RULING BY THE HON MR SPEAKER ON THE POINT OF ORDER BY MR G G NKOMBO, MEMBER OF PARLIAMENT FOR MAZABUKA CENTRAL PARLIAMENTARY CONSTITUENCY AGAINST HON S KAMPYONGO, MP, MINISTER OF HOME AFFAIRS, ON WHETHER THE MINISTER WAS IN ORDER TO ALLOW THE POLICE TO DEFY THE RESOLUTION THAT MEMBERS OF PARLIAMENT WERE NOT REQUIRED TO NOTIFY THE POLICE WHEN CONDUCTING MEETINGS IN THEIR CONSTITUENCIES

Hon Members will recall that on Friday, 30th November, 2018, when the House was considering the Second Reading stage of the Statistics Bill, N.A.B. 11/2018, and the Member of Parliament for Kafue Parliamentary Constituency, Ms M C Chonya, MP, was on the Floor, Mr G G Nkombo, Member of Parliament for Mazabuka Central Parliamentary Constituency raised a Point of Order.  In his Point of Order, Mr Nkombo, MP, expressed himself in the following terms:

“Mr Speaker, I want to raise a very brief, but important Point of Order.  I consider myself your Hon Member because you are the head of the Legislature.

Mr Speaker, back in 2013, we had challenges with performing our duties in our constituencies. The challenges begun with the Hon Member of Parliament for Lubansenshi Parliamentary Constituency at that time, Mr Patrick Mucheleka, who was arrested by the police for conducting business meetings in his constituency. Consequently, the Hon Member of Parliament for Mwinilunga East then, Mr Steven Katuka, was also a victim of similar circumstances.

Mr Speaker, I am sure you recall that we raised this matter, which culminated into a formal meeting chaired by yourself in one of the Committee Rooms downstairs. Present in that meeting were the then Hon Minister of Justice, Mr Wynter Kabimba, then Minister of Home Affairs, His Excellency the President Mr Edgar Chagwa Lungu, Professor Geoffrey Lungwangwa, whom I think was the Whip for the Movement for Multi-Party Democracy (MMD), Dr Guy Scott, who was then Vice-President of the Republic and myself.  This matter was discussed thoroughly at that meeting.

Mr Speaker, Dr Chishimba Kambwili is also your Hon Member and this Point of Order sits at the heart of my worry for all Hon Members who are in this House.  I believe that their privileges and immunities are being trampled upon by the police once again.

As I speak to you, I am following events that are happening in Luanshya where your Hon Member, Dr Chishimba Kambwili, MP, was accused of having convened an illegal meeting in the constituency that he represents, is in police custody.  He was bundled from Lusaka in a Toyota Landcruiser after he presented himself to the police with his lawyers to try and seek an adjournment of a police callout because he was supposed to have been appearing before Magistrate Mwaka Mikalile this morning at the Magistrates Court for another case. The situation resulted in the police bundling him like a common criminal, a situation that reminds me of my own ordeal when the police arrested me in Livingstone for a crime I never committed.

Therefore, is the Hon Minister of Home Affairs, Hon Stephen Kampyongo, MP, and his police, in order to allow the police to defy the resolutions of the meeting which was chaired by yourself, Mr Speaker, which resolved that Hon Members of Parliament can or cannot notify the police when they are having meetings in their constituencies? I seek your ruling on this matter.”

In my immediate response, I reserved my ruling to enable me render a measured response.  Hon Members, I have since studied the Point of Order and now render my ruling.

Hon Members, let me begin by stating that Article 21 of the Constitution of Zambia, Cap. 1 of the Laws of Zambia, guarantees every citizen the right to freedom of peaceful assembly in the following terms:

“21. (1) Except with his own consent a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to any political party, trade union or other association for the protection of his interests.”    

Hon Members, need however, note that this right is not absolute.  It is subject to certain limitations which are necessary in the interests of national security, public safety, public order, the protection of public health, morals or the protection of the rights and freedoms of others.  One such limitation or derogation is found in section 5 (4) of the Public Order Act, Cap 113 of the Laws of Zambia, which requires a person or persons who seek to hold a public meeting in exercise of their freedom of peaceful assembly to notify the Police of the meeting at least seven (7) days prior to the day of the meeting.

As regards to Hon Members holding meetings in their constituencies, I wish to confirm the assertion by Mr G G Nkombo, MP, that this matter was considered extensively in the Eleventh National Assembly. This followed numerous complaints from Members of Parliament following the arrest of some Members for holding meetings in their constituencies without notifying the police. At the material time Hon Members expressed grave concern, because they felt that their right to interact with their constituents were adversely affected and in addition felt hindered in performing their representative function.

Hon Members, as correctly stated by Mr G G Nkombo, MP, in his Point of Order, in a bid to resolve the issue, I convened a meeting to discuss the issue. In attendance at the meeting were the then Vice-President, Dr Guy Scott, the then Minister of Home Affairs, Hon Edgar Chagwa Lungu, now Republican President, Hon Y Mukanga, then Chief Whip and Mr G G Nkombo, MP.

Following that meeting, on Wednesday, 17th July 2013, the then Minister of Home Affairs Hon Edgar Chagwa Lungu, rendered a Ministerial statement clarifying the Government’s position on the observance of the Public Order Act by Members of Parliament.  In the statement, the then Hon Minister of Home Affairs stated, inter alia, as follows:

“ … First and foremost, I would like to state that our current Constitution guarantees us all the freedom to associate and as well as freedom to assemble.

Nonetheless, it is advisable and necessary to inform the Zambia Police Service whenever citizens assemble for a public meeting, a public rally and any other public gatherings.  The local police needs to be informed whenever such assemblies or gatherings are planned for… This is primarily intended as a precautionary measure in the event that the security and safety of the Honourable Members of Parliament is compromised.

This measure is in no way intended to be a pre-condition for Honourable Members of Parliament to hold their public meetings.  Let me hasten to state here that Honourable Members of Parliament may hold such meetings or public rallies without informing the Zambia Police at their own peril if trouble should arise in distant places where the Zambia Police are not present and aware of such public meetings or public rallies... Honourable Members of Parliament are free to proceed to their constituencies anytime, any day to go and perform the functions of their offices…”

Subsequently, on 11th December 2013, the Hon Minister of Home Affairs Hon Edgar Chagwa Lungu issued a circular to all Hon Members, which was copied to me, and the Inspector-General of Police.  The circular in question read as follows:

“This serves to inform and confirm to you all that Honourable Members of Parliament do not require police authority or permission to visit their Constituencies in the course of carrying out their duties, or indeed as mere visitors.

I am, however, encouraging all Honourable Members to positively consider informing the police about their presence in their respective Constituencies as this helps police in providing service to the Members if need be.”

Hon Members, this issue was re-visited in 2015, when Mr S Katuka, MP, then Member of Parliament for Mwinilunga Parliamentary Constituency, raised a Point of Order alleging that the police had obstructed him from holding a meeting in his constituency to address the constituents, on the ground that he had not given the police seven (7) days notice prior to the meeting as required under the Public Order Act. In rendering my ruling on the matter, I made reference to both the Ministerial statement and Circular issued by the then Minister of Home Affairs Hon Edgar Chagwa Lungu, in 2013 referred to above. The relevant part of the Ruling reads as follows:

“Hon Members, based on the Ministerial statement and the Circular, it is clear that Members of Parliament are free to go to their constituencies anytime they so wish, to carry out the functions of their office which includes having meetings with the constituents, and this does not require Members to give the seven (7) days notice to the Police as provided under the Public Order Act.

I must hasten to mention that in his statement the erstwhile Minister, however, advised Hon Members to consider notifying the Police of their presence in their respective constituencies and their intention to hold meetings with the constituents.  According to the Hon Minister, the notification in this case is necessary merely as a precautionary measure and not a pre-condition to impair the essence of the right of a Member to hold a meeting in his/her constituency.  This is why the Minister stated that a member, who held a meeting in his/her constituency without notifying the police, did so at his/her peril if the Member’s security and/or safety, was compromised during the meeting.”

Hon Members, the letter and spirit of the Circular and Ministerial statement that was issued by the then Minister of Home Affairs, now His Excellency the President, Mr Edgar Chagwa Lungu, to all Honourable Members of Parliament was, in my considered opinion, that Honourable Members are at liberty to visit and engage their constituents provided that where appropriate they should notify or inform the police of their presence in the constituency.

However, in view of the Point of Order raised by Mr G G Nkombo, MP, I have no material or evidence at my disposal upon which I can make or reach a conclusion and pronounce that the Hon Minister of Home Affairs, Hon Stephen Kampyongo, MP and the Police service defied the resolutions referred to above.

Be that as it may, Hon Members, the fact that this issue has resurfaced, today in 2018, demonstrates that there is a dire need, if I may venture, for definite measures to be taken or put in place in the context of the ongoing reform of the Public Order Act to ensure that Honourable Members of Parliament are able to execute their representative function properly, efficiently and effectively.  I, therefore, urge Hon Members as Legislators to seize this opportunity presented by the reform of the Public Order Act to settle the issues and challenges related to engaging constituents in the constituency conclusively. That is my ruling.