The Lusaka High Court has quashed the decision made by Second Deputy Speaker, Moses Frank Moyo to declare the nine (9) Seats vacant.
FINDINGS
6.28 ‘The Respondent, in addition, to stating that the Second Deputy Speaker proceeded in accordance with the provisions of Article 72(5) and(8) of the Constitution, contended that the Second Deputy Speaker proceeded as he did because the active Matter was similar to the one that had been dismissed and that the Matter was therefore res judicata.
This clearly shows that the Second Deputy Speaker was aware of the Matter filed on 27th June, 2024 and this is also alluded to in the Respondent’s Affidavit in Opposition.
Clearly, the determination of whether a Matter is res judicata or is an abuse of Court process or has no merit or is indeed against public policy is the preserve of the Court and not of the Second Deputy Speaker of the National Assembly.
6.30 Thus, by proceeding to make the Ruling on 3rd July, 2024 and communicating to the Electoral Commission that a vacancy had occurred in the respective Constituencies represented by the Applicants when he
was well aware of an active Matter before Court, the Second Deputy Speaker did so without jurisdiction as the Matter was subjudice.
I am fortified in this view by the holding in the already cited case of ChishimbaKambwili
Constitutional Court stated, inter alia, that:
“since the issue was already pending
determination in the Courts of law, the
Speaker by proceeding as he did, fell foul of
the sub judice rule.”
Second Deputy Consequently, I find that the
Speaker’s decision-making process was marred with irrationality; it was ultra vires his mandate and he fell foul of the sub judice rule as he usurped the authority of the Court to determine whether or not there was a matter properly before Court in relation to the
Applicants challenging their expulsions from their Party.
6.32 Based on the foregoing finding, I find it otiose to delve into whether or not there was compliance with Parliamentary procedure as contained in the Standing Orders the National Assembly of Zambia, precedence and custom or whether there was an alternative remedy available to the Applicants
CONCLUSION
7.1 In sum total, I find that the decision of the Second Deputy Speaker of the National Assembly of Zambia to declare the seats vacant was ultra vires/without jurisdiction and irrational.
7.2 Consequently, the Applicants are hereby granted the Order of Certiorari and the decision of the Second Deputy Speaker to declare the seats held by the Applicants vacant is hereby quashed.
7.3 Costs are for the Applicants to be taxed in default of agreement.
Leave to appeal is granted.