FORMER Justice Minister Wynter Kabimba has disagreed with the Constitutional Court ruling which found that Speaker of the National Assembly Dr Patrick Matibini exceeded his powers when he declared the Roan Parliamentary seat vacant last year.
And Kabimba says it doesn’t make sense that the court can refuse to grant NDC leader Chishimba Kambwili the reliefs he was speaking whilst agreeing with all his claims.
Meanwhile, Kabimba has observed that all three major rulings of the ConCourt have not escaped public outrage.
In its ruling of March 2, 2020, the ConCourt ruled that Dr Matibini exceeded his powers when he proceeded to interpret statutes in order to “cure” a lacuna he identified in Article 72 of the Constitution as amended.
The court further noted that the function of interpreting the law and the Constitution was vested in the Judiciary alone.
But commenting on this matter in a paper shared with News Diggers, Kabimba who is also opposition Rainbow Party general secretary, said since the court found that the Speaker was wrong and the Petitioner was right, dismissing the petition did not make sense.
Below is his paper:
THE CONSTITUTIONAL COURT JUDGMENT NO.2019/CCZ/009 IN DR. CHISHIMBA KAMBWILI –V- THE ATTORNEY GENERAL: A CRISIS OF ODDS-WYNTER M KABIMBA, SC, ODS (FORMER MINISTER OF JUSTICE)
The Constitutional Court judgment no.2019/CCZ/009 between former Member of Parliament for Roan Constituency Dr. Chishimba Kambwili and the Attorney General has generated intense debate in the country. Some stakeholders contributing to the debate have called on the Speaker Dr. Patrick Matibini to resign his position while others have demanded his impeachment. I have taken time to read the said judgment and this comment is nothing but my personal view and understanding of the same and contribution to this discourse. The Petitioner Chishimba Kambwili went before the Constitutional Court to challenge the ruling/ decision of the Speaker which declared the Roan Constituency seat vacant leading to a by-election on 11th April, 2019. The ruling of the Speaker was prompted by a point of order which was raised on 21st February, 2019, in Parliament by the Honourable Makebi Zulu, MP. I quote the kernel of the point of order here below;
“Mr. Speaker earlier today, Honourable Kambwili was in the news and I have a video –which I will avail to the office of the Clerk of the National Assembly almost immediately in which he referred to himself when declining the decision by Mr. Mwenya Musenge. He said that the Secretary General of the NDC cannot fire the leader of the party. He expressed displeasure. (emphasis mine)”
On Wednesday 27th February, 2019, the Speaker delivered his ruling on the matter and stated thus; “Honourable members, in view of the fact that Dr. Kambwili MP, who was elected to this House on a ticket of the Patriotic Front Party has become an office bearer and consequently member of the NDC by virtue of assuming the position of consultant of the NDC, he has crossed the floor. And accordingly, vacated the Roan parliamentary seat. I accordingly, declare the Roan parliamentary seat vacant. Therefore, Dr. Kambwili, MP, was out of order to sit in the House.”
In the Constitutional Court, the Petitioner (Dr. Chishimba Kambwili) sought the following reliefs against the Speaker’s ruling:
A declaration and order that the ruling of the Speaker dated 27th February, 2019, is null and void ab initio (from the outset or beginning).
A declaration and order that the Petitioner did not cross the floor as ruled by the Speaker of the National Assembly.
A declaration and order that the Petitioner’s seat did not fall vacant as ruled by the Speaker of the National Assembly.
Any other remedies the Court may deem fit and just, and
The summary of the Petitioner’s case was that the Speaker in his ruling dated 27th February, 2019, made pronouncements on a matter that was sub judice (pending in Court) as questions relating to the consultancy role that the Petitioner took on under NDC political party were matters pending before the High Court. The Petitioner further submitted that the current constitution (Constitution Amendment Act No. 2 of 2016) has no provisions for floor crossing and, therefore, the Speaker through his ruling usurped the powers of the Judiciary which is charged with the responsibility of interpreting the law.
In response to the Petitioner’s case the Respondent argued that the Petitioner had publicly declared that he runs a political party and that he was leader of the NDC, and in this regard submitted that the Speaker was, therefore, right in his ruling over the matter. The Respondent further submitted that the Speaker’s ruling and the Petitioner’s proceedings in the High Court stood far apart. Lawyers for the Respondent, however, conceded that there was no specific provision for floor crossing in the current constitution. They also conceeded that after the National Assembly has exercised its powers, its decisions can be challenged if they are unconstitutional or illegal.
The Court summarized the case for the Petitioner and Respondent thus;
“it is our considered view that the main question raised in this matter is whether the ruling of the Speaker dated 27th February, 2019, is null and void ab initio on the ground that the matter was sub judice and that in arriving at his decision that the Petitioner had crossed the floor and consequently that his seat had fallen vacant, the Speaker usurped the powers of the courts thereby breaching Articles 119 and 122 of the Constitution.” The Court then goes on to make the following findings in the judgment;
That the Court has power to inquire into matters relating to the Constitution including provisions covering the National Assembly (page J33)
That “…..the Speaker was well within his power to respond to the point of order that was raised on the floor of the House … (page J37’’). As regards this well founded finding by the Court, one wonders how and under what circumstances the Speaker would in future respond to points of order of a similar nature without interpreting some provision(s) of the law. Anybody familiar with parliamentary practice in the Commonwealth jurisdiction knows that the Speaker performs quasi-judicial functions in the discharge of some of his responsibilities in the National Assembly, otherwise there would be disorder in the House. This is the power vested in him as envisaged under section 34 of Chapter 12 of the Laws of Zambia. The effect of the Court’s judgment is that the courts will now substitute themselves for the Speaker in this area. I wonder if this is the intention of the Constitutional Court.
That “…by ruling as he did, the Speaker exceeded his constitutional power as he strayed or encroached into the adjudicative function of the courts of the land…. (Page J38).” The Speaker when delivering a ruling on a point of order does not perform an adjudicative function but an administrative quasi-judicial function. In this regard, the evidence before him is not tested by way of cross examination. It is for this reason that a party aggrieved by the Speaker’s decision in terms of its illegality or constitutionality has recourse to the courts of law as has been the case in the past.
That “…We of course agree that this issue was raised from the floor of the House but nevertheless, since the same issue was already pending determination in the courts of law, the Speaker by proceeding as he did, fell foul of the sub judice rule(my emphasis –page J39). This is not correct. In laying out what the Court refers to as the salient facts of the case the Court says, “Following his expulsion, the Petitioner challenged the decision of the Central Committee to expel him from the party in the Lusaka High Court under cause No.2017/HP/1238 in which he inter alia alleged that his expulsion from the PF was illegal and without basis as it was contrary to the PF Party constitution and disciplinary procedures and that due process was not followed as he was not informed of the charges levelled against him nor was he given an opportunity to exculpate himself against the said charges’’ (page J16).
In reference to the defence by the PF Secretary General, the Court further says, “In the defence filed in the High Court, the Secretary General of the PF denied the allegation and also filed a counter claim alleging inter alia that the petitioner was exercising executive functions of an office bearer of the NDC Party and that since the NDC was not the party that sponsored his candidature to the National Assembly the Petitioner should be deemed to have resigned from the PF. And consequently that the Petitioner’s seat as Roan member of parliament be declared vacant (page J17).
From the foregoing, it is clear that the Petitioner’s case in the High Court was anchored on rules of natural justice vis-à-vis his expulsion as a member of PF. The case for the PF was that by his action and conduct, the Petitioner should be deemed to have resigned his membership of the party. This case is different from the point of order raised on 21st February, 2019, and on which the Speaker made his ruling. It is, therefore, not the same issue on the basis of which the Court imported the sub judice rule into the judgment.
However, having agreed with the Petitioner in all its findings, the Court dismisses the petition on the ground that granting the Petitioner the reliefs sought would nullify the election of the new MP who was not a party to the proceedings. If the Petitioner is right and the Speaker was wrong as the judgment clearly reveals, it follows that the election of the new MP was illegal as it was held when the Petitioner was and is still a member of parliament for Roan Constituency.
I do not, with the greatest respect to the Court, see how an absurdity would arise in this situation.
I also hold a different view from that of the Court when it says that “Further considering and determining the issues raised under the two reliefs sought would amount to this Court acting as if it were an appellate court from the ruling of the Speaker when in fact not” (Page J42). This is exactly what the court did when you take its constitutional position as a court of first instance and also the finality of its decisions. So the Speaker was wrong and Chishimba Kambwili was also wrong. How possible?
Since its inception, the Constitutional Court has delivered three main judgments which have not escaped public outrage. The 2016, UPND Presidential petition, the eligibility of President Lungu to stand in 2021, and now the Chishimba Kambwili one are all decisions which have appalled the public at large. Whither our Constitutional Court?
Let me say with Longfellows in the “The Psalm of Life”
Lives of great men all remind us,
We can make our lives sublime,
And, departing, leave behind us,
Footprints on the sands of time.