We don’t know which law school PF cadre Isaac Mwanza attended for him to be so embarrassingly ignorant on simple legal norms.
The PF media is awash with ‘news’ that the motion filed by the UPND has suffered a major setback as key grounds for impeachment are set to be struck out.
These grounds will be struck out because Isaac Mwanza has written to the Clerk of the National Assembly ‘advising’ that key impeachment grounds cannot be deliberated by Parliament as they are active matters before the Constitutional Court.
In this letter dated 27 March 2018 Mwanza has ‘advised’ that grounds 1.1 to 1.3 are active matters before the Constitutional Court under cause numbers 2016/CC/33 and 2017/CC/0004, respectively.
In a nutshell, Mwanza’s ‘reasoning’ and advice thereof to parliament is that, under the principal of separation of powers, Parliament cannot debate matters which are before the Courts of law.
First of all, Mwanza is not the legal advisor to the National Assembly. As far as we know, there are qualified lawyers employed by parliament, and we believe these lawyers understand the present law.
We understand that every person is entitled to their opinions, but Mwanza is not expressing an opinion here. He is advancing what he mistakenly thinks is the law. By asserting that ‘under the principal of separation of powers, Parliament cannot debate matters which are before the Courts of law,’ Mwanza is trying to explain something he clearly does not understand.
We shall give Mwanza and his type free education on the concept of ‘separation of powers’.
What Mwanza is ignorantly referring to as separation of powers is actually a small component of the broad idea of separation of powers. He is without knowledge, speaking about the doctrine of subjudice.
But it will be instructive to first explain what separation of powers is and is not.
Black’s Law dictionary defines ‘separation of powers’ as ‘the division of governmental authority into three branches of the state – legislative, executive, and judicial each with specified duties on which neither of the two other branches can encroach.’ Separation of powers was ‘developed to guard against abuses of power and the danger of tyrannical government. The essence of the separation of powers is that the responsibilities for the three main functions of government should be divided between separate but dependant institutions so that no one of these can dominate or function effectively without the others.
In accordance with the pure separation of powers doctrine, parliament should ideally make laws and courts should just interpret and apply them, and parliament should not exercise any judicial functions or interfere in the operations of courts. But of course this imposible. We hope Mwanza understands this simple but important separation.
Now, here is the issue. Under the separation of power, there is what is called the subjudice rule. By the sub-judice principle, MPs are required to refrain from commenting on cases currently in court. The sub-judice rule requires that matters awaiting adjudication in a court of law should not be brought forward in motions, debates, questions or supplementary questions, except when allowed by the chair.
The rationale for this rule is that discussions of a case may have a prejudicial effect and may prevent the parties to the civil or criminal case from having a fair trial.
But, and this is very important, there is an exception. There is discretion for the Speaker to allow discussion if the subject is in national interest. This is the rule in both Zambia and the United Kingdom where Zambia copied the system.
For example, the British Joint Committee on Parliamentary Privilege explains that the present rule rightly tries to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions.
On the other hand, Parliament has a constitutional right to discuss any matters it pleases.
Parliament is sovereign and can discuss any topic provided that the speaker allows it. The discretion of the speaker is and should not be abused by the human agency. There are rules that guide the speaker on what should be allowed in the house whether it is active in court or not. Any matter that is in national interest should be debatable in parliament. Now, if accusations of theft, corruption and breaching the constitution by the so-called president are not in national interest, then there is nothing that is not in national interest.
The simple answer to Mwanza’s letter is that parliament can and should discuss any matter even if it is in court as long as that matter is in national interest. To completely block parliament from debating any matter in court even when they are in national interest will be working against the very spirit of separation of powers. Courts will have too much powers.
We hope Mwanza will one day understand that in law, nothing is cast in iron. Most matters in law depend on their particular sets of facts.
By the way in the midst of poverty, doctrines such as separation of powers are untenable because the human elements that are expected to safeguard such lofty ideas are the weakest links.