The Empty Seats: Why Zambia’s Floor-Crossing MPs Are No Longer Members of Parliament
By Mehluli Malisa Batakathi
There is a quiet constitutional crisis unfolding in the National Assembly of Zambia. In recent weeks, a number of Members of Parliament, elected on opposition party tickets, principally the Patriotic Front (PF), have openly and publicly defected to the ruling United Party for National Development (UPND). Some have attended UPND rallies and declared their allegiance to the ruling party.
Others have gone further: they have submitted adoption papers and formally presented themselves as candidates for the ruling party in the August 2026 general election. And yet, as of today, they continue to attend parliamentary sittings, carry out committee work, vote on Bills, draw salaries and allowances, and participate in the business of the National Assembly as though they remain its lawful members.
The unfortunate reality is that they do not. Their seats fell vacant by operation of the law the moment they defected. In essence, they are attending Parliament illegally and Speaker, Madam Nelly Mutti SC’s decision to “reserve a ruling” on the matter does not, and cannot, change that constitutional reality.
1.0 The Constitution Does Not Equivocate
Article 72(2)(d) of the Constitution of Zambia provides that the office of a Member of Parliament becomes vacant if the member resigns from the political party which sponsored them for election. The language is mandatory, unconditional, and self-executing. This provision does not say the seat “may become vacant”, or that it becomes vacant “when the Speaker so declares”, or upon “confirmation by a court”. It simply says the seat “becomes vacant”. Full stop.
This is by no means an accident of drafting. Rather, it reflects a deliberate constitutional philosophy: the parliamentary mandate for a party-nominated MP is not the personal property of the individual MP. It is a party-mediated mandate. The voter who voted that MP to the National Assembly on a party ticket also voted for a political programme, a party, and the Constitution insists that the elected representative honours that democratic contract. When the MP abandons the party under which they were elected, their mandate is equally extinguished. The seat becomes empty, not metaphorically but in law.
2.0 The Geoffrey Mwamba and Chishimba Kambwili cases: Understanding the Difference
Two cases define this area of law, and they are frequently conflated when they should not be. This is because the two cases are distinguishable on a fundamental constitutional point.
In Attorney General v Geoffrey Bwalya Mwamba (Appeal No. 10/2017), the Supreme Court was confronted with an MP who, without being expelled, voluntarily accepted the Vice Presidency of the UPND, a party which at the time was in active opposition to the PF under whose ticket he had been elected. The factual matrix was undisputed.
The Supreme Court held that the seat fell vacant automatically and by operation of law the moment Mwamba assumed the rival party position. No court determination was required. No Speaker’s declaration was needed. The vacancy arose by constitutional command, and Mwamba was declared not entitled to any emoluments from that date.
In Chishimba Kambwili v Attorney General (2019/CCZ/009), the situation was materially different. Kambwili had not voluntarily resigned from the PF, he was expelled. And critically, he challenged that expulsion in the High Court. This activated Article 72(5) of the Constitution, which expressly provides that an expelled MP shall not lose the seat until the expulsion is confirmed by a court. The Speaker’s subsequent declaration that Kambwili’s seat was vacant, purportedly on the basis that he had crossed the floor by being a consultant for the NDC, was therefore an unconstitutional overreach on two fronts: it bypassed a constitutionally protected judicial process, and it arrogated to the Speaker the interpretive function that belongs exclusively to the courts.
The distinction is therefore this: an expelled MP is shielded by Article 72(5) until the courts confirm the expulsion. A voluntary defector enjoys no such protection. In short, the expelled MP’s vacancy is deferred; the voluntary defector’s vacancy is immediate.
3.0 The Current MPs Are Squarely in the Mwamba Camp
The MPs who have defected to the UPND, and particularly those who have applied for adoption on its ticket, have not been expelled from their parties. They have voluntarily, openly, and publicly abandoned their political homes. No disciplinary process is pending and certainly no court challenge is in prospect. Therefore, there is no Article 72(5) shield available to them..
Their position is on all fours with Geoffrey Bwalya Mwamba’s. And under the authority of the Supreme Court’s decision in the Mwamba case, their seats became vacant by operation of Article 72(2)(d) at the very moment they defected. The Speaker does not need to make any declaration for this to be so. The vacancy has already occurred.
What the Speaker must do, and this is a mandatory constitutional obligation under Article 72(8), is notify the Electoral Commission of Zambia in writing within seven days of the occurrence of the vacancy, in this case seven day from the day the defections happened. It is important to note that the Speaker reports to the ECZ that a vacancy that has already happened in law, the Speaker does not bring the vacancy into being.
4.0 No By-Election – But the Vacancy Stands
It is important to note that even if the Speaker were to comply with Article 72(8) and inform ECZ of the vacancies today, no by-elections would follow. Article 57(2) of the Constitution provides that a by-election shall not be held within the one hundred-and-eighty (180) day period preceding a general election. With the general election set for 13 August 2026 and Zambia firmly within that moratorium, these constituencies will proceed to the general election unrepresented. That is an uncomfortable reality, but it is a constitutional reality, and one that flows directly from the choices made by the MPs themselves.
5.0 The Price of Illegal Occupation: Emoluments and Gratuity Must Be Repaid
What then are the consequences for MPs who have continued to attend Parliament, draw salaries, and collect allowances after their seats fell vacant by operation of law? The answer lies in the Katuka principle.
In Steven Katuka & Law Association of Zambia v Attorney General and 63 Others (2016/CC/0010 and 2016/CC/0011), the Constitutional Court, in its inaugural substantive judgment, held that Cabinet Ministers, Provincial Ministers, and Deputy Ministers who had continued to occupy their offices after those offices fell vacant by operation of the new Constitution were doing so illegally, and ordered them to repay all salaries and allowances received during that period of unlawful occupation.
The principle in this case is as clear as it is unforgiving: illegal occupation of a constitutional office generates no lawful entitlement to the emoluments of that office.
Applied to the present situation, the logic is inescapable. Any MP who crossed the floor last month, last week, or last year, and who has since continued to draw a parliamentary salary, collect allowances, and receive constituency development funds, has done so without legal entitlement. Those are not earned remuneration but they are the proceeds of an illegal occupation of a constitutional office. They must be returned.
Crucially, the same principle extends to end-of-term gratuity. The gratuity is payable to a person who has served as a Member of Parliament. A person whose seat fell vacant upon crossing the floor ceased to be a Member of Parliament at that moment. They cannot earn a terminal benefit referable to a period of service they had no constitutional authority to render.
6.0 What About the Bills They Voted On?
This is the most constitutionally alarming dimension of the current situation. Parliament is, in its dying days, purportedly passing dozens of pieces of legislation, with the decisive participation of those MPs whose seats have already fallen vacant. Parliament’s legislative authority under Articles 62 and 63 of the Constitution is vested in a properly constituted National Assembly. When a portion of the Assembly’s membership consists of persons who are not, in law, its members, Bills passed through that contaminated process carry a constitutional taint. Where the votes of the disqualified MPs were decisive to the passage of a Bill, that Bill is susceptible to a constitutional challenge that no amount of presidential assent will insulate it from.
7.0 A Word on Institutional Courage
The Speaker’s caution in “reserving her ruling” is understandable in a politically charged climate. But the Constitution demands more than caution, it demands compliance. Article 1(2) provides that an act or omission that contravenes the Constitution is illegal. In that vein, the continued attendance of floor-crossing MPs at Parliament is a contravention of the Constitution.
The Speaker’s prolonged reservation of a ruling is not neutrality, it is, on the analysis presented here, a dereliction of a mandatory constitutional duty. The seats are now empty because the Constitution says so. The Supreme Court in the Mwamba case confirmed it. In the Katuka case, the Constitutional Court tells us what happens when constitutional office is occupied illegally. The only question that remains is whether our institutions will have the courage to say, clearly, on the record and without equivocation, what the law has already determined.
The Author is a constitutional lawyer and Lecturer in Constitutional and Administrative Law at the Copperbelt University, Zambia.
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