THE Court of Appeal has refused to grant Leader of the Opposition in Parliament Jack Mwiimbu leave to commence judicial review proceedings against Speaker of the National Assembly Dr Patrick Matibini’s decision to allow continued consideration of Bill 10 in Parliament despite it lapsing.
In the ruling delivered by Court of Appeal Judge Justin Chashi on behalf of Court of Appeal president Fulgency Chisanga and deputy Judge president Chalwe Mchenga, the Court stated that Mwiimbu’s renewed application for judicial review lacks merit as the decision in question relates to internal processes and procedures of the National Assembly, which the Court is excluded from checking in the absence of contravention or breach of the Constitution.
The Court has also condemned Mwiimbu to costs.
In July, this year, Lusaka High Court Judge Sharon Newa refused to grant Mwiimbu leave to commence judicial review proceedings against the said decision of the Speaker, saying she had no jurisdiction to interrogate the exercise of the Speaker’s powers pursuant to the internal practices and procedures of the National Assembly.
She said the Speaker being protected from any court action where he exercises his powers under the internal procedure of the National Assembly, would only be amenable to such court action if in the exercise of that power, there was alleged breach of the Constitution.
Judge Newa further said the Constitutional Court by virtue of Article 128 (1) of the Constitution was the Court that was vested with jurisdiction to deal with such matters.
Mwiimbu, however, renewed his application for leave to apply for judicial review before the Court of Appeal on the same day his case was dismissed by the Lusaka High Court.
He cited Attorney General Likando Kalaluka as the respondent.
According to his statement on renewed application for leave to apply for judicial review filed in the Court of Appeal, Mwiimbu was seeking an order of mandamus directing the Speaker of the National Assembly to discontinue any or any further consideration, debate or other proceedings in relation to the Bill.
He also wanted a declaration that the decision was invalid, null and void and of no effect and an order that all proceedings in the National Assembly relating to the Bill be stayed until after the determination of the matter or further order of the court.
The grounds upon which the said reliefs were sought were that: the Speaker’s decision was unreasonable and/or irrational and without justifiable reason given the fact that the Bill lapsed on June 4, 2020, and as such, that it was not amenable to further consideration, debate or process in the House.
That the decision was illegal, null and void ab initio in terms of the established practice and procedure of the National Assembly, which is binding on the House.
That the decision was wrong at law by reason of failure by the National Assembly to follow laid down procedure when it resumed business relating to the Bill and subsequently deferred the said business for consideration on a date yet to be advised, but within the current session of the National Assembly despite the fact that the Bill was “killed” upon its lapsing on June 4, 2020.
“The Applicant will also advance the proposition that the role that the Speaker of the National Assembly played in this matter was administrative in nature and these officers are public officers, his decisions are amenable to Judicial Review,” Mwiimbu stated.
But in its ruling, the Court of Appeal refused to grant Mwiimbu leave.
“It will be noticed that the applicant (Mwiimbu) is asking the Court to interfere with the manner in which the National Assembly proposes to conduct its business procedurally. The proposed application for judicial review does not reveal or allege a breach or contravention of the Constitution. Rather, and as conceded by Mr (Mulambo) Haimbe (Mwiimbu’s lawyer), it hinges on the internal processes and procedures of the National Assembly,” Judge Chashi said.
He said no Constitutional question had been formulated on the papers, warranting examination by the Court, adding that had that been so, the jurisdiction of this Court would have been called into question.
Judge Chashi said a plethora of authorities revealed that the Speaker and the National Assembly could only be amenable to Judicial Review if there was breach or contravention of the Constitution in its decision-making.
“The application for Judicial Review is bereft of merit as the decision in question relates to internal processes and procedures which the Court is excluded from checking in the absence of contravention or breach of the Constitution. Leave is accordingly refused,” ruled Judge Chashi.
“As earlier alluded to, there are a plethora of cases on this matter, which should have guided the applicant. This is, therefore, a proper case in which to condemn the applicant to costs. The applicant shall bear the costs of the application in this Court. Some to be taxed in default of agreement.”