By Chamuka Shalubala,
SOLICITOR general Marshal Muchende says there is no provision in the constitution which suggests that a member of parliament whose seat has been nullified shall continue to hold it, even in the absence of stay, until an appeal is determined.
In this matter, the Law Association of Zambia (LAZ) is seeking interpretation of the provisions of the Constitution used by the Speaker, Nelly Mutti, to ban some members of parliament from attending any Parliamentary business.
LAZ wants the Constitutional Court to establish whether an MP whose seat has been nullified following an election petition may lawfully attend Parliamentary business pending appeal to the same court.
The applicant wants the court to interpret the provisions of Articles 72(h) and 73(1) (2) and (4) of the constitution.
When the matter came up for hearing at the Constitutional Court, Monday, Muchende said an MP who was affected by a nullification of a seat could not continue to hold that seat in the absence of a stay unless the High Court that nullified the seat grants a stay.
He said considering provisions of article 272 in general and sub article F, the gap or lacuna was filled in by legislators from section 108 (4) of the electoral process act.
He said that section spoke to a case where an MP’s seat had been nullified and a vacancy was created until that seat was filled.
“We have a different perspective which we would like this court to adopt. We have studied the Constitution from the preamble to last article. In there, we have not found any provision that suggest that the MP shall continue to hold a seat even in the absence of a stay until the appeal is determined,” he said
He said the effect of the nullification by the High Court was to create a vacancy in the National Assembly and that if there was no appeal, the Speaker would communicate to ECZ for fresh elections.
Muchende, however, said even when there was an appeal, it was not going to operate as a stay adding that the affected MP should quickly seek for a stay from the court of instance.
And Shonga said the association’s involvement in the process was not to take sides but to help the public seek clarity since this matter was of public interest.
Shonga said the association had noted the position taken by the state.
Judgement in this matter was reserved to March 9, 2022.