Dear editor,
What remedies are available to MPs affected by the Speaker’s flawed action ordering them to vacate their seats?
I have received several calls requesting me to give my take on the above question. I respond to all in this post.
In my view, if the Speaker becomes adamant, and fails to heed to humble calls, for her to rescind or reverse the unconstitutional and illegal act or omission, there are two remedies available to the affected MPs.
First remedy is that since the MPs have already filed appeals in the Constitutional Court, they can simply file preliminary applications seeking determination of that Court on the constitutionality of the Speaker’s act while their appeals are pending before it.
This, in my view is the best and fastest option since the Concourt would quickly hear and determine the preliminary applications before hearing their appeals. And since the Concourt has made prior decisions on status of MPs’ seats while appeals are pending, it would spend very little on the applications and no time give directions on the way forward.
The second option is for affected MPs to apply for Judicial Review in the High Court or reapplication for judicial review in the Court of Appeal.
However, in my view, going for judicial review, is a bad decision. It is bad in the sense that there will be need, during the course of hearing of the judicial review, to interpret the Constitution on issues unrelated to the Bill of Rights and election petitions. At that point, the High Court will be stuck.
The dispute in question is a vacation of the seat of Member of Parliament on one hand, and election petition on the other hand. While the High Court has jurisdiction to hear constitutional issues related to Bill of Rights and election petitions for MPs, it lacks jurisdiction to determine the issues of vacation of seats of MPs.
In the case of the Court of Appeal, while it has jurisdiction to hear reapplications for judicial reviews, it lacks jurisdiction to hear Bill of Rights issues; election petition issues; and vacation of seats of MPs issues.
Si, to conclude on my take, going to Concourt through preliminary applications is best and fastest option. Going to High Court or Court of Appeal, for judicial review, is potentially a waste of time and resources.
Sinkamba Peter
