ABOUT THE 9 DECLARED PARLIAMENTARY VACANCIES: WHAT DOES THE LAW REALLY SAY?- Sean Tembo

ABOUT THE 9 DECLARED PARLIAMENTARY VACANCIES: WHAT DOES THE LAW REALLY SAY?

By Sean Tembo – PeP President

1. A huge controversy has arisen following a decision by the Second Deputy Speaker of the National Assembly to declare nine Parliamentary seats, held by the main opposition Patriotic Front (PF) Party, vacant. The background to this matter is that following a controversial general conference held by the Matero Member of Parliament, Hon. Miles Sampa on 24th October 2023, which allegedly ushered him into office as PF President, he proceeded to appoint Mr. Morgan Ng’ona as Secretary General, and together they decided to expel the said 9 Members of Parliament from the PF party.

2. The aggrieved 9 MPs subsequently challenged their expulsion in the Constitutional Court of Zambia. Their legal challenge was primarily hinged on the assertion that Hon. Miles Sampa was not duly elected as PF President at the general conference of 24th October 2023, as the said general conference was irregular and unprocedural. Both Hon. Miles Sampa and Mr. Morgan Ng’ona were cited as Respondents in this matter. About two weeks ago, the ConCourt rendered a ruling on the matter and said it did not have jurisdiction to hear the matter as the Petitioners were alleging contravention of their personal rights and that there were no constitutional issues raised in the Petition, and the Court proceeded to dismiss the matter for want of jurisdiction. This followed a preliminary issue that had been raised by the Respondents.

3. Subsequent to the dismissal of the matter in the Constitutional Court, Hon. Miles Sampa wrote a number of letters to the National Assembly, one of which informed the Speaker that he had rescinded the expulsion of seven of the 9 MPs. However, on Wednesday 4th July 2024, the Second Deputy Speaker of the National Assembly informed the House that he had declared the 9 seats vacant. The following day, the Electoral Commission of Zambia confirmed having received notification regarding the 9 declared Parliamentary vacancies.

4. The question is; what does the law say about the circumstances in which a Parliamentary seat can become vacant following the expulsion of an incumbent from their respective political party, and was the Second Deputy Speaker of the National Assembly on firm ground in declaring the 9 parliamentary seats vacant? Well, article 72(2)(e) of the Constitution of Zambia states;

The office of Member of Parliament becomes vacant if the member … (e)is expelled from the political party which sponsored the
member for election to the NationalAssembly.

However, the Constitution further goes and and states in article 72(5) to article 72(7):

(5) Where a Member of Parliament is expelled as provided in
clause (2)(e), the member shall not lose the seat until the expulsion
is confirmed by a court, except that where the member does not
challenge the expulsion in court and the period prescribed for
challenge lapses, the member shall vacate the seat in the National
Assembly.
(6) Where a court determines that an expulsion of a member,
as provided in clause (2)(e), was not justified, there shall be no by-
election for that seat and the member shall opt to—
(a)remain a member of the political party and retain the seat;
or
(b) resign from the political party and retain the seat as an
independent member.
(7) Where a court determines that an expulsion of a member,
as provided in clause (2)(e), was justified, the member shall vacate
the seat in the NationalAssembly.

5. The Constitution is very clear above. It is self-explanatory. When an MP is expelled by their party, one of two things must happen in order for their seat to become vacant. Either the MP does not challenge their expulsion from their party in court, and the period designated to file such a challenge, which is 7 days, expires. Or if the MP does file a challenge to their expulsion in Court, the Court must confirm their expulsion. In the case of the 9 MPs, we know for a fact that indeed, they did challenge their expulsion in Court. We also know for a fact that the Constitutional Court, where the 9 MPs filed their challenge to their expulsion, did not confirm their expulsion, as required by article 72(5) which explicitly states that:

“Where a Member of Parliament is expelled as provided inclause (2)(e), the member shall not lose the seat until the expulsionis confirmed by a court, except that where the member does notchallenge the expulsion in court and the period prescribed forchallenge lapses”

6. One does not need to be a legal scholar to know that the ruling by the Constitutional Court, in which it said it does not having jurisdiction to hear the matter, did not amount to a confirmation that the 9 MPs were properly expelled from their party. Kindly pay particular attention to the wording of the Constitution in article 72(5). The Constitution requires that a Court should give a CONFIRMATION that an expelled MP was properly expelled by their party.

CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION, CONFIRMATION

7. For as long as the Court does not give such CONFIRMATION, it means that the constitutional requirement in article 72 (2)(e) as read together with article 72 (5) needed to declare a parliamentary seats vacant, has not been met. It means that when an expelled MP challenges their expulsion in Court, and the Court dismisses the matter on technicalities without rendering the required CONFIRMATION that the expulsion was properly done, then that is a victory for the expelled MP and not for the party that expelled him. In other words, the ruling of the Constitutional Court in which it dismissed the matter of the 9 MPs, for want of jurisdiction is in fact a victory for the 9 MPs and not vice versa, because the Court did not give a CONFIRMATION that the 9 MPs were properly expelled from their party, as required by article 72 (5) of the Constitution.

8. But why this confusion? I lay the blame for the ongoing confusion squarely on the doorstep of the Constitutional Court. Not because of their ruling that they do not have jurisdiction to hear the matter. I actually agree with the ruling of the ConCourt. The Petitioners were alleging a violation of their personal rights and not a violation of the Republican Constitution, so they should have taken their matter to the High Court and not the Constitutional Court. The jurisdiction of the Constitutional Court is very clearly spelled out in article 128 of the Constitution. So if l agree with the ruling of the Constitutional Court, then why do l lay the blame for the ongoing confusion squarely on their doorstep? Well, because their ruling was incomplete.

9. Every time l read through judgements and rulings of the Constitutional Court, l always get the feeling that the Court often forgets that it is a Court of final instance. Therefore, there has to be finality and clarity in their determinations. Often times, their judgements and rulings are open-ended and vague. Many a time that l have taken matters before the Constitutional Court, l would walk out of the courtroom after listening to a judgement, wondering to myself whether l have won or lost the case!

10. Anyway, let us get back to the issue at hand. So what was missing from the ruling of the Constitutional Court regarding the 9 MPs, which could have averted the current confusion? Well, in it’s deliberations, the Court saw the constitutional standard of CONFIRMATION that is SET out in article 72 (5) that needed to be addressed, and the ConCourt also knew that it could not pronounce itself on that constitutional standard, due to lack of jurisdiction. So my considered view is that the ConCourt should not have only dismissed the matter and ended there, thereby leaving the issue of the constitutional standard of CONFIRMATION that needs to be addressed in article 72 (5) in abeyance, but should have gone further by dismissing the matter and referring it to the appropriate court, which in this case is the High Court. People go to court to settle conflicts. When a court determines that it is unable to resolve a conflict due to lack of jurisdiction, as the ConCourt rightly determined, then it has a duty and obligation to refer the matter to an appropriate court that can resolve the conflict. Failure to provide such guidance and clarity only adds to the conflict. Anyway, the Future is SET ✌🏼 ✌🏼 ✌🏼

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SET 06.07.2024