FIFTY-TWO UPND members of parliament have asked the Constitutional Court to strike out and dismiss a petition by Kabangwe resident Richard Mumba to order that the opposition lawmakers breached the Constitution when they shunned President Edgar Lungu’s address to Parliament in 2017.
According to documents filed in court, Garry Nkombo and 51 others have asked the court to dismiss the case for want of jurisdiction.
Nkombo in an affidavit stated that according to order 18 of the Rules of the Supreme Court 1999 edition, the petition should be struck out and the action dismissed on the ground that the petition and affidavit verifying facts do not disclose any cause of action against the respondents capable of being sustained by the court.
He stated that the facts relied upon by Mumba in the amended petition and in the affidavit verifying facts do not disclose any violation of the Constitution to warrant the subsistence of the action before court in terms of the jurisdiction conferred upon it under Article 128 (1) of the Constitution.
The Mazabuka member of parliament stated that the reliefs Mumba was seeking in the amended petition fell aside of the reliefs which the court was mandated to grant having regard inter alia to the provisions of Article 128 (1) of the Constitution, which set out the jurisdiction of the court.
He added that the reliefs sought in the petition offend the principles of “Trias Politica” or “separation of powers” as read with Article 77 (1) of the Constitution, which provides that the National Assembly shall regulate its own procedure and accordingly render the action a nullity.
Nkombo stated that he and others respondents wanted to know whether or not the matter was competently before the Constitutional Court in view of the fact that the petition and the affidavit verifying facts do not particularise which provision of the Constitution they allegedly violated and in what manner they were allegedly violated.
The 52 respondents further want to know whether or not the matter was competently before court having regard to the content of the amended affidavit verifying facts in its entirety and in particular some paragraphs which were clear that Mumba had moved the court on the ground of alleged breach of the Parliamentary Code of Conduct and Ethics, the Standing Orders and the National Assembly Handbook, all of which were matters relating to the internal regulations of the National Assembly’s procedure and its business in terms of Article 77 (1) of the Constitution and non of which fall within the purview of Article 128 (1).
Meanwhile, Nkombo stated that he was advised by his lawyers that an earlier application to dismiss Mumba’s action having been brought before a single judge was dismissed on the ground that the interpretation of the Constitutional provisions was a preserve of the full court.
He stated that need had now arisen to refresh the same application before the same court for the interpretation of the requisite provisions of the Constitution as a preliminary issue so as to ascertain whether or not the action was competently before court in view of the fact that the matters in contention in the application go to the root of the matter.
“Further, the determination of the preliminary issues will ensure that the court’s time is used resourcefully as the issues for determination will be narrowed,” Nkombo said. “Neither, the amended petition nor the affidavit verifying facts disclose any alleged violation of the Constitution on my part or on the part of the other respondents.”
Mumba petitioned the court, seeking a declaration that Gary Nkombo and 51 others contravened articles 72 (2)(c) and 261 of the code of ethics; articles 260 oath of office and section 19 (e); acts of intentional disrespect to the President and proceedings of the National Assembly when they shunned President Lungu’s address on March 17, 2017.