By Mwaka Ndawa
MONZE Central member of parliament Jack Mwiimbu has been denied leave by the Court of Appeal to renewe his application for leave to commence judicial review proceedings against the decision of the Speaker of the National Assembly to allow the restoration to the order paper for consideration of Constitutional (Amendment) Bill No.10 of 2029.
Court of appeal president Fulgency Chisanga, deputy president Chalwe Mchenga and judge Justin Chashi threw out Mwiimbu’s application with costs, as the proposed application for judicial review does not reveal or allege a breach or contravention of the constitution.
The court said no constitutional question has been indicated on the application warranting examination by the court and that had that been so the court’s jurisdiction would have been questioned.
“ A plethora of authorities reveal that the Speaker and the National Assembly can only be amenable to judicial review if there is a breach or contravention of the constitution in its decision making,” the court said.
“The application for judicial review is bereft of merit as the decision in question relates to internal processes and procedures which the court is excluded from checking in the absence of contravention or breach of the constitution. Leave is accordingly refused.”
The court added that there were many cases cited in the matter which should have guided Mwimbu.
It said the matter was fit in which to condemn him to costs.
“The applicant shall bear the costs of the application in this case to be taxed in default of agreement,” ordered the court.
Mwiimbu wanted to renew his application for judicial review before the Court of Appeal after High Court judge Sharon Newa threw out the same on grounds that the matter raised issues of a constitutional nature and 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 controversial (Amendment) Bill No.10 of 2019 to a date yet to be advised within the fourth session of twelfth assembly.
Mwimbu was seeking an order of mandamus directing the Speaker to discontinue any or further debate or other proceedings relating to Bill No. 10.
He also wanted a declaration that Dr Matibini’s decision is 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 the lapse of the Bill on June 4, 2020 and is 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 for judicial review 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 leader of the opposition, Mwimbu, and the subsequent reliefs sought are wrongly before the Lusaka High Court because they raised matters of a Constitutional nature and the High Court was incompetent to hear and determine the issues raised therefore the case should be dismissed for want of jurisdiction.
Sikatele stated that the standing order’s 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 the Speaker to allow the continued consideration and deliberations on Constitutional (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 olOrders’ 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 Constitutional (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 of July 2020 said that on account of exclusive cognizance given to the National Assembly by Section 34 of the National Assembly, the Speaker was protected from any court action where he exercises his powers under the internal procedure of Parliament and that he 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 is 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 practuces 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 seen I have no such jurisdiction as it is vested in the constitutional court,” said judge Newa.