By Muna Ndulo
(William Nelson Cromwell Professor of International and Comparative Law and Elizabeth and Arthur Reich Director, Berger International Studies Program, Cornell Law School)
The constitution is the supreme law of the land and its supremacy is unquestionable. That is unless you are the Speaker of the National Assembly Mr. Matibini. Then, the constitution becomes a footstool on which he hoists himself. His statement that: “He reserves powers to interpret the constitution within the confines of the operations of the legislature and that the constitutional court cannot tell him what to do,” are the words of a confused individual. In other words, Speaker Matibini pronounced himself to be above the constitution. He completely ignores the fact that not only are the legislature and his office creatures of the constitution, their very existence was created by the constitution. Sworn to defend and uphold the constitution, one can only wonder like Cassius in Julius Caesar and ask “Upon what meat doth this our Caesar feed, that he is grown so great? What has Speaker Matibini fed on that he has grown so arrogant? Permit me to reeducate Mr. Matibini on basic constitutional norms typically taught in the first year of the Law School curriculum.
Article 1 of the Zambian Constitution states that “this constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency.” It further states that the constitution shall bind all persons in Zambia, state organs and state institutions. Parliament is a creature of the Constitution and it can only have such power as is given to it by the constitution.
In Article 119 the constitution states that:” (1) judicial authority rests in the courts and shall be exercised by the courts in accordance with this constitution and other law. ” Judicial authority has been authoritatively defined as the power to decide controversies between the state and its subjects or between subjects. It embraces the determination by the courts of the constitutionality of laws in any case brought by a competent person in which it is necessary to determine the question in order for the court to be able to decide the dispute before it. It includes the power to interpret provisions of the constitution. These powers are unequivocally placed in the hands of the courts and not in parliament or the speaker.
The South African Constitutional Court has explained the relationship between Parliament and the Constitution in a constitutional which similarly grants judicial power to the courts, in Glenister v. President of South Africa (2008) the court stated, in a constitutional democracy the courts are the ultimate guardians of the constitution. They not only have the right to intervene in order to prevent the violation of the constitution, they also have the duty to do so. The Court observed that it is in the performance of this role that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention. It is a necessary component of the doctrine of the separation of powers that courts have a constitutional obligation to ensure that the exercise of power by other branches of Government occurs within constitutional bounds. The court observed further that “But under our constitutional democracy, the constitution is the supreme law. It is binding on all branches of government and no less on Parliament. When it exercises its legislative authority, Parliament must act in accordance with, and within the limits of, the constitution; and the supremacy of the constitution requires that the obligations imposed by it must be fulfilled. Courts are required by the constitution to ensure that all branches of government act within the law and fulfill their constitutional obligations”.
In another example, in September last year, the United Kingdom Supreme Court dealt with the issue of the prime minister suspending parliament for five weeks to avoid a debate on BREXIT in circumstances where the general view was that the action by Parliament violated the rights of members of Parliament to work. Prime Minister Boris argued that this was a matter for parliament and the courts could not tell parliament that its conduct was unconstitutional. The Lord Chief Justice Hale reading a unanimous judgment of eleven judges in the UK Supreme Court stated: “The courts have the responsibility of upholding our constitution. It is their particular responsibility to determine the legal limits of the power conferred on each branch of Government, and decide whether any exercise of power has transgressed those limits. The courts cannot shrink that responsibility merely on the grounds that the question raised is political.”
In conclusion, I would like to remind Speaker Matibini that the notion that “no one is above the law” is not only a constitutional principle, it is the cornerstone of the concept of the rule of law. I would like to end by reminding Mr. Matibini of the words of Theodore Roosevelt that “No man is above the law and no man is below it: nor do we ask any man’s permission when we ask him to obey it.” And the term ‘no man’ includes Mr. Matibini, whether or not he desires to be included or not.