RULING BY THE HON MADAM SPEAKER ON A POINT OF ORDER RAISED BY DR A KATAKWE, MEMBER OF PARLIAMENT FOR SOLWEZI EAST PARLIAMENTARY CONSTITUENCY, AGAINST MR B C LUSAMBO, MEMBER OF PARLIAMENT FOR KABUSHI PARLIAMENTARY CONSTITUENCY, ON WHETHER MR B C LUSAMBO, MP, WAS IN ORDER TO REMAIN IN THE HOUSE FOLLOWING THE NULLIFICATION OF HIS SEAT BY THE HIGH COURT

 

Hon Members, the House will recall that on Tuesday, 23rd November, 2021, when the House was considering a Ministerial Statement presented by Hon C Milupi, MP, Minister of Infrastructure, Housing and Urban Development, on the state of the Chibuluma Central Road and Mr L Lubozha, Member of Parliament for Chifubu Parliamentary Constituency, was on the Floor, Dr A Katakwe, Member of Parliament for Solwezi East Parliamentary Constituency, raised a Point of Order.  

 

Dr A Katakwe, MP’s Point of Order was premised on Article 73 (4) of the Constitution of Zambia, Cap. 1 of the Laws of Zambia as read with Standing Order 239 of the National Assembly of Zambia Standing Orders, 2021. 

 

Article 73 (4) of the Constitution provides as follows:

 

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

 

Standing Order 239 on the other hand provides as follows:

 

“239. (1) Where a procedural question arises on a matter that is not expressly provided for by these Standing Orders or by other Orders of the House, the Speaker shall decide the question.

 

(2) A decision made in paragraph (1) of this Standing Order shall be based on the Constitution of Zambia, statute law and the usages, precedents, customs, procedures, traditions and practices of the Parliament of Zambia and other jurisdictions.”

 

In his Point of Order, Dr A Katakwe, MP, raised a concern regarding the continued attendance of sittings of the House, by Mr B Lusambo, MP, despite the nullification of the Kabushi Parliamentary Constituency seat, by the High Court.  

 

Hon Members, in her immediate response, the Hon Madam First Deputy Speaker reserved her ruling in order to study the matter since the Point of Order raised a constitutional matter. The matter has since been reviewed and I will now render the ruling. 

 

Hon Members, the Point of Order raises the issue of whether a Member whose seat has been nullified by the High Court can continue to attend the sittings of the House pending the outcome of an appeal to the Constitutional Court. 

 

The background to the matter is that Mr B C Lusambo, MP, was declared as the winner of the Kabushi Parliamentary Constituency elections, following the August, 2021 general elections. Following that election, Mr Bernard Kanengo petitioned the election of Mr B C Lusambo, MP, in the High Court, under cause number 2021/HN/EP/001. On 19th November, 2021, the High Court nullified the Kabushi Parliamentary Constituency election. On 22nd November, 2021, Mr B C Lusambo, MP, appealed against the High Court’s decision to the Constitutional Court and the matter is yet to be heard. Meanwhile, Mr B C Lusambo, MP has continued to attend and participate in Parliamentary proceedings. It is in this regard that Dr A Katakwe, MP raised his Point of Order. 

 

Hon Members, Standing Order 239 which I have already highlighted lays a foundation on how matters that are not provided for in the Standing Orders should be dealt with by the Speaker.  In that regard, I will now consider the provisions of the Constitution which form the basis of the Point of Order. Article 73 of the Constitution has to be considered in order to understand the intention of the legislature with regard to election petitions. Article 73 provides as follows:

 

“73. (1) A person may file an election petition with the High Court to challenge the election of a Member of Parliament. 

(2) An election petition shall be heard within ninety days of the filing of the petition. 

(3) A person may appeal against the decision of the High Court to the Constitutional Court. 

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

 

A reading of Article 73 reveals that once an election petition is filed, it must be heard by the High Court and determined within ninety (90) days. Further, once the High Court renders its decision on the matter, an aggrieved party may appeal against that decision to the Constitutional Court. Lastly, pending the decision of the High Court which has the jurisdiction to hear and determine the Petition, a member shall continue to hold the seat in the National Assembly. 

 

Hon Members, the above provisions present two scenarios as follows:

 

(i) where the High Court nullifies an election and the aggrieved party does not appeal the decision to the Constitutional Court; and 

 

(ii) where the Court nullifies an election and the aggrieved party appeals to the Constitutional Court. 

 

I will deal with the two scenarios, seriatim;

 

(i) where the High Court nullifies an election and the aggrieved party does not appeal the decision to the Constitutional Court

 

In this scenario, the Member whose seat is successfully petitioned ceases to be a Member of Parliament from the date of the decision of the High Court and, consequently, is precluded from taking parting part in Parliamentary business.  At this point, the Electoral Commission of Zambia (ECZ) proceeds to organise by-elections. 

 

(ii) where the High Court nullifies an election and the aggrieved party appeals to the Constitutional Court

 

In the second scenario, when the Petition is determined by the High Court and a seat is nullified, a Member shall cease to hold the seat and shall not take part in any parliamentary business unless and until the Constitutional Court overturns the decision of the High Court. In this scenario, the ECZ does not proceed to hold by-elections until the decision of the Constitutional Court. 

 

Hon Members, the ramification of the Constitutional provisions cited is that once the High Court has heard and determined a petition, the privilege given to a member to continue to hold his or her seat ceases. Holding the seat means to continue to enjoy the privileges of being a Member of Parliament which include attending the sittings of the House and receiving emoluments in that regard. 

 

The application of the law as espoused above ensures that a Member does not draw benefits of being a Member after a court of competent jurisdiction has nullified his or her seat. For a member to do so would inevitably amount to unjust enrichment. By the same token, in the event that the Constitutional Court, on appeal, reverses the decision of the High Court to nullify his or her seat, a Member will be entitled to be paid emoluments he or she would have earned during the period he or she was waiting for the appeal to be considered. This is a more practical application of the law rather than following up a Member of Parliament for emoluments he or she would have earned from the time of the decision of the High Court to the time of the decision of the appeal by the Constitutional Court, in the event that the appeal is unsuccessful. In short, the determination of a petition as envisaged in Article 73(4) of the Constitution is the determination by the High Court, which applies to situations where an aggrieved party appeals or does not appeal to the Constitutional Court. 

 

In view of the foregoing, it is my considered view that Mr B C Lusambo, MP is out of order to remain in the House after the nullification of his election by the High Court. 

 

Further, Hon Members, in view of my ruling, all Members of Parliament whose election was nullified by a decision of the High Court, whether or not such decision has been appealed against, shall forthwith not take part in any Parliamentary business. Only those who will be successful in their appeals in the Constitutional Court will be allowed back in the House and take part in Parliamentary Business.   

 

I thank you.