CHISHIMBA KAMBWILI V THE ATTORNEY GENERAL; LESSONS ON SEPARATION OF POWERS

High Court of Zambia Lusaka

The Constitutional Law case of Chishimba Kambwili v The Attorney General 2019/CCZ/009 is interesting. The brief facts of the case were that on the 21st of February, 2019, a point of order was raised by Malambo Member of Parliament, Hon. Makebi Zulu as to whether or not it was in order for Dr.Chishimba Kambwili to retain his seat even though he had admitted being a leader of a political party other than the one that sponsored his candidature. Pursuant to this, on 27th February 2019, the Speaker of the National Assembly of Zambia declared the Roan Constituency Parliamentary Seat vacant.

Dr. Chishimba Kambwili

Now, the Constitution of Zambia clearly provides for the circumstances in which a seat held by a Member of Parliament can become vacant. Although the Article covers for Independent Members of Parliament who decide to change to a different Political Party in terms of clause 2(g), it doesn’t cater for people who are still members of one political party but are affiliated with another one. According to Dr. Kambwili, the manner in which he was deposed from the Party that sponsored his candidature for Roan Constituency, was against the procedure stipulated in its constitution. Therefore, in his perception, he was still affiliated with the party owing to that technicality.

After hearing the pronouncement by the Speaker, Dr. Kambwili filed a proceeding in both the High Court and Court of Appeal.

Now, this is where it gets interesting…

I found the legal word ‘sub judice’ to be extremely annoying so I looked it up.

Sub Judice -“  A rule limiting comment and disclosure relating to Judicial Proceedings, in order not to prejudge the issue or influence the Jury.”

– Oxford Dictionary of Law, 5th Ediion

According to this definition, when a matter is still in deliberation in a court of law, public discussion of it, is prohibited elsewhere (but of course it has its exceptions). This was one of the main issues brought before the Constitutional Court.

Constitutional Court of Zambia

The other issue was whether the Speaker was in line with his legislative role by stating that there was a lacuna in Article 72 and consequently applying a remedy.

Honorable Speaker of the National Assembly, Dr. Matibini

Grade 4 Social Studies tells us that the interpretation of Laws is the function of the Judiciary. So, in this case, Dr. Kambwili’s Counsel, made submissions that the Speaker was not in line with his legislative role.

However, the Solicitor General, on the other hand held the opposite view. He brought a defense in the form of ‘exclusive cognizance’. In Zambia, this doctrine is provided for in section 34 of the National Assembly (Powers and Privileges) Act. The section reads:

  “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.”

Section 34 of the National Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia

What that means is that Parliamentary proceedings cannot be subjected to any Court of Law in the country; If it were so, then it could be said that one arm of Government is interfering with the Constitutional role of the other.

Coincidentally, I found that Dr. Patrick Matibini (the Speaker) had talked about the same issue in a paper that was presented to the 23rd conference of speakers and presiding officers of the Commonwealth, in Malaysia.

He said,

“This freedom for Houses to regulate their own affairs is known as ‘exclusive cognizance’. Thus the learned authors of Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament, Twenty Fourth Edition (London, Lexis Nexis, 2011), state (at page 227), that by “exclusive cognizance” is meant the right of Houses to be the sole judges of lawfulness of their own procedures and to settle or depart from their own codes of procedure.”

I love how the Constitutional Court resolved this issue. They were of the view that, in accordance with the doctrine of separation of powers, no arm of government should take on the role of the other. Therefore, checks and balances, should be used with great care and prudence. What that means is that Exclusive Cognizance should not mean that the Constitutional Court cannot hear matters that arise from interpreting the Constitution in the Legislature. The Legislature, also in turn, should not attempt to interpret statutes, including the Constitution, because that is the role of the Judiciary. Therefore, from this understanding, we could see that the Speaker took on the role of the Judiciary when he said there was a lacuna in the Constitution and then attempted to ‘fix’ it.

As of the matter that the Speaker fell short of the Sub Judice rule and that the Constitutional Court should declare his pronouncement in Parliament null and void, the Court stayed within its Jurisdiction. They cited that the aspect of the matter would be better decided in the High Court, as it would be usurping the power of that Court if they had adjudicated on it.

All in all, it was an interesting case, which I recommend any Vigilante Scholar to read.

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