Prof Muna Ndulo

LAW professor, Muna Ndulo, has charged that Speaker of the National Assembly Patrick Matibini has become arrogant by portraying himself as being above the law.

In a ruling on Tuesday, Dr Matibini told Parliament that he had the power to interpret the law and the Constitution, contrary to the Constitutional Court’s ruling against him in February this year.

Reacting to Dr Matibini’s ruling, the US-based Professor argued that the Speaker did not have such powers as he claimed.

“The Constitution is the supreme law of the land and its supremacy is unquestionable. That is unless you are the Speaker of the National Assembly Mr Matibini. Then, the Constitution becomes a footstool on which he hoists himself. His statement that: ‘He reserves powers to interpret the Constitution within the confines of the operations of the legislature and that the Constitutional Court cannot tell him what to do’, are the words of a confused individual,” Prof Ndulo said. “In other words, Speaker Matibini pronounced himself to be above the Constitution. He completely ignores the fact that not only are the legislature and his office creatures of the Constitution, their very existence was created by the Constitution. Sworn to defend and uphold the Constitution, one can only wonder like Cassius in Julius Caesar and ask ‘Upon what meat doth this our Caesar feed, that he is grown so great?’ What has Speaker Matibini fed on that he has grown so arrogant?”

He said since parliament is a creature of the Constitution, it can only have such powers as vested on it by the same document.

“Permit me to reeducate Mr Matibini on basic constitutional norms typically taught in the first year of the Law School curriculum. Article 1 of the Zambian Constitution states that ‘this Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency’,” Prof Ndulo said. “It further states 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. In Article 119, the Constitution states that: ‘(1) judicial authority rests in the courts and shall be exercised by the courts in accordance with this Constitution and other law’.”

Prof Ndulo explained that judicial authority is authoritatively defined as the power to decide controversies between the state and its subjects or between subjects.

“It embraces the determination by the courts of the constitutionality of laws in any case brought by a competent person in which it is necessary to determine the question in order for the court to be able to decide the dispute before it,” Prof Ndulo said. “It includes the power to interpret provisions of the Constitution. These powers are unequivocally placed in the hands of the courts and not in parliament or the Speaker.”

He cited various statutes where the power of courts to interpret laws was clearly explained.

“The South African Constitutional Court has explained the relationship between Parliament and the Constitution in a constitutional [ruling] which similarly grants judicial power to the courts, 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’,” he said. “In another example, in September last year, the United Kingdom Supreme Court dealt with the issue of the prime minister suspending parliament for five weeks to avoid a debate on BREXIT in circumstances where the general view was that the action by Parliament violated the rights of members of parliament to work…The Lord Chief Justice Hale reading a unanimous judgment of eleven judges in the UK Supreme Court stated: ‘The courts have the responsibility of upholding our constitution. It is their particular responsibility to determine the legal limits of the power conferred on each branch of government, and decide whether any exercise of power has transgressed those limits. The courts cannot shrink that responsibility merely on the grounds that the question raised is political’.”

Prof Ndulo said no one was above the law, including the Speaker.

“In conclusion, I would like to remind Speaker Matibini that the notion that no one is above the law is not only a constitutional principle, it is the cornerstone of the concept of the rule of law. I would like to end by reminding Mr Matibini of the words of Theodore Roosevelt that, ‘No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it’. And the term ‘no man’ includes Mr Matibini, whether or not he desires to be included or not.”


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