NATIONAL Assembly Speaker Patrick Matibini has disagreed with the Constitutional Court’s ruling early this year that he does not have powers to interpret both the law and the Constitution.
In March, the Constitutional Court ruled that Matibini exceeded his powers when he declared the Roan Constituency seat vacant on allegations that NDC leader Chishimba Kambwili crossed the floor.
Dr Matibini, on February 27, 2019, declared the Roan seat vacant after Malambo PF member of parliament Makebi Zulu raised a point of order that Kambwili had crossed the floor by being a consultant of NDC which did not sponsor him for the parliamentary election.
Kambwili petitioned the court and cited the Attorney General in the matter seeking a declaration that the purported decision by the Speaker of the National Assembly to declare his seat vacant does not conform with the provision of Article 72 (2) of the Laws of Zambia and as such is not only undemocratic but also illegal, unreasonable, procedurally improper and unconstitutional.
Delivering judgment, ConCourt president Hildah Chibomba on behalf of Ann Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke said while the Speaker was within his power to respond to the point of order that was raised on the floor of the House, he exceeded his powers when he interpreted the Constitution to ‘cure’ the lacuna that he identified in Article 72 of the Constitution as amended.
“We find that the Speaker exceeded his powers as the function of interpreting the law and the Constitution is vested in the judiciary as provided by Article 119 of the Constitution. The interpretation of the Constitution as a legal instrument is the function of the courts, the branch of government whom is assigned the delicate task,” she said. Justice Chibomba ruled that by ruling as he did, Dr Matibini exceeded his Constitutional power as he strayed and or encroached into the adjudicative function of the Courts of Zambia which are mandated to exercise judicial authority by interpreting the law and the Constitution. She said the provisions of Article 77 (1) of the Constitution as amended and section 34 of the National Assembly (powers and privileges) Act cannot be relied upon as defence as the Speaker was aware of the court case.
In a preamble to his ruling on a point of order raised by Mazabuka Central UPND member of parliament Gary Nkombo, in March, asking if parliament was in order to debate National Assembly (Amendment) Bill No. 10 of 2019 when there was a matter filed in the Constitutional Court against the bill, Dr Matibini brought in the ConCourt ruling on Kambwili saying the judges had strayed.
Nkombo referred to a matter where former commerce minister Dipak Patel petitioned the Constitutional Court on why government was borrowing money from 2016 to date without parliamentary approval as required by the Constitution which is now being amended.
“I’m not persuaded by the suggestions of the Constitutional Court, in the Kambwili case, that the Speaker has no constitutional mandate to interpret the law and Constitution. I’m not persuaded. Let me put it plainly, I do not, with respect, agree with the Constitutional Court that the Speaker has no constitutional mandate to interpret both the law and Constitution,” he said.
“On the contrary, it is crystal clear that the entrenched parliamentary practice and procedure as well as precedence established by the courts of law themselves categorically confirm that the Speaker has the power to interpret both the law and Constitution. To hold otherwise would, in my opinion, not only paralyse the smooth functioning of the National Assembly, but also possibly throw the nation in an unnecessary constitutional crisis. And above all, it will also be contrary to principle. Consequently, I will proceed to interpret both the relevant law and the Constitutional Court issues.”
He stressed that the various speakers, “including of course myself, have interpreted relevant provisions of the law in general and the Constitution in particular, in order to rule on points of order in question. In addition, honourable members, there are various pieces of legislation that regulate the operations of the National Assembly. Notable among these are the Constitution itself, National Assembly powers and privileges Act which regulates the powers, immunities and privileges of the House. In so far as the National Assembly is concerned, it is actually governed by Article 61 to 89 of the Constitution. Consequently, the Speaker may from time to time be required to interpret the provisions of the law and the Constitution.”
Dr Matibini’s partial ruling took up the entire session, and will only be fully delivered today.