THE SPEAKER’S DECISION ON LETTER FROM PF SG NGONA AND MY VIEW ON SANGWA JOHN SC .

THE SPEAKER’S DECISION ON LETTER FROM PF SG NGONA AND MY VIEW ON SANGWA JOHN SC .

By Mark Simuuwe

What some people have missed is that , when an exparte court order which restrained someone from claiming a position has been set aside , it means it is no longer in effect, and that person will continue to claim the position and will do so many official programmes under that name unless there is a restraining order again .

Besides, Miles was granted leave to proceed with interparte hearing and the order PF initially was granted to stop Miles from posing as President was set aside by the court, pending hearing from both sides and determination of the matter.

Therefore , when Miles or his SG write a letter to the clerk of the National Assembly, it is not the job of the Speaker to legitimize the real owners of the party when they have been informed of a party decision , on a party headed letter; the decision under the circumstances lies in the court . The speaker acts on what is before her and within her jurisdiction .

So the question as to whether Miles and others held a legitimate convention should not be blamed on the Speaker .

Right now , neither the Lubinda group have been pronounced legitimate by the court yet .

However , the available record at the Registrar of Societies show Miles and his team as new officers .

Similarly, It is not the job of the registrar to start arguing with new owners on behalf of the aggrieved party , when he has been informed of the new officers .

Where the legitimacy has been challenged before him or her , he or she guides within his powers , but where there is a contestation, to the effect that the new owners have been challenged , they are told to go to court .

Thus , the Speaker does not get into the party arguments but to act on the documents presented to her from the Registrar of Societies and the Party on a header paper.

The principle the speaker follows is instructive that “the Party with the highest number of MPs shall inform the Speaker of the appointment of the leader of the opposition “. Period !

That is all the speaker is informed of. Who made the decision at party level is outside her jurisdiction. And this is where my argument is .

The Registrar of Societies is the only one who certifies and receives records from the party owners and when the Registrar of Societies receives and responds in affirmative , the Speaker will not argue because She is not the certifying officer. The rule is that once informed she must act .

Therefore , the Speaker has two options ; to admit the new instruction from the party until the Court has determined otherwise, since Miles Obtained an order to stop the Lubinda team to stop acting as PF leaders , or to Withhold the judgment, pending determination by the court , though this creates a crisis in parliament as to her role in party matters. Therefore on either positions , the Speaker would be right. This is my other argument.

What the Mundubile team needed to do was to also write to the speaker challenging the initial letter with relevant documents from the Registrar of Societies , which I believe they do not have because they have old ones whose legitimacy is in question.

It would seem to me that the Mundubile group were emotional; instead of challenging the letter by way of writing with supporting documents from the Registrar of Societies , they started fighting the speaker who was not part of the Convention or PF Central Committee.

They wanted the Speaker to adopt PF party minutes on the floor of the house ; which is a Misdirection. Because the argument of PF MPs are contained in the Party Minutes – and Hon KAMBWILI referred to them in one argument.

In the absence of legal arguments , the speaker had to make a decision based on the record presented before her and advised the aggrieved to go to court as per procedure, as she could not join party arguments .

Therefore , where the Lubinda and Mundubile group believe the Speaker misdirected herself , the position of the law is that they are supposed to go to court .

This is as a result of the doctrine of separation of powers and checks and balances. The idea to seek redress in court is a legal process available for the Mundubile group , which they opted not to follow by reasons known to themselves.

Members of Parliament are not allowed to fight or challenge the speaker in the house when she has guided as it is punishable at law , as indicated in my previous article . Such a challenge can only be in done in court .

As for State Counsel , Sangwa , who was my Constitutional law Lecturer at the University of Zambia , my view is that , he is not a court and that is why he also goes to court for interpretation.

He taught us in the university that when there is an alleged misdirection by the Speaker , the other organ of the state which is the judiciary must check the legislature , if the decision was made outravires the law , and that the court may quash the decision if it was outside the law or withhold it if it is within the law . Why is he telling the public something else ?

Mr Sangwa also taught us that , to every legal argument , there are two sides , that this is why we have counsel for the defendants and counsel for the plaintiffs.

Getting what he taught me in class , my conclusion is that Mr Sangwa was only giving his view and not what the court has pronounced ; and his view may be wrong or right based on the court interpretation.

Lawyers give their view on how they understand the law and not a judgment. The judgement is a preserve of the Courts of Law .