ATTORNEY GENERAL SAYS SPEAKER COULD HAVE DECLARED 9 MPS’ SEATS VACANT

By GRACE CHAILE LESOETSA

ATTORNEY General Mulilo Kabesha has argued that the nine PF Members of Parliament (MP) whose election results were nullified by the High Court are lucky that the Speaker just expelled them from the House as she is at liberty to invoke Section 108(4) of the Electoral Process Act to declare the seats vacant.

In this matter, the Law Association of Zambia (LAZ) seeks interpretation of the provisions of the Constitution used by the Speaker, Ms Nelly Mutti, to ban them from attending any Parliamentary business.

LAZ wants the Constitutional Court to establish whether an MP whose seat has been nullified following an election petition may lawfully attend Parliamentary business pending appeal to the same court.

The applicant wants the court to interpret the provisions of Articles 72(h) and 73(1) (2) and (4) of the constitution.

But Mr Kabesha contends that Article 72   speaks to instances when a Parliamentary seat can be declared vacant and none of the permissible provisions include the curious and topical case where the High Court has nullified an election of an MP pursuant to Article 73(1) and (2) of the Constitution.

He argues that the High Court judgement takes effect immediately after pronouncement unless and until it is stated by the court itself or the Constitutional Court.

Mr Kabesha states that the combined effect of Article 72(2) (H), article 72 (8) and articles 73(4) of the Constitution, Section 108(4) of the Electoral Process Act (EPA) and order XI Rule 7 of the Constitutional Court rules SI No.37 of 2016 is that MPs whose seats had been nullified cannot continue  attending sittings.

“This places an urgent burden on the affected (former) MPs to apply for a stay of the impugned judgements in default of which the Speaker is at liberty to invoke Section 108(4) of the EPA to declare the seats vacant. Luckily for the affected MPs, this, she did not do,” he states.

Mr Kabesha has urged the court to either dismiss the matter or consolidate it with Governance Elections Advocacy Research Services Initiative Zambia Limited (GEARS) which seeks a declaration that the nine having been declared by the High Court as not duly elected MPs, by attending sessions of the National Assembly and participating in Parliamentary business breached the constitution and the EPA.

“We take the view that the applicant should have joined the case of GEARS vs Bowman Lusambo et al: 2021/CCZ/ 0050 as opposed to commencing another matter over the same issues. We urge the court to address this issue and either dismiss this originating action or direct that it be consolidated with GEARS matter aforesaid,” he submitted.