By Honourable Tutwa Ngulube
WHY WE NEED TO AMEND ARTICLE 72 OF THE 2016 CONSTITUTION
The People of Zambia decide which MP goes to Parliament and on which party Ticket. As MPs we cannot change or switch our allegiance when we get to Parliament. But given the 2016 Constitution in Article 72, that is very very possible.
Imagine putting yourself in the shoes of Hon. Dr. Kambwili where you are told you have won the case, but wait a minuet sir, sorry sir, you have lost the case.
Before we discuss the matter at hand allow me to state that the entire UPND has no numbers to impeach or even sustain any motion of impeachment before the house.
In fact the Judgment of the concourt has just created a New Lacuna in the constitution in that they too have not resolved the problem that was presented to them. This Judgment if not reviewed will cripple the power of the National Assembly which also gets its powers from the Constitution. This will be a huge blow to the independence of Parliament and the Powers of the Speaker which heads this House.
There is no country in the world where every decision to be made by the Speaker must first go to the Concourt. The Kambwili judgement must be looked at critically and carefully so.
The Concourt can only come in if an aggrieved party goes to court not the other way round. While we are trying to resolve Lacunae through Bill 10,new Lacunae have resurfaced.
INFACT it’s clear from Pages 37 to 40 of the Judgment, that an MP elected by Party A can become a member of Party B and cannot lose his seat because for the speaker to Rule that he has crossed the floor he will need to refer the matter to court. This will bring back the indiscipline that the people of Zambia wanted to end in their MP. We MPs are servants of the People and not our own bosses.
According to the judgment, it’s possible for an MP to be elected by his people and party and then while in Parliament becomes hungry and sells out to become a member of the other party and you end up having a seat being held by 2 parties the one that sebt you and the one you have joined. This is dangerous for democracy and until the Judgment is clarified, Mr Speaker will have no powers to discipline such MPs or to enforce the Constitutional provisions because it’s not clear whether he has powers to declare seats vacant or not.
The drama avoided by the concourt where they refused to uphold Kambwilis seat for fear of having two MPs was also wrong. THEY should have done the correct thing. The stopped short of feeling sorry for Chishala.
Although the Roan seat would have been held by both PF through Kambwili and Chishala under NDC, the reality is that Hon. KAMBWILI told Musenge that Musenge cannot fire the owner of the Party. We have now faced the reality. He was saying he was not NDC but its consultant but also he was the Owner of NDC. HOW CAN you be hw owner of a party but not being its member?
They had the power to nullify Chishalas seat but because Kambwili campaigned for Chishala they said they could not.
They appear to have left one window open for future problems because imagine two MPs wearing different party manifestos referencing one populace.
Lastly the fact that the judgment gave Kambwili back the seat and again gave it to Chisala shows that they decided for the voters . THE CONCOURT did not have that power they exercised. I have combed the constitution and have not seen such power.
It appears as though Even them as Concourt exceeded their powers and equally appear to have done exactly what the Speaker is accused of doing.
Hon. KAMBWILI presented 3 questions to the court. They refused to allow the 2 questions saying they were afraid they would be taking away the power of the High Court.
According to the 2016 Constitution the power to interpret the Constitution lies with the Concourt and not the High Court. So how was the High Court coming in?
In the case before it Hon. Kambwili did not allege violation of any of his rights under the Bill of right and the High court which has power to protect the rights under the Bill of rights did not have any window to use to come into this picture.
The Kambwili matter was a classic case of possible future pitfalls that must be buried before the 2021 elections. We hope and trust that for future cases the courts will shoot straight regardless of the potential casualty.
Hon. Kambwili should have been given back his seat or the court should have called for another election.The Seats in Parliament are given by the voters not the court.
If they had done so they would have created another problem because Hon. Chishala was not challenged by the Petitioner Hon. Kambwili. At every angle of this case, we must refine the 2016 Constitution to avoid draw game cases.
I Humbly submit and rest my case.