The People v Attorney General (Ex Parte Nickson Chilangwa) (2024/ CCZ/R001) (10 February 2025) – ZambiaLII

Rf PU8UC C. Z ,.,,_ COll9TITUTIQMAL COURT Of ZAliilllA lqii • [ 1 0 FEB 2025 CRl E co~lrm~N~~~ T OF ZAMBIA 2024/CCZ/R001 INT RT REGISTRY HOLDEN AT LUSAKA (CONSTITUTIONAL JURISDICTION) IN THE MATTER OF: ARTICLE 72 (2) (b) READ WITH ARTICLE 70 (2) (f) OF THE CONSTITUTION IN THE MATTER OF: CONSTITUTIONAL REFERENCE FROM KAWAMBWA HIGH COURT IN THE MATTER OF: THE PEOPLE V ATTORNEY GENERAL (EX PARTE NICKSON CHILANGWA) Coram: Munalula PC, Shilimi DPC, Musaluke, Chisunka, Mulongoti, Mwandenga, Kawimbe and Mulife JJC on 15th January, 2025. CONSTITUTIONAL REFERENCE Munalula PC, rendered the opinion of the Court Cases referred to: 1. Electoral Commission of Zambia v Belemu Sibanze 2024/CCZ/023. 2. Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu, lnonge Mutukwa Wina, Electoral Commission of Zambia and Attorney General 2016/CCZ/031. 3. Bernard Kanengo v Attorney General and Electoral Commission of Zambia 2022/CCZ/024. 4. Henry Kapoko v The People 2016/CCZ/023. Legislation referred to: The Constitution of Zambia as amended by the Constitution of Zambia (Amendment) Act No. 2 of 2016 Other work referred to: The Technical Committee Drafting the Zambian Constitution (TCDZC) Final Report,2013 -, CR2 (1] This constitutional reference from the Chinsali High Court dated 28th November 2024 reached this Court on 18th December, 2024. The constitutional reference was not made at the behest of the parties to the matter before the High Court but at the instance of the High Court. The parties are not before us. We therefore had no basis for calling the parties to a hearing. Our guidance in this opinion is to the High Court concerned but is helpful to other courts, the legal community and the public in general. [2] Before we consider the question referred to us, we wish to commend the High Court for his commitment to propriety. We take judicial notice that the question he has raised, has vexed Parliament, the Electoral Commission of Zambia, the courts, members of the legal fraternity involved in the litigation of election matters and indeed the public at large. It is important for everyone's benefit that it is settled. [3) The High Court phrased the constitutional question (quoted verbatim) as follows: The question of interpretation is ...t he provision in Article 72 (2) (b) which states that "the office of Member of Parliament becomes vacant if the member becomes disqualified for elections in accordance with Article 70, and Article 70 (2) (f) which provides that a person is disqualified from being elected as a Member of Parliament if that person is serving a sentence of Imprisonment for an offence under a written law, are these the provisions that can create a vacancy and trigger the by-elections In the office of member of Parliament such as Is the case in casu when the Applicant who is a serving member of Parliament Is convicted and sentenced In the subordinate court and appealed against the conviction and sentence? (sic) CR3 [4] From our reading of the question, the High Court seeks our interpretation of Article 72 (2) (b) read with Article 70 (2) (f) of the Constitution of Zambia as amended by the Constitution (Amendment) Act No.2 of 2016 (the Constitution). The crux of the constitutional question is whether a Member of Parliament who is serving a custodial sentence but has appealed against the sentence vacates his or her seat to trigger a by-election despite instituting judicial review proceedings to stay and challenge the vacancy. [5] In answering the question, we have taken in to account both contextual and substantive constitutional provisions having a bearing on the impugned provisions. We begin with Article 267 which enjoins us to interpret the Constitution in a manner that not only promotes its purposes, values and principles but also contributes to good governance. With this in mind, we sought to establish the purpose of the constitutional Articles in issue. [6] For convenience, we begin by setting out the said provisions. Article 70 (2) (f) provides: A person is disqualified from being elected as a Member of Parliament if that person- (f) Is serving a sentence of imprisonment for an offence under a written law. Article 72 (2) (b) provides: The office of Member of Parliament becomes vacant if the member-(b) becomes disqualified for election In accordance with Article 70. CR4 [7] In our considered view, the purpose of the stated provisions is the promotion of democratic values through effective representation of the People. It is about ensuring that Members of Parliament are actively involved in law-making and providing checks and balances related to the performance of executive functions. If a Member of Parliament is in prison and therefore unable to carry out his or her mandate it is the People's desire that the seat is promptly vacated and re-filled. This is in line with Article 68 (2) which provides that there shall be 156 directly elected members of the National Assembly, one for each constituency. [8] We are fortified by the Technical Committee Drafting the Zambian Constitution (TCDZC)'s Final Report which at page 212 prioritises the effective representation of the People by stating as follows: The Committee observed that It was important to provide for the system of administering elections in the Constitution, and made a provision thereof. The rationale for providing for this new Article was that the Constitution needed to give guidance on the administration of elections since elections are an integral part of a democratic system of governance. (emphasis added) [9] As all the parliamentary seats are constituency-based, Members of Parliament hold their seats through direct election by their constituencies. Vacation of a seat entails a by-election. At page 226, the TCDZC Final Report therefore introduced draft Article 84 which was on by-elections and was the precursor to Article 57 (1 ). The rationale for the Article was that by- ■ CRS elections would be inevitable in the event that a seat became vacant. Accordingly, draft Article 84 (1) provided for a by-election within 90 days of a vacancy occurring. [1 O] We are further fortified by the mandatory values and principles laid out in Article 8 and which according to Article 9 are mandatory in the interpretation of the Constitution. They include 'democracy', 'constitutionalism' and 'good governance'. Part V of the Constitution, entitled 'Representation of the People' opens with Article 45 which is more pointed as it enshrines among others, the principle of fair representation and calls for an electoral process and system that ensures inter alia, accountability and efficiency. [11] From the foregoing, it is apparent that the People of Zambia take the need to promote democracy through adequate representation so seriously that they have provided in the Constitution itself, the manner in which that representation may be assumed, lost and replaced. The Constitution also spells out the applicable timelines. [12] We now turn to the import of Article 72 (2) (b) as read with Article 70 (2) (f). While the same process for vacating a parliamentary seat applies in other instances specified in Article 72 (2), we shall confine ourselves to the • CR6 question of vacating a parliamentary seat due to imprisonment, as the constitutional reference is specific. [13] Article 70(2) (f) as read with Article 72 (2) (b) connects the imprisonment of a Member of Parliament with the loss of his or her seat. Thus Article 72 (2) (b) provides that a seat becomes vacant if a person is disqualified under Article 70. Under Article 70 (2) (f) in particular, a person is disqualified if they are serving a sentence of imprisonment for an offence under a written law. [14] There is no qualification of this disqualification portended by an appeal against conviction or sentence. Neither is there provision for judicial review proceedings staying or challenging the vacancy which is inevitably triggered by the imprisonment. It follows that the vacancy is conclusive and self executing. [15] There is good reason for this arrangement. It excludes judicial review and thereby curtails its dilatory effects on the process of re-filling a vacant seat. It also prevents the subjection of constitutional functionaries to unnecessary litigation. We say so having taken judicial notice of the multiple challenges in various High Courts which are not just about the vacancy of a seat but also seek to prosecute officers that oversee the vacancy and related by-election process. We wish to elaborate on these two points. ..., CR7 [16] Our elaboration is from the understanding that there is a distinction between the constitutional issue that is the vacating of a parliamentary seat (a public office held in a representative capacity with its own constitutional and prescribed processes) and the appeal process launched under the criminal procedure with a view to overturning the imprisonment. Each has its own goal and proceeds separately from the other. The appeal therefore can have no effect on the vacated seat. [17] The vacation of the seat being settled upon imprisonment triggers a further process of a by-election which is equally settled under Article 57 (1) which reads: (1) Where a vacancy occurs in the office of Member of Parliament, mayor, council chairperson or councillor, a by-election shall be held within ninety days of the occurrence of the vacancy. [18] That judicial review has no place once the seat is vacated upon imprisonment is firmed by Article 72 (4) which provides that a person who causes a vacancy in the National Assembly due to the reasons specified under inter alia clause (2) (b) shall not during the term of that Parliament be eligible to contest an election. [19) As we said in The Electoral Commission of Zambia v Belemu Sibanze 1 there is no judicial review process envisaged by the Constitution once a vacancy is triggered as there is only provision to challenge a J , CR8 nomination under Article 52 (4 ). The nomination challenge does not in the event help a former Member of Parliament as he or she is excluded from the by-election by Article 72 (4) for having caused the vacancy in the first place. [20] We are further persuaded that there is no provision for judicial review in relation to a vacancy triggered by imprisonment by the fact that the Constitution itself (in line with its intention to constitutionalise and protect representation) does, where it sees fit in Article 72 (2)(e), that is in relation to a Member of Parliament who is expelled by his or her own party, provide for a constitutional review of the expulsion. [21] Thus Article 72 (5), (6) and (7) provides for constitutional review and spells out the manner and time within which it should unfold. It must be instituted before the expiry of a stipulated grace period. The vacancy is thus triggered by the expiry of the grace period, or where applicable, the court's determination of the expulsion review proceedings. The provisions thereby oust judicial review under Order 53 of the White Book. [22] It follows that also ousted are contempt proceedings arising from judicial review orders. We say so alive to Article 267 (4) which provides as follows: A provision of this Constitution to the effect that a person, an authority or institution is not subject to the direction or control of a person or an authority in the performance of a function, does not preclude a court from exercising jurisdiction in relation to a question as to whether that person, authority or institution has performed the function in accordance with this Constitution or other laws. CR9 [23) Whilst judicial review is constitutionalised in Article 267 (4) it is specifically excluded in Article 72 (2) (b) by the Constitution itself for the reasons alluded to above. There is a further reason. Constitutional review is about the decision-making process by public officers including constitutional functionaries who may be challenged in court for failure to comply with the Constitution and the law in the performance of their functions. In the case of Article 72 (2) (b) read with Article 70 (2) (f), the decision is made by the People themselves. [24) The automatic triggering of the vacancy and by-election by operation of law takes the decision as to whether a vacancy has arisen and a by-election should follow out of the hands of those involved in the administration of elections. A seat is vacated and a by-election triggered not by the decisions or actions of the Electoral Commission of Zambia (ECZ) and the Speaker but by operation of law. [25) The ECZ and Speaker's roles are therefore mechanical. They announce a vacancy which has already occurred and conduct the related by-election which has also already been set in motion by the Constitution and the law. This is the mandate that is spelt out by Article 57 (1) above and (3) below which reads: CR10 The Electoral Commission shall by regulation, set the place where and the date and time when, a by-election is to be held. Further, Article 72 (2) (8) reads: Where a vacancy occurs in the National Assembly, the Speaker shall, within seven days of the occurrence of the vacancy, inform the Electoral Commission of the vacancy, in writing and a by-election shall be held in accordance with Article 57. [26] If respected, the provisions ensure that the ECZ and the Speaker of the National Assembly are not put in the awkward position of having to choose between a court ordered stay (clearly erroneous in the circumstances) and their constitutional obligations. Challenging the manner of announcing the vacancy and the by-election is in the circumstances an exercise in futility. [27] The final point we wish to make is that the strict timelines that apply to the vacation of a seat and the process of a by-election serve to further underscore the need for the vacated seat to be filled as soon as possible. The 90 days in which the by-election must take place is instructive and must be strictly adhered to in accordance with the law on constitutional timelines which was settled in Hakainde Hichilema and Geoffrey Bwalya Mwamba v Edgar Chagwa Lungu, lnonge Mutukwa Wina, Electoral Commission of Zambia and Attorney General2 and more recently affirmed by this Court in the Bernard Kanengo v Attorney General and Electoral Commission CR11 of Zambia3 and Electoral Commission of Zambia v Belemu Sibanze1 cases. The entire process of a by-election must run its course within the timelines set by the Constitution to avoid the risk of triggering a constitutional crisis. [28] The long and short of our interpretation of Articles 72 (2) (b) read with Article 70 (2) (f) in the context of related provisions is that it would be untenable for judicial review to proceed parallel with a by-election process which must inevitably follow the vacancy. This is because it is the settled existence of the vacancy which is the basis for the by-election. To hold otherwise would be to court chaos. We said in Henry Kapoko v The People4 that our job is not to set the legal system on its head but to resolve any constitutional issues in a measured manner that will promote order in the judicial system. [29] In view of the foregoing, we are of the firm view that for an imprisoned former Member of Parliament to seek to halt and for a court to grant a stay of the vacation of a seat in order to question the validity of the loss of the seat and consequently stop the triggered by-election from taking place would be tantamount to challenging the Constitution and the law as such a course of action is not provided for in the Constitution or the law. The Constitution is the Supreme law of the land. It is so stated in Article 1, which goes on to bind CR12 all persons, and all State organs and institutions. As such, the exercise of a court's powers is subject to the Constitution. [30] It follows that, the answer to the referred constitutional question is that when Article 72 (2) (b) is read with Article 70 (2) (f), the imprisonment of a Member of Parliament triggers the automatic vacation of the parliamentary seat as a matter of law. The vacation of the seat then triggers a by-election also by operation of law. There is no provision for any judicial review process during the by-election other than a nomination challenge. An appeal which is lodged has no effect on the vacation of the seat and the ensuing by election. ai M. M. MUNALULA (JSD) CONSTITUTIONAL COURT PRESIDENT A. M. SHILIMI CONSTITUTIONAL COURT D/PRESIDENT M. MUSAL KE CONSTITUTIONAL COURT JUDGE