RULING BY THE HON MR SPEAKER ON POINTS OF ORDER RAISED BY THE MINISTER OF HOME AFFAIRS, HON D MWILA, MP, MR J J MWIIMBU, MEMBER OF PARLIAMENT FOR MONZE CENTRAL PARLIAMENTARY CONSTITUENCY, AND THE DEPUTY MINISTER FOR LUSAKA PROVINCE, HON O MWALITETA, MP, AGAINST MR G B MWAMBA, MEMBER OF PARLIAMENT FOR KASAMA CENTRAL PARLIAMENTARY CONSTITUENCY, HON MEMBERS OF PARLIAMENT BELONGING TO THE UPND WHO ARE SERVING AS DEPUTY MINISTERS UNDER THE PF GOVERNMENT, AND MR P MUCHELEKA, AN INDEPENDENT MEMBER OF PARLIAMENT FOR LUBANSENSHI PARLIAMENTARY CONSTITUENCY, RESPECTIVELY.
Hon Members will recall that on Wednesday, 22nd July, 2015, when the House was considering Question for Oral Answer No. 668 on the Order Paper, and Hon Members were asking follow-up questions, three Points of Order were raised as follows:
(i) the Minister of Home Affairs, Hon D Mwila, MP, asked whether the Hon Member of Parliament for Kasama Central Parliamentary Constituency, Mr G B Mwamba, MP, was in order to continue sitting in the House when, at a United Party for National Development (UPND) press conference held earlier that day, he had resigned from the Patriotic Front (PF), on whose ticket he had been elected to the House, and joined the UPND. The Hon Minister stated that under the current Constitution, an Hon Member of Parliament who resigned from the party on whose ticket he or she was elected to the House and joined another political party, immediately lost his or her seat;
(ii) the Hon Member of Parliament for Monze Central Parliamentary Constituency, Mr J J Mwiimbu, MP, asked whether Hon R Siamunene, MP, Deputy Minister of Transport, Works, Supply and Communication, Hon D Kafwaya, MP, Deputy Minister for North Western Province, Hon P Njeulu, MP, Deputy Minister for Western Province and Hon G Monde, MP, Deputy Minister of Agriculture and Livestock were in order to continue being Members of Parliament when they had made it very clear that they were no longer associating themselves with the UPND; and particularly when in the case of Hon B Tetamashimba the erstwhile Speaker had ruled that any Member of Parliament who associated with a party other than the one on whose ticket he or she was elected to the National Assembly lost their seat; and
(iii) the Deputy Minister for Lusaka Province, Hon O Mwaliteta, MP, asked whether the Hon Member of Parliament for Lubansenshi Parliamentary Constituency, Mr P Mucheleka, MP, was in order to sit in the House when he had declared himself a member of the UPND and had been in attendance at the UPND press conference.
Hon Members, in order to render a measured ruling, I, in my immediate response to the three Points of Order outlined above, reserved my rulings to a later date so that I could carefully study them. Hon Members, I have since carefully studied the Points of Order and now render my rulings.
Hon Members, since all the three Points of Order touch on the fundamental issue or question of a Member Crossing the Floor of the House, I have decided to consolidate the rulings in one ruling, and in so doing, I have posed, and will answer the following questions:
(i) what amounts to Crossing the Floor?
(ii) what is meant to be a member of a political party?
(iii) whether acceptance of a Ministerial position by an opposition Member of Parliament or siding with the ruling party in voting in the House, amounts to Crossing the Floor.
(iv) whether an elected Member of Parliament is deemed to have joined another political party if he or she campaigns for another party or attends its functions; and
(v) when can an independent Member of Parliament be deemed to Cross the Floor?
(i) Generally, what amounts to Crossing the Floor
Hon Members, Article 71 of the Constitution, Cap.1 of the Laws of Zambia, provides for tenure of office of Members of Parliament. But Article 71 (2) (c), which is pertinent to this consolidated ruling specifically provides as follows:
“(2) A member of the National Assembly shall vacate his seat in the Assembly-
…
(c) in the case of an elected member, if he becomes a member of a political party other than the party of which he was an authorised candidate when he was elected to the National Assembly or, if having been an independent candidate, he joins a political party or having been a member of a political party, he becomes an independent…”
The meaning of this clause is plain, precise and concise. Hon Members, the implication of the above provision is that a Member of Parliament will be deemed to have Crossed the Floor in the following three (3) circumstances, namely:
(i) If, elected on a party ticket, he or she becomes a member of another party;
(ii) if, elected as an independent Member, he or she joins a political party; and
(iii) if, elected on a party ticket, he or she leaves the party, and becomes an independent Member.
(ii) What is meant to be a member of a political party
Hon Members, there are various ways in which a person can become a member of a political party. Typically, a person can become a member of party by enlisting or subscribing as a member. A person can also be deemed a member of a political party by operation of law. In this regard, it is noteworthy that currently, societies such as political parties are registered under the Societies Act, Cap. 119 of the Laws of Zambia, which regulates the conduct of all societies. Section 2 of the Societies Act defines the words “member” and “office bearer” in so far as they relate to societies registered under the Act. It defines “member” as follows:
"member", in relation to a society, includes an office-bearer of such society.”
The word “office bearer” is defined in the following terms:
"office-bearer", in relation to any society or any committee or governing or executive body of a society, means any person who is the president, vice-president, chairman, deputy chairman, secretary or treasurer of such society, committee or body, or who holds therein any office or position analogous to any of those mentioned above.”
Hon Members, clearly, the two definitions when read together mean that a person holding an office, for example, of President or Vice-President of a society such as a political party, is deemed by law to be a member of that political party.
In addition, in instances where a party issues membership cards, it can be argued that a person who has been issued with a card, that fact or act signifies his or her membership to that political party, and is obviously conclusive evidence of his or her membership of that party. Similarly, in instances where a party has a membership register, which is updated regularly, it can be properly inferred that all those persons whose names appear in the register, are members of such party.
(iii) Whether acceptance of a Ministerial Position by an opposition Member of Parliament amounts to Crossing the Floor
Hon Members, Article 46 of the Constitution, Cap 1 of the Laws of Zambia, empowers the Republican President to appoint Cabinet Ministers. To this end, it provides as follows:
“(1) There shall be such Ministers as may be appointed by the President.
(2) Appointment to the office of Minister shall be made from amongst members of the National Assembly …”
Further, Article 47 of the Constitution, which relates to the appointment of Deputy Ministers, provides as follows:
“(1) The President may appoint such Deputy Ministers as he may consider necessary to assist Ministers in the performance of their functions and to exercise or perform on behalf of Ministers such of the Ministers' functions as the President may authorise in that behalf.
(2) A Provincial Deputy Minister shall be responsible for the administration of any province as the President may assign to such Provincial Deputy Minister.
(3) Appointment to the office of Provincial Deputy Minister and Deputy Minister shall be made from amongst members of the National Assembly...”
Hon Members, from the provisions outlined above, it is crystal clear that the appointment of Ministers and Deputy Ministers is not only the prerogative of the Republican President, but in doing so, the President is at liberty to appoint any Member of the National Assembly as Cabinet Minister or Deputy Minister; regardless of the political affiliation of such a Member of Parliament.
Let me also seize this opportunity Honourable Members to remind or inform, as the case may be, this August House that the High Court of Zambia has very recently occasion to pronounce on this matter in the case of Kuchunga Edwin Simusamba v Attorney General, Greyford Monde, Richwell Siamunene, and Poniso Njeulu – 2012/HP/1561 (unreported).
In that case, the Petitioner mainly alleged that by accepting ministerial positions in the PF led Government, the respondents, who are Opposition UPND Members of Parliament (and, coincidentally are the Members against whom this Point of Order has been raised), had Crossed the Floor. In delivering judgment in the matter, Hon Mr Justice C.F.R. Mchenga, held as follows, on page 16 of the judgment:
“My understanding of Article 71 of the Constitution is that a Member of Parliament will be considered to have Crossed the Floor when he leaves his political party or joins a political party. Can a Member of Parliament who takes up a ministerial position be considered to have Crossed the Floor? The answer is no. A shift in allegiance by taking a ministerial appointment or constantly siding or voting with the ruling party does not amount to Crossing the Floor under the provision. Whether or not that is desirable is not a matter of interpretation, but legislation. Had that been the intention of the legislators, they would have indicated it in precise terms...”
Yes, indeed, Honourable Members, it is us, lawmakers, to say or determine whether or not the status quo is desirable.
Hon Members, in light of the preceding constitutional provisions and the High Court precedent in the Simusamba case, it is very clear that an opposition Member of Parliament who accepts a position of a Minister or Deputy Minister in the Government of a ruling party or indeed sides with that party in voting in the House cannot be considered to have Crossed the Floor as envisaged by Article 71(2) (c) of the Constitution, referred to above.
(iv) Whether an elected Member of Parliament is deemed to have joined another political party if he or she campaigns for another political party or attends its functions
Hon Members, I have already indicated the circumstances under which a person can be deemed to have become a member of a political party, which does not include a Member of Parliament merely supporting or campaigning for another political party. In this regard, in the exercise of the constitutional rights to assemble and associate, Members of Parliament are at liberty and in the past have in fact deliberately campaigned for a political party other than the one which sponsored them for election to the National Assembly and also attended its functions. Similarly, an independent Member or Members, also enjoy the same privilege provided that both the Member or Members elected on a party ticket or an independent Member or Members do not go further to become or subscribe to those political parties or indeed become office bearers of such party or parties. Therefore, to try and cluster on-lookers, bystanders and party sympathisers in the definition of “Member” would amount to violating the definition of “Member” as stipulated under the Societies Act.
Hon Members, I will now proceed to specifically address and resolve the three Points of Order.
1. First, the alleged Crossing of the Floor involving Hon R Siamunene, the Deputy Minister of Transport, Works, Supply and Communication, Hon D Kafwaya, MP, Deputy Minister for North Western Province, and Hon P Njeulu, MP, Deputy Minister for Western province and Hon G Monde, MP, Deputy Minister of Agriculture and Livestock
Hon Members, in the Point of Order against UPND Members of Parliament serving in the PF Government, Mr Mwiimbu, MP, alleged that by voting with the PF and participating in PF campaigns, the UPND Members had Crossed the Floor. He further stated that in the case of Mr B Tetamashimba, MP, a former Member of this House, the Speaker had ruled that any Member of Parliament who associated with a party other than the one on whose ticket he or she was elected to Parliament lost their seat.
Hon Members, let me begin by commenting on the case of Mr B Tetamashimba, MP, since it was referred to in the Point of Order. The parties to the case were Benny Tetamashimba v The Speaker of the National Assembly, the Chairman of the Electoral Commission of Zambia and the Attorney General 2001/HP/0675 (unreported). The brief facts of the case were as follows: In 1996, Mr B Tetamashimba, MP, was elected Member of Parliament for Solwezi Central Parliamentary Constituency on the National Party (NP) Ticket. In 2000, NP and UPND signed a Memorandum of Understanding (MOU) and as a result of that MOU, Mr Tetamashimba, MP, was appointed Secretary-General of the UPND. The Speaker, in that instance, ruled that by assuming the position of Secretary-General, as evidenced by his use of the UPND letter head indicating that he was the party’s Secretary-General, Mr Tetamashimba, MP, had become a member of the UPND. Mr Tetamashimba, dissatisfied with the decision of the Speaker, applied for judicial review in the High Court in which he sought, among other reliefs, a declaration that the Speaker’s decision was null and void. The High Court dismissed the application and upheld the expulsion of Mr Tetamashimba, MP from the House on the ground that he was guilty of dual membership. In passing judgment, Hon Mr Justice J.C. Mutale, held as follows:
“He became [a] UPND member after waiver of normal formalities of application for membership, this thus is an exception to the rule but it unfortunately made him a dual member contrary to the provisions of Article 71 and draws him into the jurisdiction of the Speaker…….the Speaker found that the applicant did have dual membership…………there was, therefore, no illegality, impropriety, malice or unreasonableness when the Speaker made that decision.”
Hon Members, it is evident from the preceding judgment that, Mr Tetamashimba, MP, lost his seat because, first, he had assumed the position of Secretary-General of the UPND, and consequently, had become a member of the UPND. Second, Hon Mr Justice J.C. Mutale held that in terms of Article 71(2) (c) of the Constitution, dual membership is outlawed. It was, therefore, a misrepresentation of facts by Mr J.J. Mwiimbu, MP, to assert that Mr Tetamashimba, MP, lost his seat for merely associating with the UPND.
In this case, the Hon Members concerned, are Members of this House representing their respective constituencies having been authorised candidates for the UPND. After the PF formed government in 2011, they were appointed Deputy Ministers to serve in the Government as provided for under the Republican Constitution.
Therefore, in light of the provisions of Article 46 and 47, of the Republican Constitution and the Simusamba case supra, I rule that the Hon Deputy Ministers have not Crossed the Floor and are, therefore, in order to continue being Members of Parliament.
2. Second, alleged Crossing of the Floor by Mr P Mucheleka, MP, Member of Parliament for Lubansenshi Parliamentary Constituency
Hon Members, the gist of the Point of Order against the Member of Parliament for Lubansenshi Parliamentary Constituency, Mr P Mucheleka, MP, is that the Member, who is an independent Member of this House, had allegedly become a member of the UPND by virtue of attending the press conference on Wednesday, 22nd July, 2015 and, therefore, should be deemed to have Crossed the Floor.
Hon Members, I wish to inform the House that I had an opportunity to view the Zambia National Broadcasting Corporation (ZNBC) footage of the press conference in question, and can confirm that Mr Mucheleka, MP, attended it. However, he did not make any statement or act in any way to suggest that he had joined the UPND. He could, therefore, well be, fairly and properly considered to have been a curious bystander or at best, a sympathiser of the UPND or indeed, a citizen merely exercising his constitutional freedoms of movement, assembly and association.
Hon Members, I wish to underscore the point that mere supporting or campaigning for another party, or indeed attending its functions, is not sufficient evidence to reach a conclusion that such Member or Members have joined another political party. There must be something more; something cogent and conclusive to that effect. In this regard, I, therefore, rule that Mr P Mucheleka, MP, has not Crossed the Floor and is in order to sit in the House as the duly elected independent Member of Parliament for Lubansenshi Parliamentary Constituency.
3. Third, alleged Crossing of the Floor involving Mr G B Mwamba, MP, Member of Parliament for Kasama Central Parliamentary Constituency
Hon Members, in the Point of Order against Mr G B Mwamba, MP, it is alleged that the Member, who was elected to this House on the PF ticket, had joined the UPND at a UPND Press Conference held on Wednesday, 22nd July, 2015.
Hon Members, as I have already stated, I had sight of the footage of the press conference in question. In that footage, Hon G. B. Mwamba, MP, said, among other things, as follows:
“Country men and women, firstly, let me thank the UPND, through, of course, the President and the National Management Committee, for appointing me to the position of the party Vice-President of Administration.
Sir, it is such an honour to serve you in this manner, Mr President. I am extremely humbled that you have chosen to place your faith and trust in me. I accept this offer wholeheartedly. This is a responsibility that I do not take lightly and I will endeavour to do the utmost to advance the cause of this great party which, I have no doubt, will form the next government in the next few months. Mr President, once again, thank you very much for this appointment.”
By the way, the Press Conference manifested the usual trappings and political tradition of a politician or politicians shifting or re-aligning political party allegiance. Namely, the sprinkling of some white substance on the head and around the forehead of Mr G B Mwamba, MP, and he in turn responding to the gesture by waving vigorously the UPND symbol to a cheering and excited crowd.
What is however incontrovertible, and paramount, from the statement made by Hon G B Mwamba, MP, at the Press Conference was that he was appointed to the position of Vice-President in charge of Administration in the UPND party, and he “wholeheartedly” accepted the appointment. The fundamental question, therefore, that falls to be resolved is whether by accepting the high position and being an office bearer in the UPND, Mr Mwamba, MP, can fairly and properly be considered to have joined the UPND and thereby Crossed the Floor as envisaged by Article 71(2) (c) of the Constitution.
Hon Members it is my well-considered view that by accepting the position of Vice-President (Administration) in the UPND, Mr G B Mwamba, MP, became an office-bearer in the UPND and consequently a member of the UPND as defined by section 2 of the Societies Act referred to above. In any event, it is utterly inconceivable that the entire UPND top brass can possibly appoint a committed, devoted, and loyal member of the PF to such a high ranking party position. So, the only reasonable inference I can draw in the circumstances, is that Hon G B Mwamba, MP has quit PF and joined the UPND as its Vice-President responsible for Administration. And in any case, Article 71(2)(c) of the Constitution outlaws dual membership as held by the High Court in the Tetamashimba case.
Therefore, in keeping with the precedent of the House as set by my predecessor, Speaker Mwanamwambwa, in the case of Hon Tetamashimba, and affirmed by the High Court, I now declare that in joining the UPND by becoming its Vice President (Administration) on Wednesday 22nd July, 2015, a political party on whose ticket he was not elected to this House, Mr G B Mwamba, MP, Crossed the Floor as envisioned by Article 71(2)(c) of the Constitution and lost his seat as Member of Parliament for Kasama Central Parliamentary Constituency. Mr G B Mwamba, MP, was, therefore, out of order to sit in the House.
Accordingly, I now declare the Kasama Central Parliamentary Constituency seat vacant forthwith.
I thank you.
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