UPND president Hakainde Hichilema has implored Speaker of the National Assembly Dr Patrick Matibini to rescind his position and allow the courts to determine the constitutionality of Bill 10 before the House discusses it further, saying Parliament is a creation of the Republican Constitution and, therefore, is answerable to it.

And Hichilema has challenged the Speaker to explain why he has not tabled the Presidential impeachment motion if he has the right to discuss issues that are before the court, while asking him to add legal basis to his position.

This was contained in a lengthy letter addressed to the Speaker of the National Assembly dated August 21, 2019, written in response to a letter that was dated August 16, 2019, from the Speaker of the National Assembly and addressed to Messrs. Simeza Sangwa & Associates, which was widely circulated in the media.

This is a follow-up to a case active in court where the Law Association of Zambia (LAZ) has petitioned The Presidency of the Republic of Zambia, The Attorney General and the National Assembly over the constitutionality of the Constitution of Zambia Amendment Bill No. 10 of 2019.

In the letter, Hichilema challenged Dr Matibini to substantiate claims that the sub judice rule was not absolute and depended on his discretion based on the merits of each case as noted in the letter he wrote to Messrs. Simeza Sangwa & Associates.

“Zambia, being a constitutional democracy with a supreme written Constitution, Parliament does not enjoy unfettered jurisdiction in its exercise of constitutional functions. This is expressly stated in Article 267 (4), which provides that: ‘a provision of this Constitution to the effect that a person, an authority or institution is not subject to the direction or control of a person or authority in the performance of a function, does not preclude a court from exercising jurisdiction in relation to a question whether that person, authority or institution has performed the function in accordance with this Constitution or other laws.’ This provision clearly shows that the National Assembly, a state organ, is bound by the Constitution and subject to the jurisdiction of the court, which has the authority to question whether the House is performing its functions in accordance with the Constitution. The principle of exclusive cognizance is, therefore, subordinate to this express constitutional provision. Given the foregoing, I entreat you to rescind your position and allow the courts to determine the constitutionality of the published Bill before the House discusses the issue any further,” Hichilema stated.

“Firstly, the doctrine of exclusive cognizance is not constitutional, but merely affords Parliament privileges and immunity relating to its internal rules and operations, provided that these are exercised within the parameters of the Constitution. In Zambia, however, the situation is completely different. All institutions, including Parliament, are creatures of the Constitution and are amenable to it. The law-making function of Parliament is a constitutional and public function, which cannot possibly fall within your narrow construction of what you term ‘internal proceedings’ of the House. Secondly, and related to this, your claim that the sub judice rule is not absolute and depends on your discretion based on the merits of each case is grossly flawed as that would amount to your usurping a constitutional power, namely, judicial authority, which is lawfully allocated to the Judiciary and in this case the Constitutional Court. The Speaker of the National Assembly, therefore, has no authority to decide on the applicability of the sub judice principle on the merits of the case. The authority to interpret the Constitution or to determine whether the National Assembly is exercising its power in accordance with the Constitution, which the petition in question seeks to determine, vests exclusively with the Constitutional Court as per Articles 128 as read together with Articles 119 (2)(b) and 271 of the Constitution of Zambia.”

And Hichilema challenged Dr Matibini to explain why he had not tabled the presidential impeachment motion if he had the right to discuss issues that were before the court, while asking him to add legal basis to his position.

“The second consideration that came to mind when reading the letter from the Clerk is that it raises serious questions about why you have not tabled before Parliament the motion that seeks to impeach Mr Edgar Lungu, one that was moved by MPs a few months ago, over a number of constitutional breaches. I believe you do not need any reminder or context on this matter. May I please seek an explanation from you on why you have not tabled the impeachment motion to-date if the ongoing court processes do not bind Parliament over the same matter? If the argument is that even for matters that are before court, the Speaker has the right to decide which among such cases can be discussed in Parliament and which ones cannot be discussed, may I request you to cite the legal basis of your position?” he asked.

Hichilema noted that a proposed law could be changed at any stage of its development even after it was signed into law, demonstrating that Parliament’s power was not absolute.

“Sir, a proposed law can be challenged at any stage of its development. Even if the President signs the Constitutional Amendment Bill and the new law comes into being, it could still be challenged under the substantial certainty doctrine, in line with the Law Association of Zambia V The President of the Republic of Zambia, The Attorney General and the National Assembly petition. Being a lawyer, I am sure you are familiar with the instructive case of Indira Nehru Ghandi v Shri Raj Narain & Anr (1975) in which she had bullied Parliament into amending the Constitution to divest courts of jurisdiction while her election was being challenged (the High Court had already nullified her election and she had subsequently appealed). The Supreme Court of India nullified the Constitutional Amendment that she signed into law, demonstrating that the power of Parliament is not limitless; that it must at all times be exercised within the bounds of the Constitution; that it is possible for one or two new Articles of the Constitution to be unconstitutional and void,” the letter read.

He stated that, as a citizen, he had a duty to challenge Parliament if it was in the process of illegally abrogating the Constitution as opposed to the letter by the Clerk, which suggested that no person or authority could challenge Parliament’s rights to make laws.

“In essence, it was being suggested that no person or authority can challenge Parliament’s right to make laws and that those who seek to do so should wait until after a proposed law has been signed by the President – in short, until after the entire process of law-making has been completed. The Constitution places an obligation on me, a citizen, to defend and uphold it. If I notice that Parliament is in the process of illegally abrogating the Constitution, I have the duty to petition the courts to seek the termination of such a proposed constitutional amendment law, even if it is simply a Bill. If the argument is that a person should wait until the said Bill has been passed by Parliament before challenging it, then a corollary question arises: what would stop the President from immediately signing the same proposed law before anyone has the opportunity to challenge its constitutionality in court? What would also stop someone from arguing that such a law that awaits presidential assent cannot be challenged in court since it is incomplete? Or that once the President has signed the proposed Constitutional Amendment Bill, no one can challenge the unconstitutionality of what would then be the Constitution itself? Are you seeing the absurdity of thinking that simply because a proposed law is at the stage of a Bill, then it would be premature to challenge it as the Constitutional Court can only pronounce itself on the interpretation of the already-existing constitutional provisions?,” stated Hichilema.