PARTIES in a matter in which governance activist Isaac Mwanza has petitioned the Constitutional Court to declare the Sesheke parliamentary seat vacant following the conviction and sentencing of the area member of parliament, have agreed to have the action discontinued.
According to a consent notice of discontinuance filed in the Constitutional Court, the parties in the case, Mwanza, the Attorney General and Sesheke UPND member of parliament Romeo Kang’ombe, have agreed to discontinue the matter and each party is to bear their own costs.
“Take notice that the parties to the proceedings do hereby consent to the discontinuance of this action and that each party shall bear own costs,” read the notice.
In this matter, Mwanza petitioned the ConCourt to declare the Sesheke parliamentary seat vacant following the conviction and sentencing of the area member of parliament by the Chinsali Magistrates’ Court to 12 months imprisonment with hard labour, but suspended for two years.
Mwanza, who cited the Attorney General and Kang’ombe as respondents in the matter, wanted a declaration and order that the Sesheke parliamentary seat became vacant from April 12, 2021 when Kang’ombe was found guilty and sentenced to 12 months imprisonment with hard labour, which sentence he is observing from outside prison for the duration of two years.
He was also seeking an order of mandamus directed at and compelling the Attorney General, the Minister of Finance and the Clerk of the National Assembly to recover, in full, from Kang’ombe, any monies paid from April 12, 2021 and a declaration that the decision of the Speaker dated April 16, 2020, keeping him in the House, is null and void.
Mwanza was further seeking, among others, an order that Kang’ombe is not entitled to any payment of gratuity as, by April 12, 2021, he had not served continuously during any period between the date of the dissolution of Parliament and the date of the commencement of the first session of the new Parliament.
According to a petition filed in the ConCourt, Mwanza stated that a sentence of imprisonment referred to in Article 70 of the Constitution, is a sentence of imprisonment served in or outside prison, at the discretion of the court and also requires that an MP who is serving a sentence, either from prison or outside prison to vacate a seat in the National Assembly.
“Prior to recent amendments, the Constitution of Zambia, 1991, Article 65 of the Constitution of Zambia, 1991 enacted provisions which excluded one from vacating the office of a Member of the National Assembly or being barred to serve a member of the National Assembly where one was under a suspended sentence. The amendments done to the Constitution have totally repealed provisions of Article 65(6) of the Constitution of Zambia, 1991 and Article 68(8) of the Constitution of Zambia (Amendment) Act No. 18 of 1996,” he stated.
Mwanza added that a member of parliament who is serving a sentence of imprisonment was not entitled to payment of any salary under Section 7 of the Ministerial and Parliamentary Offices (Emoluments) Act and was only entitled to payment of gratuity if the member served continuously during any period between the date of the dissolution of Parliament and the date of the commencement of the first session of the new Parliament only.
He further argued that Kang’ombe was serving a sentence or spending a period of time observing the judgment of the court and that his continued stay in Parliament was a breach of the Constitution.
“Article 70(2) (f) of the Constitution of Zambia entails that the 2nd Respondent (Kang’ombe) who is serving a prison sentence, even if such sentence is suspended by the court for any period of time, is not only disqualified from being elected as a Member of Parliament but must have his office declared vacant,” stated Mwanza.
Mwanza argued that the Attorney General was in breach of the Constitution by allowing Kang’ombe to continue drawing salaries and other benefits from the date he was sentenced and began serving the sentence of imprisonment for an offence under the written law.
Kang’ombe was convicted on charges of assault and abduction of two police officers.
On April 16, Speaker of the National Assembly Dr Patrick Matibini ruled that Kang’ombe was in order to remain a member of the House following the suspended sentence given to him by the Chinsali Magistrates’ Court.
Dr Matibini noted that conviction alone is not sufficient to make a member lose his or her seat in the House as one has to be incarcerated as was the case with former Chilanga UPND member of parliament Keith Mukata.
He was ruling on a point of order raised by Kabwe Central PF member of parliament Tutwa Ngulube on Tuesday, on whether Kang’ombe was in order to remain a member of the House after being convicted by the court.
The current session of the National Assembly will be dissolved on May 12.