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Speaker was right to declare Chilanga seat vacant – ChipimoBy Mirriam Chabala on 13 Mar 2018
Lusaka lawyer Elias Chipimo has backed Speaker of the National Assembly Patrick Matibini’s decision to declare the Chilanga Parliamentary seat in Lusaka vacant following the sentencing to death of its parliamentarian Keith Mutaka.
Chipimo who is also opposition National Restoration Party (NAREP) president explained to News Diggers in an interview that according to the amended Constitution, the Speaker could proceed to declare a parliamentary seat vacant once its occupant has been jailed, even if there was an appeal.
Chipimo said he was confident that Speaker Matibini, being a lawyer and judge had correctly read and understood the provisions of the Constitution before writing to the Electoral Commission of Zambia (ECZ), declaring the Chilanga seat vacant.
“The constitution that was amended has brought in slightly different rules with regards to vacancy of a seat by a sitting parliamentarian. So if you look at the provisions of article 70 to 72 of the amended constitution, basically what it stipulates is that seats can become vacant under certain circumstances, including article 70 which talks about eligibility for being a member of parliament. One of those requirements is that you have to be a person who is not serving a sentence for a crime. So by implication, if you are serving a sentence for a crime then your seat becomes vacant. At the moment Mr Mukata, even though he has appealed, he is actually serving a sentence for a crime. So even though he has put up an appeal before the Supreme Court against his conviction, assuming he had done that [killing his security guard] it would still mean that at the moment he is serving a sentence. So that gives the Speaker the basis upon which he can proceed to declare the Chilanga seat vacant,” Chipimo explained.
Asked what, according to him would happen if the Supreme Court acquitted Mukuta, Chipimo said the former MP would have to put his name forward for contesting the Chilanga parliamentary seat again if he was acquitted prior to the time of nominations.
If Mr Mukata is acquitted prior to the time when nominations are due to be filed, then he can put his name forward for contesting the Chilanga parliamentary seat. But as long as the sentence is being served, which it is once you’ve been convicted, whether you have an appeal or not, the Speaker Speaker is free under the amended Constitution to proceed to declare that seat vacant on that basis alone. So it changes the rules slightly from the way it used to be under the previous Constitution where I think there was a requirement for an appeal to be exhausted for declaring a seat vacant. But there is no such provisions under article 70 to 72 of the amended constitution,” Chipimo said.
Chipimo hailed Speaker Matibini as an experienced lawyer and judge who was capable of interpreting the law.
“Yes there are some lacunas in the current Constitution. The amended Constitution does have some lacunas in many areas which need to be tied up, there is no doubt about that. But it’s not in all areas where there are lacunas. Dr Matibini is a lawyer himself and as you know, the Speaker was also a judge. I am sure he has interpreted this issue because when I look at the provisions of article 70, 71 and 72, I can clearly see the basis upon which the vacancy declaration can be made,” said Chipimo.
“There could be some people who might interpret that the Constitution is silent on the question of appeal but the fact that it’s silent on the question of what happens during an appeal doesn’t change the fact that the Speaker can proceed just on the basis that he has to answer the question ‘is Mr Mukata serving a sentence or he is he not serving a sentence?’ It’s not longer a question of ‘is there an appeal or has the appeal process been exhausted?’ That is not within the current Constitution. So you would be interpreting this constitution outside the provisions of what is already there. Therefore, it seems to me that in this instance, the Speaker would have every basis and reasons to proceed to declare this seat vacant.”
About Mirriam Chabala
Mirriam Chabala is a Zambian journalist who covers current affairs and writes in-depth feature articles on social issues.
Email: mirriam [at] diggers [dot] news
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