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Ailing from a weak Constitution: how can Zambia be cured?By Sishuwa Sishuwa on 12 Mar 2018
On 7 March 2018, Speaker of the National Assembly Patrick Matibini wrote to the Electoral Commission of Zambia (ECZ) entreating it to hold a by-election in Chilanga constituency after the Lusaka High Court sentenced opposition United Party for National Development (UPND) Member of Parliament Keith Mukata to death for the murder of Namakambwa Kalila Kwenda, a security guard shot dead in unclear circumstances at Mukata’s law firm last year. Mukata has since filed a notice of appeal against his conviction in the Court of Appeal, but this did not dissuade Matibini from asking the ECZ to organise a by-election in his constituency. In his letter, Matibini stated that according to Articles 72 (2) (b) and 70 (2) (f) of Zambia’s Constitution, a vacancy has occurred in Chilanga constituency ‘following the sentencing to death’ of the elected MP.
Matibini has since come under intense criticism, most notably from the UPND, who have questioned the declaration of Mukata’s seat as vacant when his appeal remains before the courts of law. ‘What we see in the decision by the Speaker is inconsistency,’ complained party spokesperson Charles Kakoma, ‘…because there are many other MPs in the past who have held their seats when matters are in court. And even after losing any case, they appealed and continued holding onto their positions’. What do we make of all this? Before attempting any response to this question, it is worth quoting the two relevant clauses of the Constitution – the ones cited by Matibini – that deal with the premises on which one may vacate office as MP:
72. (2) (b) The office of Member of Parliament becomes vacant if the member becomes disqualified for election in accordance with Article 70.
70. (2) (f) A person is disqualified from being elected as a Member of Parliament if that person is serving a sentence of imprisonment for an offence under a written law.
The central point to note is that the legal dynamics surrounding Mukata’s case further illustrate the many embarrassing inadequacies of the current Republican Constitution. The first is that although the country’s supreme law provides that one may vacate their seat in the National Assembly if they no longer satisfy the requirements for election as MP, such as if they are ‘serving a sentence of imprisonment for an offence under a written law’, it is silent on what happens when a convicted serving MP appeals against his or her conviction. On this score, it differs markedly with the 1996 Constitution that, in Article 71 (2) (e), stated that ‘A member of the National Assembly shall vacate his seat in the Assembly if he is sentenced by a court in Zambia to death or to imprisonment, by whatever name called, for a term exceeding six months.’ Section 3 of the same Article went on to stipulate that ‘where any member of the National Assembly who has been sentenced to death or imprisonment…appeals against the decision or applied for a free pardon in accordance with any law, the decision shall not have effect for the purpose of this Article until the final determination of such appeal or application’. It however put a caveat to this relief in instances where a convicted MP appealed to a superior court: ‘such member shall not, pending such final determination, exercise his functions or receive any remuneration as a member of the National Assembly’.
Thanks to this Article in the then Constitution, Stephen Masumba retained his seat as Mufumbwe MP despite his conviction and 12-month imprisonment in November 2013 for obtaining pecuniary advantage by false pretences. This was because Masumba, like other affected MPs before him such as Katele Kalumba and Gladys Nyirongo, quickly moved to appeal against the judgement of the Magistrate’s Court, which convicted him, and that of the High Court that subsequently upheld the lower court’s decision. It was not until early 2015 that Masumba’s status as MP was fully restored following the decision of the then Acting President Guy Scott to grant him a free pardon which, according to the law then, entitled him to resume his parliamentary functions and receive his emoluments for the period during which he did not exercise them. The decision to leave out Article 71 from the current Constitution was ill-advised, as it has created the current uncertainty surrounding the position of Mukata. Given that an appeal to a superior court does not automatically stay a sentence, this provision, had it been retained, would have been helpful in providing direction and clarity on the issue. (It is worth noting that even where the case is a bailable one, bail is granted at the discretion of the court and is usually not granted where the chances of success of the appeal are slim or where there is no danger that by the time the appeal is heard the convict would have served the sentence). Since the ECZ is likely to consider the Speaker’s written notification, as per Article 72 (8), as conclusive evidence for a vacancy in a given constituency, Chilanga residents are set to elect a new MP within the next three months in line with Article 57 (1), unless a suitable legal challenge is brought against Matibini’s decision.
The second inadequacy of the current Constitution in relation to Mukata’s case is that it does not clearly state the power or authority that is responsible for hearing and determining any question relating to declaring vacant a seat of a member of parliament. On this point, the existing law again differs considerably with the 1996 Constitution, which in Article 72 (1) (a) provided that ‘The High Court shall have power to hear and determine any question whether any person has been validly elected or nominated as a member of the National Assembly or the seat of any member has become vacant’. In August 2015, then PF Kasama Central MP Geoffrey Mwamba Bwalya sued the Speaker of the National Assembly for declaring vacant his seat after Mwamba took up the position of vice-president in a political party (the UPND) other than the one on which he was elected to the National Assembly. Mwamba argued that Matibini had illegally exercised powers vested only in the High Court.
In March 2016, Lusaka High Court Judge Florence Lengalenga agreed with Mwamba, ruling that the Speaker’s actions had violated the provisions of Article 72 (1) (a). Like the one relating to the status of one’s membership to the National Assembly after a conviction followed by an appeal, this Article was also left out in the 2016 Constitution. The provision that comes closer to what we had before is Article 73, which however only deals with petitions relating to the election of MPs, vesting the jurisdiction to determine such matters in the High Court with the subsequent appeals reserved for the Constitutional Court. One can only suppose that since the jurisdiction to hear any matter relating to the interpretation of the Constitution (other than the bill of rights) is vested in the Constitutional Court, Matibini’s actions can be challenged in the ConCourt since the interpretation of Article 70. (2) (f) is in dispute.
To better understand Matibini’s actions, we need, in my view, to turn to Article 72 (8) of the current Constitution. It provides that “Where a vacancy occurs in the National Assembly, the Speaker shall, within seven days of the occurrence of the vacancy, inform the Electoral Commission of the vacancy, in writing, and a by-election shall be held in accordance with Article 57.” This provision does not empower the Speaker to declare a vacancy but simply to inform ECZ to organise a by-election where a vacancy has occurred. How then did the Speaker arrive at the conclusion that a vacancy has occurred in Chilanga – a prerequisite for invoking Article 72 (8)? The only explanation for this is that the Constitution appears to be structured in such a way that a vacancy happens ‘by operation of law’; no one declares it. Immediately an MP is disqualified from election, then a vacancy occurs. I imagine that this was Matibini’s thinking when he invoked Article 72 (8) and if it was then he is arguably right because he did not declare a vacancy in Chilanga; he merely communicated the ‘fact’ of its occurrence to the ECZ.
As shown above, however, the Constitution provides that an MP may be disqualified from the National Assembly if they are ‘serving a sentence of imprisonment for an offence under a written law’. In my view, the Speaker’s understanding of Article 70. (2) (f) appears to be a fundamental misinterpretation of the law because this provision only disqualifies an MP if they are serving a sentence of ‘imprisonment’. This does not technically apply to Mukata since he is not serving a sentence of ‘imprisonment’; instead, he was sentenced to death. Given this ambiguity, a legal suit that seeks to test the constitutionality of the Speaker’s decision would be a welcome move, as it is likely to enhance our jurisprudence, especially if a competent and independent judge handles the matter.
It is however very unlikely that anyone will challenge the Speaker’s move. The UPND, which can bring the case to court, may prefer going for a by-election since Mukata was neither in good standing with the party nor a popular choice in Chilanga. Many believe that he won the seat in 2016 only because he stood on the UPND ticket. Rather than challenging Matibini’s move, the main opposition party may effectively welcome it as a belated opportunity to replace him with a more pliant choice. Equally, the ruling party may pass the opening to challenge the Speaker’s decision for a chance to test their appeal to the electorates of Chilanga, an area of Lusaka Province that the UPND claims as a traditional stronghold, and to increase their parliamentary majority ahead of the impending presentation of the PF-sponsored Constitutional Amendment Bill, which, in order to go through, would require the support of a two-thirds majority of MPs in Parliament. Which institution or individual would then appeal Matibini’s decision against Mukata? The Law Association Zambia? Mukata himself? A citizen with no name? Only time will tell.
What all this underlines is how poorly drafted the current Constitution was and the need for a thorough and expert review and editing of the document by competent and qualified individuals. As we embark on another attempt at fine-tuning our Constitution, I sincerely appeal to the Minister of Justice Given Lubinda to rise above self-serving, short-term and partisan considerations and seek the expert assistance of professionals like Muna Ndulo and Chaloka Beyani, two of Zambia’s finest and most experienced specialists on constitution-making. Zambia’s supreme law is presently so amateurishly drafted that it has the potential to cause a serious national crisis if its countless defects are not urgently addressed.
For any feedback, please email firstname.lastname@example.org
About Sishuwa Sishuwa
Sishuwa Sishuwa is the last Zambian nationalist. He is obsessed with all things Zambian, particularly politics and history which he teaches when UNZA is not closed. Sishuwa is a cadre of Nkana Football Club and loves Keith Mlevu's 1976 song, "Ubuntungwa".
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