court does not have jurisdiction to delve into the issues whether or not the petitioner indeed crossed the floor or whether indeed his seat fell vacant or not because these are matters which at the material time were pending determination by the High Court under whose jurisdiction they fall,” Justice Chibomba said.
She further said the court did not want to fall into the same trap of usurping the powers of the High Court which was dealing with the matter in question.
“All in all, this petition has failed and is dismissed. Since this matter raised serious constitutional issues, we order each party to bear their own costs,” ruled the court.