Ruling by Hon Madam Speaker - On a Point of Order raised by Hon M Haimbe,Minister of Justice against Ms S Mwamba, MP for Kasama on whether she was in Order to attend the sittings of the House

RULING BY THE HON MADAM SPEAKER ON A POINT OF ORDER RAISED BY HON M HAIMBE, MINISTER OF JUSTICE AGAINST MS S MWAMBA, MEMBER OF PARLIAMENT FOR KASAMA CENTRAL PARLIAMENTARY CONSTITUENCY ON WHETHER SHE WAS IN ORDER TO ATTEND THE SITTINGS OF THE HOUSE IN VIEW OF THE HON MADAM SPEAKER’S RULING OF 7TH DECEMBER, 2021, IN WHICH SHE DETERMINED THAT MEMBERS OF PARLIAMENT WHOSE SEATS WERE NULLIFIED WOULD ONLY RETURN TO THE HOUSE UPON THE CONSTITUTIONAL COURT REVERSING THE DECISION AND ON A POINT OF ORDER RAISED BY MR C ANDELEKI MEMBER OF PARLIAMENT FOR KATOMBOLA PARLIAMENTARY CONSTITUENCY ON WHETHER THE HOUSE WAS IN ORDER TO ALLOW MR K MUKOSA MEMBER OF PARLIAMENT FOR CHINSALI PARLIAMENTARY CONSTITUENCY AND  MR M KAFWAYA MEMBER OF PARLIAMENT FOR LUNTE PARLIAMENTARY CONSTITUENCY TO BE IN THE HOUSE  
 
Hon Members, the House will recall that on Thursday, 24th March, 2022, when the House was considering a Matter of Urgent Public Importance raised byMr J Chibuye, Member of Parliament for Roan Parliamentary Constituency, Hon M Haimbe, MP, Minister of Justice, raised a Point of Order.The gist of his Point of Order was whether Ms S Mwamba, Member of Parliament for Kasama Central Parliamentary Constituency was in order to attend the sittings of the House in view of the Hon Madam Speaker’s ruling of 7th December, 2021, in which she determined that Members of Parliament whose seats were nullified would only return to the House upon the Constitutional Court reversing the decision of the High Court. Hon Members, the following day on Friday, 25th March, 2022, when the House was considering the Ministerial Statement by Hon Dr S Musokotwane, MP, Minister of Finance and National Planning, another Point of Order was raised by Mr C Andeleki, Member of Parliament for Katombola Parliamentary Constituency on whether the House was in order to allow Mr K Mukosa, MP, and Mr M Kafwaya, MP, to be in the House.
In her immediate response to the two Points of Order,the Hon First Deputy Speaker reserved her ruling to effectively study the issuessince they raised a constitutional matter. I have since studied the matter and as the two Points of Order raise the same or similar issues, I have decided to combine them into one ruling.
Hon Members, the two Points Order, raise the issue of the effect of the Constitutional Court judgment in the matter between the Law Association of Zambia v the Attorney-General 2021/CCZ/0051on myRuling delivered on 7th December, 2021, wherein, I determined that Members of Parliament whose seats were nullified would only return to the House upon the Constitutional Court reversing the decision of the High Court.
Hon Members, I will begin by giving a brief background of the two Points of Order. On 7th December, 2021, Idelivered a ruling on the Point of Order raised Dr A Katakwe, Member of Parliament for Solwezi East Parliamentary Constituency, against Mr B C Lusambo, Member of Parliament for Kabushi Parliamentary Constituency, on whether Mr B C Lusambo, MP, was in order to remain in the House following the nullification of his seat by the High Court.
Hon Members, in my ruling, I determined that Mr B C Lusambo, MP was out of order to remain in the House after the nullification of his election by the High Court. 
 
In view of that ruling, I guided that all Members of Parliament whose election was nullified by a decision of the High Court, whether or not such decision has been appealed against, should forthwith not take part in any Parliamentary business. Only those who will be successful in their appeals in the Constitutional Court will be allowed back in the House and take part in Parliamentary Business.   
 
Hon Members, as a result of that ruling, the Law Association of Zambia (LAZ) commenced an action in the Constitutional Court by Origination Summonsin the matter between The Law Association of Zambia v The Attorney-General, 2021/CCZ/0051.In that case, the law Association of Zambia (Applicant) invited the Constitutional Court to determine the following questions:
“1. Whether Article 72 (2) (h) of the Constitution of Zambia is applicable where a seat held by a Member of Parliament becomes vacant after an election has been nullified following the hearing and determination of an election petition in line with Article 73 (1) and (2) of the Constitution of Zambia; 
2. Whether under Article 73 (4) of the Constitution of Zambia a Member of Parliament whose seat has been nullified by the High Court and who has appealed the Constitutional Court against such nullification can continue to hold their seat in the National Assembly pending the outcome of appeal.” 
I will focus on the response to the second question by the Court because it is the one which is relevant to my ruling. In that regard, the Court pointed out, at page J38, of the judgment, as follows:
“The second question is whether Article 73 (4) is applicable to this matter on appeal in this Court. Put differently, does a Member of Parliament whose seat is nullified continue to hold his seat pending determination of the appeal before this Court by virtue of Article 73 (4)? Our answer is in the Affirmative for the reasons given below.
Taking the literal rule of interpretation as argued by the respondent would mean that an appeal to this Court would not forestall a by-election under Article 57 of the Constitution following the nullification of an election petition. In this scenario the possibility would arise of a new Member of Parliament being elected into office while an appeal was pending determination by this Court. This in our view would result in absurdity and cannot be what the framers of the Constitution intended.
Hon Members, further, at J41 to 42, of the judgment, the Court pointed out as follows:
“It is our considered view that Article 73 (4) which provides for the retention of the seat in the National Assembly pending determination of an election petition should also have expressly provided for the retention of the seat pending the determination of an appeal to this Court. We are fortified by the fact that after the High Court nullifies an election there is a decision which can be executed and which may trigger a by-election under Article 57. Hence, the need for the purposive interpretation of Article 73 (4) to apply to the appeal stage. We urge the Legislature to make appropriate amendments to the law to cater for the appeal stage in clear terms.
That said, on a purposive interpretation of Article 73 (3) and (4) read with Articles 128 (1) (d) and 57 of the Constitution, we hold that a Member of Parliament whose election has been nullified by the High Court and appeals to this Court, by operation of the law retains the seat in Parliament pending determination of the appeal.”
As a result of this decision by the Court, Members of Parliament whose seats were nullified by the High Court resumed attending Parliamentary business. It is against this background that the two Points of Order were raised. 
Hon Members, in his Point of Order, Hon M Haimbe, MP, recalled inter-alia, my ruling of 7th December, 2021, that the Members of Parliament, whose seats were nullified by the High Court, were not to attend Parliamentary business until the Constitutional Court reversed that nullification.  He further stated that in view of the fact that my ruling has not been vacated, and in keeping with the doctrine of exclusive cognizance, my ruling remained valid.
Hon Membersprinciple of exclusive cognizance gives Parliament the power to regulate its own internal procedures. This power is provided under Article 77 (1) of the Constitution, and section 34 of the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia.
In that regard, Article 77 (1) of the Constitution provides as follows:
“77. (1) Subject to this Article and Article 78, the National Assembly shall regulate its own procedure and make Standing Orders for the conduct of its business.”
 
Further, section 34 of the National Assembly (Powers and Privileges) Act, provides as follows:
“34. Neither the Assembly, the Speaker nor any officer shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Assembly, the Speaker, or such officer by or under the Constitution, the Standing Orders, and this Act.”
My understanding of the import of Article 77 (1) of the Constitution, as read with section 34 of the National Assembly (Powers and Privileges) Act, is that the National Assembly has power, and jurisdiction to conduct its internal affairs without interference from anybody including the Court. As a matter of fact, the Courts have previously acknowledged the doctrine of exclusive cognizance.
Hon Members, it should, however, be noted that the doctrine of exclusive cognizance does not make my decision or that of the National Assembly beyond the reach of Courts.In that regard, the actions and decisions of the National Assembly, as well as that of the Speaker and other presiding officers, are subject to judicial review.  However, it should be noted thatjudicial review is only exercisable after the National Assembly or the Speaker or other Presiding officers have performed a function or exercised a power in question. 
Hon Members, let me now address concerns raised by Mr C Andeleki, MP’s Point of Order and also the relevant portion of the judgment where the Court asked itself a question. The question the Court asked itself is: does a Member of Parliament whose seat is nullified continue to hold his seat pending determination of the appeal before the Constitutional Court by virtue of Article 73 (4)?
Hon Members, the Court’s response to the question I have just highlighted was in the affirmative. In that regard, the Court pointed out that taking the literal rule of interpretation as argued by the respondent would mean that an appeal to this Court would not forestall a by-election under Article 57 of the Constitution following the nullification of an election petition. In this scenario, the possibility would arise of a new Member of Parliament being elected into office while an appeal was pending determination by this Court. This, in the Court’s view would result in absurdity and cannot be what the framers of the Constitution intended. The Court therefore, resorted to purposive interpretation of Article 73 (4) in addressing the question posed by the applicant.
 
Hon Members, the Court further pointed out,at J40 to 42, as follows:
“Article 73 (4) clearly does not in literal sense state what becomes of a parliamentary seat whilst a matter is before this Court on appeal…. Article 73 (4) should be read in light of provisions of Articles 73 (3), 57 and 128 (1) (d) of the Constitution. This is to ensure that Article73 (3) is made effectual and not rendered nugatory where a by-election may follow a nullification by the High Court while the appeal is pending before this Court and which appeal may result in setting aside the decision of the High Court.
It is our considered view that Article 73 (4) which provides for the retention of a seat in the National Assembly pending determination of an election petition should also have expressly provided for the retention of the seat pending the determination of an appeal to this Court. We are fortified by the fact that after the High Court nullifies an election, there is a decision which can be executed and which may trigger a by-election under Article 57. Hence, the need for purposive interpretation of Article 73 (4) to apply to appeal stage. We urge the legislature to make appropriate amendments to the law to cater for the appeal stage in clear terms.
That said, on a purposive interpretation of Article 73 (3) and (4) read with Articles 128 (1) (d) and 57 of the Constitution, we hold that a Member of Parliament whose election has been nullified by the High Court and appeals to this Court, by operation of the law retains the seat in Parliament pending the determination of the appeal.”
Hon Members, as you are aware, Zambia has embraced constitutional democracy and, therefore, subscribes to the concept of constitutional supremacy and not parliamentary supremacy. As a result, the country has also embraced the doctrine of separation of powers.  This doctrine has been formulated to prevent abuse of power. It is argued that political liberty is to be found only when there is no abuse of power by those in authority. Therefore, in order to prevent this abuse, it is necessary the functions of government, namely, the formulation, application and enforcement of the law are kept separate and performed by three organs of the state independent of each other. 
Hon Members, running side-by-side with the doctrine of separation of powers is the concept of checks and balances. Checks and balances, loosely put, is a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power. For that reason, the Judiciary has inherent power to check and veto parliamentary excesses.Likewise, Parliament has the power to check and veto judicial excesses.
Hon Members, under the doctrine of separation of powers, the function of making or enacting laws is an exclusive role of the legislature. Whereas, the function of interpreting the law is the preserve of the judiciary, and in interpreting the law, the courts usually apply canons of statutory interpretation to arrive at a logical and just position in determining the question before the courts.  In this vein, the canon of statutory interpretation used by the courts is the purposive approach. This approach, however, does not give the courts the latitude to assume the functions of the legislature.The purposive approach should not be applied in gross, but within the limited permissible parameters.
Thus, in the case of Sri Ram Saha v State of West Bengal and Others, Civil Appeal No. 5110 of 1999, the Supreme Court of India held as follows:
“It is well-settled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object and purpose of enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment is brought into force. If two interpretations are possible, the one which promotes or favours the object of the Act and purpose it serves, is to be preferred.At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute.A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the Act but the courts cannot legislate and enact the provision either by creating or taking away substantial rights by stretching or straining a piece of legislation.” 
 
In deciding the Sri Ram Saha case, the Supreme Court of India referred to it previous decision in Prem Nath L Ganesh v Prem Nath, L. Ram Nath, AIR1963 Punj 62. At paragraph 23, the judgment reads as follows:
“We have said enough and we may say it again that where the legislature clearly declares its intent in the scheme and language of a statute, it is the duty of the court to give full effect to the same without scanning its wisdom or policy, and without engrafting, adding or implying anything which is not congenial to or consistent with such expressed intent of the law-giver.” 
Hon Members, in view of the foregoing, I am of the considered view that the Constitutional Court stretched the purposive interpretation approach beyond the permissible parameters when it held that a Member of Parliament whose election has been nullified by the high Court and appeals to the Constitutional Court, by operation of the law retains the seat in Parliament pending determination of the appeal. 
As has been noted by the Court itself at page J 41, Article 73 (4) which provides for the retention of a seat in the National Assembly pending the determination of an election petition does not apply to the appeal stage. If the legislature intended that a Member whose seat has been nullified by the High Court should retain his or her seat pending determination of the appeal before the Constitutional Court, it would have expressly provided for that. In that regard, to hold in the manner the Court decided, clearly, amounts to legislating from the Bench. This practice is not only detested but also frowned upon because the Courts have no constitutional mandate to legislate.Legislating is a preserve of Parliament and the Courts should stay away from the temptation of assuming this role.
 
Hon Members, be that as it may, the decision of the Court in the Law Association of Zambia v the Attorney-General, 2021/CCZ/0051, is binding on me and the National Assembly. In that regard, by virtue of that decision, the Members of Parliament whose seats have been nullified by the High Court and have appealed to the Constitutional Court shall, be allowed to take part in Parliamentary business.
 
I THANK YOU.
 
 
Ruling Date: 
Tuesday, September 20, 2022