By Mwaka Ndawa

THE Constitutional Court has declined to stay the decision of the National Assembly Speaker to suspend nine former PF members of parliament from attending parliamentary sessions and drawing allowances, pending determination of the case in which they are challenging the nullification of their election by the High Court.

This was after Solicitor General Marshal Muchende raised a preliminary issue on whether a single judge of the court has the authority to determine the merits of the petition at preliminary stage.

Muchende submitted that there was a multiplicity of action by the nine seeking similar reliefs.

Judge Judy Mulongoti dismissed the matter to avoid pre-empting the decision of the full bench over the Speaker’s ruling.

In this matter the nine are challenging Nelly Muti’s decision to eject them from parliament pending determination of the cases in which they have appealed the nullification of their election.

Lunte member of parliament Mutotwe Kafwaya, Lukas Simumba, Kalalwe Mukosha, Bowman Lusambo, Taulo Chewe, Chibuye Christopher, Joseph Malanji, Allen Banda and Sibongile Mwamba argued that the ruling by the Speaker was unconstitutional and illegal.
They said Speaker Mutti’s ruling contravened Article 122 of the Constitution as she usurped the power of the Constitutional Court.
Kafwaya and others want an order of certiorari to quash the decision of the Speaker for being illegal, unreasonable, unfair and null and void.
The petitioners are seeking an interim order to stay Speaker Mutti’s decision pending the determination of the petition.

They want the court to order payment of their dues for the period of their suspension.
But in an affidavit in opposition, Deputy Clerk in charge of procedure at the National Assembly Cecilia Sikatele said the ruling of the Speaker was within the confines of the law.
She said Speaker Mutti did not declare the seats vacant but merely directed that the affected members of parliament shall neither participate in parliamentary business nor draw an allowance until final determination of their appeals in the Constitutional Court.
“The Speaker of the National Assembly acted within the ambit of the provisions of the Constitution in ruling on the point of order and applying the provisions of the Constitution,” Siakatele said. “The National Assembly concluded its budget meeting on December 23, 2021 and adjourned sine die.”
She said the constituency offices were manned by professional staff employed by the National Assembly and the absence of the nine at the offices would not hinder their operations.

Sikatele said the applicants would not be prejudiced if their prayer for a stay was not granted but prejudice would be occasioned to the state as the continued participation of the nine in parliament while their seats were nullified would not be in public interest.
The State in its preliminary issue asked the court to dismiss the application for stay with costs because the applicants had engaged in forum shopping, a practice that was frowned upon by the court.

It said the Speaker’s ruling is and was consistent with the dictates of the constitutional mandate as promulgated by Article 77(1) of the Constitution as read with Standing Order No. 239.

“The applicants should be left to fight the main action and get the relief they seek by way under the cloak of a stay,” the state submitted. “The applicants have sought payment of their ‘dues’ during the suspension. This is not the reparable damage for which a stay must and can be granted.”

The state argued that the nine had pending appeals against the judgements that nullified their former seats and they had not obtained a stay of the judgement either in the High Court or Constitutional Court.

“The bone of contention in this action relates to the interpretation of Article 73(4) of the Constitution, with the applicants advancing the argument that the said provision implies that the members of parliament found wanting for electrical mulpractice and whose seats were nullified by the High Court must continue to hold the seat in the National Assembly pending the determination of their appeals in the Constitutional Court,” the state said. “There is yet to be a pronouncement on this issue by the Constitutional Court and in the absence of a stay of the judgement that nullified the seats of the applicants-cum-petitioners in this matter, there is nothing to suggest that the decision of Speaker was unconstitutional.”
The state further said the reliance on the Chishimba Kambwili case should be distinguished from that of Kafwaya and his colleagues as the extent of interpretation engaged into by the Speaker then could not be compared to the ruling on a point of law arrived at by Speaker Mutti.

“We opine that this is one case for which the applicants must wait for the final outcome of their petition as opposed to achieving the final objective at interlocutory stage,” said the state.
And in a similar matter, Governance, Elections Advocacy Research Services Initiative Limited has applied to join a matter in which Bowman Lusambo and seven others have petitioned the court over their suspension.


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