ATTORNEY General Mulilo Kabesha has observed that the constitution in its entirety has missing parts, as Article 72 is silent on cases where the High Court nullifies an election and there is no appeal pending before the Constitutional Court.
Kabesha says the Constitution has not clearly or indirectly authorized a person whose seat has been nullified by the High Court to hold on to the seat pending determination of their appeal against the High Court’s decision.
This is according to the state’s list of authorities and skeleton arguments.
In this matter, the Law Association of Zambia (LAZ) has asked the Constitutional Court to interpret provisions of the Constitution which Speaker of the National Assembly Nelly Mutti used to stop nine PF MPs whose election was declared not valid by the High Court, from attending Parliament proceedings.
The Attorney General stated that the nine former PF members of parliament did not obtain a stay of execution of the High Court’s judgment to declare their election void and the Speaker of the National Assembly was lenient on them by not invoking Article 72(8) of the Constitution declaring their seats vacant but instead she directed them not to attend parliamentary sittings and draw allowances until their appeals were determined by the Constitutional Court.
“It is our submission that article 72 of the Constitution is the only provision that speaks to instances when a Parliamentary seat can be declared vacant and none of the permissible provisions include the curious and topical case where the High Court has nullified an election of an MP pursuant to Article 73(1) and (2) of the Constitution,” Kabesha said.
“We therefore note that there is a lacuna in the entire constitution in general and article 72 in particular is very silent in instances when the High Court nullifies an election, particularly where there is no appeal pending before the Constitutional Court.”
Kabesha said in line with Article 73(4) of the Constitution, a member of parliament can only hold on to the seat when their election is petitioned and awaiting determination.
“We submit that the privilege to hold a parliamentary seat comes to an end when the High Court has nullified the election of a member of parliament, more so the law is the same even where there is an appeal lodged in the Constitutional Court given that the High Court judgment takes effect immediately after pronouncement unless and until it is stayed by the court itself or the Constitutional Court,” the Attorney General said.
“The combined effect of Article 72(2) (H), article 72 (8) and articles 73(4) of the Constitution, Section 108(4) of the Electoral Process Act and order XI Rule 7 of the Constitutional Court Rules SI No.37 of 2016 entails that the members of parliament who have had their seats nullified by the High Court can neither continue to sit in the National Assembly nor continue attending sittings since their election has been nullified by court of competent jurisdiction.”
Kabesha indicated that it is the duty of Lunte member of parliament Mutotwe Kafwaya and his colleagues to obtain a stay of the High Court judgments nullifying their seats failure to which Speaker Mutti had the right to declare their seats vacant under Section 108(4) of the Electoral Process Act.
“This places an urgent burden on the affected MPs to apply for a stay of the impugned judgments in default of which the Speaker is at liberty to invoke section 108(4) of the Electoral Process Act to declare the seats vacant. Luckily for the affected MPs, this she did not do,” submitted Kabesha.
The State suggested that LAZ should have either joined the case in which Governance Elections Advocacy Research Services (GEARS) Initiative Zambia had petitioned Bowman Lusambo and eight others for impersonating as members of parliament, or requested that the two matters be consolidated.
It expressed concern that there were several court cases relating to the same matter and there was a danger of having conflicting judgments on the matter.