RULING BY THE HON MADAM SPEAKER ON A POINT OF ORDER RAISED ON TUESDAY, 15TH OCTOBER, 2024, BY DR C ANDELEKI, MEMBER OF PARLIAMENT FOR KATOMBOLA CONSTITUENCY ON THE STATUS OF MR J E BANDA, MEMBER OF PARLIAMENT FOR PETAUKE CENTRAL CONSTITUENCY, FOLLOWING HIS ABSENCE FROM THE HOUSE AFTER HIS DISAPPEARANCE FROM CHIPATA CENTRAL HOSPITAL

 

Hon Members will recall that on Tuesday, 15th October, 2024, Dr C Andeleki, Member of Parliament for Katombola Constituency, raised a Point of Order. The Point of Order was premised on Article 72 (2) (c) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia, which provides for the vacation of Office as a Member of Parliament where a Member acts contrary to a prescribed code of conduct.

In his Point of Order, Dr C Andeleki, MP, stated that Mr J E Banda, Member of Parliament for Petauke Central Constituency, disappeared from Chipata Central Hospital on Thursday, 20th June, 2024, following his charge for Aggravated Robbery and Attempted Murder. In this regard, Dr C Andeleki, MP, enquired whether Mr J E Banda, MP, was still a Member of Parliament within the definition of section 2 of the National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia, given that he had not appeared in the House since 20th June, 2024.

The Hon Madam First Deputy Speaker rendered a ruling on Tuesday 5th November, 2024, wherein she referred the matter to Committee on Privileges and Absences for determination and for the Committee to make appropriate recommendations by Friday, 15th November, 2024. This decision was premised on Standing Order 223 (1) of the National Assembly of Zambia Standing Orders, 2024, on a Member’s failure to attend sittings which provides that-

“223. (1) If, during a Session, a Member is absent for four or more consecutive Sittings of the Assembly without permission, in writing, from the Government Chief Whip or the Speaker, the matter shall stand referred to the Committee on Privileges and Absences for hearing and determination.”

Therefore, in line with parliamentary practice and procedure, and in accordance with the rules of natural justice, on Wednesday, 6th November, 2024, the Office of the Clerk wrote to Hon J J Mwiimbu, MP, Minister of Home Affairs and Internal Security, and Hon S Mulusa, MP, Government Chief Whip, to state what they know about the absence of Mr J E Banda, MP, since Thursday, 20th June, 2024. 

 

Additionally, on Monday, 11th November, 2024, the Office of the Clerk wrote to Dr C Andeleki, MP, to ask him what he knows about Mr J E Banda, MP’s, absence. However, Mr J E Banda, MP, was not written to since his whereabouts were unknown.

 

The responses from the witnesses are summarised below.

 

(i) DR C ANDELEKI, MP

Dr C Andeleki, MP, in his letter of response dated 12th November, 2024, indicated that he was aware that Mr J E Banda, MP, was arrested on 20th June, 2024, for the offence of Aggravated Robbery and Attempted Murder. He stated that in August, 2024, Hon J J Mwiimbu, MP, Minister of Home Affairs and Internal Security, informed the country of the escape of Mr J E Banda, MP, from Chipata Central Hospital where he was receiving medical attention. He further indicated that since his disappearance, Mr J E Banda, MP, had not attended sittings of the House contrary to Standing Order 223 of the National Assembly of Zambia Standing Orders, 2024. Lastly, he pointed out that the continued absence of Mr J E Banda, MP, was a breach of the code of conduct for Members, as such, a vacancy had occurred as per the provisions of Article 72 (2) (c) of the Constitution.

 

(ii) HON S MULUSA, MP

In his response letter dated Tuesday, 12th November, 2024, Hon S Mulusa, MP, Government Chief Whip, stated that Mr J E Banda, MP, did not seek permission from his office for his absence. He also indicated that he did not know Mr J E Banda, MP’s, whereabouts.

 

(iii) HON J J MWIIMBU, MP

In a status report dated 11th November, 2024, Hon JJ Mwiimbu, MP, explained that on Sunday, 30th June, 2024, Mr J E Banda, MP, was arrested by the Zambia Police Service for an alleged aggravated robbery dating back to 14th December 2015, in Vubwi District. He indicated that Mr J E Banda, MP, was subsequently committed to the High Court for trial on 19th July, 2024, by the Chipata Magistrate Court and remanded at Namuseche Correctional Facility.  

He added that on Thursday, 1st August, 2024, Mr J E Banda, MP, fell ill and was taken to Chipata Central Hospital for treatment. Subsequently, three (3) correctional Service Officers and two (2) Zambia Police Officers were assigned to guard him. However, on Sunday, 4th August, 2024, between 21:00 and 22:00 hours, Mr J E Banda, MP, escaped through a hospital window despite being under a five (5) officer guard team. Hon J J Mwiimbu, MP, explained that this occurred when Mr J E Banda, MP’s wife, requested privacy for him to undergo a routine treatment for his ailment. 

Further, he stated that investigations were ongoing to determine his whereabouts, including a manhunt, witness interviews, and an internal review of the officers' actions during the escape.

Hon Members, Dr C Andeleki, MP's, Point of Order raises the issue of vacation of Office as a Member of Parliament where a Member acts contrary to a prescribed code of conduct.

 Hon Members, Article 77(1) of the Constitution confers on the National Assembly, the power to regulate its own procedure and make Standing Orders for the conduct of its business. It states as follows:

“(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.”

Additionally, Article 72 (2) (c) of the Constitution provides as follows:

“(2) The Office of a Member becomes vacant if the member-

(a) …

(b) …

(c) acts contrary to a prescribed code of conduct.”

Further, Standing Order 243 of the National Assembly of Zambia Standing Orders, 2024, requires Members to seek permission to be absent and provides as follows:

“243. Permission to be Absent 

(1) A Member seeking to be absent from a Sitting of the House shall seek written permission of the Government Chief Whip or the Speaker in such form as the Speaker may determine, stating the period of absence, the reasons and any other relevant information.

(2) The Government Chief Whip shall keep custody of requests for permission and may not disclose the information to third parties without the written consent of the Speaker.”

In addition, Standing Order 223 of the National Assembly of Zambia Standing Orders, 2024, on a Member’s failure to attend sittings provides that- 

“223. (1) If, during a Session, a Member is absent for four or more consecutive Sittings of the Assembly without permission, in writing, from the Government Chief Whip or the Speaker, the matter shall stand referred to the Committee on Privileges and Absences for hearing and determination.

(2) If the committee finds that the Member has offered a satisfactory explanation for the Member's absence from Sittings of the Assembly, there shall be no further proceedings on the matter.

(3) If the committee finds that the Member has not offered a satisfactory explanation for the member's absence from Sittings of the Assembly, the committee shall, through the Speaker, report to the House recommending appropriate action to be taken against the member.”

Furthermore, eminent authors on parliamentary practice and procedure, M N Kaul and S L Shakdher, in their book entitled Practice and Procedure of Parliament, Seventh Edition, (New Delhi, Lok Sabha, 2016) on page 425, have this to say:

“Each constituency expects that the member it elects will take his seat in the Lok Sabha and attend the sittings of the House, except when it is necessary for him to remain absent on account of unavoidable reasons. It is the right of the Lok Sabha to receive from him an account as to why he was absent. The duty of members to the House is paramount and they are expected to remain absent from the sittings thereof only when there are compelling reasons for doing so.”  

 

From the above authorities, it is evident that a Parliamentary seat is rendered vacant when a Member acts contrary to a prescribed code of conduct. In casu, the prescribed code of conduct alleged to have been breached is Standing Order 243 of the National Assembly of Zambia Standing Orders, 2024, on a Member's requirement to seek permission from the relevant authorities.

 

Hon Members, the Committee met on Wednesday, 13th November, 2024, to deliberate on this matter. Three witnesses, Hon J J Mwiimbu, MP, Minister of Home Affairs and Internal Security, Mr S Mulusa, MP, Government Chief Whip, and Dr C Andeleki, MP, appeared before the Committee to make oral submissions. Their submissions are as set out below.

(i) DR C ANDELEKI, MP

Dr C Andeleki, MP, relied on his written submission. In summary, he stated that Mr J E Banda, MP, had been absent from the sittings of the House since 20th June, 2024, prompting him to raise a Point of Order. He indicated that Mr J E Banda, MP’s, continued absence breached Standing Order 223 of the National Assembly of Zambia Standing Orders, 2024, and was deemed to have vacated his seat under Article 72 (2) (c) of the Constitution.

 

(ii) HON S MULUSA, MP

Hon S Mulusa, MP, reiterated that Mr J E Banda, MP, did not seek permission from his office for his absence.  He added that he was not in receipt of information on Mr J E Banda, MP, from his proxy or family member, as such, he did not know Mr J E Banda, MP’s, whereabouts. When asked why his Office did not deal with the matter expeditiously, Hon S Mulusa, MP, stated that the matter involving Mr J E Banda, MP, was criminal in nature and that he was under lawful custody until his escape. In this regard, his Office could not intervene.

(iii) HON J J MWIIMBU, MP

Hon J J Mwiimbu, MP, reiterated what he stated in his written submission. However, he expressed hope of locating Mr J E Banda, MP, in due course. 

Hon Members, in its deliberations, the Committee noted that if Mr J E Banda, MP, was found to have been absent without permission, the Committee could not impose penalties under Standing Order 223 (4)  of the National Assembly Standing Orders, 2024, due to his unknown whereabouts and inability to appear before it. Therefore, in dealing with this matter, the Committee observed that it had the following recommendation options:

(i) for the Office of the Speaker to instruct the Attorney-General to commence legal action in the Constitutional Court to have the Petauke Central Parliamentary seat declared vacant for breach of a prescribed code of conduct as provided under Article 72 (2) (c) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia; or

(ii) for the Member to be given seven (7) days within which to attend the business of the House, failure to which the Hon Madam Speaker should invoke Article 72 (8) of the Constitution by informing the Electoral Commission of Zambia of the occurrence of a vacancy in the Petauke Central Parliamentary seat.

Hon Members, after considering the written and oral submissions from the witnesses, the Committee observed as follows:

(i) that Mr J E Banda, MP, had been absent without permission since 4th August, 2024;

(ii) that his absence without permission breached the prescribed code of conduct, that is, Standing Order 243 of the National Assembly of Zambia Standing Orders, 2024;

(iii) that the Petauke Central constituents had been unrepresented since June, 2024, thus, it was in the constituents’ best interest to have representation in the Assembly; 

(iv) that due to Mr J E Banda, MP's unknown whereabouts, pursuing legal action through the Attorney-General was impractical as the rules of natural justice would not be attained; and

(v) that in line with the rules of natural justice, it was important for Mr J E Banda, MP, to be accorded an opportunity to attend the sittings of the House, failure to which the Hon Madam Speaker should invoke Article 72 (8) of the Constitution.

In view of the foregoing, and in line with parliamentary practice and procedure, and in accordance with the rules of natural justice, the Committee unanimously resolved to recommend that Mr J E Banda, MP, be given seven (7) days within which to attend the business of the House, failing which my Office should invoke Article 72 (8) of the Constitution by informing the Electoral Commission of Zambia of the occurrence of a vacancy in the Petauke Central Parliamentary seat.  

Hon Members, I have considered the recommendations of the Committee. I note, however, that there is no legal requirement for the House to pass a resolution to endorse the recommendations of the Committee. Nonetheless, due to the peculiar circumstances and gravity of this matter, there is need for this House to pass a resolution on the course of action to be taken against Mr J E Banda, MP.

I now put the Question: The Question is, that Mr J E Banda, MP, be given seven (7) days within which to attend the business of the House, failing which my Office should invoke Article 72 (8) of the Constitution by informing the Electoral Commission of Zambia of the occurrence of a vacancy in the Petauke Central Parliamentary seat. 

As many as are of that opinion say ‘Aye’;

(Pause)

Of the contrary say ‘No’;

SCENARIO 1

I think the ‘Ayes’ have it. [Pause]. The ‘Ayes’ have it. The question is resolved in the affirmative.

I will now proceed to address Mr J E Banda, MP, in absentia. Mr J E Banda, MP, you have seven (7) days from today, Tuesday, 19th November, 2024, to Tuesday, 26th November, 2024, within which to attend the business of the House. Should you fail to attend the business of the House within this period, I shall in line with Article 72 (8) of the Constitution proceed to inform the Electoral Commission of Zambia of the occurrence of a vacancy in the Petauke Central Parliamentary seat.

SCENARIO 2

I think the ‘Noes’ have it. [pause]. The ‘Noes’ have it. The question is negatived. 

 

I THANK YOU.