By George Nkhuwa
ABOUT A MEMBER OF PARLIAMENT CROSSING THE FLOOR
In 2011, Geoffrey Bwalya Mwamba (GBM) was elected Member of Parliament for Kasama Central Constituency under the Patriotic Front (PF). The PF also won the presidential elections in that year.
On 22nd July 2015, at a United Party for National Development (UPND) press conference, GBM accepted an appointment as Vice President in charge of administration in the then opposition party, UPND, without relinquishing his membership in the PF. GBM made an acceptance speech in the following terms:
“Countrymen and women, firstly let me thank the UPND through, of course, the President and the National Management Committee for appointing me to the position of Vice-President for Administration. Sir, it is such an honour to serve you in this manner.
Mr President, I am extremely humbled that you have chosen to place your faith and trust in me. I accept this offer wholeheartedly. This is a responsibility that I do not take lightly, and I will endeavour to do my utmost to advance the cause of this great party, which I have no doubt will form the next government in the coming months. Mr President, once again, thank you very much for this appointment.”.
This event triggered a point of order in Parliament. The then Minister of Home Affairs, Hon. Davis Mwila, inquired whether GBM was in order to continue sitting in the House after allegedly resigning from the PF and joining the UPND.
He stated that under the Constitution, a Member of Parliament who resigns from the party on whose ticket he or she was elected and joins another political party immediately loses his or her seat.
The Speaker ruled that GBM had crossed the floor and was therefore out of order to sit in the House. He declared that GBM had lost his seat and that the Kasama Central parliamentary seat was vacant.
GBM, being dissatisfied with the Speaker’s decision, commenced proceedings in the High Court seeking judicial review. He sought an order to quash the Speaker’s decision declaring his parliamentary seat vacant. He argued that he had accepted a position in the UPND without resigning from the PF.
In essence, GBM invited the Court to determine whether a Member of Parliament joins another political party by accepting a position in it without formally resigning from his original party.
The High Court allowed his application and quashed the Speaker’s decision. The Court held that the Speaker had acted illegally and ultra vires the Constitution and had exceeded his jurisdiction by declaring the seat vacant. It further held that the Speaker acted unreasonably and irrationally by failing to refer the question of the vacancy to the High Court. The Court ordered that GBM be paid damages for loss of emoluments.
Dissatisfied with the High Court’s decision, the Attorney General appealed to the Supreme Court.
The Supreme Court allowed the appeal, set aside the High Court’s decision, and ordered GBM to pay costs. The Court held that GBM had crossed the floor and had therefore vacated his seat by operation of law. It further held that GBM lost his seat at the moment he accepted the position of Vice President of the UPND.
The Court clarified that there was no requirement to refer the matter to the High Court to determine whether the seat had become vacant.
This judgment reaffirmed the principle that a Member of Parliament who joins or accepts a position in another political party automatically loses their seat by operation of law, and that the Speaker is entitled to declare the seat vacant without first referring the matter to the High Court.
Case Citation: The Attorney General and Others Vs Geoffrey Bwalya Mwambа (Appeal No.10/2017) [2020] ZMSC (2 October 2020)