Speaker erred by declaring Roan seat vacant – Chipenzi
By Staff Reporter
Governance expert, McDonald Chipenzi says Chishimba Kambwili is exercising his constitutional right by challenging Speaker Patrick Matibini’s decision to declare his parliamentary seat vacant.
Chipenzi who is Governance, Elections, Advocacy, and Research Services (GEARS) Initiative executive director said Kambwili was within his constitutional rights to challenge the Speaker’s decision especially that it was done without proof from the Registrar of Society (RoS) indicating that Kambwili was actually a National Democratic Congress office bearer.
He explained that constitutionally the only body mandated to nullify a seat of an elected member of parliament was the Court and not the Speaker of the National Assembly.
“Like instructed in Article 73(1) of the Constitution of Zambia (Amendment) Act No. 2 of 2016, a person may file an election petition with the High Court to challenge the election of a Member of Parliament,”Chipenzi said.
He pointed out that this provision was also amplified in the Electoral process Act No 35 of 2016 which points to the fact that any question on an elected member shall be through the court.
He added that the Constitution guides in Sub-article 3 of Article 73 that “a person may appeal against the decision of the High Court to the Constitutional Court”
“Once the seat is petitioned and appealed sub-article 4 of Article 73 stresses that a Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the election petition,” he observed
Chipenzi said that the Speaker’s decision is not final and his role does not involve declaring seats of members of the National Assembly vacant but only the courts are mandated to do so.
“The Speaker’s role and function, in this regard, starts and ends at just informing the Electoral Commission of Zambia of an existing vacancy in the National Assembly for the purposes of filling in the vacancy through a by-election,” he said
He stated that the causes of those vacancies are well articulated in article 72 of the Constitution and the Speaker is not given any mandate to declare any seat vacant.
“Kambwili’s challenge of the Speaker’s alleged disorderly action is in order,” he said.
Chipenzi noted that this means that the ECZ has to postpone the Roan parliamentary by-election to a later date to allow and until the Constitutional Court determines the matter.
“I suspect the ECZ scheduled that date of 11 April, 2019 because Kambwili might not have delivered his appeal papers yet especially that there was no leave for appeal against the Speaker’s ruling and no timeframe given for such an appeal,” he said.
Chipenzi also explained that the Constitution mandates the speaker to inform the ECZ within seven days on the existence of a vacancy in the membership in the National Assembly so that the Commission sets the date for the by-election as directed by Article 57.
“Roan Parliamentary Seat by-election is now been plunged into an electoral quagmire and limbo,” he said
Chipenzi further stated that ECZ had a statutory duty to guide the nation, stakeholders and political parties on status of the Roan parliamentary by-election to curb misinformation.