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Isaac Mwanza petitions ConCourt to declare Sesheke Constituency seat vacant

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Governance activist, Isaac Mwanza has petitioned the Constitutional Court to declare the Sesheke Constituency seat vacant following the criminal conviction of Romeo Kangombe.

This follows the criminal conviction of the area Member of Parliament, Romeo Kangombe.

Mwanza contends that the conviction and sentencing to imprisonment with hard labour for 12months of Kangombe for abduction and assault of two policemen, required that the seat be declared vacant.

Mwanza contends that although Kangombe is serving the sentence as suspended for two years, remains a convict and serving imprisonment from outside.

He said the seat became vacant under the terms of Article 72, 2(b) and 70 (f).

He stated that although Kangombe was serving a suspended sentence for two years, he was still serving imprisonment from outside and was convicted under a written law factors that nullify a seat.

He said the Ruling of the Speaker of the National Assembly Dr. Patrick Matibini following a Point of Order from Kabwe Central Constituency MP, Tutwa Ngulube, made on 13th April 2021 therefore was ultravires to the provisions of the Constitution and should be declared null and void.

Mwanza states that any payments made to Kangombe so far must therefore be recovered and subsequently, he is not entitled to the payment of any gratuity.

IN THE CONSTITUTIONAL COURT OF ZAMBIA 2021/CCZ/0018
HOLDEN AT LUSAKA
AT THE CONSTITUTIONAL REGISTRY
(CONSTITUTIONAL JURISDICTION)

IN THE MATTER OF ARTICLES 1(5), 2 AND 128(3)(b)(c) OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA

IN THE MATTER OF CONTRAVENTION OF ARTICLE 72(2)(😎 AS READ TOGETHER WITH ARTICLE 70(2)(F) OF THE CONSTITUTION OF ZAMBIA, CHAPTER 1 OF THE LAWS OF ZAMBIA

IN THE MATTER OF SECTIONS 4 AND 7 OF THE MINISTERIAL AND PARLIAMENTARY OFFICES (EMOULUMENTS) ACT, CHAPTER 262 OF THE LAWS OF ZAMBIA

AND IN THE MATTER OF: A DECISION BY SPEAKER OF THE NATIONAL ASSEMBLY DATED FRIDAY 16TH APRIL 2021 ON THE STATUS OF MR ROMEO KANG’OMBE, MEMBER OF PARLIAMENT FOR SESHEKE CONSTITUENCY FOLLOWING HIS CONVICTION AND SENTENCE TO IMPRISONMENT BY THE CHINSALI MAGISTRATES’ COURT.

BETWEEN
ISAAC MWANZA PETITIONER

AND

ATTORNEY GENERAL 1ST RESPONDENT
ROMEO KANG’OMBE 2ND RESPONDENT

PETITION
PURSUANT TO ORDER IV RULE 1 OF THE CONSTITUTIONAL COURT RULES 2016

The Constitutional Court.
The Petition of ISAAC MWANZA of Plot No. 52 – 22, Off Antelope Drive, Barlastone Park, Lusaka in the Lusaka Province of the Republic of Zambia, P.O. Box 330102, Email: [email protected] SHOWS THAT:

  1. Your petitioner is a Zambian Citizen and registered voter at Madzimawe School in Kasenengwa District of the Eastern Province in the Republic of Zambia.

  2. The 1st Respondent is the Chief Legal Advisor to the Government of the Republic of Zambia and is cited pursuant to Article 177 (5) of the Constitution of Zambia, Chapter 1 of the Laws of Zambia and Section 12 of the State Proceedings Act, Chapter 71 of the State Proceedings Act.

  3. The 2nd Respondent is a Member of Parliament for Sesheke Constituency who was convicted and sentenced to 12 months imprisonment with hard labour on charges for assault and abduction of two police officers, the execution of which has been suspended over a period of 2 years.

  4. On 13th April, 2021, Honourable Tutwa S. Ngulube, Deputy Government Chief Whip and Member of Parliament for Kabwe Central Parliamentary Constituency raised a Point of Order against the continued occupation of office by 2nd Respondent as Member of Parliament who was sentence to 12 months imprisonment.

  5. On 13th April, 2021, the Speaker of the National Assembly, Hon. Dr. Patrick Matibini, MP made a ruling to the effect that the 2nd Respondent, although convicted and sentenced to imprisonment (albeit the sentence has been suspended), is not serving a term of imprisonment.

  6. Of interest to this petition is the provision of Article 70(2)(f) of the Constitution of Zambia as read together with Article 72(2)(b). These reads:

Article 72(2)(b)
The office of Member of Parliament becomes vacant if the member becomes disqualified for election in accordance with Article 70;

Article 70(2)(f)
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

  1. Your Petitioner shall aver at trial that a sentence of imprisonment referred to in Article 70 is a sentence of imprisonment served in or outside prison, at the discretion of the court.

  2. Your Petitioner shall also aver at trial that Article 70 requires an MP who is serving a sentence, either from prison or outside prison to vacate a seat in the National Assembly.

  3. On 24th August, 1991, a new Constitution of Zambia was adopted and the same has been amended twice, that is, in 1996 by Constitution of Zambia (Amendment) Act No. 18 of 1996 and in 2016 by Constitution of Zambia (Amendment) No. 2 of 2016

  4. Prior to recent amendments the Constitution of Zambia, 1991, Article 65 of the Constitution of Zambia, 1991 enacted provisions which excluded one from vacating the office of a Member of the National Assembly or being barred to serve a member of the National Assembly where one was under a suspended sentence.

  5. The amendments done to the Constitution have totally repealed provisions of Article 65(6) of the Constitution of Zambia, 1991 and Article 68(😎 of the Constitution of Zambia (Amendment) Act No. 18 of 1996.

  6. A member of Parliament who is serving a sentence of imprisonment is not entitled to payment of any salary under Section 7 of the Ministerial and Parliamentary Offices (Emoluments) Act.

  7. A Member of the National Assembly is only entitled to payment of gratuity if the member served continuously during any period between the date of the dissolution of Parliament and the date of the commencement of the first session of the new Parliament only.

  8. Your petitioner shall aver at trial that the 2nd Respondent is serving a sentence or spending a period of time observing the judgment of the court and that his continued stay in Parliament is a breach of the Constitution.

  9. Article 70(2) (f) of the Constitution of Zambia entails that the 2nd Respondent who is serving a prison sentence, even if such sentence is suspended by the court for any period of time, is not only disqualified from being elected as a Member of Parliament but must have his office declared vacant.

  10. Your Petitioner shall aver at trial that further to Paragraphs 12 to 15, the 1st Respondent should in in breach of the Constitution by allowing the 2nd Respondent to continue drawing salaries and other benefits from the date when the 2nd Respondent was sentenced and begun observing the sentence of the court.

SUBSTANTIVE RELIEFS SOUGHT BY THE PETITIONER

  1. Now your Petitioner, therefore, prays that he be granted the following remedies:

i. A Declaration and Order that the Sesheke Constituency Parliamentary seat became vacant from Monday, 12th April, 2021 when Mr. Romeo Kang’ombe, Member of Parliament for Sesheke Parliamentary Constituency, was found guilty and sentenced to 12 months imprisonment with hard labour, which sentence he is observing from outside prison for the duration of 2 years.
ii. A declaration that the decision of the Speaker dated 16th April, 2021 is ultra vires the Constitution, null and void.

iii. An order of mandamus directed at and compelling the 1st Respondent, Minister of Finance and the Clerk of the National Assembly to recover, in full, from the 2nd Respondent any monies paid from 12th April, 2021.

iv. An Order that the 2nd Respondent is not entitled to any payment of gratuity as, by 12th April, 2021, he had not served continuously during any period between the date of the dissolution of Parliament and the date of the commencement of the first session of the new Parliament.

v. An order that costs for the petition be borne by the Respondents to this cause; and
vi. Any other reliefs the Court may deem necessary.

And Your Humble Petitioner shall forever pray.

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