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Speaker differs with ConCourt

By SIMON MUNTEMBA
I DO not agree with the Constitution Court that I exceeded my constitutional powers when I declared the Roan Parliamentary seat which was held by Chishimba Kambwili, Speaker of the National Assembly, Patrick Matibini has said.
Dr Matibini said as Speaker, he has powers and jurisdiction to interpret the law and constitution, as well as to preside over some of the internal matters arising from the proceedings of the House.
“National Assembly has powers to preside over its internal matters arising from the proceedings of the house,” the Speaker said.
Speaking in Parliament yesterday when he was delivering a ruling on a point of order raised by Mazabuka Central Member of Parliament, Gary Nkombo who challenged whether the house was in order to debate Bill 10 when the matter was a subject of Court petition in the High court before Parliament adjourned sine die on March this year, Dr Matibini openly differed with the ConCourt in a different matter.
Dr Matibini said the Concourt went beyond what it was asked and its pronouncement could not hold as a precedent.
The Speaker also said he does not adjudicate on matters but merely provide guidance on issues related to the business of the house.
He said no issue could be challenged which was still in the hands of the Parliament unless it was disposed of.
However, the Speaker could not finish his ruling as time allocated for the sitting due to Covid-19 had elapsed.
Recently, the Constitutional Court had ruled that Dr Matibini exceeded his Constitutional powers when he declared the Roan Parliamentary seat vacant.
Dr Matibini on February 27, 2019 declared Mr Kambwili’s Parliamentary seat vacant on allegations that he crossed the floor of the House when he accepted the appointment as National Democratic Congress (NDC) consultant.
This was after Malambo member of Parliament Makebi Zulu raised a point of order regarding the same.
But in a ruling delivered by Constitutional Court President Hildah Chibomba, Judges Annie Sitali, Mungeni Mulenga, Palan Mulonda and Martin Musaluke, they stated 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 purpose canon of interpretation of statute in order to cure the lacuna that he identified in Article 72 of the Constitution.
The judges stated that Dr Matibini exceeded his power as the function of interpreting the law in the Constitution was vested in the judiciary, the branch of government to who he 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,” they stated.
However, despite finding that the Speaker exceeded his powers, the court could not rule that his decision was null and void as it would create a Constitutional crisis and absurd state of affairs by having two members of Parliament for Roan Constituency.
The Court could also not declare Dr Matibini’s decision null and void as the incumbent Roan member of parliament Joseph Chishala who was an interested party, was not added to the case and heard.
“The petitioner has not cited the said Joseph Chishala thereby making his prayer for declaratory order to fall foul of the principle that the court will not grant a declaration unless all the parties affected by or interested in the case are before the court,” they stated.
With regard to the declaration that Kambwili crossed the floor and the seat fell vacant, the court stated that they had no jurisdiction to delve into such issues which at the material time were pending before 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 were dealing with the matter in question,” they stated.

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