CONSTITUTIONAL lawyer John Sangwa State Counsel has insisted that there is no conflict between the Legislature and the Judiciary.
And Sangwa says Zambia is engulfed in chaos with a fast-rising number of COVID-19 cases because the country lacks a clear national agenda to contain the virus.
Sangwa was speaking when he appeared on a Diamond TV special programme organised by Chapter One Foundation alongside the foundation’s programmes officer Josiah Kalala, Thursday evening.
During the programme, Kalala said it was vital for systems to address the conflicts between the Legislature and Judiciary, citing an incident where Speaker of the National Assembly Dr Patrick Matibini seemingly disagreed with a Constitutional Court ruling.
“In a system of governance, there is bound to be conflicts in the different levels, between different institutions and different individuals. So, if I alluded to the seeming conflict between the Speaker (Dr Patrick Matibini) and the ConCourt and in dealing with that conflict, the real question is: how can the two institutions move on so that they are both effective and efficient in carrying out their functions? To dwell on the functions between the two will be to take away from their core functions. I would say it’s important that we can ensure that the systems address such conflicts going forward, that there are clear distinctions between what the functions of the Speaker are and the functions of the Judiciary,” Kalala said.
When asked if Zambia’s democracy was in grave danger because the National Assembly was not able to effectively execute its function, Kalala responded in the affirmative.
“There are a lot of characteristics of a democracy so for a democracy to be in danger that alone is not enough; there has to be other issues in place that really threaten the country’s democracy. For instance, respect for human rights. If there is no respect for human rights, then democracy is in danger. If the principles of good governance are not in place, then democracy is in danger. The fact that the National Assembly alone cannot effectively hold the Executive accountable doesn’t mean that democracy is in danger. However, in our instance, statistics show that we are regressing on various governance indices. So, in our instance, our democracy is in danger, but it is not because of that fact alone; there are a lot of different factors that are affecting our democracy,” replied Kalala.
But Sangwa argued that there was no conflict between the two organs of government because they were both within their right to interpret the constitution.
“It is always very important to read carefully what the Court said and what the Speaker said. If you ask me, there is completely no conflict between the two institutions. If at all you read very carefully what was said by the two institutions; every person is expected to know the Constitution, we are expected to read and understand the Constitution, meaning I can read and interpret it the way I have understood it and you can read it and interpret the way you have understood it. So, the interpretation of the Constitution is not a preserve for an individual or one body; we can all have interpretations. The Speaker has very specific functions within the Assembly and in the performance of those functions, he is expected to interpret the Constitution in the business of the Assembly. Now, he is expected to make a decision whenever a point of order is raised or whenever he is called upon to provide guidance. He will go for that guidance based on his understanding of the Constitution, that is acceptable,” Sangwa said.
“The only problem arises if a member of parliament disagrees with that interpretation by the Speaker so the role of the Constitutional Court kicks on if there’s a conflict in the interpretation. For example, you can interpret a particular article in a certain way and if we both agreed that the meaning of that provision is exactly the way we have both understood it to be, then there’s no problem. And no party will be able to move to the Court. We move to the Court when there is a disagreement; you have your position and I have my position. According to the Constitution, there is only one body that has the responsibility to settle that dispute.”
He explained that if a member of parliament disagreed with the Speaker, the alternative was to go to the ConCourt.
“If at all I am the party that is aggrieved by that interpretation, I will now move to the ConCourt so that it can make a determination between your interpretation and my interpretation as to which interpretation is the correct one. Now, the implication of that is whatever the Constitutional Court (rules) is what becomes binding, that is what becomes the law that binds each and every one of us in the country. What the Speaker will state based on what his understanding of the Constitution is applicable within the Assembly to manage the business of the Assembly,” he explained.
“However, if at all a member of Parliament disagrees with the position of the Speaker, then the only option will be to go to the Constitutional Court and that member will be saying, ‘this is what the Speaker has said, I don’t agree with his interpretation. Can we, therefore, have guidance from the Constitutional Court?’ Now, what the Constitutional Court will decide in such a situation will be binding, both on the Speaker and the MP and will become the law of the country.”
Sangwa, however, maintained that he disagreed with the ConCourt on their explanation that it could not interfere with Constitution Amendment Bill Number 10 of 2019 because it was still being considered internally in the National Assembly.
“If you take the issue of the Bill 10, for example, the Constitutional Court took the view that the Bill had not yet become law; it was still being considered internally within the Assembly so the Court took the view that they can only interfere after the Assembly has finished its business, that is one view, which view I don’t agree with…anyway, but that is what the Constitutional Court said. But it is a different issue when it comes to how the Assembly deals with its own business for example, whether the Bill has lapsed or has not lapsed, that is an issue that is not covered by any legislation, it is not covered by the Constitution, but it is covered by National Assembly’s own internal rule. Now, there is divided opinion to what extent whether the Court can even interrogate those issues. I think that is a subject, which is totally different and far more complex to undertake in this discussion,” he said.
Meanwhile, Sangwa bemoaned the rapid escalation in COVID-19 positive cases despite measures that had been put in place to contain the virus.
“What you have is complete chaos! You have chaos at the national-level, chaos at the provincial-level, you have chaos at the local government-level that is why we are having these challenges. And for me, that is the greatest challenge that the country faces because first of all, we don’t have a national agenda on how to contain the virus. It’s like we are making the rules as we go. The issue is far much more complex than that it is. It is not an issue of issuing two or three Statutory Instruments, no! If that is enough, you would have seen it in the results. The numbers are going up so which means that the measures you have put are not working. My point from the beginning, when I wrote a letter to the President (Edgar Lungu) about what I was talking about is that, I recognize our health system is a problem, even without the virus. The health system is non-existent. It is underfunded and it is poorly functioning. The solution for Zambia, when we heard about the virus, was to prevent the spread of the virus,” said Sangwa.
“We failed in doing that. We failed to do that because we have no capacity to treat the people that are infected…If you look at the developments all over the world, what is emerging quite clearly is that fighting COVID is not so much about a government that has resources, it is also largely to do with effective leadership. You need proper people in government that will be able to take decisive actions.”