Appeal Does Not Stop By-Election – ConCourt
By Dickson Jere
A Member of Parliament was convicted and imprisoned on criminal charges by a Magistrate Court. He then appealed against both the conviction and sentence in the High Court at Chinsali.
However, a question arose as to what becomes of his seat in Parliament while he is waiting for his appeal to be determined. Will the 90 days period in which to hold a by-election be suspended until the appeal is heard and determined by High Court? That was a crucial constitutional question that befell the High Court.
Since the High Court has no jurisdiction to determine that question, the Judge sharply and on his motion, referred the matter to the Constitutional Court (ConCourt) for interpretation of the Constitution.
A panel of Judges headed by the ConCourt President Prof Margaret Munalula heard the case and determined it thus;
“…the imprisonment of a Member of Parliament triggers the automatic vacation of the Parliamentary seat as a matter of law,” the Judges observed.
“The vacation of the seat then triggers a by-election also by operation of law. There is no provision for any judicial review process during the by-election other than a nomination challenge,” the Judges ruled.
The ConCourt further stated that an imprisoned MP cannot halt or Court grant a stay of execution to stop the vacation of his seat until the question of the validity of the lost of seat is determined.
“An appeal which is lodged has no effect on the vacation of the seat and the ensuring by-election,” the Judges said, adding that the constitutional provisions cannot be changed by the Courts.
The Judges added that the rationale is that no seat should be vacant in parliament for longer period than provided for in the Constitution and that is why the 90-day period was put in the superior law.
“If a Member of Parliament is in prison and therefore unable to carry out his or her mandate, it is the people’s desire that the seat is promptly vacated and refilled,” the Judges said.
“A seat is vacated and a by election triggered not by the decisions or actions of the Electoral Commission of Zambia and the Speaker but by operation of law,” the Judges opined.
The ConCourt clarified that the appeal against conviction, which is criminal is nature, is different from the MP losing his seat under the constitution by virtue of imprisonment.
“It is apparent that the people of Zambia take the need to promote democracy through adequate representation so seriously that they have provided in the Constitution itself, the manner in which that representation may be assumed, lost and replaced,” the said.
“The Constitution also spells out the applicable timelines,” the said, adding that the timelines cannot be changed by the appeal or Court.
Case citation – The People v Attorney General (Ex Parte Nickson Chilangwa) – 2024/CCZ/R001 and Judgment delivered on 10th February 2025.
Lecture Notes;
1. The Judge of the High Court must be commended for the stance taken to refer this matter to the ConCourt. We need more of such references to build our jurisprudence.
2. I wish the Court should have handled the scenario where the MP has been acquitted in the High Court after appeal. What happens? Will he be compensated for the lost seat? I know we had the Kambwili case in similar situation.
Ba Jere, while you have cited the concourt ruling and its reference to the law, you have not cited the laws which the court was talking about. There is no law which says that an MP should lose his/ her seat upon conviction when the appeal is still active.
The law stipulates the grounds under which an MP would lose their seat. Imprisonment for a period of more than 90 days is one of the grounds. That’s not debatable. It’s final. It doesn’t depend on what the Speaker or the Electoral Commission of Zambia does or does not do. Even if the MP is pursuing an appeal, the fact is they’ll not be sitting in Parliament during the appeal. Why should a constituency do without representation because of the indiscretion of one person?
I think the M.P should be compensated if the High Court squits him/her. Because the aquital would be proof that the M.P was wrongly imprisoned and he/she can not be reinstated, it becomes logical that he/she be compensated.
And what happens when the appellant wins the case? Concourt should be abolished.
I do not know why you do not get it. It’s the more than 90-day absence from Parliament that the constitution does not want to happen. Not even the pursuit of an appeal can stop that. If the High Court frees the appelant, they can begin other proceedings to determine what you have asked. It’s a matter of the interests of an individual citizen here versus the interests of the people in the constituency. The people’s interests come before an individual. I hope that helps.
I concur with Gunner
In other words,the ConCourt is asking”Ni seat yaanyoko”?
@Musonda , don’t blame the Concourt it’s the drafters of the constitution to blame here. They didn’t leave room for an appeal . They instead took a much higher standard of conviction for custodial sentence whilst ensuring the the office of a member of parliament should not be vacant for more than 90 days.
If the Apoellant wins his case in the High Court, which invariably takes long, even after 90 days, by which time a bye- election will have taken place with a new member of parliament, the successful Appellant does not get back his/her seat. The Court can award damages and costs. Damages is money as compensation and costs is essentially money for lawyers ie legal fees.
Meant “Appellant”
You can’t eat the cake and have it at the same time. You cannot be a convicted criminal and still cling to the parliamentary seat because you are no longer an honourable person but a criminal. That is why, as far as I know, you cannot even stand as a parliamentary candidate if you have a history of criminal conviction. We the Zambian people demand to be led by honourable individuals, not convicted criminals.