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SPEAKER RULED OFFSIDE

By GRACE CHAILE LESOETSA

ALL the nine Patriotic Front (PF) members of Parliament expelled by the Speaker, Nelly Mutti, assumed their seats because the Constitutional court (Concourt) yesterday ruled that she over stepped her authority.

The Speaker on   December 7, 2021expelled the nine whose seats were nullified by the High Court but who had challenged the judgements in the ConCourt.

The  Concourt  pronounced that a Member of Parliament whose election was nullified by the High Court and has challenged the decision in its court remains in Parliament pending determination of the appeal. This ruling effectively rules the Speaker  offside and means all the affected MPs can resume their seats in Parliament.

“On a purposive interpretation of Article 73(3) and (4) read with Articles 128 (1) (d) and 57 of the constitution , we hold that a MP whose election has been nullified by the High Court and appeals to this court, by operation of the law retains the seat in Parliament pending the determination of the appeal,” the ConCourt ruled yesterday.

This means that the nine Patriotic Front (PF) MPs whose election was nullified in the lower court and were expelled from the House by the Speaker, Ms Nelly Mutti, are free to return to the National Assembly.

This is a matter where the Law Association of Zambia (LAZ) had petitioned the ConCourt to interpret the provisions used by Ms Mutti, on December 7, 2021 , to expel from the House  nine PF MPs whose seats were nullified by the High Court and had appealed to the ConCourt challenging the judgements.

The nine MPs are Bowman Lusambo (Kabushi ), Joseph Malanji (Kwacha) , Mutotwe Kafwaya (Lunte), Sibongile Mwamba (Kasama Central), Luka Simumba(Nakonde), Allan Banda (Chimwemwe), Taulo Chewe (Lubasenshi), Kalalwe Mukosa (Chinsali) and Christopher Chibuye (Mkushi North).

LAZ in its petition sought the ConCourt’s interpretation of the provisions of Articles 72 (h) and 73 (1) (2) and (4) of the Constitution of Zambia.

It cited the Attorney General as respondent in the petition.

However, the State argued that an appeal to the ConCourt did not operate as a stay, therefore, the affected MPs should have obtained a stay from the High Court.

But in a judgement delivered yesterday by Justice Palan Mulonda on behalf of Judges Hilda Chibomba, Mungeni Mulenga, Professor Margaret Munalula and Judy Mulongoti, the court said that Article 72(2) (h) when read together with Articles 70 (2) and (72(4), said that declaring a seat vacant following the High Court’s nullification and a new MP being elected while there was a pending appeal would result in absurdity.

However, the court noted that Article 73(4) was not clear on what becomes of a parliamentary seat while there was an appeal in the ConCourt.

The ConCourt thus urged the National Assembly to urgently address the lacuna to provide clear terms in such an instance.

“It is our considered view that Article 73 (4) which provides for the retention of a seat in the National Assembly pending the determination of an election petition should also have expressly provided for the retention of the seat pending the determination of an appeal to this court,” he said.

LAZ president Abyud Shonga said he was happy that the ConCourt had put an end to this debate and he was confident that the legislature would quickly address the lacuna noted by the court.

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