Prof Muna Ndulo

By Professor Muna Ndulo
In a desperate attempt to pass Bill 10, surrogates of the ruling party have resorted to releasing a myriad of lies and distortions of legal principles relating to parliamentary practice. One of their main untruths is what exactly is the correct Commonwealth Parliamentary procedures relating to voting of members of parliament. Recently, they have argued that members of Parliament who have been members of the Parliamentary Committee to consider Bill 10 cannot vote against a Bill that went through a Select Committee of which they were a part. In essence advancing the bizarre argument that membership of a parliamentary committee has the effect of gaging a member of the Committee and does not allow them to vote otherwise than support the Parliamentary Committee Report. It has also been argued that UPND by issuing a three-line whip instructing its members how to vote on an issue it regards as crucial is a violation of parliamentary and democratic principles.

Both of these positions of the PF surrogates are manipulative dishonesty with the sole objective of misleading the MPs to that Bill 10 can pass. The leading authority on parliamentary practice in the Commonwealth is a treatise titled Erskine May: Parliamentary Practice: Treatise on the Law, Privileges, Proceedings and Usage of Parliament and it nowhere supports such preposterous propositions. The PF surrogates further argue that HH is a dictator by instructing UPND MPs to vote against Bill 10. This is false. The approach that HH has taken is normal Commonwealth parliamentary procedure. No political party is worth its salt if it has no positions on crucial issues affecting the country. In a political part system an MP goes to Parliament as a member of a political party or as an independent. If you do not accept party discipline you have the choice of going to parliament as an independent. It is also important to point out that Parliament cannot make any internal regulations to govern the conduct of Members of Parliament which are in violation of the constitution. In the following paragraphs I wish to develop the views expressed above.

A Parliamentary Select Committee is a cross party group of MPS given a specific remit to investigate and report back to the House. In the House of Commons, Select Committees have been used for many centuries for many different purposes. They are particularly useful when the House wants to investigate something and find out the facts about it rather than simply debate. The House delegates this task to a small group of members who can gather information and produce detailed reports. Parliament is not bound by the report. As pointed our earlier, a Select Committee Report does not gag its members. It does not operate to deprive a member of Parliament of his or her liberty to debate and vote in any way he or she wishes to.

Where a party instructs it Members of Parliament to vote according to the party’s position on an issue before Parliament, it typically issues what is called a “three-line whip.” Breach of the instruction will normally have serious consequences. There is nothing dictatorial about this, it is simply upholding the policies of the party to which a Member of Parliament freely subscribes. The punishment is restricted to the member’s status in the Party. The party is simply saying you cannot be our member and disobey party instructions. The member is not being punished for voting in Parliament but for disobeying the party and that is why the punishment relates to party status. According to the House of Commons Library the Oxford English Dictionary first recorded the term “whip” in 1772. That is how long the practice has been in use in the House of Commons. It is in use in almost all Commonwealth countries including; South Africa, Malaysia, Canada, Australia, India, Kenya etc.

This is not a UPND invention, it is a well- established parliamentary practice throughout the Commonwealth. There are many recent examples of the use of a three-line whip in the UK House of Commons. During the BREXIT debate in the UK, the Leader of the Labor Party Jeremy Corbyn declared a three-line whip and ordered Labor Party MPS to vote as instructed by the leadership and allow Prime Minister Theresa May to start the withdrawal talks. Prime Minister Boris issued a three-line whip on a BREXIT Vote. The 21 Conservative Party members who defied the Whip were expelled from the party for not following the Whip. An example of where parties released their MPs from the whip was in Ireland in 2013 on a vote involving the legalization of abortion.
On the issue of whether Parliament can pass standing orders directing members of the of a Select Committee not to vote against a committee report, the answer is no. The Bill Rights applies to Parliament. A member of Parliament has a right to freedom of expression and conscience. That includes the right to vote whichever way he or she wants. The Zambian Constitution commits itself to upholding human rights and fundamental freedoms of every person. Article 1 (1) states that the Constitution is the Supreme Law of the Republic of Zambia; 1 (2) states that, an act or omission that contravenes this constitution is illegal 1(3) that the constitution shall bind all persons in Zambia, state organs and state institutions. Parliament is a creature of the Constitution and it can only have such power as is given to it by the constitution. That power does not include the power to subvert the constitution or pass regulations that violate the constitution. The South African Constitutional Court has explained the relationship between Parliament and the Constitution. In Glenister v. President of South Africa (2008) the court stated, in a constitutional democracy the courts are the ultimate guardians of the constitution. They not only have the right to intervene in order to prevent the violation of the constitution, they also have the duty to do so. The Court observed that it is in the performance of this role that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention. It is a necessary component of the doctrine of the separation of powers that courts have a constitutional obligation to ensure that the exercise of power by other branches of Government occurs within constitutional bounds. The court observed further that “But under our constitutional democracy, the constitution is the Supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament must act in accordance with, and within the limits of, the constitution; and the supremacy of the constitution requires that the obligations imposed by it must be fulfilled. Courts are required by the constitution to ensure that all branches of government act within the law and fulfill their constitutional obligations”.

In conclusion, I would like to state that those that wish to betray the interests of the people and pretend that they have no choice but to vote for the Bill because they were members of the Select Committee are but shameless deceivers who have chosen the 30 pieces of silver over the interests of the people. They should not pretend that their positions are backed by law. They lack integrity and posterity will judge them harshly.

(Muna Ndulo is a William Nelson Cromwell Professor of International and Comparative Law, Cornell Law School, USA)


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