LAW Association of Zambia lawyer John Sangwa says now they have to put on their thinking caps following Parliament’s refusal to stop deliberations on the Constitution (Amendment) Bill before the House.
LAZ has filed an injunction in the Constitutional Court to restrain government through the National Assembly from enacting the Constitution (Amendment) Bill number 10 of 2019.
According to a petition filed in the Constitutional Court dated August 12, LAZ contended that by deciding to present the Bill to the National Assembly on August 2, government contravened various provisions of the Constitution.
In a 101-paged petition, the President has been cited as the first respondent, while the Attorney General and National Assembly are the second and third respondents respectively.
The Association has listed over 50 proposals in the Bill, in various categories, that offend the Constitution.
LAZ has further contended that the Bill breached the current Constitution by seeking to remove its basic features such as stability and durability.
In view of the court process, LAZ lawyers Simeza Sangwa & Associates, wrote to National Assembly Speaker Dr Patrick Matibini asking him to stop the process of enacting the Bill until the whole matter is determined by the Constitutional Court.
In a letter to Dr Matibini dated August 12, 2019, Simeza Sangwa & Associates requested him to state within seven days whether or not the Bill would continue to be processed by the National Assembly.
“…Mr Speaker, it has always been the tradition of the National Assembly not to debate or discuss matters that are before the Courts of Law. Since the subject of the said Petition is the constitutionality of the decision by the Respondents to amend the Constitution of Zambian in the manner set out in the Constitution of Zambia (Amendment) Bill No. 10 of 2019, is the Honourable Mr Speaker in a position to undertake, in lieu of the Petitioner moving the Constitutional Court for an interim order restraining the National Assembly from considering the said Bill, that the National Assembly will not, while this matter is pending before the Constitutional Court, continue with the legislative process to enact the said Bill into law?” asked Simeza Sangwa & Associates.
But Clerk of National Assembly Doris Kapumba told Simeza Sangwa & Associates that the Bill in question was presented for First Reading on Friday, 2nd August 2019.
She explained that at First Reading Stage, a Bill is introduced in the House by a Minister or a Private Member setting out the objectives of the Bill.
“After a Bill has been read the first time, it stands referred to an appropriate Committee for detailed consideration. In this case, the Honourable Mr Speaker, referred the Bill to a Select Committee comprising fifteen (15) Members of Parliament whose membership is as follows: PF – 6, UPND – 5, MMD – 1, FDD- 1, Independents – 2,” according to the letter dated August 16.
“The Committee, at its first meeting held on 6th August, 2019, identified fifty-six (56) witnesses from a cross-section of society, including religious groupings, political parties, civil society organisations, and professional bodies. The witnesses have since been invited to make submissions to the Committee on the Bill. Additionally, a whole day has been allocated to members of the public to also make submissions on the Bill. You may wish to note that your client, LAZ, is one of the professional bodies invited to make submissions on the Bill and is scheduled to appear before the Committee on Tuesday, 17th September 2019.”
Kapumba stated that once the Committee completes obtaining views from the various stakeholders and members of the public, it will compile a report, which it would present to the House during the Second Reading Stage of the Bill.
“The Second Reading Stage of a Bill is the first main occasion for debate on the Bill. This stage is primarily concerned with discussion of the policy measures contained in the Bill. And also provides an opportunity for debate on the principles of the Bill. The Chairperson of the Committee which considered the Bill is accorded an opportunity to present the Committee’s findings and recommendations on the Bill. These may include recommendations to amend the Bill based on the views of stakeholders. After the debate, the House votes on whether the Bill should be read the second time. A Bill to amend the Constitution requires not less than two-thirds of the votes of all members of the Assembly to pass the Second Reading Stage. Thereafter, the Bill may progress to Committee Stage,” Kapumba explained.
“The objective of the Committee stage is to provide the Committee of the Whole House an opportunity to consider the Bill in detail; clause by clause. Any member with an objection or amendment to any clause may move it during this stage. This stage presents the first opportunity for the Bill to be amended taking into consideration the various views from Members of Parliament and other stakeholders.”
Kapumba stated that the Report Stage was intended to consider the report of the Committee of the whole House on a Bill that was amended during the Committee Stage.
She explained that that only took place if a Bill was amended at Committee stage.
“Further, this stage presents another opportunity for amendments, if any, to be made to the Bill. The purpose of the Third Reading stage is to review the Bill in its final form, including the amendments made to it at earlier stages. In accordance with Article 79 of the Constitution, it is a requirement that a vote is taken for the Bill to be read the Third time. To pass the Third Reading Stage, the Bill must be supported by at least a two-thirds majority vote of all the Members of the Assembly,” Kapumba explained.
“In your letter of even reference you requested the Honourable Mr Speaker to make an undertaking that, in view of the Petition, the National Assembly would not, whilst the matter was pending before the Constitutional Court, continue with the legislative process. I have been directed to advise that the Honourable Mr Speaker is unable to make the undertaking requested on account of the doctrine of exclusive cognizance. The doctrine provides, in essence, that the House enjoys exclusive and unfettered jurisdiction in the conduct of its internal proceedings.”
Kapumba also advised Simeza Sangwa & Associates to note that application of the sub judice rule to the business of the National Assembly is not absolute.
“It has to be decided by the Speaker on the merits of each case. In the circumstances, the Honourable Mr Speaker has elected to exercise his discretion to allow consideration of the Constitution of Zambia (Amendment) Bill, No. 10 of 2019 by the Select Committee, and eventually the House,” stated Kapumba.
Asked on the implications given Parliament’s response, State Counsel Sangwa said, “it’s something that we have to reflect on in view of the fact that the case is in court.”
“So we just have to put on our thinking cap to see what we can do,” he said.
Reminded about the principle of separation of powers of the three arms of government, Sangwa said that was elementary.
“Because I am telling you that you are wrong, so I have gone to court to tell you that you are wrong, if you are so sure, why don’t you say oh okay, I will wait, I am not in a hurry and I know I am right and you are wrong, so let’s leave it to the court to decide; that’s what common sense would dictate, but when you are rushing things you have a problem,” said Sangwa.