Hon Members will recall that on Thursday, 21^st March, 2019, when the House was debating the Ministerial Statement on Mukula trees presented by the Minister of Lands and Natural Resources, Hon J Kapata, MP, and Mr M C Munkonge, Member of Parliament for Lukashya Parliamentary Constituency, was on the floor, Mr L C Bwalya, Member of Parliament for Lupososhi Parliamentary Constituency raised the following Point of Order:

“Mr Speaker, I rise on a Point of Order on three Hon. Members of Parliament, Mr Mathews Jere, Evg. Shabula and Mr Sing’ombe.

Sir, I am aware that you have counselled, and I am also fully aware of the fact that I needed to raise my Point of Order contemporaneously. However, that was not possible because of the events. The Point of Order emanates from Standing Orders 145 and 148 of 2016.

Mr Speaker, on Tuesday, 19^th March, 2019, the Electoral Commission of Zambia (Amendment) Bill came up for Second Reading. The Chairperson of your Committee on Legal Affairs, Human Rights, National Guidance, Gender Matters, and Governance presented the report and eventually we voted. However, during the voting, the mentioned hon. Members of Parliament, of course, voted against the Bill. Perhaps, this Point of Order will help us understand the interpretation of the provisions of the two Standing Orders I have referred to. I wish to quickly quote.

Standing Order 145(3), states:

“145(3) A member of a select committee shall not dissent from or vote against the recommendations of his or her report in the House.”

Sir, Standing Order 148, on page 59, states:

“Application of Select Committee rules to Standing Committees

148. The provisions of Standing Orders one hundred and thirty-five to one hundred and forty-five shall, with necessary modification, apply to standing committees.”

Mr Speaker, I have read Standing Order 145(3) and that is the provision in Standing Order 148. This will not only help us to understand the requirement of the members of the Standing Orders when it comes to reports, but it will also help us when it comes to voting on the Floor of the House. Perhaps, it will also help us with the interpretation and understanding of this matter.

Sir, my Point of Order, therefore, is that were the three Hon. Members I have mentioned in order to abstain during that particular voting on the Electoral Commission of Zambia (Amendment) Bill, 2019? I need your serious ruling.”

In my immediate response, I reserved the ruling. I have studied the matter and will now render my ruling.

Hon Members, I wish to restate that a Point of Order is an interjection during a sitting of the House by a Member, who does not have the floor, to call the attention of the presiding officer to an alleged violation or breach of the Assembly's rules of procedure. It, therefore, follows that for a Point of Order to be admissible, it must be raised contemporaneously; that is, it must be raised soon after the alleged breach of procedure occurs. In this case, the incident that gave rise to the Point of Order occurred on Tuesday, 19^th March, 2019, and Mr L C Bwalya, MP, only raised his Point of Order on Thursday, 21^st March, 2019, which is two days after the occurrence of the incident. Clearly, as acknowledged by Mr L C Bwalya, MP, himself, the Point of Order was not raised contemporaneously, and is, therefore, inadmissible.

However, I would like to seize this opportunity to provide guidance to the House on the interpretation and application of Standing Orders 103, 145 and 148 of the National Assembly of Zambia Standing Orders, 2016,.

Standing Order 103, governs the procedure for consideration by the House, of Committee reports on Bills referred to Committees. Standing Order 103 is expressed in the following terms:

“103. When a Bill has been reported by a Committee, the House shall proceed to consider the Bill as reported from the Committee.”

Further, Standing Order 145 (3), provides guidance regarding the manner of voting in the House for a member of a Committee whose report is before the House. It provides as follows:

“145 (3) A member of a Select Committee shall not dissent from or vote against the recommendations of his or her own report in the House.”

Standing Order 148 extends the application of, among others, Standing Order 145 to Standing Committees of this Assembly, and to this extent, provides as follows:

“148. The provisions of Standing Orders one hundred and thirty-five to one hundred and forty-five shall, with necessary modification, apply to Standing Committees.”

The import of the preceding Standing Orders is that a member of a Standing Committee cannot vote against or dissent from the recommendations of his or her own report when it is being considered in the House.

Hon Members, I would like to point out that while it is clear when a member votes against a report, it is not clear what amounts to dissenting. And whether abstaining can be regarded as dissenting.  Bryan A Garner, Editor-in-Chief of the Blacks Law Dictionary, Ninth Edition, (St. Paul: Thompson Reuters, 2009) defines “dissent”, at page 541, as follows:

“A disagreement with a majority opinion or a withholding of assent or approval.”

In addition, Bryan A Garner defines “abstain”, at page 9, as follows:

“To voluntarily refrain from doing something, such as voting in a deliberative assembly.”

Hon Members, it is noteworthy that the word “dissent” has been defined to include withholding of assent. Going by this definition, it is my considered view, that a person who abstains from voting can be considered to have withheld their assent and by so doing to have dissented.  In this regard, a Member who abstains from voting say, during the second reading stage of a Bill, can be said to have dissented against the Bill being read the second time.

Having established that by abstaining from voting on a Bill, a Member dissents. The question that begs an answer is whether a Member of a Committee considering a Bill, who dissents from the Bill being read the Second time when the recommendation in the report of the Committee is to support the Bill, can be considered to have voted against the recommendations of his or her own report and fallen foul of Standing Order 145 (3).

Hon Members, in 2015, I had occasion to rule on a similar matter in a Point of Order that was raised by Mr J J Mwiimbu, Member of Parliament for Monze Central Constituency, on Members of the Committee on Legal Affairs, Governance, Human Rights, Gender Matters and Child Affairs, who voted against their Reports (Parliamentary Debates of the First Meeting of the Fifth Session of the Eleventh National Assembly, 18^th September - 10^th December, 2015, pages 3341-3342).

The brief facts relating to the Point of Order are that the Committee on Legal Affairs, Governance, Human Rights, Gender Matters and Child Affairs was tasked to consider the Constitution of Zambia Bill, No. 16 of 2015, and the Constitution of Zambia (Amendment) Bill, No. 17 of 2015, after the First Reading stage of the Bills in the House. Upon consideration of the Bills, the Committee noted that there were numerous divergent views on the contents of the Bills and recommended to the House that the Bills be withdrawn. Since the Bills were proposing to amend the Constitution, in order for them to pass the second reading stage, they were put to the vote in accordance with Article 79 (2) (b) of the Constitution, which is in the following terms:

“79 (2) (b) Subject to clause (3) a Bill for the alteration of this Constitution or the Constitution of Zambia Act shall not be passed unless the Bill is supported on second and third readings by the votes of not less than two thirds of all Members of the Assembly.”

In voting on the Constitution of Zambia Bill, No. 16 of 2015, three Patriotic Front (PF) Members namely; Mr S Masumba, MP, Mr M Kapeya, MP and Ms M Miti, MP; and two Movement for Multi-party Democracy (MMD) Members, namely; Mr M A Malama, MP and Ms V Kalima, MP (the deceased); voted for the Bill to go through second reading contrary to the recommendation of the Committee that the Bill be withdrawn.

Similarly, in voting on the Constitution of Zambia (Amendment) Bill, No. 17 of 2015, three PF Members, namely; Mr S Masumba, MP, Mr M Kapeya, MP and Ms M Miti, MP; and three MMD Members namely; Mr H Kunda, MP, Mr M A Malama, MP, and Ms V Kalima, MP (the deceased); voted for the Bill to go through second reading contrary to the recommendation of the Committee that the Bill be withdrawn.

The question for determination in that Point of Order, therefore, was whether, it was in order, for a member of a Committee tasked to consider a Bill after the First Reading in the House, to vote against the recommendations of the Committee on the Bills.

My ruling was anchored on the interpretation of Standing Order 103 (2) of the National Assembly Standing Orders, 2005, which is identical to Standing Order 103 of the National Assembly Standing Orders, 2016, which I referred to earlier. Standing Order 103 (2) provided as follows:

“103 (2) When a Bill has been reported by a Committee, the House shall proceed to consider the Bill as reported from the Committee.”

In addressing the question raised in the Point of Order, I stated, at pages 3341 to 3342, of the Ruling as follows:

“This means that once a Committee presents its report to the House on the Bill, the House proceeds to consider the Bill as presented by the mover of the Bill, in this case, the Hon. Minister of Justice. The report of the Committee on the Bill, therefore, is not the subject of discussion, but is merely used to assist the House understand the ramifications of the Bill. Hon Members will recall that this was the spirit of the parliamentary reforms that introduced the system of referring Bills to Committees. Therefore, although the Committee’s report is referred to in debating the Bill, the subject of debate still remains the Bill, not the report. It is for this reason that no Motion is moved on the Floor of the House to adopt such a report and no question is put to the House to adopt it. The question put to the House following the debate is whether the Bill should be read for the second time. This procedure is clearly distinguishable from the one used to adopt a report of a Select or Portfolio Committee, in which the subject of the debate on the Floor of the House is the report. In such an instance, a Motion is moved on the Floor of the House by the Chairperson of the Committee to adopt the report and a question is put to the House in that regard. It is such a report that requires the support of all the Members of the Committee in accordance with Standing Order No. 145 (3), which stipulates as follows:

No member of a Select or Portfolio committee shall dissent from or vote against the recommendations of his or her own report.”

I, therefore, ruled that the Members of the PF and MMD who voted contrary to the recommendations of their Committee reports on the two Bills were not out of order.

Hon Members, it is evident from my ruling on the Point of Order raised by Mr J J Mwiimbu, MP, that when a Bill comes up for second reading, the Motion that is before the House is whether or not the Bill should be read the second time.  The report of the Committee that considered the Bill is not brought to the House for approval, but is merely used to aid members as they debate the ramifications of the Bill.

There is, therefore, a clear distinction in procedure between reports presented to the House by Committees for adoption and reports on Bills. It is crystal clear that Standing Order 145 (3) only applies to reports brought to the House for adoption and not those that merely aid debate, for instance, on a Bill before the House.