An Appeal Did Not Stop a By-Election, ConCourt Ruled Against Attempts to Delay Parliamentary Replacements

An Appeal Did Not Stop a By-Election, ConCourt Ruled Against Attempts to Delay Parliamentary Replacements

By; Tobbius Chilembo Hamunkoyo, LLB , 12/07/25

The Constitutional Court of Zambia (ConCourt) clarified an important constitutional question, could a Member of Parliament (MP) who had been convicted and imprisoned stop a by-election by simply appealing the conviction?

The Court’s answer was firm NO. The judgment had significant implications, particularly for cases such as that of Maureen Mabonga, who may have wasted time and legal resources in trying to stop the by-election in Mfuwe Constituency.

The case that led to this ruling involved an MP who was convicted by the Chinsali Magistrates’ Court and sentenced to imprisonment.

The MP later filed an appeal in the High Court, challenging both the conviction and the sentence. This raised a crucial constitutional question, what happened to the MP’s seat in Parliament while the appeal was pending? Should the by-election be put on hold until the appeal was decided?

Recognising that this question involved interpretation of the Constitution, the High Court Judge rightly determined that he had no jurisdiction to handle it. The Judge referred the matter to the Constitutional Court under Article 128 of Amendment no.2 of the 2016 Constitution for a binding interpretation.

A full bench of Constitutional Court Judges, led by President of the ConCourt, Professor Margaret Munalula, delivered a strong ruling. The Court held that once an MP was convicted and imprisoned, their parliamentary seat became vacant automatically, by the operation of law.

There was no need for any further action by the Speaker of the National Assembly or the Electoral Commission of Zambia (ECZ). The Court made it clear that the Constitution triggered the vacancy.

The Judges also ruled that the by-election that followed such a vacancy had to take place within 90 days as mandated by the Constitution. No court could stop or delay that by-election.

The Court explained that an appeal against the conviction did not affect the loss of the seat or the constitutional timeline for a by-election. The criminal appeal and the constitutional loss of seat were treated as two separate matters under the law.

According to the judgment, the Constitution was clear and could not be altered by judicial orders or by the existence of an appeal.

The Court stated that the framers of the Constitution intended to ensure that no constituency remained without representation in Parliament for longer than 90 days.

Therefore, any MP who had been imprisoned and could not perform their duties had to be replaced promptly through a by-election.

This ruling had a direct impact on similar matters, such as that of Maureen Mabonga, who faced the loss of her seat following her conviction. If she attempted to block the Mfuwe by-election while her appeal was still pending, the Court’s position showed that she may have acted in vain.

Her appeal will not reverse or stop the automatic vacancy of her seat, and the by-election process is likely to lawfully proceed.

The Constitutional Court emphasized that the by-election process was not started by the ECZ or the Speaker of the National Assembly, but by the Constitution itself. As such, no judicial review, injunction, or appeal could stop it.

However, it is an undisputed fact that the Court did not address what would happen if an MP later succeeded in their appeal and was acquitted. Would they be entitled to return to Parliament or receive compensation?

This question remains unanswered and was similarly left unresolved in the Chishimba Kambwili case, where the MP lost his seat but was later acquitted on appeal. There is still a need for legal clarity or possible legislative reform to cover this lacuna.

The Constitutional Court’s ruling in the case of The People v Attorney General (Ex Parte Nickson Chilangwa) confirmed that a criminal appeal did not stop the constitutional process of vacating a parliamentary seat or delay the holding of a by-election. The decision upheld the supremacy of the Constitution and ensured continuous parliamentary representation for the people.

For Maureen Mabonga, who sought to stop by-elections after conviction, should know that the judgment in Nickson Chilangwa served as a clear reminder that constitutional law cannot be set aside by pending appeals.