E. Munshya, LLB, LLM, MDIV.
In the Zambian doctrine of separation of powers, each branch of government has a distinct role to play and no one branch should interfere in the other’s function. Parliament makes the law, the executive implements the law while the judiciary interprets the law. But this doctrine is quite subtle. Our system of government does allow for some overlap. For example, the executive is almost exclusively made up of members of parliament and the president as head of the executive is a principal actor in the legislative process. As argued below, while the judiciary is the ultimate interpreter of the law, both parliament and the executive to have interpretive functions. At the heart of Justice Lengalenga’s March 23, 2016 ruling in the Geoffrey Bwalya Mwamba v. the Attorney General, the Speaker of the National Assembly, and the Electoral Commission of Zambia (the “GBM 2016 case”) is the question of whether the Speaker as head of parliament had the power to make the declaration that GBM’s Kasama seat had become vacant. Edwin Mbewe, a legal commentator and 4th year student at the Zambia Open University Law School has correctly observed that the reason for Justice Lengalenga’s decision (known as ratio decidendi in legal jargon), was that the Speaker has no powers to declare a seat vacant and that function is purely the preserve of the High Court. It was this ratio that led Madam Justice Lengalenga to reverse the Speaker and to grant the Kasama parliamentary seat back to GBM. My concern with Justice Lengalenga’s ruling is that it betrays the doctrine of separation of powers and the ruling misconstrues the High Court’s role when interpreting the law.
While it is true that it is the High Court’s role to interpret the law, it is necessary to understand circumstances under which such a duty arises. In Zambia’s political and legal practice, the High Court is not the only body that interprets the law. It is fundamentally problematic to hold that only the judiciary can interpret the law. In actual fact, everyone interprets the law, including the police on the Chipata highway, administrative bodies in Mpika, teachers in Chiwempala, plumbers in Kasompe, tamanga boys of Katongo Street, and fishermen in Milenge. The judiciary only comes in to resolve issues when there are legal disputes. Judicial interpretation of the law is tied to its role as an arbiter of disputes. When we refer to judicial interpretation, we are in essence referring to a form of legal dispute resolution. The laws of Zambia do not wait for the judiciary’s active interpretation for the laws to be valid. The laws do not remain dormant until the judiciary brings them alive through an interpretation. Two of the branches of government have a proactive duty to function, the judiciary, on the other hand, does not have a proactive duty. The judiciary cannot go on rampage trying to “interpret the law.” The judiciary comes in if and when there is a dispute among competing interpretations. Articles 71 and 72 of the Constitution of Zambia does state that only the High Court can settle a dispute concerning the loss of a parliamentary a seat, but Justice Lengalenga’s judgment failed to appreciate the fact that other clauses within 71 and 72 provide different ways a seat could become vacant without necessarily involving the High Court. For example, if an MP dies, you do not wait for the High Court to declare a seat vacant. Additionally, an MP who ceases to be a citizen of Zambia ceases to be a member of parliament too. You do not need the High Court to declare a seat vacant in those circumstances as the Speaker can take note of the facts and make a determination that a seat has become vacant. Conversely, the Speaker cannot declare a seat vacant if the seat is contested in court between two parties that are claiming the seat as happens during an electoral petition.
Where an MP deliberately chooses to leave the party that sponsored them to parliament and then becomes a member of a different political party, it is within the Speaker’s powers to declare their seat vacant without the need to go to court. This is exactly what happened with GBM. Justice Lengalenga by restoring the parliamentary seat to GBM had out-rightly ignored GBM’s own actions of leaving the Patriotic Front to become a member of the United Party for National Development. For clarity, let us look at some pertinent facts. In 2014, GBM ran into some discipline issues with his party the Patriotic Front (PF). The PF moved to discipline him, but before they could reach him, he went to the High Court and obtained an injunction against his expulsion. After the commencement of that legal action against the PF, GBM escalated issues and subsequently accepted the position of vice-president of the UPND. The Zambian constitution did not and does not allow dual party membership for MPs.
Even if political party constitutions permitted dual party membership, the republican constitution does not permit it. An MP who becomes a member of a party other than the one that sponsored them to parliament ceases to be an MP. Full stop. When GBM became a member of the UPND (evidenced by his acceptance of the position of veep and his own sworn affidavit) he ceased to be a Member of Parliament. It was the Speaker’s right and responsibility in such circumstances to acknowledge that fact and inform the Electoral Commission of Zambia that Mr. GBM was no longer a member of parliament. There was no need to wait until the GBM v PF case was disposed of because the GBM v PF case concerned a matter completely different from what the Speaker was dealing with. Justice Lengalenga did not create this distinction in her mind leading to a very erroneous outcome that undermines the principle of separation of powers. She went on to answer questions that were irrelevant to the issues at hand.
No one took the seat away from GBM, he did it by himself and the High Court was wrong to give him back the seat which he voluntarily abandoned. It does not matter that Mr. GBM may not have intended the consequences of his actions. He cannot be vice-president of UPND and PF member of parliament at the same time, no matter how you spin it.
Suggested citation: Munshya, E. (2016). Separation of Powers Betrayed: Why Justice Lengalenga got it wrong in the GBM case. Elias Munshya Blog (www.eliasmunshya.org) (March 31, 2016)