Dr Sishuwa Sishuwa writes (on Twitter):
“The decision by the Speaker of the National Assembly to bar MPs whose election were nullified by the High Court from attending Parliament until their appeals to the Constitutional Court are determined is wrong and undermines the judiciary and the principle of separation of powers.
The ConCourt ruled last year in the case of Mwanakatwe v Charlotte Scott that by operation of Article 73 (4) of the constitution, an appeal to the ConCourt acts as a stay of the decision of the High Court. This means until the case relating to an election petition is disposed of, the matter is considered active or undetermined, and the affected MPs have the right to remain in parliament. Nelly Mutti either did not read the judgement in the Charlotte case or is out to undermine the judiciary, which would make her the female version of Patrick Matibini!
The purpose of that constitutional provision was to prevent the creation of a vacuum in the office of MP while the case remained undetermined by the courts. If the High Court verdict was final, despite an appeal, the result would have been a vacancy in the affected constituency.
Now can you imagine a scenario where a by-election is held after the High Court nullifies a sitting MP’s election only for the ConCourt to overturn the ruling of the lower court on appeal by the affected MP but after the by-election has already taken place? There will be chaos.
There is no finality to an election petition decided by the High Court, once an appeal against the ruling has been filed in the ConCourt, until after the determination of that appeal by the superior court. By making that ruling, the Speaker either genuinely misread the law, is unforgivably ignorant of the fact that the word ‘determination’ as used in Article 73 (4) has been interpreted by the ConCourt to include the appeal, or is simply incompetent.
Her main mistake was to venture into constitutional interpretation using the law within herself. Ati “practical application” monga ni kumushi pa nsaka? The Speaker should read the Charlotte v Mwanakatwe ruling by Enoch Mulembe (l doubt she would have come to that ruling if she had read the case), swallow her pride and reverse her ruling. That would be the right thing to do.
Unless the ConCourt vacates its decision in the Charlotte v Mwanakatwe case, its decision that “where there is an appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant after the final determination of the constitutional court” stands.
We can criticise the ConCourt for its bad decisions, but that is the institution with the power to interpret the constitution. It is lawless for another institution, the Speaker, or indeed anyone else, to assume the Court’s functions for whatever reasons, or ignore its decisions.”