MAZABUAKA Central UPND member of parliament Gary Nkombo has requested Speaker of the National Assembly Patrick Matibini to restore to the Order Paper the motion to impeach President Edgar Lungu.
Nkombo premised his request on recent developments and the Speaker’s own rulings that emphasised the doctrine of exclusive cognisance.
Nkombo moved the motion to impeach President Lungu on March 22, 2018, which was seconded by Chishimba Kambwili, who was then Roan PF member of parliament.
Nkombo and Kambwili garnered the required threshold of one third of the members of parliament for purposes of moving an impeachment motion pursuant to Article 108 of the Constitution of Zambia (Amendment) Act No. 2 of 2016.
In his letter dated November 18, 2020, which the Speaker has acknowledged receipt, Nkombo informed him that the First Deputy Speaker, Catherine Namugala, subsequently confirmed to the House that the motion was compliant in terms of the established practice and procedure of the House.
He explained that before consideration and debate of the motion could ensue, it was brought to the Speaker’s attention that Robert Chabinga and Henry Mulenga had taken out judicial review proceedings in the High Court against the Attorney General in which they purportedly challenged his decision to allow the tabling of the motion.
He explained that among the grounds upon which judicial review was sought was, among others, the fact that some grounds of the motion were allegedly the subject of proceedings in the Constitutional Court of Zambia under cause numbers 2016/CCZ/0033 and 2017/CCZ/004 and therefore allowing the same to be tabled and debated in the House would be prejudicial to the Constitutional Court proceedings.
“Accordingly, Mr Speaker Sir, and I as confirmed by you in your ruling dated 24th June 2020 on a point of order raised by me on 18th March 2020, the motion has never been debated by the House because it ‘became subjudice the moment Mr Robert Chabinga and Mr Henry Mulenga commenced court action to challenge the ruling of the Hon. First Deputy Speaker that the Impeachment Motion complied with the relevant Constitutional provisions’,” Nkombo reminded the Speaker. “It is against this background that I write, in view of recent events and the guidance from you, sir, as set out in your ruling of 24th June 2020 aforementioned, to request that the motion be restored to the Order Paper for consideration and debate by the House.”
Nkombo told Dr Matibini that in his ruling of June 24, 2020, he guided on the import of the doctrine of exclusive cognisance which underscores the sovereignty of Parliament on matters of practice and procedure, save where there was an alleged breach of the Constitution; and the applicability of the subjudice rule.
“Your ruling was clear that the application of the subjudice rule is a self-imposed convention which is applied where there is a real or substantial danger of prejudice to Court proceedings; that the determination of the subjudice convention is the preserve of your discretion, meaning that the you, Mr Speaker, can set it aside depending on the merits of each case; and that Parliament is not debarred from discussing urgent matters of public importance on account of the rule, per se,” Nkombo said. “Another recent occurrence which is of critical importance is the holding of the Court of Appeal of Zambia in the case of Jack Jacob Mwiimbu Vs the Attorney General – CAZ08/271/2020, which is a case in which the Applicant, Honourable J.J. Mwiimbu, sought to halt the House proceeding with the debate on National Assembly Bill No. 10 of 2019 by way of judicial review proceedings on grounds of alleged breach of parliamentary practice and proceedings in the manner in which the bill was restored to the Order Paper.
“In that case, Honourable Mwiimbu, the applicant, was denied leave to commence judicial review proceedings by the High Court on the ground, inter alia, that granting leave would violate the doctrine of exclusive cognisance as the matters he was seeking judicial review in respect of were of an internal nature and hinged on the rules of practice and procedure of the National Assembly, rather than on an alleged breach of the Constitution.”
Nkombo said upon application for leave being renewed in the Court of Appeal, that court upheld the lower court’s decision and emphasised that the High Court was devoid of jurisdiction to entertain judicial review proceedings which were caught under the doctrine of exclusive cognisance.
“Sir, you will note that in so far as the nature of the proceedings is concerned, the case of Chabinga and Mulenga Vs the Attorney General (2018/HP/0650) is on all fours with that of Jack Mwiimbu Vs the Attorney General (CAZ/08/271/2020),” Nkombo said. “It thus follows that, in view of the Court of Appeal’s ruling to the effect that the High Court does not have any jurisdiction to entertain judicial review proceedings of the nature of those which comprise the Chabinga case, then those proceedings are rendered otiose, at least from the perspective of the suspended consideration of the Motion by the House.”
Nkombo urged the Speaker to take judicial notice of the fact that the proceedings in the Constitutional Court on which the objection in the Chabinga case to the tabling of the motion was founded had been concluded and that the Constitutional Court made no finding or determination in either of those cases on the matters that were subject of the motion.
He requested the Speaker to restore the motion to impeach President Edgar Chagwa Lungu to the order paper.
“It is against the foregoing backdrop that I, as mover of the motion, request that it be restored to the order paper since the High Court proceedings in respect of which consideration and debate of the motion was suspended are not tenable at law and as such there is no reason for you, Mr Speaker, to apply the subjudice rule in respect of the said proceedings any longer,” Nkombo said.
“Indeed going by your recent ruling Sir, and given the serious public nature of the impeachment proceedings, I, humbly, implore you to exercise your discretion judiciously as no prejudice can arise from your doing so.”
Nkombo told Dr Matibini that conversely, public perception favours a fair and even handed application of the principles that he had set out in the past.
“Should need arise, the seconder of the motion [Kambwili] can be replaced so as to ensure procedural propriety,” said Nkombo. “Your urgent consideration of this request is humbly sought, Sir, in view of the seriousness of the matter at hand. I remain humbly in the service of the people of Zambia.”