Hon Members will recall that on Wednesday 13^th March, 2019, when the House was considering Question for Oral Answer No. 332, and Mr C M Zulu, Member of Parliament for Luangeni Parliamentary Constituency was about to ask a supplementary question, the Leader of the Opposition, Hon. J J Mwiimbu, MP, raised the following Point of Order:

“Mr Speaker, I thank you for being gracious to allow me to raise a very important Point of Order hinging on Article 69 (1), (2) and (3) of the Constitution of Zambia.

Mr Speaker, as I tag on a very elaborate ruling that you made in this House last week in the case of Chishimba Kambwili, I would like to pick your thoughts pertaining to this issue.

Mr Speaker, I am aware that the President of the Republic of Zambia, using the provisions of Article 69 of the Constitution, nominated Hon. Nakacinda to this House.  For ease of reference, I will read what it states:

“(1)   The President may nominate a person referred to in Article 68(2)(b) where the President considers it necessary to enhance the representation of special interests, skills or gender in the National Assembly.

        (The underlining is for emphasis sake)

(2)    A person may be nominated as Member of Parliament if the person qualifies to be elected as such under Article 70.

(3)    A person who was a candidate for election in the last preceding general election or a subsequent by-election is not eligible to be nominated as a Member of Parliament.”

Mr Speaker, from the time of independence to date, whenever the President nominates an individual to sit in this House, that individual belongs to the ruling party.  That individual is never nominated to oppose the President.

It has never happened.  However, we now have Mr R Nakacinda as an Opposition Hon. Member in this House contrary to the spirit, precedents, and pronouncements of this House.

Mr Speaker, that act alone entails that all political parties that have never participated in elections can just wait for the President to nominate their members and come in the House as Opposition Hon. Members.

Mr Speaker, using your interpretation of the Constitution in the Kambwili case, is it in the spirit of the Constitution, or was it the intention of Parliament that if the President wants, he can nominate an Opposition Hon. Member to oppose him or he can also decide to nominate all eight Members from the Opposition so that they can oppose him?  Is that the spirit of the Constitution?  What interest do they have in this particular matter?

Mr Speaker, I would like to rely on your wealth of wisdom and the good ruling you made in interpreting the Constitution.  Is it in order for Mr R Nakacinda to be in this House as an Opposition Hon Member and to have been nominated to oppose the Government?  Is he in order to remain on your left instead of being on your right?

Mr Speaker, I need your serious ruling on this matter.”

In my immediate reaction to the Point of Order, I reserved my ruling in order to study the legal and factual matrix it raised.  I have since studied the same, and I am now ready to render my ruling.

Hon Members, the essence of the Point of Order under consideration, is whether or not the spirit of Article 69 of the Constitution prohibits the Republican President, to nominate a person, who is a member of an opposition political party; as a Member of Parliament.

Hon Members, Article 68 (2) of the Constitution sets out the composition of the National Assembly.  And in providing for nominated Members of Parliament, Article 68 (2) (b) is expressed in the following terms:

“68. 2(b) The National Assembly shall consist of not more than eight nominated members.”

Further, Article 69 (1) provides for the factors or considerations, that the President must take into account, in exercising his or her discretion, in nominating Members in the following terms:

“69. (1) The President may nominate a person referred to in Article 68(2)(b) where the President considers it necessary to enhance the representation of special interests, skills or gender in the National Assembly.

        (The underlining is for emphasis sake)

Clearly, Hon Members, Article 69(1) empowers the President to nominate a person(s) to the National Assembly, where the President considers that the presence of such person(s) will enhance the representation of special interests, skills or gender in the National Assembly.  

The critical question that falls to be considered, and determined as a result of the Point of Order, is, the meaning of Article 69(1) of the Constitution.  Hon Members, the rules of statutory interpretation stipulate that in construing a constitutional or statutory provision, one must first apply the literal rule of interpretation; that is, assign to the words their ordinary and plain meaning.  It is only where the literal interpretation results in an absurdity, that one can apply the other rules of interpretation, such as the purposive rule, in seeking to discern the intention of Parliament.  I am fortified in advancing the preceding proposition by two seminal judicial precedents.  Reliance is placed on these precedents, Hon Members, because the judicial branch of government, as we all know, is primarily dedicated to the adjudication of disputes, and in the process, interpretation of the law.

The first case, I will refer to, is the case of the Minister of Information and Broadcasting and Another v Chembo and Others (2007) Z.R. 82, popularly dubbed, in judicial circles, as “The Media Case.” In the Media case, the Supreme Court embraced, at pages 95 to 96, the following propositions, that I posited, as counsel for the respondents; regarding the canons or rules of statutory interpretation;

1. First, if the words of a statute are precise and unambiguous, then no more is necessary to interpret those words; they should be given their natural meaning;

1. Second, the literal and grammatical meaning should be preferred, where there is nothing to indicate or to suggest that the language should be understood in any other sense;

1. Third, that it is only if there is ambiguity in the natural meaning of the words, and the intention of the Legislature cannot be ascertained, that recourse can be had to other principles of interpretation;

1. Lastly, that the courts of law; whose duty is to interpret the law, have no right to introduce glosses or interpolation in the meaning of the law; and

1. Fifth, that it is the duty of the courts of law to discern the real intention of the Legislature, by carefully attending to the whole scope of the statute to be construed.

The second case - handed down recently - is the case of Pule and Others v The Attorney General and Others Selected Judgment No 60 of 2018, (2017/CCZ/004), where, in the course of the judgment, the President of the Constitutional Court, Madam Justice Chibomba, cited the case of Katuka and Law Association of Zambia v The Attorney General and Simbyakula and Others CCZ Judgment No. 29 of 2016, and quoted the following dicta at page J63:

“In terms of the general or guiding principles of interpretation, the starting point in interpreting words or provisions of the Constitution, or indeed any statute, is to first consider the literal or ordinary meaning of the words, and Articles that touch on the issue or provision in contention.”

The Court, in explaining this position went further to state as follows:

“It is only when the ordinary meaning leads to absurdity that the purposive approach should be resorted to.  We further explained that the purposive approach entails adopting a construction or interpretation that promotes the general legislative purpose which requires the court to ascertain the meaning and purpose of the provision having regard to the context, and historical origins, where necessary and that this exercise would sometimes require reading into the provision what the Legislature had intended.”

Hon Members, based on the authorities that l have referred to above, the first step in interpreting Article 69 (1) is to apply the literal interpretation.  In this regard, the natural and plain meaning of the words in Article 69(1), is that the President has discretion to nominate any person who, in his or her view, will enhance special interests, skills, or gender in the National Assembly.  These words are precise, and unambiguous.  There is no absurdity as was the case in the Kambwili case.  Simply put, the Kambwili case, is distinguishable from the present case.  Since there is no absurdity in Article 69 (1), there is no need to resort to the purposive rule of interpretation.  Lastly, it is instructive to note that the discretion to determine the special interests, skills, or in main streaming gender, is in the discretion of the President. 

Hon Members, it is very clear that the Point of Order raised by Hon J J Mwiimbu, MP, is anchored primarily on the propriety of a member of an Opposition political party, being nominated to the National Assembly by the President of the Republic.  In this case, Hon J J Mwiimbu, MP, impeached the decision by the President to nominate Hon R Nakacinda, MP, in the following terms:

“Is it in order for Mr R Nakacinda to be in this House as an Opposition Hon Member, and to have been nominated to oppose the Government?”

The preceding question by the Hon Leader of the Opposition, suggests that the singular, sole, or exclusive function of Opposition Members of Parliament, is to oppose the Government; come what may.  I find this perception or notion, rather narrow as I will demonstrate later.  Further, to suggest that a person(s) from opposition political parties are ineligible from being nominated by the President, not only amounts to altering the fabric in which Article 69 (1) is woven, but also amounts to introducing glosses or interpolation in the construction of Article 69(1).  Hon Members, if it was the intention and will of this House that persons belonging to opposition political parties should be excluded, from being nominated, Article 69 (1) would have expressly stated or said so.

To revert to the notion that the sole function of the opposition Members of Parliament is to oppose Government, it is instructive to note that the modern trend in most democracies, is to promote the concept or notion of responsible opposition.  As some of you may recall, I had occasion to present a paper which covered this subject, at the Orientation Seminar for Members of Parliament of the Twelfth National Assembly of Zambia, held from 20^th to 22^nd September, 2016.  My paper was entitled: Party Organisation Within Parliament: Meetings, Caucuses, Whips and the Complementary Roles of Government and the Opposition. Under the rubric; “The Opposition in Parliament”, I had the following to say at pages 8 to 9:

“A democracy operates on the basis that there is room for choice all the way up to the selection of the Government. The primary function of the opposition is to offer a credible alternative to the majority in power.  Moreover, by overseeing and criticising the actions of the Government, it works to ensure transparency, integrity and efficiency in the conduct of public affairs, and to prevent abuses by the authorities and individuals, thereby ensuring the defence of the public interest. Indeed, the Opposition contributes to the promotion and defence of human rights, and fundamental freedoms; thus helping to ensure that democracy functions properly.

The Opposition in Parliament also has a responsibility to offer voters a credible alternative to the government in office by making the majority accountable.  To be a credible alternative, however, the Opposition must also be ready to exercise the responsibilities to which it aspires on a lasting basis.  In other words, it must have a programme which it is ready to implement.

The Opposition in Parliament must show itself to be responsible, and to be able to act in a statesmanlike manner. It must engage in constructive and responsible opposition, by making counter-proposals.  In its action, the Opposition must not seek to hinder pointlessly, the actions of the Government, but rather endeavour to encourage it to improve such actions in the general interest.”

Hon Members, it is clear from the foregoing, that the role of the Opposition in Parliament is not merely to oppose anything and everything, that the ruling party says or seeks to do.  Responsible opposition calls for purposeful and constructive criticism of Government, in providing the necessary checks and balances.  Therefore, where the President nominates a member of an opposition political party to Parliament, the presumption is, in my considered view, that such person will not only practice the notion or concept of responsible opposition, but will, generally, have the best interests of the nation at heart.

I therefore, find, that the nomination of Mr R Nakacinda, MP, to this House, is in order, and in keeping with Article 69(1) of the Constitution of Zambia.

I THANK YOU.