The Lusaka High Court has dismissed an application in which PF Secretary General Davies Mwila was seeking to challenge Speaker of the National Assembly Dr Patrick Matibini over his refusal to declare Chishimba Kambwili’s Roan constituency seat vacant.
High Court Judge Mwila Kombe ruled that the application was improperly before her court as it was the preserve of the Constitutional Court to hear and determine the matter.
In this matter, Mwila had applied for judicial review over the refusal by the Speaker of the National Assembly Dr Patrick Matibini to declare Kambwili’s Roan Constituency seat, vacant.
He had stated in an affidavit in support of an application for leave to commence judicial review, that the decision by the Speaker to refuse to declare the Roan Constituency seat vacant, was illegal as it violated Article 72 of the Constitution.
He cited the Attorney General as the respondent, seeking the following reliefs: a declaration that there was no suit on the part of Kambwili for Roan Constituency pending before the High Court to challenge his expulsion; an order of certiorari removing the decision of the Speaker to declare the Roan seat vacant; and costs.
The grounds on which Mwila was seeking the reliefs were that; the decision of the Speaker to refuse to declare the Roan seat vacant was illegal as it was in contravention of Article 27 of the Constitution and; that the decision of the Speaker to refuse to declare the seat vacant in order to give the Courts latitude to deal with the matters conclusively, was unreasonable and illegal as it amounts to use of discretion that the Speaker does not possess.
However in her ruling, Judge Kombe said the court had no jurisdiction to grant the application for judicial review because of the reliefs sought by Mwila, adding that it was the preserve of the Constitutional Court to hear and determine the matter.
She observed that Mwila should have commenced an action in the Constitutional Court by way of petition.
Justice Kombe further said the grounds upon which the reliefs were being sought against the Speaker of the National Assembly were illegal and unreasonable.
She said the the determination of Mwila’s application would depend on the scope of Article 72 of the Constitution, which vested the Speaker with power to declare a Parliamentary seat, vacant.
Justice Kombe said the action therefore bordered on the interpretation of Article 72 which was the preserve of the Constitutional Court.
“Having made my findings, it follows that the applicant should have commenced an action in the Constitutional Court by way of petition. This is because the Constitution which is the Supreme Law of the land, not only provided for the jurisdiction of the court but also the mode of commencement before a court of law where there is an allegation that a person or authority has contravened the provisions of the Constitution,” she said.
Justice Kombe, however, declined to refer the matter to the Constitutional Court in accordance with Article 128 (2) of the Constitution and dismissed the application.
She made no orders for costs considering the circumstance of the case.
“The upshot of my findings based on the reasons I have highlighted is that this application for leave to commence Judicial Review proceedings is improperly before this court as I do not have jurisdiction to hear and determine this matter. I accordingly dismiss the application. However, considering the circumstance of the case, I make no orders for costs,” ruled justice Kombe.