THE Lusaka High Court has dismissed an application by Monze Central UPND member of parliament Jack Mwiimbu for leave to commence judicial review proceedings challenging the decision of the Speaker of the National Assembly to allow the restoration to the Order Paper for consideration of Constitution (Amendment) Bill No.10 of 2019.
Justice Sharon Newa has ruled that the matter raises issues of a constitutional nature therefore she had no authority to determine it as it was the preserve of the Constitutional Court.
Mwiimbu wanted an order of certiorari to quash Dr Patrick Matibini’s decision to allow the deferment of the proceedings relating to the controversial Constitution (Amendment) Bill No.10 of 2019 to a date yet to be advised within the fourth session of 12thassembly.
He was seeking an order of mandamus, directing the Speaker of the National Assembly to discontinue any or further consideration, debate or other proceedings relating to Bill No.10.
He also wanted a declaration that Dr Matibini’s decision was invalid, null and void and of no effect and an order that all proceedings in the National Assembly relating to the bill be stayed until after the determination of the matter or further order of the court.
Mwimbu sought reliefs on grounds that Dr Matibini’s decision was unreasonable and irrational without justifiable reason following the lapse of the Bill on June 4, 2020 and was not amenable to further consideration, debate or process in Parliament.
But deputy Clerk of the National Assembly Cecilia Sikatele in an affidavit in opposition to Mwiimbu’s application argued that there was no express provision in the National Assembly Standing Orders of 2016 which governs the time within which a bill must be considered at any stage of enactment.
Sikatele charged that the issues raised by Mwiimbu and the subsequent reliefs he sought were wrongly before the Lusaka High Court because they raise matters of a constitutional nature.
She said the High Court was incompetent to hear and determine the issues raised by Mwiimbu therefore the case should be dismissed for want of jurisdiction.
Sikatele said the Standing Orders Committee, which is the highest decision making body of the National Assembly, was charged with the responsibility of considering proposals for the management of procedures and practices of the National Assembly.
However, Mwiimbu argued that standing orders do not give the Standing Orders Committee any power to extend the life of the bill to a date to be communicated not later than the last day of the meeting.
He said the decision by Dr Matibini to allow the continued consideration and deliberations on Constitution (Amendment) Bill No.10 of 2019 was amenable to review by the Lusaka High Court.
In his Affidavit in reply to the respondent’s affidavit in opposition to the affidavit verifying facts, Mwiimbu denied that the matter was in any way constitutional in nature as it was anchored purely on the established practice and procedure of the National Assembly as prescribed in the internal rules and regulations of the National Assembly that govern practice and procedure.
Mwiimbu said the rules and regulations of practice and procedure were prescribed in the standing orders of 2016 and various handbooks issued by the National Assembly from time to time and not in the Constitution of Zambia.
“The argument that after deliberations the Standing Orders Committee resolved to extend the life of the Bill to a date to be communicated not later than the last day of the meeting exposes the illegality of the Speaker’s decision to allow the continued consideration, debate or other proceedings relating to Constitution (Amendment) Bill No.10 of 2019 in so far as the state confirms that the standing orders committee extended the life of the Bill on March 24, 2020,” Mwiimbu said. “The standing orders do not give the standing orders committee any power to Act in the manner that it had purported to do contrary to what is deposed by the state.”
However, judge Newa in her ruling said on account of exclusive cognizance given to the National Assembly by Section 34 of the National Assembly, the Speaker, being protected from any court action where he exercises his powers under the internal procedure of Parliament, would only be amenable to such a court action if he breaches the Constitution in exercising his powers.
She said the Constitutional Court by virtue of Article 128(1) of the Constitution was the court vested with jurisdiction to deal with such matters.
“Even if I had jurisdiction to interrogate the exercise of the Speaker’s powers pursuant to the internal practices and procedure of the National Assembly as submitted by the Attorney General, it would ultimately involve interpretation of the Constitution from which the said powers are derived. As [can be] seen, I have no such jurisdiction as it is vested in the Constitutional Court,” said judge Newa. “On that basis, I find that this is not a case that is fit for further investigation and I accordingly decline to grant leave to commence judicial review proceedings and dismiss the matter. Looking at the fact that the matter seeks to enforce matters of national interest, I order that each party bears their own costs of the application. Leave to appeal is granted.”