RULING ON A POINT OF ORDER RAISED BY HON J J MWIIMBU, MEMBER OF PARLIAMENT FOR MONZE CENTRAL PARLIAMENTARY CONSTITUENCY, ALLEGING THAT THE NATIONAL ASSEMBLY HAS TREATED MEMBERS OF PARLIAMENT FACING VARIOUS COURT CASES IN A DISCRIMINATORY MANNER

Hon Members will recall that on Wednesday, 7^th March, 2018, when the House was considering the Second Reading Stage of the Subordinate Courts (Amendment) Bill No. 2 of 2018 and Mr C Mweetwa, Member of Parliament for Choma Central Parliamentary Constituency was on the Floor, Mr J J Mwimbu, Member of Parliament for Monze Central Parliamentary Constituency, raised the following Point of Order:

“Madam Speaker, I rise on a very serious point of order on the conduct of this House vis-à-vis discrimination.

Madam Speaker, I would like you to take judicial notice that Parliament has today, 7^th March, 2018, written to the Electoral Commission of Zambia (ECZ) declaring the Chilanga Parliamentary Seat vacant.

We are all alive to the traditions and customs of this House. Whenever there is a matter that is pending in court, this House does not take any action. 

Madam Speaker, the letter, which I have mentioned, gives the reasons of declaring the seat vacant based on Article 70(2)(f) as follows: 

“A person is disqualified from being elected as a Member of Parliament if that person is serving a sentence of imprisonment for an offence under a written law.”

Madam Speaker, we are all aware that our colleague, the hon. Member of Parliament for Chilanga, Hon. Mukata, has appealed against the sentence and conviction. We are also aware that there are people here who are serving, but lost their cases in the High Court. Without any stay of the decisions, they are still serving because they have appealed the decisions, and Parliament has never declared their seats vacant.

Madam Speaker, is this House in order to discriminate against its hon. Members on issues of Parliamentary privilege, which privilege has been accorded to them. Is your office in order to declare the Chilanga Parliamentary Constituency seat vacant when the area Member of Parliament has appealed to a higher court and others are still serving? Is your office in order to do that?”

Hon Members, once again, let me begin by reminding the House that a Point of Order cannot be raised against the House or, indeed, the office of the Speaker. However, given the important constitutional issues raised, I have elected to address the subject addressed in the purported Point of Order.

This purported Point of Order alleges bias in the manner in which my Office treats Members of Parliament, who lose their parliamentary seats based on a court decision, when they have appealed against the decision to a higher court. 

Hon Members, you may wish to note that prior to the amendment of the Constitution, through the enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016, the Constitution provided as follows:

71. (2) (e) A member of the National Assembly shall vacate his seat in the Assembly if he is sentenced by a court in Zambia to death or to imprisonment, by whatever name called, for a term exceeding six months;”

(3) Notwithstanding anything contained in clause (2), where any member of the National Assembly has been sentenced to death or imprisonment, adjudged or declared to be of unsound mind, adjudged or declared bankrupt or convicted or reported guilty of any offence prescribed under clause (4) of Article 65 appeals against the decision or applied for a free pardon in accordance with any law, the decision shall not have any effect for the purpose of this Article until the final determination of such appeal or application:

Provided that –

such member shall not, pending such final determination, exercise the functions or receive any remuneration as a member of the National Assembly;”

The import of this provision was that where a Member of Parliament was sentenced to death or imprisonment and they appealed against their conviction, they retained their seat pending determination of the appeal. However, during that time, they did not receive any remuneration or carry out any functions of the National Assembly. Hon Members may also recall that, that was the basis upon which Mr Steven Masumba, former Member of Parliament for Mufumbwe Parliamentary Constituency, retained his seat when he was convicted and appealed against his conviction.

Hon Members may further wish to note that, following the amendment of the Constitution by the Constitution of Zambia (Amendment) Act No. 2 of 2016, the preceding provision has since been repealed and replaced with the following provision:

“72. (2) (b) The office of Member of Parliament becomes vacant if the member becomes disqualified for election in accordance with Article 70.”

Article 70 (2) (f) goes on to provide as follows:

“70 (2) (f) A person is disqualified from being elected as a Member of Parliament if that person is serving a sentence of imprisonment for an offence under a written law.”

Hon Members, it is self-evident from the preceding provisions that the law no longer permits a member who has appealed against their conviction to retain their seat pending the determination of the appeal. Therefore, the combined effect of Articles 72 (2) (b) and 70 (2) (f), is that a parliamentary seat falls vacant when a Member of Parliament holding the seat is serving a sentence of imprisonment.

At this juncture, it is instructive to interpolate a definition of imprisonment.  Bryan A Garner, Editor-in-Chief of the Blacks Law Dictionary, Ninth Edition, (USA, Thomson Reuters 2009) defines imprisonment, at page 825, as follows:

“Imprisonment_. 1. The act of confining a person especially in prison. 2. The state of being confined.”

Hon Members, it is noteworthy that section 19 of the Court of Appeal Act No. 7 of 2016 provides as follows:

“19. A sentence of death shall not be executed until –

1. After the expiration of the time within which a notice of intention to appeal may be given or, as the case may be, an application for leave may be submitted;
2. where a notice of intention to appeal is given, the appeal has been determined or abandoned; and
3. where an application to appeal is submitted, the application, which shall be determined as soon as practicable, has been refused or the appeal has been determined or abandoned, as the case may be.”

Additionally, section 305 (1) of the Criminal Procedure Code (CPC), Chapter 88 of the Laws of Zambia, provides as follows:

“305 (1) As soon as conveniently may be after sentence of death has been pronounced by the High Court, if no appeal from the sentence is preferred, or if such appeal is preferred and dismissed, then as soon as conveniently may be thereafter, the presiding Judge shall forward to the President a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case as he may think fit to make.”

From the preceding provisions, it is clear that the stay of execution envisaged under sections 19 of the Court of Appeal Act, and section 305 of the CPC relates to staying the execution of the death sentence. This means that a death sentence cannot be carried out until the appeal has been determined. It does not, however, mean that a person sentenced to death is not confined or serving a sentence of imprisonment. This proposition is supported by section 304 of the CPC, which provides as follows:

“304.   A certificate, under the hand of the Registrar or the clerk of the court, as the case may be, that sentence of death has been passed, and naming the person condemned, shall be sufficient authority for the detention of such person;”

Hon Members, you are all aware that, on Wednesday, 28^th February, 2018, the High Court delivered a judgment in the criminal matter between; The People v Mukata and another, cause No. HP/180/2017 (unreported). In this judgment, the High Court found Mr Mukata guilty of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia, and convicted him accordingly. The Certificate of Death Sentence was issued on that same day. As clearly indicated in section 304 referred to above, a Certificate of Sentence of Death is sufficient authority for the detention or imprisonment of a person who has been sentenced to death. In this regard, the Certificate of Death Sentence is sufficient evidence that Mr Mukata is serving a prison sentence. This necessarily means that his seat fell vacant by operation of Article 72 (2) (f) of the Constitution. Since the Constitution no longer permits a member serving a prison sentence to remain in the House, while the matter is pending appeal, the fact that he has appealed against his conviction, cannot enable him to retain his seat.

Furthermore, Hon Members may wish to note that Article 72 (8) of the Constitution stipulates as follows:

“72 (8) Where a vacancy occurs in the National Assembly, the Speaker shall, within seven days of the occurrence of the vacancy, inform the Electoral Commission of the vacancy, in writing, and a by-election shall be held in accordance with Article 57.”

It may be further observed, from the foregoing, that once a seat falls vacant in the National Assembly, the Speaker must notify the Electoral Commission of Zambia of the vacancy within seven days. To this extent, I was obliged, by the Constitution, to notify the Electoral Commission of Zambia of the vacancy in the Chilanga Parliamentary Constituency seat not later than 7^th March, 2018, which I obliged.

Hon Members, I will now address the question regarding why Mr Mukata’s case has been treated differently from the other cases where Members of Parliament who lost their seats and appealed are still in the House.

I wish to draw the House’s attention to the manner in which the Constitution treats cases relating to election petitions and the expulsion of Members from the political party that sponsored them to the House.

Article 73 (4) provides as follows:

“73. (4) A Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition.”

Additionally, Article 72 (5) provides as follows:

“Where a Member of Parliament is expelled as provided in clause 2 (e), the member shall not lose the seat until the expulsion is confirmed by a court, except that where the member does not challenge the expulsion and the period prescribed for the challenge lapses, the member shall vacate the seat in the National Assembly.”

Lastly, Article 72 (2) (h) provides that:

“The office of Member of Parliament becomes vacant if the member is disqualified as a result of a decision of the Constitutional Court”.

Hon Members the import of the foregoing provisions is that where a Member of Parliament appeals against a decision of the High Court nullifying their seat, or challenges their expulsion from the political party that sponsored them to the House in a court of law, they retain their seat until the appeal has been ultimately determined and the expulsion is confirmed by the courts of law.

The preceding position was confirmed by the Constitutional Court in the case of Mwanakatwe v Scott and Others, cause No. 2016/CC/A018 (unreported). In the Mwanakatwe case, the Appellant had applied to the Constitutional Court for a stay of execution of the High Court’s decision to nullify her Lusaka Central Parliamentary seat. The Constitutional Court dismissed her application on the ground that it was irrelevant or redundant. Relying on Article 72 (h) of the Constitution, the Court held that it was clear that the seat would only fall vacant upon the final determination of the matter by the Constitutional Court.

Hon Members, from the foregoing, it is crystal clear, that the Constitution treats appeals relating to election petitions and the expulsion of Members from the political party that sponsored them to the House, differently from convictions relating to criminal offences. In the case of an election petition or expulsion from the sponsoring party, a member is entitled at law to retain his or her seat pending final determination of the matter by the Constitutional Court.  However, in the case of a criminal matter, the Constitution does not permit a member to maintain the status quo, pending determination of the appeal. Therefore, the seat falls vacant when a member begins to serve a sentence of imprisonment.

Hon Members, I hope it is clear and obvious that the decision to notify the Electoral Commission of Zambia of the vacancy in the Chilanga Parliamentary Constituency seat was founded on the Constitution and not prompted by a discriminatory practice, as alleged in the purported Point of Order.