Yohane Mbeeya Moono
According to the Constitution Amendment Act No 2 of 2016 stipulates in Article 73 that
1. A person may file an election petition with the High Court to challenge the election of a Member of Parliament
2. A petition shall be heard within ninety days of filing the petition
3. A person may appeal against the decision of the High Court to the Constitutional Court.
4. A Member of Parliament whose election is petitioned shall hold the seat in the National Assembly pending the determination of the petition.
Clearly, the constitutional law is based on the interpretation of language than anything else. Point 3 of Article 73 provides an opportunity to the Member of Parliament whose seat has been nullified to seek recourse in the higher jurisdiction court than the High Court. In this case is the Constitutional Court.
Point 4 of Article 73 states that during the ninety days of filing the petition, the Member of Parliament shall hold the seat in the National Assembly pending the determination of the petition.
Here comes the Constitutional Lacuna now. The constitution does not clearly state whether the Member of Parliament whose seat has been nullified has the right to attending Parliamentary proceedings. The Article provides guidance on what should happen during the period before the determination of the election petition.
What has this Lacuna in the constitution done now. This Lacuna has created grievances in the House. The Speaker ruled that the Members of Parliament whose seats were nullified are not supposed to be in the House until the determination of their appeals. This Constitutional Lacuna has the potential and capacity to always plunged the country into unnecessary and unbudgeted for National Expenditure even at the time the country is trying to implement prudent fiscal discipline management policies.
The Speaker is right if you interpret the Constitution based on the absence of guidance of what should happen to the nullified seats pending determination of the outcome by the higher jurisdiction court which is the Constitutional Court and that the Speaker should interpret the constitution to serve the House from having Absentee Members who will be drawing allowances and other entitlements which they may later be deemed to have been accrued illegally for staying in the House when they should have not. Furthermore, the constitution does not provide guidance on how long it should take for an appeal to be determined. Just on the petition, the constitution should provide guidance on how long it take for an appeal to be heard when a Member of Parliament whose seat has been nullified files for it.
The Speaker is wrong if you interpret the constitution based on the fact that it is not the duty of the Speaker to determine the duration for the higher jurisdiction court to determine the outcome of an election appeal.
The essence of the constitution is to answer to pertinent National Matters which may derail development. The constitution should not be interpreted to suit a particular section of society but it should be blind to the wish of certain sections of society. It should focus on the collective good of the society.
It is apparently not right that the country should seek the interpretation of the constitution every now and then. Question will be raised such as How authentic is our constitution? Does it answer to the needs and aspirations of the Zambian people? Did we really understand the document we were adopting?
The Constitution being the Supreme Law of the land, should be able to answer to these Lacunas without seeking the Court Interpretation of it.