Luboni Simunga v the People (SCZ APPEAL NO. 117/2021) (31 August 2022) – ZambiaLII

Jl IN THE SUPREME COURT FOR ZAMBIA SCZ APPEAL NO. 117/ 2021 IN THE MATTER OF A CRIMINAL APPEAL HOLDEN AT LUSAKA (APPELLATE JURISDICTION) BETWEEN: LUBONI SIMUNGA APPELLANT AND THE PEOPLE RESPONDENT CORAM Hamaundu, Mutuna and Chinyama JJS ts 's t;"" On 13th July 2021 and ~h August 2022. For the Appellant Mr. I. Yambwa, Senior Legal Aid Counsel, Legal Aid Board For the Respondent Ms C. Soko, Deputy Chief State Advocate, National Prosecutions Authority JUDGMENT Mutuna JS, delivered the judgment of the court. Cases referred to: 1) Shawi Fawaz and Prosper Chelelwa v The People (1995/1997) ZR 3 2) Lupupa v The People (1977) ZR 51 3) Kafunda v The People (2005) ZR 31 4) Simusokwe v The People (2002) ZR 63 Legislation referred to: 1) Penal Code, Cap 87 Work referred to: ·· 1) Tristan Hodgkingson, Expert Evidence: Law and Practice 1990, Sweet and Maxwell, London. P 208 J2 Introduction I) This appeal emanates from a decision of a High Court Judge (Mulongoti J, as she then was) which condemned the appellant to death, following a finding of guilt on three counts of murder. The key issue which the appeal focuses on is the determination of circumstances under which a court will make a finding that an accused person was, at the time of commission of the offence of murder insane, and not capable of understanding that his/her actions were wrong, warranting the avoidance of the death penalty. Background 2) The Appellant, a mother of three, left home on the fateful day in the company of her mother and her three children (the deceased), to go and cultivate their field. When they arrived at the field, the Appellant proceeded with her deceased children to collect firewood. 3) After a while and as she was returning to the field, the Appellant met her brother James who testified as PW2 in the High Court. She was half naked and appeared to be in J3 a confused state. She led him to the bodies of her deceased children and confessed to having killed them with her kitchen knife which she handed over to him. 4) The Appellant was later apprehended and charged on three counts of murder. She appeared before the High Court Judge and after trial was convicted of murder and sentenced to death. Proceedings in the High Court and decision of the court 5) The prosecution's evidence was fairly undisputed because the fact that the Appellant had caused the deaths of her deceased children was not contested. What was in dispute was whether, at the time of the commission of the offence, the Appellant was insane and did not understand what she was doing warranting her avoiding the death penalty. 6) Presented to the court was the evidence of a psychiatrist, introduced for the purpose of determining whether the Appellant was fit to stand trial, which revealed that the Appellant was, during the commission of the offences, likely suffering from postpartum psychotic disorder as a result of bio-social stress. The evidence revealed further J4 that the Appellant was at the time of the commission of the offence suffering from this condition. 7) The first two witnesses of fact who testified on behalf of the prosecution also stated that, while the Appellant appeared to be of sound mind at the time she and the others were going to the field, she appeared confused when they met her later after the commission of the offence. They also testified that she informed them that she was attacked by three dogs which she fought and killed. This latter piece of evidence was in an apparent reference to her three deceased children. 8) The Appellant did not testify at the trial as she opted to exercise her right to remain silent. However, her defence team submitted that she was insane at the time of the commission of the offence in accordance with section 12 of the Penal Code. The prosecution submitted to the contrary. 9) In her consideration of the matter, the Learned High Court Judge began by finding that the Appellant confessed to committing the offence and that she led PWl and PW2 to where the bodies of her deceased children were. The Judge JS found further that the Appellant surrendered the murder weapon to these witnesses and told them that she used it to cut the throats of her deceased children. 10) These facts led the Learned High Court Judge to conclude that the Appellant acted with malice aforethought in the commission of the offence as provided for under section 204 of the Penal Code. Consequently, the facts proved, beyond reasonable doubt, that the Appellant had committed the offence of murder. 11) The Judge then considered the defence raised by the Appellant of insanity. In so doing, she considered the provisions of section 12 of the Penal Code, the psychiatrist's report, the evidence of the prosecution witnesses and cases relied upon by counsel. She took the view that the opinion of the psychiatrist must not be considered in isolation but in conjunction with the factual evidence led. Further, the opinion of the psychiatrist was not binding on her and that she was compelled by law to form her own conclusion on the state of mind of the Appellant at the material time based on the totality of the evidence. JG 12) The Learned High Court Judge relied on two of our decisions in the cases of Shawi Fawazi and Prosper Chelelwa v The People1 and Lupupa v The People2 In . particular she quoted a passage from the latter case as follows: "It is perfectly valid to challenge a medical opinion that a person was not acting of his own free will, but it cannot be argued on appeal that evidence which has not been challenged at trial should not be accepted." The Judge also cited a passage from the text Expert Evidence: Law and Practice by Tristan Hodgkinson as follows: " ... the duty of the court is to consider the expert evidence in light of the facts, not in isolation from them, and where a case involves substantial elements of both opinion and factual evidence, the court may accord as much weight to each-as it sees fit." 13) The Judge concluded by rejecting the psychiatrist's opinion and found that the defence of insanity had failed. She accordingly convicted the Appellant of the offence of murder and sentenced her to death. Appeal to this court and arguments by counsel 14) The Appellant is unhappy with the decision of the Learned High Court Judge and has escalated her grievance to this J7 - Court. She has advanced one ground of appeal which questions the finding by the Learned High Court Judge that the defence of insanity failed. The basis upon which the Appellant advanced her ground of appeal was that there was overwhelming evidence supporting her defence. 15) In his written submissions, counsel for the Appellant, Mr. I. Yambwa, focused on the evidence by the first prosecution witness suggesting that the Appellant seemed to be in a confused state at the time of commission of the offence. He also referred to the evidence of the psychiatrist which, according to him, proved that the Appellant was insane at the time of commission of the offence. 16) Counsel then quoted a passage from the Lupupa2 case to the effect that where evidence is not challenged at trial, the trial court is obliged to accept it. He concluded that the factual evidence regarding the state of mind of the Appellant was corroborated by the psychiatric report, therefore, the Learned High Court Judge misdirected herself when she dismissed the defence of insanity. 17) At the hearing we engaged Mr. Yambwa on whether or not the Appellant's defence of insanity was established in view J8 .,. of the fact that the Appellant did not testify and raise the defence and the psychiatrist was not called to explain the report and he responded as follows: 1 7. 1 the Appellant did not formally raise the defence of insanity but it was revealed in the evidence of the first prosecution witness; 17.2 although the first prosecution witness was not an expert, his evidence nonetheless proved that the Appellant was not in the right frame of mind at the time of commission of the offence; 17.3 the report of the psychiatrist lacked clarity in terms of the exact condition the Appellant was in at the time of commission of the offence. It was, therefore, necessary for the Appellant to call the psychiatrist to explain his report at the trial. 18) In response, Ms C. Soko, counsel for the Respondent, argued that the evidence on record that the Appellant carried the murder weapon with her when she left home on the material day to collect firewood, proves that the murders were premeditated. In addition, she argued that the Appellant was motivated by the fact that she was abandoned by her husband which made her suicidal as a result of her anxiety regarding the welfare of her children. J9 ... 19) Counsel argued further that the psychiatrist's report was inconclusive as to the Appellant's mental state because it states that she was likely and not conclusively, labouring under a postpartum psychotic disorder. Further, she contended that this speculative conclusion was not even supported by any other independent evidence. Counsel also argued that the fact that the Appellant removed her skirt and attempted to remove her blouse did not in any way prove that she was insane at the material time. 20) In response to a query raised by the court, Ms Soko explained that the prosecution allowed the evidence of PWl and PW2 which seemed to support the Appellant's defence because the prosecution has an overriding obligation to the court to ensure that the truth is presented before it so that the Court can arrive at a just decision. However, the evidence fell far short of the standard required for the defence of insanity to succeed. 21) In reply, Mr. Yambwa urged us not to accept Ms Soko's argument that the psychiatrist's report was speculative because the doctor's conclusion in the same report confirms that the Appellant did indeed suffer from the JlO disorder. At this juncture we reminded counsel that there was a contradiction in the report and he and his counterpart relied on the report selectively. Consideration and decision by this court 22) We have considered the record of appeal and augments by counsel. Section 12 of the Penal code provides as follows: "A person is not criminally responsible for an act or omission if at the time or doing the act or making the omission he is, through any disease affecting his mind, incapable of understanding what he is doing, or knowing that he ought not to do the act or not make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or reference" 23) Clearly, for the defence of insanity to be available, the test is not merely whether or not a person's mind is affected by a disease, but it is whether, owing to such disease a person is incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the om1ss1on. 24) We held in the case of Kafunda v The People3 and in , many others before that previously, that the onus of J14 and bipolar disorder. The definition does not extend to categorizing the disorder as a disease of the mind which is a necessary ingredient if the insanity plea is to succeed. The psychiatrist also stated that there was no history of mental disorder in the Appellant's life. 31) Our decision on the evidence of the psychiatrist is that it falls far short of proving the defence of insanity. We can, thus understand why the Learned High Court Judge chose to ignore it. 32) Coming to the evidence of the two witnesses of fact, we are in agreement with the argument by Ms Sako that it was inconclusive as to insanity. The facts, in and of themselves, that the Appellant was half naked and threatened to strip the last pieces of clothing from her body do not prove insanity. Neither does the appearance of being dazed. In answer, therefore, to the issue raised, we hold that the Learned High Court Judge did not misdirect herself when she found that the defence of insanity failed. We must, as a result, find no merit in the ground of appeal. 33) The Appellant's fate is sealed by the fact that she carried the knife to collect firewood. We have asked ourselves why JlS she needed the knife as she collected firewood and have only come to one conclusion that she intended to use it to kill her children. 34) The conviction here is murder we have, therefore, posed the question, were there extenuating circumstances? 35) This question was not raised in the court below, and has not been raised in this appeal. However, we have decided, in the interest of justice, to consider it. 36) There was evidence on record, especially that of the report of the psychiatrist, which stated that the Appellant was at the material time afflicted by a disease known as "postpartum psychosis." Admittedly we have found that the Appellant did not advance further evidence to show that the disease rendered her incapable of knowing what she was doing, or knowing that she ought not to do it and, for that reason, we have upheld the failure of the defence of insanity. 3 7) However, the fact that she was afflicted by that disease means that she stood in a different state of mind from a person that is completely unafflicted by any disease. Therefore, in the same way that that we held in case of JlO .,. disorder. At this juncture we reminded counsel that there was a contradiction in the report and he and his counterpart relied on the report selectively. Consideration and decision by this court 22) We have considered the record of appeal and augments by counsel. Section 12 of the Penal code provides as follows: "A person is not criminally responsible for an act or omission if at the time or doing the act or making the omission he is, through any disease affecting his mind, incapable of understanding what he is doing, or knowing that he ought not to do the act or not make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or reference" 23) Clearly, for the defence of insanity to be available, the test is not merely whether or not a person's mind is affected by a disease, but it is whether, owing to such disease a person is incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the om1ss1on. 24) We held in the case of Kafunda v The People3 and in , many others before that previously, that the onus of Jll establishing unsoundness of mind at the time of commission of the offence is on the accused. Therefore, the onus was on the Appellant to prove that at the time of the commission of the offence she was afflicted by a disease of the mind of such a serious nature that it rendered her incapable of understanding what she was doing, or of knowing that she ought not to do it. 25) Coming to the ground of appeal, we begin by setting out the evidence which the defence relied on in advancing the defence of insanity. Put differently, the circumstances which she contends led to the prosecution's failure to prove her guilt beyond reasonable doubt. The crucial evidence is that of the psychiatrist which says that the Appellant's history revealed that she was psychotically decompensated at the time of the alleged offence due to bio-social stresses of the puperium. He concluded that she was, therefore, likely to have had postpartum psychotic disorder and had the disorder at the time of commission of the offence. 26) The psychiatric was not called to testify, the significance of which we discuss later, and his report was tendered for J12 the purposes of determining whether or not the Appellant was fit to take plea and stand trial. It, however, went further and discussed the mental state of the Appellant at the time of commission of the offence. 27) The other evidence was of the first two witnesses PWl and PW2. These witnesses testified that the Appellant appeared dazed after she committed the offence and was half naked as she had removed her blouse and was attempting to remove her skirt. The witnesses also testified that the Appellant appeared like a mental patient and not in the right frame of mind. Counsel for the Appellant capitalized on this evidence and argued that the Appellant was insane at the time of commission of the offence. 28) We begin our review of the evidence with the psychiatrist's report. It is contradictory in that on one hand, as Ms Soko has argued, it states that the Appellant was likely, and not conclusively, to have been suffering from postpartum psychotic disorder and on the other, that she was suffering from the said disorder at the time of committing the offence. The contradiction here, being the doubt being expressed in one paragraph as to the condition of the •' -I J13 .... Appellant and the conclusion that she was actually suffering from the disorder, in another. 29) These contradictions could easily have been resolved if the doctor had been called as a witness by the Appellant to speak to his report to clarify whether the use of the word 'likely' in the report suggested doubt on the part of the psychiatrist. It is also unclear what the effect of the disorder had on the Appellant, that is to say, was it such that it rendered her incapable of knowing or appreciating that her acts were wrong, thereby, diminishing her responsibility. 30) The fate of the report is compounded further by the fact that it does not explain if the condition actually leads to insanity. A Google Search of the phrase 'postpartum psychosis' reveals that it is a serious mental health illness that can affect someone soon after giving birth. The report of the psychiatrists reveals that the Appellant had delivered one of the deceased children a few months earlier. The phrase post-partum does indeed mean the time after child-birth. However, it manifests itself through mild mood swings, anxiety, depression, suicidal thoughts J14 and bipolar disorder. The definition does not extend to categorizing the disorder as a disease of the mind which is a necessary ingredient if the insanity plea is to succeed. The psychiatrist also stated that there was no history of mental disorder in the Appellant's life. 31) Our decision on the evidence of the psychiatrist is that it falls far short of proving the defence of insanity. We can, thus understand why the Learned High Court Judge chose to ignore it. 32) Coming to the evidence of the two witnesses of fact, we are in agreement with the argument by Ms Soko that it was inconclusive as to insanity. The facts, in and of themselves, that the Appellant was half naked and threatened to strip the last pieces of clothing from her body do not prove insanity. Neither does the appearance of being dazed. In answer, therefore, to the issue raised, we hold that the Learned High Court Judge did not misdirect herself when she found that the defence of insanity failed. We must, as a result, find no merit in the ground of appeal. 33) The Appellant's fate is sealed by the fact that she carried the knife to collect firewood. We have asked ourselves why - JlS she needed the knife as she collected firewood and have only come to one conclusion that she intended to use it to kill her children. 34) The conviction here is murder we have, therefore, posed the question, were there extenuating circumstances? 35) This question was not raised in the court below, and has not been raised in this appeal. However, we have decided, in the interest of justice, to consider it. 36) There was evidence on record, especially that of the report of the psychiatrist, which stated that the Appellant was at the material time afflicted by a disease known as "postpartum psychosis." Admittedly we have found that the Appellant did not advance further evidence to show that the disease rendered her incapable of knowing what she was doing, or knowing that she ought not to do it and, for that reason, we have upheld the failure of the defence of insanity. 37) However, the fact that she was afflicted by that disease means that she stood in a different state of mind from a person that is completely unafflicted by any disease. Therefore, in the same way that that we held in case of J16 Simusokwe v The People4 that a failed defence of provocation affords extenuation in murder we think that where there is evidence of a disease of the mind but the defence of insanity fails only on the technically that it has not reached the test laid down in section 12, than that should surely afford an accused person some mitigation, or extenuation. 38) Consequently, we find that there were extenuating circumstances in this case. Conclusion 39) The appeal will succeed only to the extent we have stated in the preceding paragraphs. We set aside the sentence of death and substitute a sentence of 20 years simple imprisonment with effect from that date of arrest. ~ E.M.H~ SUPREME COURT JUDGE TJUDGE SUPREME COURT JUDGE IN THE CONSTITUTIONAL COURT OF ZAMBIA 2021/CCZ/0053 HOLDEN AT LUSAKA (Constitutional Jurisdiction) IN THE MATTER OF: THE CONSTITUTION OF ZAMBIA, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLE 1 AND 1(5) OF THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1, VOLUME 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLE 73 OF THE CONSTITUTION OF ZAMBIA CHAPTER 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: ARTICLE 122 OF THE CONSTITUTION OF ZAMBIA, THE CONSTITUTION OF ZAMBIA ACT, CHAPTER 1 VOLUME 1 OF THE LAWS OF ZAMBIA IN THE MATTER OF: THE DECISION OF THE SPEAKER OF THE NATIONAL ASSEMBLY OF THE REPUBLIC OF ZAMBIA DATED 7TH DECEMBER, 2021 DISALLOWING ALL MEMBERS OF PARLIAMENT WHOSE SEATS WERE NULLIFIED AND HAV E BEEN APPEALED AGAINST FROM TAKING PART IN ANY PARLIAMENT BUSINESS REPUBLIC OF ZAMBIA BETWEEN: iCdONST ITUTIONAL COURT OF ZIAM BIA MUTOTWE KAFWAYA E_lzi 1 ST PETITIONER I 1 AUG 20e2 LUKAS SIMUMBA 2ND PETITIONER KALALWE MUKOSA REGISTRY 5 3RD PETITIONER P O BOX 50067, LUSAKA BOWMAN LUSAMBO 4TH PETITIONER TAULO CHEWE STH PETITIONER CHIBUYE CHRISTOPHER 6TH PETITIONER JOSEPH MALANJI 7TH PETITIONER ALLEN BANDA gTH PETITIONER SIBONGILE MWAMBA 9TH PETITIONER AND THE ATTORNEY GENERAL RESPONDENT Jl CORAM: Sitali, Munalula, Musaluke, Chisunka, Mulongoti, JJC on 16th March, 2022 and 11th August, 2022 For the Petitioner Mr. M. Zulu Mr. N. Botha and Ms. N. Phiri of Makebi Zulu Advocates For the Respondent Mr. M. Muchende, SC, Solicitor General Mr. F. Imasiku, Deputy Chief State Advocate and Ms. M. Lisimba, State Advocate JUDGMENT Sitali, JC, delivered the judgment of the Court. Cases cited: 1. Chishimba Kambwili v Attorney General, 2019/CCZ/009 2. Margaret Mwanakatwe v Charlotte Scott and Two Others, 2016/CCZ/A0IS 3. Sonny Paul Mulenga and Vismer Mulenga and Chainama Hotels Limited and Others, SCZ Judgment No. 15 of 1999 4. Law Association of Zambia v. Attorney General, 2022/CCZ/0051 Legislation referred to: 1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by the Constitution of Zambia (Amendment Act No. 2 of 2016). 1. INTRODUCTION AND BACKGROUND [ 1.1 ]By petition filed into Court on 21st December 2021, the petitioners seek the following reliefs: J2 • (a) a declaration that the decision of the Speaker of the National Assembly dated 7th December, 2021 contravenes the Constitution; (b) an order of certiorari to remove before this Court for purposes of quashing, the decision of the Speaker ordering the Petitioners not to take part in the business of the National Assembly until the determination of their appeals for being illegal, unreasonable, unfair and thus null and void; (c) an interim order to stay the decision of the Speaker of the National Assembly dated 7th December, 2021 pending the determination of this petition; (d) an order that dues to the Petitioners for the duration of the suspension be paid; (e) costs of and incidental to this petition; and (f) such declaration and orders as this Court may deem fit. 2. PETITIONERS' CASE [2.1 ]The petition was filed together with an affidavit verifying facts and skeleton arguments. In that affidavit, the 1st Petitioner, Mutotwe Kafwaya, stated that in August, 2021, J3 L the Petitioners were duly elected as Members of Parliament for Lunte, Nakonde, Chinsali Central, Kabushi, Lubansenshi, Mkushi North, Kwacha, Chimwemwe and Kasama Central constituencies respectively. Subsequently, election petitions were filed against the Petitioners before the High Court which nullified the election of the petitioners as Members of Parliament for the respective constituencies. The petitioners appealed to this Court against the decision of the High Court to nullify their election. [2.2]While the appeals were pending determination by this Court, Dr. Katakwe Member of Parliament for Solwezi East, on 23rd November, 2021, raised a point of order to the Speaker of the National Assembly of Zambia (henceforth referred to as the Speaker) based on Article 73(4) of the Constitution and expressed concern regarding the continued attendance of the sittings of the National Assembly by Mr. Bowman Lusambo, the 4th Petitioner despite the High Court's nullification of his election as Member of Parliament for Kabushi Constituency. J4 [2.3]The 1st Petitioner asserted that on 7th December, 2021, the Speaker delivered a ruling on the point of order in which she interpreted the Constitution and directed that all Members of Parliament whose election as Member of Parliament was nullified by the High Court would forthwith not participate in parliamentary business pending the determination of their appeals by this Court. [2.4]The Petitioners averred that on the date of the ruling, there was an active action under cause No. 2021/CCZ/0050 pending determination by this Court touching on Article 73 of the Constitution and relating to the Petitioners' continued stay in the National Assembly pending the determination of their respective appeals. They contended that the Speaker's decision offended the subjudice rule; and was unconstitutional and against the practice and precedent which the National Assembly applied to Nkandu Luo and Margaret Dudu Mwanakatwe. Further, that it thwarted the Petitioners' legitimate expectation that they would remain in the National Assembly pending the determination of their appeals by this Court. JS [2.5] The Petitioners therefore alleged that the decision of the Speaker to interpret the Constitution contravened Article 122 of the Constitution and usurped the power of this Court. [2.6)In the Skeleton arguments in support of the petition, the Petitioners argued that the Constitution is the supreme law and binds all state organs and persons, including the National Assembly and the Speaker and overrides any rules or laws under which a body, organ or branch of Government operates as per Article 1(1) and 1(3) of the Const it ut ion. [2. 7] The Petitioners relied on Article 1 (5) of the Constitution to support their contention that the Speaker has no power, authority or jurisdiction to interpret the Constitution. They cited the case of Chishimba Kambwili v Attorney General111 to press the point that the Speaker has no power or authority to interpret or determine constitutional matters as those powers vest in the Judiciary. [2.8] The Petitioners contended that the Speaker in her ruling interpreted Article 73(4) of the Constitution when she J6 · • referred to the intention of the legislature regarding that Article, which action was unconstitutional and illegal. [2.9]The Petitioners further contended that the Speaker's decision was not within the powers conferred on her by the National Assembly of Zambia Standing Orders, 2021 (henceforth referred to as the Standing Orders) because standing order No. 239 on which the Speaker anchored her decision provides only for procedural questions which are not specifically provided for. That in this case however, the Speaker dealt with substantive provisions of the Constitution which fall outside the ambit of standing order No. 239. They contended that as the decision was done in breach of the Constitution, it was illegal and therefore null and void as per Article 1 (5) of the Constitution. [2.10] In augmenting the written arguments, Mr. Zulu, counsel for the Petitioner, added that the custom of the National Assembly was breached in relation to the sub Judice rule because at the time when the Speaker made the impugned decision, there was a matter pending before this Court under cause No. 2021/CCZ/0050 on the same subject. J7 Counsel submitted that standing order 239(2) provides for the observance of the customs, traditions and practices of the Parliament of Zambia and should have guided the Speaker as it precludes the National Assembly from making a decision on a matter which is before a court. [2.1 l]Counsel further submitted that the nine Petitioners did not apply for a stay of execution of the High Court judgments because firstly they legitimately expected the National Assembly to follow its established customs, traditions, practices and usages and allow them to remain in the National Assembly pending the determination of their appeals by this Court; and secondly, that this Court stated in its ruling in Margaret Mwanakatwe v Charlotte Scott and Two Others12l that a Member of Parliament whose appeal was pending before this Court could remain in the National Assembly pending the determination of the appeal. [2.12]Mr. Zulu submitted that the Speaker should also have been guided by the judgment of this Court in the Chishimba Kambwili11l case. J8 · · · 3. RESPONDENT'S CASE [3. l]In opposing the petition, the Respondent filed an Answer and an affidavit and skeleton arguments in opposition. In its Answer, the Respondent stated that the constituencies which were represented by the Petitioners had no representation in Parliament due to the nullification of their election by the High Court and not because of the Speaker's ruling on the point of order raised by Dr. A. Katakwe. That standing order 239 of the Standing Orders enables the Speaker to determine any question before her in line with the Standing Orders, the Constitution, statute law and the usages, precedents, customs, procedures, tradition and practices of Parliament. [3.2]The Respondent asserted that the Speaker by her ruling did not attempt to supersede the jurisdiction of this Court but simply implemented the decision of the High Court which nullified the election of the Petitioners. That the Petitioners' appeal against the High Court judgment did not stay the judgments or cause the Petitioners to cease to be recognized as duly elected Members of Parliament. It was Jg · · · contended that the Petitioners therefore could not continue to hold those seats and to enjoy the privilege of attending sittings of the House and receiving emoluments. Further, that the Petitioners are not entitled to any of the reliefs they seek against the Respondent in their petition. [3.3]The Respondent's affidavit in opposition sworn by Cecilia Sikatele, in her capacity as Deputy Clerk-Procedure at the National Assembly of Zambia, essentially reiterated the facts set out in the Answer. [3.4]In the opposing skeleton arguments, the Respondent cited the provisions of Article 73 of the Constitution and section 108 of the Electoral Process Act No. 35 of 2016 (henceforth referred to as the Act) and submitted that the provisions of section 108(4) of the Act are clear that once the High Court, which has original jurisdiction to hear an election petition to challenge the election of a Member of Parliament makes a determination that a respondent was not duly elected, a vacancy is immediately created in the National Assembly by virtue of that pronouncement. That this position is well aligned with Article 73(4) of the Constitution. JlO [3.5] The Respondent submitted that the Petitioners whose election was petitioned only continued to hold their seats in the National Assembly while the election petitions were before the High Court. That following the delivery of the judgment by the High Court nullifying their election, those seats became vacant and therefore the nine Petitioners did not have the capacity to participate in parliamentary business. [3.6] The Respondent contended that the Petitioners' appeals before this Court did not operate as a stay of execution of the Judgments and did not vacate the operation of the judgments of the High Court which are binding on them in the absence of an order to that effect by the High Court or this Court. Order XI rule 7 of the Constitutional Court Rules, Statutory Instrument number 35 of 2016 (CCR) and the case of Sonny Paul Mulenga and Vismer Mulenga v. Chainama Hotels Limited and Others131 were cited in support. [3. 7] In augmenting the arguments, the learned Solicitor General, Mr. Muchende, SC submitted that the Speaker did not usurp the power of this Court and that the Speaker's Ruling was consistent with the spirit of the Constitution and J11 was also within her constitutional mandate under Article 77(1) of the Constitution as read with Standing Order number 239. He argued that the combined effect of Article 72(2)(h), Article 72(8) and Article 73(4) of the Constitution, section 108(4) of the Act and Order XI rule 7 of the CCR is that the Members of Parliament whose elections were nullified by the High Court, can neither continue to sit nor participate in the business of the National Assembly. [3.8] The learned Solicitor General, therefore prayed that the petition be dismissed with costs to the Respondent. 4. PETITIONERS' REPLY [4. l]In reply, the Petitioners reiterated that whereas the Speaker was well within her powers to rule on a point of order pursuant to standing order number 239, she exceeded her powers when she ruled on a matter that was deemed subjudice, and thus, usurped the powers of the Constitutional Court as was held in the Chishimba Kambwili11 1 case. J12 5.0 DECISION [5. l]We have considered the petition, answer, reply and the affidavits in support of and in opposition to the petition and in reply. We have also considered the written and oral submissions and the authorities cited by the respective parties. [5.2]The issue which we are required to determine 1n this matter is whether a Member of Parliament whose election is nullified by the High Court and has appealed to this Court against the decision of the High Court can, notwithstanding the nullification of their election, continue to hold their seat and to participate in the proceedings of the National Assembly pending the determination of the appeal and to enjoy the privileges which such participation avails. This is evident from the contents of the petition and answer as well as the arguments advanced by the parties in support of their respective positions. [5.3] The Petitioners contended that based on the established customs, traditions, practices and usages of the National Assembly as well as the precedent set by the National Assembly when Margaret Mwanakatwe and Professor Nkandu Luo were allowed to continue participating in the proceedings of the National Assembly J13 after their election was nullified and pending the determination of their appeals by this Court, th~y had a legitimate expectation that the Speaker would allow them to hold their seats in the National Assembly pending the determination of their appeals by this Court. That the Speaker therefore breached the Constitution when she interpreted the Constitution and ordered that they would not participate in the proceedings of the National Assembly while their appeals were being determined. [5.4] The Respondent on the other hand argued that the election of the Petitioners having been nullified by the High Court, and there being no order granting a stay of execution of the High Court judgments, the Petitioners could not legitimately participate in the proceedings of the National Assembly. The Respondents, therefore, argued that the Speaker did not breach the Constitution and was on firm ground when she ordered the Petitioners to wait outside the National Assembly until the appeals were determined. [5.5] Having considered the arguments on both sides, we hasten to state that when this action was commenced by the Petitioners, there was already an action under cause number 2021 / CCZ / 0050 (which was subsequently discontinued) and J14 another action commenced by the Law Association of Zambia, namely Law Association of Zambia v. Attorney Genera}l4I under cause number 2021/CCZ/0051. In that action, the Law Association of Zambia asked us to determine the questions whether Article 72(2)(h) of the Constitution is applicable where a seat held by a Member of Parliament becomes vacant after an election has been nullified following the hearing and determination of an election petition in line with Article 73(1) and (2) of the Constitution; and whether under Article 73(4) of the Constitution, a Member of Parliament whose seat has been nullified by the High Court and who has appealed to this Court against such nullification can continue to hold their seat in the National Assembly pending the outcome of the appeal. [5.6] In our judgment in that case, we settled the question whether a Member of Parliament whose seat is nullified continues to hold the seat pending the determination of the appeal before this Court by virtue of Article 73(4) of the Constitution in the affirmative. We held at paragraph 94.0 on page J42 of that judgment that on a purposive interpretation of Article 73 (3) and (4) read with Articles 128(1)(d) and 57 of the Constitution, a JlS Member of Parliament whose election is nullified by the High Court and has appealed to this Court, by operation of law, retains the seat in Parliament pending the determination of the appeal. [5.7] An examination of the remedies sought by the Petitioners in this case reveals that the Petitioners similarly seek a determination of the status of a Member of Parliament whose election has been nullified by the High Court and has appealed to this Court. We say so in light of the fact that the Petitioners seek, inter alia, an order of certiorari to remove before this Court for purposes of quashing, the decision of the Speaker ordering the Petitioners not to participate in the business of the National Assembly until the determination of their appeals on the basis that it was illegal, unreasonable and unfair and therefore was null and void. They further seek an interim order to stay the decision of the Speaker of the National Assembly pending the determination of this petition; and a further order that they be paid the emoluments due to them for the period they were excluded from the National Assembly. [5.8)In short, the essence of the petition is for us to set aside the impugned decision made by the Speaker to exclude the J16 Petitioners from participating in the business of the National Assembly and to enable them to retain their seats in the National Assembly pending the outcome of their appeals before this Court. [5.9] Our view is that the Speaker's decision was superseded by our judgment in the Law Association of Zambia case, because after that judgment, the Petitioners continued to hold their seats and to participate in the business of the National Assembly as well as to enjoy the privileges of a Member of the National Assembly. [5. l0]Since we have already determined that a person whose election is nullified by the High Court and has appealed to this Court continues to hold their seat in the National Assembly pending the determination of the appeal, we are of the considered view that this action has been superseded by our decision in the Law Association of Zambia1 case and that the remedies sought have been rendered otiose. [5.1 l]In other words, this action has therefore been overtaken by events and is dismissed. We order that each party shall bear their own costs. J17 A. M. Sitali CONSTITUTIONAL COURT JUDGE ·····················~················· M. M. Munalula JSD ke CONSTITUTIONAL COURT JUDGE CONSTITUTIONAL OURT JUDGE ....~ !~/~ ~······················ -~;ngoti M. K. Chisunka , NK.•. • • :-.~~;~ CONSTITUTIONAL RT JUDGE CONSTITUTIONAL COURT JUDGE J18