PATRIOTIC FRONT PRESS STATEMENT ON THE RULING OF THE SPEAKER CONCERNING ELECTION PETITIONS.
_Presented by PF Vice President Hon. Given LubindaOn Wednesday, 8th December, 2021._
Members of the Central Committee,
Members of Parliament,
Members of the Press,
Ladies and gentlemen,
Welcome to the PF Secretariat and to this Press Briefing.
Today, I wish to address myself to the UPND insatiable appetite for dictatorship.
After twenty-three years of being in the opposition, the UPND using all sorts of unethical and uncouth electoral conduct which was symptomatic of militia-type campaigns were declared victorious in the August 2021 elections.
Notwithstanding the brutality, violence and killing suffered by our members and other innocent citizens during the polling day and the days that followed, the PF through our President conceded defeat. We did this for the sake of ensuring that peace and tranquillity continues to prevail in our beloved country.
On 16th August, 2021 in the midst of being disregarded and humiliated by the UPND crowds directly under the watch of their leaders, President Lungu graciously handed over the instruments of power to the current President.
Soon after that we announced that we were to use our strength in and outside parliament to present a responsible opposition that was not to be antagonistic but objective. True to our word, our Members of Parliament have demonstrated their prowess and steadfastness in providing well researched, incisive and objective checks and balances in parliament.
In the UPND’s quest to totally destroy the PF and the opposition generally so that they remain a one party state, undertook a process of harassing all known members of the PF starting with our powerless and defenceless members at the lower levels of the party structures. Many of our members have had their homes and business destroyed at the hands of UPND cadres.
On another front, numerous PF members have been summoned to the Police to answer tramped up charges some of which concern offences that occurred more than 5 years ago. Many of our members have been held in Police custody for more than 14 days without being presented to courts as was the case with our National Chairman, Hon Davis Chama.
While this continued to happen, the UPND petitioned all our Parliamentary, Mayoral, Council Chairperson’s and Council seats across the country. Their aim was obviously to obliterate the PF everywhere. As fate would have it, the tribunals validated all our Mayoral, Council Chairperson’s and Council seats except for the Serenje one. In addition, the High Court validated all our Parliamentary seats except for nine. This obviously incensed the UPND.
What followed were three well-orchestrated and interrelated judicial processes initiated by the UPND and their surrogates.
The first was a petition presented to the Constitutional Court to amend the Electoral Process Act by declaring section 97 void. The effect of which is that an election should be nullified simply on the grounds that a petitioner proves that there was even a single incidence of violence during the campaign irrespective of the impact such an incidence would have had on the total electoral environment. The aim is to reduce the standard of proof in an election petition so as to make it easy for petitioners to secure nullifications of elections. I wish to draw the attention of Zambians to the fact this petition was presented during the period when the High Court Judges were handing down judgements in the numerous parliamentary petitions. The strategy is that the Electoral Process Act be amended through this judicial process in time for the Constitution Court to consider the various appeals being presented to it. In short the catch is that the Constitution Court assesses the appeals using a lower standard of proof.
The second petition is the one which is challenging the continued attendance of Parliament business by those Members of Parliament whose elections had been nullified by the High Court.
What must be taken serious note of is that the second petition was followed by a Point of Order raised by a UPND Member of Parliament who challenged the attendance of Parliament business by Hon Bowman Lusambo after his seat had been nullified by the High Court.
We wish to point out that these processes were not innocent – they are very well calculated to achieve a predetermined outcome. We say so for the following reasons:
1. The timing of the processes which is so directly related to ongoing elections petitions;
2. The coincidence of three similar and well linked process occurring at the same time;
3. The many precedents that should have informed the petitioners on how such grievances were settled in the past and which they chose to disregard;
4. The many threats that have been issued about PF losing its Parliamentary seats;
5. The threats that have been made to silence our MPs in parliament; and
6. The most unfortunate and unbelievable ruling of the Speaker of the National Assembly Madam Nelly Mutti which she painstakingly delivered yesterday.
Ladies and Gentlemen, members of the Press
Parliament is a house of rules and follows, the constitution, the National Assembly Powers and Privileges Act, Standing Orders, written authorities such as Erskine May and others, precedents and practice and traditions. Speakes are therefore guided by the foregoing when making determinations of any point of order.
As such in determining the point of order by the UPND Member of Parliament on Hon Lusambo the Speaker should have been guided on whether or not the subject of the point of order had been raised in the past either in Parliament or in a court of relevant jurisdiction. This should have pointed the Speaker to the fact that indeed this matter was not coming for the first time.
Numerous members of parliament whose seats were nullified by the High Court retained their seats awaiting the final determination of the appeal by superior courts including now the Constitution Court. Dozens of cases can be cited, including the famous case of Emmanuel Munaile whose appeal matter lasted until the fifth year of his stay in Parliament.
Madam Speaker Nelly Mutti should have been informed that her predecessor Hon Justice Dr Patrick Matibini had occasion of addressing a similar matter in the case of Hon. Godfrey Bwalya Mwamba. Notwithstanding the above the Constitution Court in the case of Margaret Mwanakatwe Vs Charlotte Scott in which Constitution Court Judge Mulembi held as follows:
“That notwithstanding, after giving careful reflection to the arguments by learned counsel on all sides of the matter, and to the written submissions, I come only to one conclusion, that he parties have anchored their arguments on the provisions of the applicable or relevant law, the full interpretation of which is the preserve of this Court duly constituted pursuant to Article 129 of the Constitution. …. In that regard I note hat Article 72(2) of the Constitution addresses instances when the office of Member of Parliament becomes vacant. Of particular relevance to this application is Article 72(2)(h) where one can cease to be a Member of Parliament following a decision of the Constitutional Court. My considered view is that I see no need to entertain this application for stay any further when, by operation of law and in terms of the Constitution, it is clear when a seat becomes vacant. One of the instances is when the Constitution Court makes a final determination on a seat that has been nullified. In the premises, I find this app after final application for stay of execution of the judgement of the court below irrelevant because when 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.”
This judgement is very instructive and by the way it is as valid now as it was when it was delivered. No court has upturned it and it is not in the premise of Madam Speaker to do so.
Further Madam Speaker should be quickly reminded that her role is to chair meetings of the legislature whose functions are limited to legislating and not interpreting the law. The role of interpreting the law is for the judiciary. As for interpreting Constitutional provisions, the constitution clearly and unequivocally preserves the right to the Constitution Court.
Madam Mutti should have been reminded to take judicial notice of the fact that a similar matter was brought for her predecessor’s consideration. The Constitutional Court in the matter of Chishimba Kambwili Vs the AG was categorical on the matter. It held that the Speaker has not right to interpret the Law as this is a preserve of the Constitutional Court.
Ladies and Gentlemen, I earlier remarked about the proximity of these matters. Now I wish to question why the Speaker of the National Assembly decided to depart from the long held doctrine of avoiding subjudice by commenting on a matter whose subject is already before a competent court of Law. In this case GEARS petitioned the Constitution Court on the continued stay of the nine PF MPs whose seats were nullified. Before the determination of the matter the Speaker has made a determination, thereby making the court process impotent.
A number of questions arise from Madam Speakers conduct.
1. How could a person of her experience possibly make such elementary mistakes?
2. Was Madam Speaker working with independence of mind?
3. Where were all the advisors and clerks of the National Assembly when she was writing such a nonsensical ruling?
4. IS this the kind of meritorious and quality that HH promised us?
I thank you.
Hon. Given Lubinda
VICE PRESIDENT.