Patrick Matibini might be a lawyer and a former judge, but he is not a judge and therefore has no powers to interpret the provisions of the Republican Constitution. That is the role of courts. The question is not whether the decision he made is correct or not but whether he had power to make that decision.
It is true that any person, charlatan, or dimwit can ‘interpret’ the law on the street, but it is only the courts of law that are given powers to interpret the law and make orders based on their interpretations.
His decision to expel Geoffrey Mwamba from parliament is therefore illegal and, in a neutral court of law, it can be successfully challenged.
Matibini is the speaker of the national Assembly. The role of the National Assembly is to make laws. In the process of making laws, the Speaker has vast powers.
For example, the Speaker is the custodian of parliamentary procedure, bills and all parliamentary papers and publications. All Members of Parliament look to him for guidance in matters of procedure, and he decides on points of order. His rulings constitute precedents by which the subsequent Speakers of the Assembly will be guided.
But these powers are restricted to and only relate to the process of making the law in parliament. Once the law is made, it is beyond the speaker unless it is coming up for amendment. The speaker himself has to obey that law. Once law has been made, it is only the Judiciary through its courts that are given power to interpret the law. It is called separation of powers. The legislature (Parliament) makes the law: courts (judiciary) interpret them. When two citizens do not agree on the interpretation of the law, the constitution in this case, they go to court, the only body seized with power to interpret the law. Citizens here include MPs and the Speaker himself.
What Matibini did on Tuesday afternoon was to usurp powers of the Judiciary. He effectively constituted himself into the Judiciary. He was interpreting the republican constitution not rules or procedures of parliament. If Matibini was ruling on a Member of Parliament misbehaving in Parliament, he would have been on firm ground and no one would question him. In such matters, he has vast powers. But he was deciding on the membership of parliament. That is beyond his powers. In fact the speaker has no power to expel an MP. He can only suspend or mete out some other punishment. But deciding who is and who is not a member of parliament is simply not within the powers of the speaker.
The tendency by the Speaker of the Zambian Parliament to encroach on the duties of the Judiciary is not new. Chief Justice Irene Mambilima had to deal with similar issues when she was a High Court Judge in 1999.
In that case, then Speaker Robinson Nabulyato had on 22 May 1996 expelled National Party (NP) Member of Parliament for Mongu Akashambatwa Mbikusita Lewanika from the National Assembly. Aka, in his amusing ways, had written a letter to the speaker disassociating himself from some decisions that parliament had made.
But Judge Mambilima, as she was then in 1999, quashed the expulsion and awarded Aka damages for loss of emoluments and privileges.
The judge ruled that the expulsion from the National Assembly was ultravires (beyond one’s legal power or authority) under section 28 of the parliamentary Act. She regretted that the house had conferred great powers on itself which allowed it to expel members instead of reprimanding them or suspending them.
Another case that proved that the speaker is not omnipotent and that his powers are limited to law making involved the attempt by the same speaker Nabulyato to imprison Lucy Sichone, Fred M’emembe and Bright Mwape for contempt of parliament.
Judge Kabazo Chanda ruled on 27 March 1996 that the National Assembly was not a court of law in any judicial sense.
In February 2003 when late president Mwanawasa began the habit of appointing opposition MPs to parliament, it was not the Speaker Amusaa Mwanamwambwa who ruled that Mwanawasa was in order to appoint MPs. It was the High Court, after leader of the Heritage Party General Godfrey Miyanda went to court.
In a court of law, affected individuals are given a chance to be heard. But Matibini was acting as complainant, Judge and State witness in the case where he expelled GBM from parliament. It is patently wrong. In a democracy, people affected by the decision of a public official have the right to be heard. GBM has the right to be heard by a competent court of law where he will call witnesses and cross examine his accusers.
The speaker regulates MPs when they are in the House. He does not decide who qualifies to be MP. When the point of order was raised, Matibini was under a duty to give a ruling. But he did not have to decide whether GBM was still an MP or not. That is not within his powers. He simply should have said that is a question for the court to decide.
The truth is that GBM is saying something that cannot just be dismissed by a one man commando sitting as Judge of the National Assembly. The country will want to hear whether GBM’s fundamental rights to association has not been violated.
Maybe through this case, if it went to court, the case of opposition MPs serving in the ruling party would have been revisited.
After all, the judge who ruled that the president has power to appoint opposition MPs could have misguided himself. It is actually inconceivable that the framers of the constitution could have intended what is obtaining now where the president spitefully appoints opposition MPs not to serve the country but to vilify, irritate, confuse and annoy the opposition.
We doubt if that is what the people who framed the constitution had in their collective intentions. Courts are empowered to look at the intention of the framers of constitution when a provision is ambiguous as in this case. Unfortunately, in our country, when the law is not clear, it is interpreted in favour of the rulers.
Is it not true that this particular provision was made at a time when parliament was dominated by one party either UNIP or MMD? Is it not possible that, the lawmakers were thinking of MPs from the same party as the president?
Is it not the time that Supreme Court revisited this acrimonious judgment? Why would parliament intend or give the president powers to cause confusion in the opposition?
All GBM is saying is that there should be uniform law for all MPs. If opposition MPs can work, campaign and vote against their parties in parliament, why should MPs from the ruling party not freely work for the opposition?