SPEAKER of the National Assembly Dr Patrick Matibini has ruled that Sesheke UPND member of parliament Romeo Kang’ombe remains a member of the House following the suspended sentence given to him by the Chinsali Magistrates’ Court.
Dr Matibini noted that conviction alone is not sufficient to make a member lose his or her seat in the House as one has to be incarcerated as was the case with former Chilanga UPND member of parliament Keith Mukata.
He was ruling on a point of order raised by Kabwe Central PF member of parliament Tutwa Ngulube on Tuesday, on whether Kang’ombe was in order to remain a member of the House after being convicted by the court.
“Mr Speaker, on April 12, 2021, apart from being my birthday, the nation was treated to a rude shock by hearing that one of us in this Chamber, the honourable member for Sesheke, Mr Romeo Kang’ombe, was convicted by the Chinsali Magistrates’ Court and slapped with a two-year jail sentence, which was suspended for two years. We are also informed that he was also fined K10,000, which he paid. Mr Speaker, my point of order is based on the provisions of Article 70(2)(f) of the Constitution of Zambia. In my understanding, when a person is convicted by a court of law, he becomes a convict and, as such, is disqualified from being an honourable member of parliament. Therefore, is the honourable member of parliament for Sesheke, Mr Romeo Kangombe, in order to remain a Member of this August House after being convicted by the honourable court in Chinsali? Sir, I seek your serious ruling on this matter,” Ngulube said.
And Delivering his ruling, Friday, Dr Matibini noted that Article 72(2) of the Constitution clearly states the conditions under which a member of parliament vacates his seat.
“The law governing the vacation of a seat by a member of parliament is encapsulated in Article 72(2) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia, and is expressed in the following terms: “72. (2) The office of member of parliament becomes vacant if the member— resigns by notice, in writing, to the Speaker; becomes disqualified for election in accordance with Article 70; acts contrary to a prescribed code of conduct; resigns from the political party which sponsored the member for election to the National Assembly; is expelled from the political party which sponsored the member for election to the National Assembly; ceases to be a citizen; having been elected to the National Assembly, as an independent candidate, joins a political party; is disqualified as a result of a decision of the Constitutional Court; or dies,” he said.
“Of particular relevance to this case is Article 72 (2) (b) which is couched as follows: “72 (2) (b) The office of member of parliament becomes vacant if the member becomes disqualified for election in accordance with Article 70.” Consequently, Article 70 (2) (f) provides as follows: “70 (2) (f) A person is disqualified from being elected as a member of parliament if that person is serving a sentence of imprisonment for an offence under a written law”.”
He explained that the effect of the clause was that a member loses a seat when they were serving a sentence of imprisonment.
“The effect of the foregoing provisions, when read together, is that a member of parliament vacates or loses his or her seat when he or she is serving a sentence of imprisonment,” Dr Matibini stated.
He added that conviction alone was not sufficient to make a member lose his or her seat in the House as one has to be incarcerated as was the case with Keith Mukata.
“Hon members, I now turn to address the question raised in Hon T S Ngulube’s Point of Order, that is, whether a conviction per se, is sufficient to warrant a member to vacate or lose his or her seat. From the law adumbrated above, it is crystal clear that for a member to vacate his or her seat under Article 70 (2) (f), it is not sufficient that he or she has been merely convicted of an offence. There must be something more; that is, the member must not only be convicted and sentenced, but must also be serving a sentence of imprisonment. In other words, he or she must be lodged in a prison, or incarcerated as was the case in the Mukata case,” he noted.
He explained that a suspended sentence meant that sentence had been postponed on condition that one doesn’t commit a similar offence during the stated period.
“The import of the foregoing is that once a sentence has been suspended, the sentence has been postponed. That is, put in abeyance or withheld. As such, the person sentenced is not required to serve the sentence of imprisonment unless he commits another crime or violates any other condition set by the court. Hon Members, as earlier noted, Mr R Kang’ombe, MP, was convicted for assault and sentenced to 12 months imprisonment with hard labour. The Court, however, suspended the sentence for two years on condition that he does not commit a similar offence during that period,” Dr Matibini explained.
“Having regard to the law elucidated above, Mr R Kang’ombe, MP’s sentence of imprisonment has been postponed or put in abeyance for two years on condition that he does not commit a similar offence in the two year period. The implication of this is that he will only serve the term of imprisonment, in the event that he breaches the condition imposed by the Court. If he does not breach the condition, then he will not serve any sentence of imprisonment. In this regard, it follows that Mr R Kang’ombe, MP, is currently not serving a sentence of imprisonment as envisioned by Article 70(2) (f) of the Constitution.”
Dr Matibini added that given that Kang’ombe was not serving a prison term, he remains a member of parliament for Sesheke.
“Hon Members, in view of the foregoing, it is clear that Mr R Kang’ombe, MP, although convicted and sentenced, (albeit the sentence has been suspended), is not serving a term of imprisonment. Therefore, he has not vacated his seat and remains the Member of Parliament for Sesheke Parliamentary Constituency, unless and until such a time that he violates the conditions attached to the suspension of his sentence and he begins to serve his imprisonment term. Mr R Kang’ombe, MP, is therefore in order to remain a Member of this August House,” said Dr Matibini.