LAW Association of Zambia counsel John Sangwa has warned Speaker of the National Assembly Dr Patrick Matibini and members of parliament that they will be committing contempt of court should they consider Bill 10 currently before the House.
And UPND leader Hakainde Hichilema has asked Dr Matibini to rescind his position to proceed to deliberate on the Constitution (Amendment) Bill no. 10 of 2019 and allow the Constitutional Court to determine the constitutionality of the bill before the House discusses the issue any further.
Dr Matibini advised that he was unable stop proceedings of the House over Bill 10 as requested on account of the doctrine of exclusive cognisance.
“The doctrine provides, in essence, that the House enjoys exclusive and unfettered jurisdiction in the conduct of its internal proceedings,” according to a letter to Simeza, Sangwa & Associates, from Clerk of the National Assembly Doris Kapumba.
Kapumba also advised that the Speaker was unable to make the undertaking requested on account of the doctrine of exclusive cognisance, which provides, in essence, that the House enjoys exclusive and unfettered jurisdiction in the conduct of its internal proceedings.
She 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.
But in a letter to the Speaker dated August 21, 2019, State Counsel Sangwa, a constitutional lawyer and law lecturer, said the supremacy clause in Article 1(1) of the Constitution was not an embellishment to the Constitution.
“It means something and has repercussions. The Constitution of Zambia is and has always been the supreme law of the Republic of Zambia. Mr Speaker, the office of Speaker of the National Assembly, and the National Assembly itself are creations of the Constitution, therefore, they are both subject to the Constitution,” Sangwa warned.
“Secondly, unless it is the intention of the National Assembly to push the Constitution of Zambia (Amendment) Bill number 10 of 2019, through the stages outlined in your letter without debate or consideration of the ramifications of its various provisions, both you Mr Speaker and the rest of the members of the National Assembly will be in contempt of court. Thirdly, equally self-evident is the fact that the proviso to Article 18 (8) of the Constitution, which recognizes the right of any court of record to punish “any person for contempt of itself not withstanding that the act or omission constituting the contempt is not defined in written law and the penalty therefore is not so prescribed,” is not a hollow provision.”
Meanwhile, Hichilema told Dr Matibini that he was compelled to reply to his letter to Simeza Sangwa and Associates on account of his right and obligation as a citizen to defend the Constitution of Zambia and promote its ideals and objectives.
“For the reasons that I tabulate below, I believe that the arguments you have advanced in the stated letter are based on complete misunderstanding and are in disregard of constitutional provisions and principles,” Hichilema said, noting that the Speaker in his letter raised two main points on which he based his refusal to suspend the legislative process in the National Assembly pending the determination of the matter in the Constitutional Court.
“…In that letter, you argued that ‘the House (National Assembly) enjoys exclusive and unfettered jurisdiction in the conduct of its internal proceedings.’ Related to this, your second argument asserts that the ‘application of the sub judice rule to the business of the House is not absolute. It has to be decided by the Speaker on the merits of each case’,” he noted. “You did not cite any constitutional provisions to support the above claims, save for a narrative of the process followed when enacting legislation. As you have not cited any constitutional provisions that support your arguments, I have taken the liberty to search the Constitution of Zambia to assess the validity of your propositions. Your interpretation and purported application of the above principles is flawed on two grounds.”
Hichilema told the Speaker that the doctrine of exclusive cognisance was not constitutional, but that it merely affords Parliament privileges and immunity relating to its internal rules and operations, provided that these were exercised within the parameters of the Constitution.
He explained that it was a principle that applies to the United Kingdom where, because the country does not have a written constitution, Parliament was supreme.
“In Zambia, however, the situation is completely different. All institutions including Parliament are creatures of the Constitution and are amenable to it. The law-making function of Parliament is a constitutional and public function, which cannot possibly fall within your narrow construction of what you term ‘internal proceedings’ of the House,” Hichilema said.
“Secondly and related to this, your claim that the sub judice rule is not absolute and depends on your discretion based on the merits of each case is grossly flawed as that would amount to your usurping a constitutional power, namely, judicial authority, which is lawfully allocated to the Judiciary and in this case the Constitutional Court.”
Hichilema said any other interpretation would be contrary to the Constitution and its values and principles expressed in the following Articles of the Constitution of Zambia: (i) “Zambia is a constitutional democracy with a written and supreme Constitution that binds all persons, state organs and state institutions as stated in Article 1(3), which states that the Constitution binds ‘all persons in Zambia, State Organs and State Institutions.’ The Legislature is a state organ according to Article 266 of the Constitution.
(ii) Zambia being a constitutional democracy with a supreme written Constitution, Parliament does not enjoy unfettered jurisdiction in its exercise of constitutional functions. This is expressly stated in Article 267(4) which provides that: ‘a provision of this Constitution to the effect that a person, an authority or institution is not subject to the direction or control of a person or authority in the performance of a function, does not preclude a court from exercising jurisdiction in relation to a question whether that person, authority or institution has performed the function in accordance with this Constitution or other laws.”
“This provision clearly shows that the National Assembly, a state organ, is bound by the Constitution and subject to the jurisdiction of the court, which has the authority to question whether the House is performing its functions in accordance with the Constitution. The principle of exclusive cognizance is therefore subordinate to this express constitutional provision.”
Hichilema told Dr Matibini that the Constitutional Court had exclusive jurisdiction to hear and determine matters relating to and in respect of the Constitution as provided by Articles 1(5) and 119(2) (b) and matter relating to the interpretation, violation or contravention of the Constitution as stated by Article 128(a) and (b).
He said the Constitutional Court in exercising that constitutional function also retains implied power to stop proceedings of the House through the application of the sub judice rule to enable the court to enforce its judicial authority as provided by Article 271 of the Constitution of Zambia, which states that ‘in this Constitution, a power given to a person or an authority to do or enforce the doing of an act, included the necessary and ancillary powers to enable that person or authority to do or enforce the doing of the act.’
“The Speaker of the National Assembly therefore has no authority to decide on the applicability of the sub judice principle on the merits of the case. The authority to interpret the Constitution or to determine whether the National Assembly is exercising its power in accordance with the Constitution, which the petition in question seeks to determine, vests exclusively with the Constitutional Court as per Articles 128 as read together with Articles 119(2)(b) and 271 of the Constitution of Zambia,” Hichilema said.
“Given the foregoing, I entreat you to rescind your position and allow the courts to determine the constitutionality of the published Bill before the House discusses the issue any further.”
Hichilema noted that the Clerk of the National Assembly, in the reply to Messrs Simeza Sangwa & Associates, curiously went out of her way to outline the well-known steps of law-making, from first reading to presidential assent.
He said there were two considerations that came to mind when he read the Clerk’s response to questions that were not asked of her.
“The first consideration was that the Clerk may have been trying to influence the outcome of the Law Association of Zambia V The President of the Republic of Zambia, The Attorney General and the National Assembly case which is currently before the Constitutional Court,” Hichilema said.
“In essence, it was being suggested that no person or authority can challenge Parliament’s right to make laws and that those who seek to do so should wait until after a proposed law has been signed by the President – in short until after the entire process of law-making has been completed. Let me demonstrate the absurdity of this thinking with an illustration. The Constitution places an obligation on me, a citizen, to defend and uphold it. If I notice that Parliament is in the process of illegally abrogating the Constitution, I have the duty to petition the courts to seek the termination of such a proposed constitutional amendment law even if it is simply a Bill.”
Hichilema argued that if the argument was that a person should wait until the said Bill has been passed by Parliament before challenging it, then a corollary question arises: “what would stop the President from immediately signing the same proposed law before anyone has the opportunity to challenge its constitutionality in court?”
He wondered what would also stop someone from arguing that such a law that awaits presidential assent could not be challenged in court since it was incomplete.
“Or that once the President has signed the proposed Constitutional Amendment Bill, no one can challenge the unconstitutionality of what would then be the Constitution itself? Are you seeing the absurdity of thinking that simply because a proposed law is at the stage of a Bill, then it would be premature to challenge it as the Constitutional Court can only pronounce itself on the interpretation of the already existing constitutional provisions?” he asked.
“Sir, a proposed law can be challenged at any stage of its development. Even if the President signs the Constitutional Amendment Bill and the new law comes into being, it could still be challenged under the substantial certainty doctrine, in line with the Law Association of Zambia V The President of the Republic of Zambia, The Attorney General and the National Assembly petition.”
Hichilema told Dr Matibini that as a lawyer, he was familiar with the instructive case of Indira Nehru Gandhi v Shri Raj Narain & Anr (1975) in which she had bullied Parliament into amending the Constitution to divest courts of jurisdiction while her election was being challenged (the High Court had already nullified her election and she had subsequently appealed).
“The Supreme Court of India nullified the Constitutional Amendment that she signed into law, demonstrating that the power of Parliament is not limitless, that it must at all times be exercised within the bounds of the Constitution, that it is possible for one or two new Articles of the Constitution to be unconstitutional and void,” Hichilema said.
“The second consideration that came to mind when reading the letter from the Clerk is that it raises serious questions about why you have not tabled before Parliament the motion that seeks to impeach Mr Edgar Lungu, one that was moved by MPs a few months ago, over a number of constitutional breaches. I believe you do not need any reminder or context on this matter. May I please seek an explanation from you on why you have not tabled the impeachment motion to date if the ongoing court processes do not bind Parliament over the same matter? If the argument is that even for matters that are before court, the Speaker has the right to decide which among such cases can be discussed in Parliament and which ones cannot be discussed, may I request you to cite the legal basis of your position?”
Hichilema requested a response in seven working days.
“Yours in the service and defence of the Constitution of Zambia,” said Hichilema.