Only High Court can declare MP seat vacant not speaker, activist tells ConCourt
GOVERNANCE activist, Issac Mwanza has submitted in the Constitutional Court the the Speaker and the National Assembly have no role to play in the declaration of the Petauke seat vacant.
Mwanza is seeking a declaration that a parliamentary seat can only be declared vacant upon a determination by the High Court.
He contended that the Code of Conduct for MPs can only be enforced through complaints filed with the Chief Justice, not through unilateral decisions by parliamentary committees.
Mwanza insisted that an MP’s seat cannot be declared vacant for “perpetual absence” based solely on findings by the Parliamentary Committee on Privileges and Absences.
He was speaking when he appeared before seven Judges namely; Margaret Munalula, Martin Musaluke, Mathews Chisunka, Judith Mulongoti, Mudfford Mwandenga, Anord Shilima and Kenneth Mulife.
In this matter, Mwanza dragged the National Assembly to court, seeking a declaration that an elected MP’s seat only becomes vacant upon determination by the High Court.
Mwanza also cited the Attorney General as the second respondent in the matter.
During the hearing, he argues that the National Assembly of Zambia violated and contravened the Constitution by declaring a vacancy in the office of a Member of Parliament for breach of a code of conduct – an action he contends is the exclusive role of the judiciary and tribunals appointed by the Chief Justice.
“The matter before you is one that stems from the actions by the first respondent to make a resolution to declare a sit of the member of Parliament vacant for breach of article 72(2)(c) of the constitution.”
“This court has several times made decisions on how a parliamentary seat falls vacant under article 72 of the constitution. The firm view of this court is that the sit falls vacant by the operation of the law,” Mwanza submitted.
He said the Speaker and the National Assembly have no role to play in the declaration of the seat vacant.
“The only way the seat can fall vacant for the breach of the conduct by an MP is when there has been a determination of the breach of facts by a competent authority that indeed a member breached the code.” He said.
Mwanza further submitted that the code of conduct that has to be breached is the parliamentary code of conduct.
“Recent decision that a parliamentary seat falling vacant is by an act,in our current case is about an MP who breaches that code of conduct and a competent authority has determined that indeed there was a breach,” he submitted.
He argued that the matter was supposed to be referred to the judicial tribunal appointed by the chief justice to determine the facts of the breach conduct of conduct.
“This submission demonstrates that indeed, the vacancy of the MP can only be determined by the judicial tribunal.We are alleging that the determination by the national assembly triggers that vacancy was done contrary to the law,” Mwanza said.
Mwanza further added that the speaker, National Assembly has no role in the declaration or finding the seat has fallen vacant as held by the court repeatedly.
“We pray that indeed this court finds the first respondent in breach of the constitution by determining the existing of a vacancy in the office of a member and grant the reliefs that I have prayed for,” He said.
In response, State advocate, for first and second respondent Chingela Watopa submitted that the National Assembly is given power by the constitution to regulate its own procedures.
“This is provided for in article 77 of the constitution.”
“We submit that the Speaker was within the law to refer the matter to the committee as that is provided for in the standing orders 223 in (1) of the NA standing orders.”
“We submit that the petitioner’ has not shown or demonstrated how the Speaker’s actions breached article 119 of the constitution.” Watopa said.
He said the seat automatically falls vacant by operation of the law by 72(2)(c) of the constitution.
The court has since adjourned the matter to July 17, 2025 for judgement.
By Lucy Phiri
Kalemba April 10, 2025