Tuesday, 23^rd June, 2020

 

The House met at 1430 hours

 

[MR SPEAKER in the Chair]

 

NATIONAL ANTHEM

 

PRAYER

_______

 

ANNOUNCEMENT BY MR SPEAKER

 

STANDING ORDER 13(2)

 

Mr Speaker: I wish to inform the House that in accordance with Standing Order 13(2) of the National Assembly of Zambia Corona Virus Disease – 2019 (COVID-19) Temporary Standing Orders, 2020, which requires that any hon. Member who is or suspects that he/she may have contracted the COVID-19, to forthwith inform the relevant health authorities, a testing centre has been established at the clinic, here at Parliament Buildings. I, therefore, urge all hon. Members of Parliament and staff to take advantage of this facility and to test for the virus at their convenience.

 

I thank you.

 

_______

 

 

RULING BY MR SPEAKER

 

POINT OF ORDER RAISED BY HON. G. G. NKOMBO, MEMBER OF PARLIAMENT FOR MAZABUKA CENTRAL PARLIAMENTRAY CONSTITUENCY ON WHETHER THE HOUSE WAS IN ORDER TO DELIBERATE ON THE CONSTITUTION OF ZAMBIA (AMENDMENT) BILL N.A.B. NO. 10 OF 2019 WHICH CONTAINED A CLAUSE WHICH WAS THE SUBJECT OF LITIGATION IN THE MATTER OF DIPAK PATEL AND THE HON. MINISTER OF FINANCE AND THE ATTORNEY-GENERAL – CAUSE NO. 2020/CC/005

 

Mr Speaker: Hon. Members, you will recall that before we adjourned sometime in March, I did reserve a ruling on a point of order raised by Hon. Garry Nkombo, Member of Parliament for Mazabuka Central. I am now ready to render the ruling.

 

Ordinarily, I should have rendered this ruling while standing, but because of the longevity of the ruling and granted my age, …

 

Laughter

 

Mr Speaker: … I seek the indulgence of the House in particular and the nation at large …

 

Hon. Members: Hear, hear!

 

Mr Speaker: … to permit me to deliver this ruling while seated.

 

Introduction

 

Hon. Members, you will recall that on Wednesday, 18^th March, 2020, while the House was considering the Second Reading Stage of the Constitution of Zambia (Amendment) Bill, No. 10 of 2019, and the hon. Member for Chipata Central, Mr M. Mawere, was debating, Hon. G. G. Nkombo, Member of Parliament for Mazabuka Central Parliamentary Constituency, raised a point of order in the following terms:

“Mr Nkombo: Sir, I rise on a very serious point of order and I wish to begin by thanking you most sincerely for the opportunity.

 

“Mr Speaker, there have been precedents to the effect that when a matter that is under discussion in the House is admitted in the courts of law, to continue deliberating on it, is sub judice.

 

“Sir, I am aware of the precedents that I am referring to. For ease of reference, this Member of Parliament here (referring to himself), assisted by the former hon. Member of Parliament for Roan, Dr Kambwili, moved a Motion to impeach the President of the Republic of Zambia, His Excellency President Edgar Chagwa Lungu.

 

“The Motion was even admitted for deliberation. During the course of consideration of when to bring this Motion on the Table for debate, some citizens decided to approach the courts and I, as mover of the Motion, was informed by your office, Mr Speaker, that since the matter I brought before the House had now become a subject in the courts of law, it had become difficult for the Assembly to proceed, because the two matters could not run side by side. One process required to have been completed before the House could admit the Motion of impeachment of the President for deliberation.

 

“Mr Speaker, I am aware that your office, today, the 18^th of March, 2020, has been served with court documents, copies of which I have in my hands, and I will lay them on the Table when I finish raising my point of order. They are duly stamped ‛Received’ by the Office of the Clerk of the National Assembly.

 

“This is in the matter of the following parties: Mr Dipak Patel, citizen, as a petitioner, and the hon. Minister of Finance, who is sitting here, as the first respondent, and the Attorney-General as the second respondent.

 

“In this matter, the Constitutional Court of Zambia has a petition and for ease of reference, I will go ahead and deal with the first copy of this particular matter which is subject for you, Sir, to go through and hopefully, decide whether to halt the proceedings on the Constitution of Zambia (Amendment) Bill No. 10 of 2019 which is on the Order Paper and on the Floor of the House right now, just as you did in the case where I intended to move a Motion to impeach the Republican President, Mr Edgar Chagwa Lungu.

 

“For ease of reference, my quote is, “In the Constitutional Court of Zambia, dated 18^th March, 2020, holden at Lusaka Constitutional Jurisdiction, in the matter of Part 1, Article 2 of the Constitution of Zambia (Amendment) Act No. 2 of 2016, in the matter of Article 63, which is the most relevant Article in this particular matter because it deals with the authority of the hon. Minister of Finance or the Executive to borrow without due permission as the Constitution says from this House. It reads: “In a matter of part 16 of the Constitution of Zambia (Amendment) Act No. 2 of 2016; in the matter of Article 177(5) of the Constitution of Zambia (Amendment) Act No. 2 of 2016; in the matter of the Loans and Guarantees Authorisation Act, Cap 366 of the Laws of Zambia; in the matter of public borrowing by the Government of the Republic of Zambia.”

 

“I have already mentioned the petitioners and the respondent. However, for me to conclude, I will just take a part of the issues that are in the petition. Fifthly, the petitioner shall say that as a Zambian citizen and a tax payer, he is affected directly by any debt that the first and second respondents authorise and sign on behalf of the Government of the Republic of Zambia and as such, he has requisite standing to bring this claim before the court. The petitioner shall also say that Article 2 under Part 1 of the Constitution of Zambia (Amendment) Act No. 2 of 2016, recognises the right and duty of every citizen or every person to defend the Constitution and resist or prevent the overthrow, suspension or illegal abrogation of the Constitution of Zambia.”

 

I read in part.

 

“Mr Speaker, would this House, therefore, be in order to continue to deal forthwith with the issue of Bill No. 10, which contains this particular Article that I have quoted in this document from court? It is my prayer that in your ruling, after you have studied the matter, you will like you have done before, halt the proceedings on the Constitution of Zambia (Amendment) Bill No. 10 until this matter is disposed of in the courts of law.

 

Mr Speaker: Hon. Member for Mazabuka Central, for completeness sake, do you have the letter which you said I wrote to you? In your point of order you referred to a letter I wrote to you.

 

Mr Nkombo: I was communicated to by the Office of the Clerk not yourself, Sir …

 

Mr Speaker: Yes, that very letter.

 

Mr Nkombo: … that the matter is now in court and, therefore, we could not proceed. It is in my office.

 

Mr Speaker: Alright, in due course, supply it.”

 

That was the end of our dialogue.

 

Hon. Members, on 23^rd March, 2020, after the House adjourned sine die, the Clerk wrote to Hon. G. G. Nkombo, MP, requesting him to avail her a copy of that letter he referred to in his point of order and which he indicated was in his office. The letter in question from the Clerk was couched in the following terms:

 

“RE: POINT OF ORDER RAISED BY YOURSELF

 

“The above subject matter refers.

 

“Sir, on Wednesday, 18^th March, 2020, when the House was considering the Second Reading Stage of the Constitution of Zambia (Amendment) Bill No. 10 of 2019, you raised a point of order. In the said point of order, you asked whether the House was in order to deliberate on the Constitution of Zambia (Amendment) Bill which contains a clause, which is a subject of litigation in the Constitutional Court in the matter of Dipak Patel v the hon. Minister of Finance and the Attorney-General under cause No. 2020/CC/005. In couching your point of order, you made reference to a letter from the National Assembly when you stated inter alia as follows:

 

҅During the course of consideration of when to bring this Motion on the Table for debate, some citizens decided to approach the courts and I as mover of the Motion, was informed by your office, Mr Speaker, that since the matter I brought before the House had now become a subject in the courts of laws, it had become difficult for the Assembly to proceed because the two matters could not run side by side.

 

῾Further, in the following excerpt of the relevant verbatim record of the House, the Hon. Mr Speaker directed you to avail the said letter – and again, our dialogue is quoted in the letter:

 

Mr Speaker: Hon. Member of Parliament for Mazabuka Central, for completeness sake, do you have the letter which you said I wrote to you? In your point of order you referred to a letter I wrote to you.

 

Mr Nkombo: I was communicated to by the Office of the Clerk and not yourself, Sir …

 

Mr Speaker: Yes that very letter.

 

Mr Nkombo: … that the matter is now in court and, therefore, you could not proceed. It is in my office.

 

Mr Speaker: Alright, in due course, supply it.’

 

Sir, as you are aware, the Hon. Mr Speaker reserved his ruling on the point of order.

 

In view of the forgoing, we hereby request you to furnish us with a copy of the letter from the National Assembly that you referred to in your point of order. It will be appreciated, Sir, if the said letter is submitted to the Office of the Clerk of the National Assembly as soon as possible but not later than Wednesday, 25^th March, 2020.

 

Yours faithfully,

 

Cecilia Sikatele (Ms)

For/Clerk of the National Assembly.”’

 

Hon. G. G. Nkombo, MP, responded to the letter referred to above, on 6^th April, 2020, and his response was expressed in the following terms:

 

“RE:    POINT OF ORDER RAISED BY MYSELF

 

“Kindly refer to the above subject and your letter dated 23^rd March, 2020, in which you demanded that I avail a letter that Mr Speaker said he wrote on the matter of the Motion I sought to impeach the President of the Republic of Zambia His Excellency the President Mr Edgar Chagwa Lungu in March, 2018.

 

“Firstly and most importantly, I am astounded that you could classify a matter of such public interest and magnitude as confidential. Please note that there is no justification for such classification, as this matter is already in the public domain.

 

“Kindly take note of three cardinal facts surrounding my point of order:

 

1. In my point of order I stated, unambiguously, that I was informed by your office that,  (REF 1: page 1 highlighted) and I quote:

 

‘Mr Nkombo: The Motion was even admitted for deliberation. During the course of consideration of when to bring this Motion on the Table for debate, some citizens decided to approach the courts, and I as mover of the Motion, was informed by your office, Mr Speaker, that since the matter I brought before the House had now become a subject of the courts of law, it had become difficult for the Assembly to proceed, because the two matters could not run side by side. One process required to have been completed before the House could admit the Motion of Impeachment of the President for deliberation.’

    2.  After prompting by the Honourable Mr Speaker about what he referred to as the “completeness’ sake” of             my point of order, Mr. Speaker introduced and referred to a “letter” which I did not mention in my point of             order.  Mr. Speaker asked me and I quote: “Do you have the letter which you said I wrote to you? In your             point of order you referred to a letter I wrote to you?”

 

 3.   My response to Mr Speaker’s demand and assertion that I said his office had written to me, I corrected, that         I had been communicated to by your office regarding the Impeachment Motion, and I quote: “I was                       communicated to by the Office of the Clerk and not yourself, Sir ...”

 

Kindly find attached the letter I referred to have been in my office regarding the impeachment of the President, dated 27^th March 2018.  This letter was in response to your letter of 26^th March, 2018, that is in your files regarding the Impeachment Motion that I referred to when Mr Speaker insisted on a letter on 18^th March 2020.  In your letter, you indicated that due to the gravity of the matter, Mr. Speaker wished to study my Motion. While he was studying the Motion, two citizens of Zambia commenced court action, which has to date, three years later, halted the proceedings of my Motion.

 

In view of the above, I am convinced that if the communication I received from yourself was either inaccurate or misunderstood by myself, the Impeachment Motion of 2018 would have been tabled and disposed of by now.  To date, I believe the Motion has not been tabled because of the court action commenced by the citizens referred to above.

 

Yours faithfully,

 

G. G NKOMBO, M.P

MAZABUKA CENTRAL CONSTITUENCY”’

 

Hon Members, in my immediate response to the point of order, I indicated that I had not had sight of the court process that the hon. Member had referred to. Consequently, I stood down the proceedings to enable me to examine the court process in order to decide what course of action to take. On resumption of business, I informed the House that granted the issues raised in the point of order, and the documents and precedents, both judicial and those founded on parliamentary practice and procedure, required to be examined, a lot more time was required to ponder over the point of order in order to render a measured ruling. I, therefore, reserved my ruling.  I am now ready to render my ruling.

 

Hon. Members, the point of order raises a sole issue or question, of whether or not, the House is in order to proceed to consider the Constitution of Zambia (Amendment) Bill No. 10 of 2019, in light of the fact that the Bill, allegedly, contains a clause which is the subject of litigation in the matter between Dipak Patel vs the Minister of Finance and the Attorney-General - Cause No. 2020/CC005. In order to address the point of order comprehensively and systematically, I have decided to subdivide the ruling in four parts.

 

The first part shall address the context of the point of order, namely, the assertion or suggestion that I should follow the precedent set in the Impeachment Motion against His Excellency the President, Mr Edgar Chagwa Lungu, where I allegedly stated or communicated to Hon. G. G. Nkombo, MP, that the Impeachment Motion was sub judice.

 

The second part shall address the case of Chishimba Kambwili vs Attorney-General 2019/CC/009, vis-a-vis the concept or doctrine of obiter dicta. The third part will address the actual point of order raised by Hon. G. G. Nkombo, MP. In so doing, this part shall be preceded by a discussion of the concept or the doctrine of sub judice. The fourth and last part of the ruling will comprise the ultimate conclusion.

 

Hon. Members, I will now proceed to address the genesis and context of the point of order.

 

Genesis and Context of the Point Of Order

 

Hon Members, you may recall that on Wednesday, 21^stMarch, 2018, I departed the country, and led a delegation of selected Members of Parliament, the Clerk and some of her staff, to the 138^th Assembly of the Inter-Parliamentary Union (IPU) and related meetings that took place in Geneva, Switzerland, from Saturday 24^th to Wednesday, 28^th March, 2018. The following day, after my departure, on Thursday, 22^nd March, 2018, a Notice of Motion to Impeach the Republican President, Mr Edgar Chagwa Lungu, moved by Hon. G. G. Nkombo, MP, and seconded by Dr C. Kambwili, the erstwhile Member of Parliament for Roan Parliamentary Constituency, was lodged in the Clerk’s office.

        

Hon. Members, upon lodgement of the Impeachment Motion in the Office of the Clerk, I was duly and promptly notified about the same by the First Deputy Speaker, Hon. C. Namugala, MP, and the staff in the Office of the Clerk. In view of the gravity of the Motion, I instructed the First Deputy Speaker, in concert with the staff in the Office of the Clerk, to acknowledge receipt of the Motion, and advise the Mover, Mr G. G. Nkombo, MP, that I needed to study the Motion.

 

Accordingly, on 26^th March, 2018, Ms C. Sikatele, sent a letter to Mr G. G. Nkombo, MP, in the following terms:

 

“Dear Sir

 

RE: NOTICE OF MOTION ON THE IMPEACHMENT OF THE PRESIDENT

 

Reference is made to your letter dated 22^nd March, 2018, on the above subject matter in which you submitted the Notice of Motion on the Impeachment of the President of Zambia, Mr Edgar Chagwa Lungu.

 

I wish to acknowledge receipt of the letter together with the accompanying documents. In view of the gravity of the Motion, the same is being studied, and we shall revert to you in due course.

 

Yours faithfully

 

Cecilia Sikatele (Ms)

For/CLERK OF THE NATIONAL ASSEMBLY

 

CC: Hon Chishimba Kambwili, MP”.

 

Subsequently, on Wednesday, 28^th March, 2018, Hon. J. J. Mwiimbu, Leader of the Opposition and Member of Parliament for Monze Central Parliamentary Constituency raised a point of order inquiring on the status of the Impeachment Motion. The point of order was expressed in the following terms:

 

“Madam Speaker, I rise on a very serious point of order based on the Constitution of Zambia, the Standing Orders and the National Assembly (Powers and Privileges) Act pertaining to hon. Members of Parliament.

 

“Madam Speaker, you may recall that on Thursday last week, Hon. Garry Nkombo presented a Motion under Standing Order 37 and the Motion was to be seconded by Hon. Kambwili. Madam Speaker, we are all aware that if an hon. Member of this House decides to raise a Motion under the Standing Orders I just referred to, he is required to give three days notice. That requirement was complied with. Madam Speaker, the Notice of Motion was anchored on Article 108 of the Constitution of Zambia relating to the impeachment of the President.

 

“I recall that I swore before you to defend the Constitution of Zambia and my colleagues, Hon. Garry Nkombo and Hon. Kambwili relied on the provisions of the Constitution of Zambia, which we passed on the Floor of this august House in 2015, and was assented to by His Excellency the President in 2016.

 

“Madam Speaker, to date, we have not been told by your office when this Motion is going to be debated on the Floor of this august House as per the Constitution, and the Standing Orders of Parliament.

 

“Madam Speaker, as if that is not enough, we are aware that members of the Executive have been issuing statements in the media to the effect that this Motion will not be accepted by your office. They have debated a Motion which is before you in the various public media and on television before you even respond to us. Madam Speaker, as if that is not enough, hon. Members of Parliament, in particular, my brother here, Hon. Garry Nkombo, is being threatened by thugs outside and his life is in danger. Madam Speaker, we are in this August House to exercise our rights as per the Constitution. There is nothing irregular we have done through this Motion. Any civilised society demands that we follow what the Constitution says, and that is what we have done.

 

“Madam Speaker, we want you to tell us whether we are out of order by raising a procedural Motion as per the Constitution and the Standing Orders, which provide guidance to this august House on this issue. What wrong have we done? What wrong has he done (pointing at the hon. Member for Mazabuka Central) for him to be threatened? What wrong has he done in exercise of his rights as an hon. Member of Parliament pursuant to the law we passed? Right now, the atmosphere here in this august House is not conducive. If it was UPND, Madam Speaker, there would have been bloodshed outside.

 

“Madam Speaker, I would like your guidance on this matter whether we are wrong to have raised this matter, and having complied with the provisions of the law, whether this august House should not table the Motion on the Floor of the House.ˮ

 

In her immediate response to the point of order, the First Deputy Speaker, Hon. C. Namugala, MP, ruled as follows:

 

“The point of order raises three very important issues. The first one is whether or not, indeed, the Motion to impeach the President is provided for in the Constitution. The second point is whether or not the process so far has complied with our own rules, the Standing Orders. The third one is the issue of threats. The hon. Member for Monze Central has raised the issue of threats that there are people out there who are threatening the hon. Member of Parliament for Mazabuka Central.

 

“Hon. Members, in my response to the point of order, I wish to state that if, indeed, there are people out there and are within the precincts of Parliament, threatening anyone or the hon. Members here, they must be removed immediately. Hon. Members of this august House must not be threatened by anyone within the precincts of Parliament. As I have indicated, if they are there, they must be removed.

“Hon. Members, the second point that I wish to respond to is whether or not an Impeachment Motion is provided for. Yes, indeed, under Article 108 of our own Constitution, it is provided for as follows:

 

‘108. (1) A Member of Parliament, supported by at least one-third of the Members of Parliament, may move a Motion for impeachment of the President alleging that the President has committed –

 

                   (a)  a violation of a provision of this Constitution or other law;

 

                      (b) a crime under international law; or

                        

                       (c)  gross misconduct.’ˮ

 

I have read Article 108 (1) and I have read paragraphs (a), (b) and (c).

 

Hon. Members, in terms of whether or not the process or the Motion that is being proposed has complied with the constitutional provisions, yes, it is within these provisions. Therefore, it is in compliance with the provisions of our Constitution. So, in as far as that is concerned, it has been complied with. However, this Constitution does not give a time frame within which an Impeachment Motion must be tabled. It does not give a time frame within which a Motion such as this one should be tabled on the Floor of this august House.

 

Standing Order No. 37 states:

 

‘(a)      A member may introduce a private member’s motion at any time.

(b)        A member who wishes to introduce a motion under paragraph (1) shall deliver to the Clerk’s Office a                    fairly type-written notice, signed by the member and a seconder of the motion. The member must also                  clearly indicate, in the notice, the date proposed for introducing the Motion in the House.

(c)        The day proposed for introducing the motion shall not be less than three days ahead, and where notice                  is given on Friday, not less than four days ahead provided that the Speaker, may, by leave of the                           House, exempt a motion from this provision.

(d)        A private member’s motion shall be governed by the rules of admissibility.’

Hon. Members, the point of order is to the effect that the Hon. Member for Mazabuka Central has complied with all the provisions. Yes, it is true that the constitutional provisions, indeed, have been complied with, but the Constitution does not give a time frame. Further, the Standing Orders as provided do not compel the Speaker to table the Motion within three days. Therefore, in response to this point of order, I wish to state that there is nothing irregular or illegal that has happened or that the Speaker’s Office has done to undermine the Motion. The point of order is, therefore, inadmissible.”

 

The Case of Robert Chabinga and Henry Mulenga vs Attorney General

 

Hon. Members may wish to note that I returned from Geneva on Friday, 30^th March, 2018. Four days later, on Wednesday, 3^rd April, 2018, Mr Robert Chabinga and Mr Henry Mulenga commenced an action by Originating Notice of Motion for Judicial Review in the High Court in the matter of Robert Chabinga as First Applicant and Henry Mulenga Second Applicant vs The Attorney-General under cause number 2018/HP/0650.  In this action, the applicants sought the following order:

 

 “An order of certiorari directed to the Speaker of the National Assembly to quash his decision to entertain an Impeachment Motion to be tabled before the National Assembly of the Republic of Zambia against the President of the Republic of Zambia as null and void ab initio.”

 

The particulars in support of the action were expressed in the following terms:

 

1. that on 22^nd March, 2018, one hon. Member of the Zambian Parliament, namely, Mr Gary Nkombo, MP, did present to the Speaker of the National Assembly, a Notice of Motion with grounds supporting the Notice of Motion and purporting to be signed by one-third of the Members of the National Assembly in support of the Motion;
2. that the Speaker of the National Assembly on or about Wednesday, the 28^th of March, 2018, did table this Notice of Motion (herein referred to as “the Motion”) wherein the Speaker decided that the Motion would be tabled and discussed at full length at a date thereafter and/or preferably in June, 2018;
3. that the Speaker did not address his mind to the fact that at the time the grounds of and the Motion were presented before him for tabling in the National Assembly, the Motion, and grounds thereof, were and are matters that are pending in the lawfully constituted courts, including the Constitutional Court in Zambia under causes number 2016/CCZ/0033 and 2017/CCZ/004, and that allowing the same to be tabled is prejudicial to the court proceedings and, therefore, sub judice;
4.  that the Speaker of the National Assembly, where there are pending matters in the courts of law relating to same matters brought before him, shall wait for the courts to determine these matters;
5. that with reference to the grounds of the Motion, which do not touch on matters that are already before courts, the decision of the Speaker of the National Assembly in relation, therefore, to entertain the tabling of the Motion was equally tainted with unreasonableness, procedural impropriety and illegality; and
6.  that after the courts’ determination, the Speaker of the National Assembly shall then be in a position to determine whether or not the Motion and any other matter related thereto should be tabled.

 In this regard, the applicants sought the following reliefs:

 

1. an order of certiorari to remove into this honourable court, for the purpose of quashing the decision of the Speaker of the National Assembly made on or about 28^th March, 2018, in so far as he decides that there are valid reasons as to why the Motion should be entertained by the National Assembly. Further, there are established procedures that ought to be followed where matters are brought before the Speaker are the very ones that are before the courts of law under causes number 2016/CCZ/0033 and 2017/CCZ/004 which are still active and, as such, sub judice and prejudicial;
2. an order of certiorari to remove into this honourable court, for the purpose of quashing the decision of the Speaker of the National Assembly regarding the Motion dated 22^nd March, 2018, in so far as it purports to indicate that the Motion before the House was properly before it. Particulars of the breach include, but not limited to the following:

 

1. failure to appreciate that the grounds of the Motion and/or issues complained of were and/or are at the time of the Speaker’s decision, and/or thereafter, actively before the Constitutional Court and other courts; and
2.  the decision of the Speaker aforesaid, having been unreasonable, tainted with procedural impropriety, and illegality.

 

c. a declaration that the decision of the Speaker of the National Assembly dated on or about 28^th March,      2018, to accept the tabling of the Notice of Motion dated 22^nd March, 2018, to impeach the                        Republican  President was unconstitutional and unlawful;

e. an order for costs; and

f. that all necessary and consequential directions be given.”

 

Hon. Members may wish to note that the matter between Robert Chabinga and Henry Mulenga vs Attorney-General, 2018/HP/0650, is still an active matter and, therefore, has not yet been determined and concluded by the High Court.

 

Hon. Members, to revert to the point of order, you will recall that in his point of order under consideration, Mr G. G. Nkombo, MP, alleged that I had communicated to him advising that the House could not proceed with the Impeachment Motion because it had become sub judice as a result of the case of Robert Chabinga and Henry Mulenga vs the Attorney-General. To be precise, I wish to quote the relevant part of Mr G. G. Nkombo’s point of order:

 

“… I, as mover of the Motion, I was informed by your office, Mr Speaker, that since the matter I brought before the House had now become a subject in the courts of law, it had become difficult for the Assembly to proceed because the two matters could not run side by side.”

 

Hon. Members, the true position is that at no point did either myself, the other presiding officers or indeed, the Office of the Clerk of the National Assembly or her deputies, communicate in writing to Mr G. G. Nkombo, MP, that the Impeachment Motion was sub judice because an action had been commenced in court as alleged by Mr G. G. Nkombo, MP, in his point of order. Be that as it may, I will, later in the course of my ruling, revert to this matter.

 

The Case of Chishimba Kambwili vs Attorney-General

 

Hon. Members, I will now proceed to address the second part of this ruling. I will begin this part of the ruling by adverting to the case of Chishimba Kambwili vs the Attorney-General 2019/CCZ/009. Soon thereafter, I will discuss, very briefly, the concept or doctrine of obiter dicta. The brief facts of the Kambwili Case were as follows: A petition was filed in the Constitutional Court by Dr Chishimba Kambwili challenging my decision of 27^th February, 2019, declaring the Roan Parliamentary seat vacant on the basis that the Petitioner, Dr Chishimba Kambwili, had crossed the Floor by leaving the Patriotic Front (PF), the political party which sponsored his election to the National Assembly and subsequently joined the National Democratic Congress (NDC) in contravention of Article 72(2)(d) and (g) of the Constitution. Thus, the Petitioner sought the following reliefs in the Constitutional Court:

 

1. a declaration and order that the ruling of the Speaker dated 27^th February, 2019, is null and void ab initio;

 

1. a declaration and order that the petitioner did not cross the Floor as ruled by the Speaker of the National Assembly;
2. a declaration and order that the petitioner’s seat did not fall vacant as ruled by the Speaker of the National Assembly;
3. any other remedies the court may deem fit and just; and
4. costs.

 

The reliefs referred to above were refused or rejected by the Constitutional Court. In refusing or rejecting the reliefs, the Constitutional Court stated at J(42) as follows:

 

“As regards the petitioner’s second and third prayers, for declarations and orders that the petitioner did not cross the Floor and that the petitioner’s seat did not fall vacant, our firm view is that this court does not have jurisdiction to delve into the issues whether or not the petitioner did indeed cross the Floor or whether indeed his seat fell vacant or not, because these are matters which, at the material time, were pending determination by the High Court, under whose jurisdiction they fall. We do not, thus, want to fall into the same trap of usurping the powers of the High Court, which was dealing with the matter in question.”

 

Hon. Members, this conclusion is startling. It is startling because Article 128(1) provides as follows:

 

“128. (1) Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear –

 

1. a matter relating to the interpretation of this Constitution.”

 

Clearly, Article 128(1)(a) of the Constitution gives the Constitutional Court both original and final jurisdiction to determine any matter relating to the interpretation of any provision in the Constitution. I am fortified in this interpretation, by the decision of the High Court, in the case of Davies Mwila (suing in his capacity as Secretary-General of the Patriotic Front (PF)) verses the Attorney General, Cause No. 2018/HP/2111. In this matter, the PF launched an action in the High Court seeking judicial review of my refusal to declare the Roan Parliamentary seat vacant based on Article 72(5). In delivering judgment in the matter, Justice Kombe stated on pages 40 to 41 as follows:

 

“ ... In view of the foregoing, I find that this court does not have the jurisdiction to hear and determine this application for leave to commence judicial review proceedings for the following reasons:

 

1. the grounds upon which the reliefs of declaration, certiorari and mandamus are sought to challenge the Hon. Speaker’s decision are illegality and unreasonableness. A determination of these grounds by this court will depend upon the construction of the content and scope of Article 72 of the Constitution, which vests the Hon. Speaker with the power to declare a parliamentary seat vacant. This action, therefore, borders on the interpretation of the said Article 72, which is a preserve of the Constitutional Court; and
2. the applicant alleges that the refusal by the Hon. Speaker to refuse to declare the Roan seat vacant has contravened Article 72 of the Constitution. The correct forum to hear and determine this matter according to Article 128(1)(a), is the Constitutional Court.

 

Having made the above finding, it follows that the applicant should have commenced an action in the Constitutional Court by way of petition.”

 

In making this determination, Justice Kombe referred to and relied, inter alia, on the decision of the Supreme Court in the case of Felix Chipota Mutati and Others verses Winnie Zaloumis (suing in her capacity as acting National Secretary for the Movement for Multiparty Democracy (MMD)), SCZ/8/08/2017. In this case – the Mutati case – Supreme Court Judge Kabuka, in delivering the judgment of the Supreme Court, observed at page J(22) that:

 

“... the Constitutional Court ... is the competent court mandated with original jurisdiction to hear matters relating to interpretation of constitutional provisions.”

 

I have already observed that the Constitutional Court has original and final jurisdiction to determine a matter relating to the interpretation of constitutional provisions. In declining to exercise its jurisdiction over the petition moved by Dr Chishimba Kambwili, the Constitutional Court deferred to the High Court case of Chishimba Kambwili verses Davies Mwila (being sued as Secretary General of the PF). Let me, therefore, briefly and quickly advert to this matter. In this case, Dr Chishimba Kambwili’s claims were cast in the following terms:

 

“The plaintiff’s claim is for:

 

            a. a declaratory order that the decision of the Patriotic Front Central Committee to expel the plaintiff                          from  the party is wrongful, illegal, null and void;

 b. a declaratory order that the plaintiff’s rights under the Patriotic Front constitution, were infringed by            not  giving him a chance to face his charges and chargers;

c. an order that the Patriotic Front Central Committee could not be the complainant or accuser, and              judge in its own case, against the plaintiff;

d. any other relief the court may deem fit; and

e. costs.”

 

The Patriotic Front, in turn, through its Secretary-General, mounted the following counterclaim:

 

“By this counterclaim the defendant claims:

 

1. a declaration that the Roan Constituency seat is vacant following the resignation of the Plaintiff from the Patriotic Front;
2. any further relief the court may deem fit; and
3. costs.”

 

Hon. Members, from the claim and counterclaim, it is self-evident that on one hand, Dr Chishimba Kambwili’s action related to his expulsion from the Patriotic Front. On the other hand, the counter-claim by the Patriotic Front related to the allegation that the Roan Parliamentary seat fell vacant as a result of Dr Kambwili resigning from the Patriotic Front. Be that as it may, because of the position taken by the Constitutional Court on its jurisdiction, the complaint raised by Dr Chishimba Kambwili, has, in my opinion, gone unanswered, unsolved or unresolved, to date. Notwithstanding, the Constitutional Court went on to observe, in passing, that the Speaker has no power or mandate to interpret both the law and the Constitution because that is the exclusive preserve of the courts of law. To this end, the Constitutional Court, speaking through its president, Hon. Madam Justice Hilda Chibomba, observed on pages J(37) – J(38), as follows:

 

“Our firm view is that while the Speaker was well within his power to respond to the Point of Order that was raised on the Floor of the House, he exceeded his powers when he proceeded to apply the purposive canon of interpretation of statutes in order to ‘cure’ the lacuna that he identified in Article 72 of the Constitution as amended. We find that the Speaker exceeded his power as the function of interpreting the law and the Constitution is vested in the judiciary as provided by Article 119 of the Constitution. The interpretation of the Constitution as a legal instrument is the function of the courts, the branch of Government to whom is assigned that delicate task. Therefore, by ruling as he did, the Speaker exceeded his constitutional power as he strayed or encroached into the adjudicative function of the courts of the land which are mandated to exercise judicial authority of the Republic by interpreting the law and the Constitution. Therefore, the provisions of Article 77(1) of the Constitution as amended and section 34 of the National Assembly (Powers and Privileges) Act, cannot be relied upon as a defence. More so, that according to the respondent’s submissions, the Speaker was aware of the court case(s) although not the details.” 

Hon. Members, the question or issue whether or not the Speaker has power to interpret the law and the Constitution did not fall for decision. Instead, what the Constitutional Court was invited or required to pronounce itself on was whether or not my declaration of the Roan Parliamentary seat vacant was lawful. Thus, the Constitutional Court, instead of confining itself to the specific complaint before it, went outside the remit of the complaint it was invited to hear and determine ...

 

Hon. Government Members: Hear, hear! Hammer!

 

Mr Speaker: ... and went on to comment on a matter that had not even been canvassed by the parties.

 

I am inspired in positing the preceding proposition by the observation of the Supreme Court in the case of Murray and Roberts Construction Limited and Kaddoura Construction Limited vs Lusaka Premier Health Limited and Industrial Development Corporation of South Africa Limited, Appeal Number 141 of 2016. In this case, Justice Kajimanga in delivering the judgment of the court, which was, of course, reviewing a judgment of a trial judge, observed as follows on page J(16):

 

“However, instead of confining himself to this specific application, the trial judge went beyond his jurisdiction by making decisions on matters that had not been canvassed by the parties, under the guise of inherent jurisdiction.”

 

Therefore, the observation by the Constitutional Court that the Speaker – this is the Speaker –

 

Laughter

 

Hon. Government Members: Hear, hear!

 

Mr Speaker: Therefore, the observation by the Constitutional Court that the Speaker has no power to interpret the law and the Constitution was made by the way, or what in legal parlance is popularly referred to as obiter dictum.

 

Obiter dictum

 

Hon. Members, what, then, is obiter dictum? Granville Williams, in an elementary but very useful book, entitled Learning the Law, Fourteenth Edition, which was first published in 1945 and has been introducing students to foundational skills needed to study law effectively for the last 75 years, explains on pages 103 and 104, the meaning of obiter dictum in the following terms:

 

“In contrast with ratio decidendi is the obiter dictum. The latter is a mere saying “ by the way”, a chance remark, which is not binding upon future courts, though it may be respected according to the reputation of the judge, the eminence, and the circumstances in which it came to be pronounced. An example would be a rule of law stated merely by way of analogy or illustration, or a suggested rule upon which the decision is not finally rested. The reason for not regarding an obiter dictum as binding is that it was probably made without full consideration of the cases on the point, and that, if very broad in its terms, it was probably made without a full consideration of all the consequences that may follow from it. Alternatively, the judge may not have expressed a concluded opinion.”

 

Similarly, Byran A Garner, in Black’s Law Dictionary, on page 1177, defines obiter dictum, in the following terms:

 

“A judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and, therefore, not precedential. Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a judge, in his decision upon a cause, ‘by the way’- that is, incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy or suggestion.”

 

Furthermore, Professor Mulela Margaret Munalula, now a Justice in the Constitutional Court, in her book entitled: Legal Process: Zambian Cases, Legislation and Commentaries (Lusaka, University of Zambia Press, 2004), expresses this view point, regarding the meaning of obiter dictum, on page 212:

 

“Obiter dicta – in the course of his judgment, a judge sometimes expresses his opinion upon a point of law which is not necessary for the decision of the case; such an expression of opinion is termed an obiter dictum. Obiter dicta, even of the highest tribunal in the land, are not binding on any court, however humble, but if made by an eminent judge, they are most valuable as reasoned statements, and they may very well influence the courts on a later occasion.”

 

Hon. Members, the term obiter dictum is usually contrasted, in legal parlance, with a twin concept; ratio decidendi. Ratio decidendi as defined by Byran A Garner, in Blacks’ Law Dictionary on page 1376, means:

 

“The principle or rule on which a court’s decision is founded or the rule of law on which a later court thinks that a previous court founded its decision; a general rule without which a case must have been decided otherwise.”

 

Further, Granville Williams offers the following insight regarding the concept of ratio decidendi:

 

“English courts are obliged to follow previous decisions of English courts within more or less well defined limits. This is called the doctrine of precedent. The part of a case that is said to possess authority is the ratio decidendi, that is to say, the rule of law upon which a decision is founded. The ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon.”

 

Ratio decidendi is therefore the actual reasoning upon which a court’s decision is founded and, as such, it is authoritative, binding and constitutes the judicial precedent for future cases.

 

Power of Speaker to Interpret the Law and Constitution

 

Since the Constitutional Court observed or suggested that the Speaker has no power or mandate to interpret the law and the Constitution, I will conduct a brief survey relating to the exercise of the power or mandate by the Speaker, to interpret the law and the Constitution. First, I will advert to the high water case of Attorney-General and the Movement of Multiparty Democracy (MMD) vs Akashambatwa Mbikusita Lewanika and Others (1993-1994 Zambia Law Report at page 164). In that case, the respondents resigned from the MMD, the party that sponsored their election to the National Assembly. Subsequent to their resignation, the National Secretary of the MMD wrote to the Speaker of the National Assembly, informing him that the respondents were no longer members of the party. In consequence of the party’s official notification, the Speaker wrote to the respondents informing them that in terms of Article 71(2)(c) of the Constitution, which proscribed floor-crossing, they ceased to be Members of Parliament, effective from the date the Speaker received the official notification of their resignation from the MMD. The Members, dissatisfied with the Speaker’s decision, commenced an action in the High Court contending that although they had resigned from the party on whose tickets they had been elected to the National Assembly, they retained their seats as Independents. They, thus, asked the court to declare the Speaker’s decision that their seats were vacant, null and void. Both the High Court, as a court of first instance, and the Supreme Court, on appeal, upheld the Speaker’s decision that the Members had vacated their seats on the day they announced their resignation from the MMD.

 

Second, is the case of Tetamashimba vs The Speaker of the National Assembly, the Chairman of the Electoral Commission of Zambia, and the Attorney-General. Mr Benny Tetamashimba, who was elected Member of Parliament for Solwezi Central Parliamentary Constituency on a National Party (NP) ticket, later, by virtue of a Memorandum of Understanding (MOU) between NP and the United Party for National Development (UPND), was appointed Secretary-General of the UPND. Following a point of order questioning Mr Tetamashimba’s continued stay in the House when he had dual membership contrary to Article 71 of the Constitution, the Speaker ruled that by assuming the position of Secretary-General of the UPND, Mr Benny Tetamashimba had, indeed, become a member of the UPND. The Speaker accordingly declared Mr Tetamashimba’s seat vacant. Dissatisfied with the decision of the Speaker, he challenged it in the High Court. In passing judgment, Justice Mutale held as follows:

 

“He became a UPND member. 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.”

 

Lastly and most recently, in the case of Geoffrey Bwalya Mwamba vs Attorney-General (2016) Zambia Law Report Vol. 2, at page 296. A point of order was raised enquiring whether or not, it was in order for Mr Geoffrey Bwalya Mwamba, who was elected to the National Assembly on the ticket of the Patriotic Party (PF), to continue sitting in the House following his decision to assume the position of Vice-President (Administration) of the UPND.

 

In resolving the point of order, I construed Article 71(1)(c) of the Constitution, and I also interpreted Section 2 of the Societies Act, Chapter 119 of the Laws of Zambia. In so doing, I arrived at the conclusion that by accepting the position of Vice-President of the UPND, a party on whose ticket he was not elected to the National Assembly, Mr Geoffrey Bwalya Mwamba, had contravened Article 71(1)(c) of the Constitution and, as a consequence, vacated his seat. As a result, I proceeded to declare the Kasama Central Parliamentary Constituency seat vacant.

 

My decision to declare the Kasama Central Parliamentary seat vacant was subsequently challenged and adjudicated upon by the High Court in the case of Geoffrey Bwalya Mwamba vs Attorney-General cause 2015/HP/1182, in which Mr Justice J. M. Siavwapa held as follows, at page 26:

 

“I find that Article 71 of the Constitution of Zambia is not applicable as the declaration of the Petitioner’s seat vacant by the Speaker had nothing to do with the Petitioner’s expulsion from the Patriotic Front (PF) Party. The seat was declared vacant on account of the Petitioner’s decision to become a member of the Opposition UPND, when he accepted his appointment as its Vice-President for Administration on 22^nd July, 2015.”

 

Hon. Members, it is self-evident, in all the preceding cases, that the various Speakers (including of course myself), interpreted relevant provisions of the law in general and the Constitution of Zambia in particular, in order to rule on the points of order in question.

 

Hon. Members, in addition, there are various pieces of legislation that regulate the operations of the National Assembly. Notable among these are: the Constitution of Zambia itself, and the National Assembly (Powers and Privileges) Act, which regulates the powers, immunities and privileges of the House. Insofar as the National Assembly is concerned, it is governed by Articles 61 to 89 of the Constitution of Zambia. Consequently, the Speaker may, from time to time be required to interpret the provisions of the law and the Constitution of Zambia. To illustrate, I will refer to a few Articles below:

 

“Article 64(1) governs the introduction of Bills in the National Assembly, and provides as follows:

 

‘A Member of Parliament or Minister may introduce a Bill in the National Assembly.’

Article 65(1) and (2) goes on to provide as follows:

‘(1) A money Bill shall be introduced by a Minister.

(2) A Money Bill means a Bill that provides for, among other matters:

1. the imposition, repeal, remission, alteration or regulation of taxes;
2. the imposition of charges on the Consolidated Fund or any other public fund or the variation or repeal of any of those charges;
3. the appropriation, receipt, custody, investment, issue or audit of accounts of public monies;
4. the grant of public money to a person or authority or the variation or revocation of such grant;
5. the raising or guaranteeing of a loan or the repayment of it; or
6. matters incidental to matters specified in this clause.’”

Hon. Members, in view of Articles 64(1) and 65(1) and (2), a question may arise, through a point of order, as to whether a Money Bill moved by a member, is properly before the National Assembly. In order to resolve such a point of order, the Speaker will be required to interpret the provisions of Articles 64(1) and 65(1) and (2).

“Article 67(6) of the Constitution is in the following terms:

‘A Member of Parliament who intends to challenge a statutory instrument, on its constitutionality, shall follow the procedure laid down in the Standing Orders of the National Assembly.’”

In order to admit a Member’s challenge of a statutory instrument under Article 67(6), the Speaker may be required to determine whether the challenge raises a constitutional issue or not. In order to do this, the Speaker will be required to interpret the relevant law, vis-à-vis the provisions of the Constitution of Zambia.

 

You will recall that on Wednesday, 13^th March, 2018, a point of order was raised by the Leader of the Opposition and Member of Parliament for Monze Central, Hon. J. J. Mwiimbu, MP, on whether the President was in order to nominate Hon. R. Nakacinda, MP, who is a member of an Opposition political party, as a Member of Parliament. In response, I ruled, in line with the doctrine of exclusive cognisance that although Hon. R. Nakacinda is a member of an Opposition political party, his nomination to the House by the President, was made in accordance with the provisions of Articles 68 and 69 of the Constitution of Zambia. Therefore, I was in order to interpret the Constitution and arrive at that conclusion.

 

“Article 80 of the Constitution of Zambia, relating to Parliamentary Committees, provides as follows:

 

‘80(1)  The National Assembly may establish Parliamentary Committees.

 

(2)        Parliamentary Committees shall be established at the first sitting of the National Assembly after a              general election, and after the election of the Speaker and the Deputy Speaker.

 

(3)        The National Assembly shall, in selecting members of a Parliamentary Committee, ensure that                  there is equitable representation of the political parties holding seats in the National Assembly                  and independent Members of Parliament;

 

(4)        Standing Orders shall provide for the categories, functions and procedures of Parliamentary                     Committees.’”

 

A question may, in this connection, arise whether or not the Parliamentary Committees have been equitably composed, having regard to the representation of the political parties holding seats in the National Assembly and Independent Members of Parliament, as provided in Article 80(3) above. To resolve such a question, the Speaker will inevitably be required to interpret Article 80(3), in light of such a point of order.

 

Beyond the Constitution, Section 9(A) of the National Assembly (Powers and Privileges) Act, grants the National Assembly, the power to inquire into offences against it. To this extent, Section 9(A), provides as follows:

 

“Subject to the Constitution, the Assembly has the power and jurisdiction necessary to inquire into an act or omission, matter or thing, amounting to contempt of Parliament contrary to section nineteen or a contravention of the Standing Orders, and rules of parliamentary practice and procedure.” 

 

In order to determine whether a person has committed contempt against the Assembly under Section 19 of the Act, an interpretation of the provisions of Section 19 is inevitable, in response to a complaint that an offence has been committed under Section 19 of the Act.

 

It is clear from the preceding statutory provisions that the Speaker may be required, from time to time, to interpret the laws of the land in general and the Constitution in particular; at least, insofar as they relate to the functioning and management of the National Assembly. 

 

What is a Point of Order?

 

I will now proceed to a subsection to consider what a point of order is. In order to appreciate what the Speaker does when he is making those rulings, whether or not he is adjudicating and encroaching on another branch of Government, hon. Members, at this juncture, I will proceed to consider the true nature or character of a point of order. 

 

Hon. Members, it is instructive to note that in rendering rulings arising from diverse points of Order, the Speaker does not perform an adjudicative or judicial function. Instead, the Speaker’s rulings provide guidance on procedural rules and the general conduct of Business of the House. According to the National Assembly Members’ Handbook 2006, a point of order is defined, and its purpose is stated in the following terms at page 25:

 

 “A question raised by a Member who believes that the rules of procedure of the House have been incorrectly applied or overlooked during the proceedings.”

 

Further, M. N. Kaul and S. L. Shakdher, in their book entitled: Practice and Procedure of Parliament, Seventh Edition, (New Delhi, Lok Sabha, 2016), define a point of order, and explain its purpose at page 1042, in the following terms:

 

“Any member can, and should, invite the Speaker’s immediate attention to any instance of what he considers a breach of order or transgression of any law of the House, written or unwritten, which the Chair has failed to perceive and he may also seek the guidance and assistance of the Chair in respect of any obscurities in procedure. A point of order should, therefore, relate to the interpretation or enforcement of the rules of procedure, and conduct of Business in the House or conventions or such Articles of the Constitution as regulate the Business of the House, and must raise a question which is within the cognisance of the Speaker.”

 

Additionally, Robert Blackburn & Andrew Kennon, with Sir Michael Wheeler-Booth, in their book entitled: Griffith & Ryle on Parliament - Functions, Practice and Procedures, Second Edition, (Thomson Reuters (Legal) Limited, 2003), elucidates a Point of Order, in the following terms at page 278:

 

“A point of order, as properly understood, relates to the practices or procedures of the House and essentially to a matter on which the Chair has power to take action ...”

 

Hon. Members, from these authorities, it is clear that a point of order is raised in order to draw the attention of the Speaker to a perceived breach of a procedural rule or practice and requires the immediate attention and guidance of the Speaker. Therefore, when the Speaker renders a ruling in response to a point of order, he/she is not adjudicating, in a sense of a dispute between two or more parties; each with an interest to protect for which a ruling or judgment is expected or awaited. But rather, as already pointed out, it is a means by which the attention of the Speaker or other presiding officers, the breach of a rule, convention or practice, is raised or drawn.

 

Judicial Review of Actions and Decisions of the National Assembly

 

Hon. Members, there is another matter that I would like to draw your attention to. The actions and decisions of the National Assembly, as well as that of the Speaker and other presiding officers are subject to judicial review. To illustrate, I will refer to two decided cases.  The first is the case of the Attorney-General and Speaker of the National Assembly vs Ludwig Sondashi, Zambia Law Reports 2003 at page 42.

 

In that case, following a failed coup de’tat in 1997, here in Zambia, Dr Ludwig Sondashi, who was a Member of Parliament for Solwezi Central Constituency, in response to a question posed in an interview with a reporter, outside the House, stated that sometimes coups can create positive change.

 

Laughter

 

Mr Speaker: Following publication of the interview in a newspaper, the National Assembly suspended him for four months for making the statement. Following the suspension, Dr Ludwig Sondashi applied for judicial review in the High Court, to have the decision of the National Assembly to suspend him from sittings of the House, and enjoying the privileges and benefits of his office, including the payment of his personal emoluments and sitting allowances, withheld, without lawful grounds, declared null and void.

 

Judgment in the High Court was entered in favour of Dr Ludwig Sondashi and the decision of the National Assembly was quashed. The basis for the High Court’s decision was that the statement was made outside the House, in his individual capacity, and in exercise of his freedom of speech. On appeal by the Attorney-General, the Supreme Court upheld the decision of the High Court, and dismissed the appeal. Further, the Supreme Court held that the High Court had constitutional jurisdiction to hear and determine applications for judicial review in matters reviewing the decisions of the National Assembly.

 

Secondly, in the case of Attorney-General and Speaker of the National Assembly vs The People (1999) Zambia Law Reports on page 186, the applicants were stakeholders in relation to the matters that the University Bill of 1999, intended to address and the Government had not consulted them. The applicants also feared that the proposed Bill would encroach upon their rights and freedoms under the subsisting University Act. The Supreme Court held, inter alia, that the High Court was not barred from relying on the provisions of Order 53 of the Supreme Court Rules of England, governing judicial review. Thus, they applied for judicial review, impeaching the National Assembly’s power to enact the Bill into law.

 

Hon. Members, it is clear from these two cases that the decisions of the National Assembly, the Speaker and other presiding officers are amenable to judicial review.

 

Let me now, in a related matter, proceed to consider the doctrine of exclusive cognisance. However, granted the principle of exclusive cognisance which gives Parliament the power to regulate its own internal procedures, as provided by Article 77(1) of the Constitution and Section 34 of the National Assembly Powers and Privileges Act, judicial review is only exercisable after the National Assembly in general, or the Speaker or other presiding officers in particular, have performed a function or exercised a power in question.

 

To be sure, firstly, Article 77(1) of the Constitution provides as follows, and I quote:

 

“Subject to this Article and Article 78, the National Assembly shall regulate its own procedure and make Standing Orders for the conduct of its business.”

 

Secondly, Section 34 of the National Assembly Powers and Privileges Act provides as follows:

 

“Neither the Assembly, the Speaker nor any officer shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Assembly, the Speaker, or such officer by or under the Constitution, the Standing Orders, and this Act.”

 

Hon. Members, my understanding or interpretation of Article 77(1) of the Constitution, and Section 34 of the National Assembly Powers and Privileges Act, is that the National Assembly has power and jurisdiction to conduct its internal affairs. As a matter of fact, the Constitutional Court acknowledged the doctrine of exclusive cognisance in the case of Chishimba Kambwili vs Attorney-General when it referred both to Article 77(1) of the Constitution, and section 34 of the National Assembly (Powers and Privileges) Act at page J(31), and I quote, what they said:

 

“We also note that by virtue of Article 77(1) of the Constitution, as read together with Section 34 of the National Assembly (Powers and Privileges) Act, which we quoted earlier, the National Assembly has exclusive power and jurisdiction over the conduct of its internal affairs.”

 

Hon. Members, I have already stated that the actions and decisions of the National Assembly, as well as that of the Speaker and other presiding officers are subject to judicial review. A question that may be posed or asked here, however, is this: At what stage may the courts of law intervene and conduct their review? In order to answer the preceding question, I will advert to some Indian cases.

 

Firstly, in the case of Hem Chandra Sen Gupta and Others vs the Speaker of the Legislative Assembly of West Bengal, 1956, CAL on page 378, the Chief Minister of West Bengal had given notice to move a Motion for the Legislative Assembly to approve a proposal for the union of the States of West Bengal and Bihar. Opposed to the merger, the petitioners sought to restrain the Chief Minister from pursuing the Motion.  The petitioners also sought to restrain the Union of India from bringing any Bill or legislation in Parliament for purposes of uniting the two States. In resolving the issue whether court process could be used to stall an internal process of the Assembly, the court observed, on paragraph 22 of the judgment, as follows:

 

“…The courts cannot at this stage seek to regulate the procedure of the House and arrogate to itself the powers of the Speaker. If, however, a law was passed or a resolution adopted or a motion carried, which is not in accordance with the Constitution, such a law, resolution or Motion could be declared invalid by the court.”

 

The court went further to hold in paragraph 23 of the judgment, as follows:

 

“The Constitution lays down the respective jurisdictions of the legislatures and the courts. It is the business of the legislatures to make laws, and of the courts to administer them. The powers, privileges and immunities of the State legislatures and their members have been laid down in the Constitution. Within the Legislature, members have absolute freedom of speech and discussion (Article 194). Subject to the provisions of the Constitution, they can regulate their own procedure, (Articles 208, 212) in such matters and within their allotted spheres, they are supreme and cannot be called in to account by the courts of the land.  The courts are, therefore, not interested in the formative stages of any law. Even where a law has been promulgated, it is not the duty of the courts to act in a supervisory character and rectify the defects suo motu.”

 

In deciding the Gupta case, the court referred to the English case of the Queen vs Lords Commissioners of the Treasury [1872] 7Q.B. 387, where it was held that the Legislature had the exclusive cognisance to decide its own affairs. Thus, in the Gupta case (supra), the court adopted the statement of Blackburn J, as follows:

 

“I must observe in saying this that there is not the slightest intention on my part to question the exclusive prerogative of the House of Commons in voting the money. As long as the thing remains in fieri, a resolution in the House, it could not, I believe, be brought properly before this court. But when the money has been voted, and the money has been granted, and an Appropriation Act has been passed, then it has become an Act of the Legislature, and we must construe it when it comes before us as we should do any other Act.”

 

Secondly, in another Indian case of The State of Kerala vs R. Sudarsan Babu and Others AIR 1984, Ker 1, the court clarified the basis upon which proceedings of the Legislature could be challenged. The court held at paragraph 26 of the judgment as follows:

 

“Whether the Legislature has been functioning within the permissible limits of its legislative power is a matter which quite often arises for examination before courts. Even so, immunity is conferred on the Legislature under clause (1) of Article 212. The proceedings in the Legislature may not be challenged on the ground of mere irregularity, but may be challenged as illegal or unconstitutional. The proceedings of the Legislature may become unconstitutional, if it violates the provisions of the Constitution, and then there would be a case for examination.”

 

The import of the dicta of Blackburn J, cited above, is in effect that no action can be commenced to challenge a process of the National Assembly before it is completed and a decision is made.  Thus, any challenge must come after the decision is made. I do not think one can say more, by way of principle, than this.

 

Hon. Members, therefore, in view of the foregoing, I am not persuaded by the observation or suggestion by the Constitutional Court in the Kambwili case that the Speaker has no constitutional mandate to interpret the law and the Constitution. I am not persuaded. Let me put it plainly.  I do not, with respect, agree with the Constitutional Court that the Speaker has no constitutional mandate to interpret both the law and the Constitution. On the contrary, it is crystal clear that entrenched parliamentary practice and procedure as well as precedents established by the courts of law themselves, categorically, confirm the fact that the Speaker has power to interpret both the law and the Constitution. To hold otherwise, would, in my opinion, not only paralyse the smooth functioning of the National Assembly, but also possibly throw the nation into unnecessary constitutional crisis. Above all, it would also be contrary to principle. Consequently, I will proceed to interpret both the relevant law and constitutional provisions adverted to in the point of order raised by Mr G. G. Nkombo, MP.

 

The Point of Order vis-à-vis The Concept or Doctrine of Sub Judice

I will now pass to the third part of the ruling which addresses the actual point of order and culminates in the conclusion. Hon. Members will recall that in the point of order, Mr G. G. Nkombo, MP, raised the question whether or not the House is in order to proceed with consideration of the Constitution of Zambia (Amendment) Bill No. 10 of 2019, considering, in his view, that the matter is sub judice following a court action initiated by Mr Dipak Patel against the Minister of Finance and the Attorney General in the Constitutional Court in cause number 2020/CCC/005.

 

Hon. Members, before I consider the actual point of order, I will begin this part of the ruling by addressing the concept or doctrine of sub judice.

 

Hon. Members, it is common knowledge that while the National Assembly has the privilege to discuss and deliberate upon any matter without inhibition or external interference, over the years, the National Assembly has developed a self-imposed restriction on hon. Members debating matters that are pending adjudication before the courts of law. This restriction is secured or enabled through the doctrine of sub judice.

 

Hon. Members, what then, does the term ‘sub judice’ mean? The term ‘sub judice’ has been variously defined. To begin with, Bryan A. Garner, in Black’s Law Dictionary, Ninth Edition (Dallas, Thomson Reuters, 2009), at page 1562, defines it in the following terms:

 

“Before the court or judge for determination.”

 

Jonathan Law, editor in the Oxford: A Dictionary of Law, published online, Ninth Edition, (London, Oxford University Press, 2018), defines sub judice, in the following terms:

 

“A parliamentary practice in which the Speaker prevents any reference in questions or debates to matters pending decision in court proceedings (civil or criminal). In the case of civil proceedings, he has power to waive the rule if a matter of national interest is involved.”

 

Further, and in agreeing with Bryan A. Garner, Jonathan Law, Jennifer Speake, and Mark LaFlaur, in their online publication, The Oxford Essential Dictionary of Foreign Terms in English, First Edition (London, Oxford University Press, 2002), define sub judice as follows:

 

“Law under the consideration of a judge, and therefore prohibited from public discussion.”

 

Hon. Members, it is instructive to note, here, that the National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia, and the National Assembly Standing Orders, 2016, do not provide for the sub judice rule. Notwithstanding, Standing Order No. 179 allows the House to refer to relevant practices in other Commonwealth Parliaments in resolving a matter not provided for in our own rules. For avoidance of doubt, Standing Order No. 179, is expressed in the following terms:

 

“In a case not provided for in the rules of procedure, or in a case where there is a difference of opinion as to the interpretation of any such rules, the Speaker shall decide, taking into account the customs and usages of the Assembly since its inception and the relevant practices in other Commonwealth Parliaments.”

 

Accordingly, the National Assembly of Zambia is at liberty to adopt practices in other Commonwealth Parliaments, insofar as the sub judice rule is concerned.

 

At this juncture, I will, therefore, proceed to advert to the practices in other Commonwealth Parliaments insofar as the doctrine of sub judice is concerned. First, I. C. Harris, in his book entitled, House of Representatives Practice, Fifth Edition, (Canberra, Can Print Communications Pty Ltd, 2005), explains the application of sub judice rule in the Canadian House of Commons, on pages 505 and 506, in the following terms:

 

 

“Notwithstanding its fundamental right and duty to consider any matter if it is thought to be in the public interest, the House imposes a restriction on itself in the case of matters awaiting or under adjudication in a court of law. This is known as the sub judice convention. The convention is that, subject to the right of the House to legislate on any matter –

 

I need to consult on the order of proceedings and my time.

 

Interruptions

 

Mr Speaker: I was saying that at this juncture, I will therefore proceed to advert to the practices in the other Commonwealth parliaments in so far as the doctrine of sub judice is concerned as follows:

 

“Notwithstanding its fundamental right and duty to consider any matter if it is thought to be in the public interest, the House imposes a restriction on itself in the case of matters awaiting or under adjudication in a court of law. This is known as the sub judice convention. The convention is that, subject to the right of the House to legislate on any matter, matters awaiting adjudication in a court of law should not be brought forward in debate, motions or questions. The origin of the convention appears to have been the desire of Parliament to prevent comment and debate from exerting an influence on juries and from prejudicing the position of parties and witnesses in court proceedings.”

 

Second, Harry Evans, in his book entitled, Odgers’ Australian Senate Practice, Twelfth Edition, at page 198, the Australian practice in the Senate, is explained in the following terms:

 

“The sub judice convention is a restriction on debate which the Senate imposes upon itself, whereby debate is avoided which could involve a substantial danger of prejudice to proceedings before a court, unless the Senate considers that there is an overriding requirement for the Senate to discuss a matter of public interest. The convention is not contained in the Standing Orders, but it is interpreted and applied by the Chair and the Senate, according to circumstances.”

 

In the same book, Harry Evans makes reference on page 199 to a passage in a ruling rendered by President McMullin in 1969, as follows:

 

“As a general rule, the Chair will not allow references to matters which are awaiting or are under adjudication in the courts, if such reference may prejudice proceedings. But it does not necessarily follow that just because a matter is before a court, every aspect of it must be sub judice and beyond the limits of permissible debate in Parliament. That would be too restrictive of the rights of Parliament.” 

 

Harry Evans goes on to state on page 200 as follows:

 

“It would be an undue restriction on the freedom of the Senate to debate matters of public interest if debate were to be restrained simply on the basis that matters may come before a court in the future. Thus, the fact that writs have been issued, which does not necessarily mean that proceedings will ensue, does not give cause for the sub judice convention to be invoked.”

 

Third, Robert Blackburn and Andrew Kennon in their book entitled, Parliament: Functions, Practice and Procedures, Second Edition, at page 287 make the following observation:

 

“The sub judice rule does not, however, apply to legislative business or where a ministerial decision is in question. The Speaker has discretion to waive the rule and would normally do so when the case in question concerns issues of national importance such as the economy, public order, or essential services.”

 

Fourth, Audrey O’Brien and Marc Bosc in their book entitled, House of Commons Procedure and Practice, describe the Canadian practice at page 627 in the following terms:

 

“The sub judice convention is first and foremost a voluntary exercise of restraint on the part of the House to protect an accused person, or other party to a court action or judicial inquiry, from any prejudicial effect of public discussion of the issue. Secondly, the convention also exists, as Speaker Fraser noted, ‘to maintain a separation and mutual respect between legislative and judicial branches of government’. However, as Speaker Sauve explained, the sub judice convention has never stood in the way of the House considering a prima facie matter of privilege vital to the public interest or to the effective operation of the House and its Members.”

 

Fifth, M. N. Kaul and S. L. Shakdher in their book entitled, Practice and Procedure of Parliament, Seventh Edition describe the Indian practice on pages 1190 and 1191, as follows:

 

“It is the absolute privilege of the Legislatures and Members thereof to discuss and deliberate upon all matters pertaining to the governance of the country and its people. Freedom of speech on the Floor of the House is the essence of parliamentary democracy. Certain restrictions on this freedom have, to a limited degree, been self-imposed. One such restriction is that the discussion on matters pending adjudication before the courts of law should be avoided on the Floor of the House so that the courts function uninfluenced by anything said outside the ambit of trial in dealing with such matters.”

 

M. N. Kaul and S. L. Shakdher again ...

 

Hon. Member: Same people?

 

Mr Speaker: The same people.

 

Laughter

 

Mr Speaker: ... go on to refer to a ruling of the Indian Speaker on this subject on page 1191 as follows:

 

“The rule whether a Motion which relates to a matter which is under adjudication by a court of law, to be admitted or discussed in the House, has to be interpreted strictly. While on the other hand the Chair has to ensure that no discussion in the House should prejudice the courts of justice. The Chair also has to see that the House is not debarred from discussing an urgent matter of public importance on the ground that a similar, allied or linked matter is before a court of law”.

 

I will pause here.

 

The time now is 1655 hours. We are supposed to end our proceedings now. However, by virtue of the doctrine of exclusive cognisance, I seek the leave of the court –

 

Hon. Members: The House!

 

Mr Speaker: Sorry. I seek leave of the House to conclude.

 

Hon. Members: No! Tomorrow, Sir!

 

Mr Speaker: I will abide by the rules.

 

Very well, as I have already indicated, the time now is 1655 hours, and in terms of the COVID-19 rules, we stand adjourned. There is a clear indication that the rules of procedure which have been set by this House should not be violated. As much as I was desirous of completing delivery of this ruling, the same will stand adjourned.

 

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MOTION

 

ADJOURNMENT

 

The Vice-President (Mrs Wina): Mr Speaker, I beg to move that the House do now adjourn.

 

Question put and agreed to.

 

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The House adjourned at 1659 hours until 1430 hours on Wednesday, 24^th June, 2020.

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