, ~.

IN THE HIGH COURT FOR ZAMBIA 2015/HP/1279

HOLDEN AT LUSAKA
(Civil Jurisdiction)

IN THE MAnER OF

AND IN THE MAnER OF: ARTICLES 1(3), 1(4), 71(2)(c), 72(l)(a),

91 AND 94(1) OF THE CONSTITUTION
OF ZAMBIA, CHAPTER 1 OF THE LAWS
OF ZAMBIA

AND IN THE MAnER OF: PARTS IV, V AND VI OF THE

CONSTITUTION OF ZAMBIA, CHAPTER
1 OF THE LAWS OF ZAMBIA

AND IN THE MAnER OF: THE APPLICATION FOR LEAVE TO

APPLY FOR JUDICIAL REVIEW

AND IN THE MAnER OF: ORDER 53, RULE 3 OF THE RULES OF

THE SUPREME COURT (WHITE BOOK)
1999 EDITION

AND IN THE MAnER OF: SECTION 34 OF THE NATIONAL

ASSEMBLY (POWERS AND PRIVILEGES)
ACT, CHAPTER 12 OF LAWS OF ZAMBIA

AND IN THE MAnER OF: SECTION 12 OF THE STATE

PROCEEDINGS ACT, CHAPTER 71 OF
THE LAWS OF ZAMBIA

AND IN THE MAnER OF: SECTIONS 26, 28, 32, 25, 108 AND
129(1) OF THE ELECTORAL ACT
NUMBER 12 OF 2006

AND IN THE MAnER OF: A DECISION MADE BY THE SPEAKER OF

,• ~,

J1

THE NATIONAL ASSEMBLYTO HEAR,

DETERMINE AND DECLARETHE
KASAMA CENTRAL PARLIAMENTARY
SEAT VACANT WAS ULTRA VIRES
ARTICLES 71(2)(c) and 72(I)(a) OF THE
CONSTITUTION OF ZAMBIA CHAPTER 1
OF THE LAWS OF ZAMBIA

BETWEEN:

GEOFFREY BWAL YA MWAM Applicant

And

THE AITORNEY GENERAL 1st Respondent

THE SPEAKER OF THE NATIONAL ASSEMBLY 2nd Respondent

THE ELECTORAL COMMISSION OF ZAMBIA 3rd Respondent

nd
Coram: Hon Lady Justice F, M. Lengalenga in chambers this 22 day of
March, 2016,

For the Applicant: Ms M. Mushipe - Mesdames Mushipe &

Associates
Mr. H. B. Mbushi - Messrs HBM Advocates

For the 1st respondent: Mr. A, Mwansa, SC - Solicitor General

Mr. F. Mwale - Acting Senior State Advocate
Mr, J, Simachela - Chief State Advocate

For the 2nd respondent: Mr. J. Sianyabo - Legal Officer (National

Assembly)

For the 3rd respondent: Mr. E. Kamwi - In House Counsel (ECZ)

 •
12

JUDGMENT

Cases referred to:

1. DERRICK CHITALA (Secretary of the Zambia Democratic

Congress) v ATTORNEY GENERAL (1995 - 1997) ZR 91
2. ROY CLARKE v ATTORNEY GENERAL (2008) 1 ZR 38
3. ASSOCIATED PROVINCIAL PICTURE HOUSES v
WEDNESBURY CORPORATION (1984) 1 KB 223
4. COUNCIL OF CIVIC SERVICE UNION v MINISTER OF STATE
FOR CIVIL SERVICE (1984) 3 ALL E R 935; AC 374
5. STER KINAKOR v THE ATTORNEY GENERAL- 2010{HP{346
6. THE PEOPLE v THE SPEAKER OF THE NATIONAL ASSEMBLY,
THE HON R. M. NABULYATO, Ex parte HARRY MWAANGA
NKUMBULA (1970) ZR 97 (HC)
7. STATE OF KERALA v R. SUDARSAN COURTS BABU & ORS AIR
1984, Ker 1
8. HAMILTON v AL FAYED (1999) 3 ALL E R 317
9. BRADLUAGH v GOSSET (1984) 12 QB D 271
10. HEM CHANDRA SENGUPTA & ORS v THE SPEAKER OF THE
LEGISLATIVE ASSEMBLY OF WEST BENGAL AIR 1956, CAL
378
11. BENNY TETAMASHIMBA v THE SPEAKER OF THE NATIONAL
ASSEMBLY & 2 ORS (2001{HP{0675)(unreported)
12. MN KAUL AND SL SHAKDER PRACTICE AND PROCEDURE OF
PARLIAMENT, SIXTH EDITION (NEW DELHI - 2009)
13. NYAMPALA SAFARIS (ZAMBIA) LTD v ZAMBIA WILDLIFE
AUTHORITY & ORS (2004) ZR 49
14. CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS
(1982) 3 ALL E R 141 at p 143
15. DEAN MUNG'OMBA & 2 OTHERS v PETER MACHUNGWA & 2
ORS
16. FREDERICK J. T. CHILUBA v ATTORNEY GENERAL (2003) ZR
153

•
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J3

At the outset I wish to take judicial notice of the fact that there was
an enactment of the Constitution of Zambia Act NQ 1 of 2016 and the
Constitution of Zambia (Amendment) Act NQ 2 of 2016 on Sth January,
2016. This entails that some of the Constitutional provisions referred to
herein have been revised but for purposes of this application the applicable
provision in the Constitution of Zambia (Amendment) Act, NQ2 of 2016 is
Article 72 which deais with the vacation of office of Members of Parliament.

In delivering this judgment and referring to the old provisions of the

Constitution, I am fortified by Practice Direction NQ1 of 2016.

The applicant's application for judicial review is brought by way of

originating notice of motion for judicial review pursuant to Order 53 Rule
3 of the Rules of the Supreme Court, 1999 Edition (White Book).
It is directed at the Attorney General, the Speakerof the National Assembly
and the Electoral Commissionof Zambia, the 1st, 2nd and 3rd respondents
herein and seeks to challenge the decision made by the Speaker of the
National Assemblyto declare the KasamaCentral Parliamentary seat vacant
as being ultra vires Articies 71(2)(c) and 72(I)(a) of the Constitution of
Zambia, Chapter 1 of the Laws of Zambia. By the said application for
judicial review, the applicant seeks the following reliefs:

"1. An order of certiorari to move into the High Court for

purposes of quashing the decision of the 2nd
respondent delivered on 28th July, 2015 declaring the
,,
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J4

applicant's parliamentary seat vacant and to quash the

said decision.

2. An order and declaration that the purported

interpretation of the provisions of the Constitution, in
particular Article 71(2)(c) and the subsequent ruling
regarding the membership of the applicant by the 2nd
respondent concerning the applicant's parliamentary
seat is unconstitutional and to that effect wholly null
and void.

3. An order and declaration that the exercise of power by

the Speaker declaring the applicant's parliamentary
seat vacant in contravention of Articles 71(2)(c) and
72(1)(a) was not within the confines of the provisions
of the Constitution and as such is not protected by
section 34 of the National Assembly (Powers and
Privileges) Act, Chapter 12 of the Laws of Zambia but is
instead constitutionally amenable to judicial
intervention by the courts of law.

4. An order and declaration that the 2nd respondent owed

and still owes a constitutional, administrative and
statutory duty to the applicant not to dwell into
questions concerning the determination of membership
,
J5

of the National Assemblywith regard to a seat being

declared vacant pursuant to Article 72(1)(a) of the
Constitution of Zambia.

5. An order of prohibition prescribing the 2nd respondent

from acting in excessor outside of its jurisdiction by
interpreting Article 71(2)(c) or enforcing Article
72(l)(a) of the Constitution of Zambia respectively.

6. An order of prohibition prescribing the 3rd respondent

from invoking sections 26, 28, 32, 33, 35, 108 and
129(1) of the Electoral Act NQ12 of 2006 on the basis of
the purported declaration made by the 2nd respondent
until full determination of this matter.

7. Damagesfor loss of emoluments and privileges.

8. Costs.

The grounds for judicial review are premised on the following:

1. ILLEGALITY
(i) The 2nd respondent erred and misdirected himself in
law when he exercised his power to declare a
parliamentary seat vacant by interpreting the acts of
the applicant to be purportedly within the bracket of
, ~.
,
)6

the provisions of Article 71(2)(c) of the Constitution

of Zambia, Chapter 1 of the Laws of Zambia.

(ii) The 2nd respondent erred and misdirected himself in

law when he improperly purported to exercise a
power that he does not have by blatantly acting ultra
vires the provisions of Article 72(1)(a) of the
Constitution of Zambia.

2. EXCESS
OFJURISDICTION
The 2nd respondent acted in excess of jurisdiction by
proceeding to entertain the point of order raised by Home
Affairs Minister, Davies Mwila with regard to questions under
Article 72(1)(a) which can only be heard and determined by
the High Court for Zambia.

3. UNREASONABLENESS
ANDIRRATIONALITY
The 2nd respondent by passing the ruling wrongly exercised
the power to interpret the law, a judicial power that the
Constitution of Zambia only confers on the courts of law as
provided under Article 91, and also the improper exercise of
the power under Article 72(1)(a) that is not vested in the
2nd respondent by the Constitution of Zambia is so
unreasonable in the Wednesbury sense and irrational in so
far as no reasonable Speaker of the National Assembly could
•
J7

ever have formed such a decision upon a proper

consideration of the entire provisions of the Constitution.

4. PROCEDURAL
IMPROPRIETYANDUNFAIRNESS
(i) The 2nd respondent failed to observe the proper laid
down procedures with regard to the Constitutional
instructive provisions found under Article 72(1)(a) of
the Constitution of Zambia despite the 2nd
respondent owing a constitutional, administrative
and statutory duty to the applicant not to dwell into
questions concerning the determination of
membership of the National Assembly with regard to
a seat being declared vacant and ultimately usurping
the power of the High Court of Zambia of such
constitutional authority.

(ii) The 2nd respondent in following the correct

procedure, ought to have received notice in writing
from the leader of the Patriotic Front party in the
House,being the Vice President, regarding the issues
of the status of the applicant's parliamentary seat
upon receipt of such notice, ought to have then
forwarded it to the Chief Justice for determination by
a High Court Judge nominated by the Chief Justice.
,• ,',
J8

(iii) The rules of natural justice require that persons be

afforded a fair and unbiased hearing before decisions
are taken which affect them. It is a principle shared
in all democratic societies and probably all systems
of jurisprudence, The applicant was denied this fair
and unbiased hearing.

5. BREACHOFLEGITIMATEEXPECTATION
(i) The 2nd respondent acted contrary to the applicant's
legitimate expectation both procedurally and
substantively, in that matters that cast interesting,
controversial, unprecedented and constitutional
issues of high importance in our jurisdiction are
reserved or exclusively vested in the jurisdiction of
the High Court for Zambia.

(ii) In view of the practice of the Speaker in reserving

rulings on matters which are before the Courts of
law, the applicant had a legitimate expectation that
the Speaker of the National Assembly would have
reserved the said matters concerning his
parliamentary seat for ruling, until the determination
of his parliamentary seat status by the High Court."
• ,',

J9

The originating notice of motion for judicial review is supported by an

affidavit sworn by Geoffrey Bwalya Mwamba, the applicant herein, There
is also an affidavit in reply that was filed into court that the applicant relies
on,

The gist of the applicant's affidavits is that on 22nd July, 2015, he

accepted an appointment as Vice President of Administration in the United
Party for National Development (UPND) without resigning as an active
member of the Patriotic Front (PF) on whose ticket he was duly elected as
a Member of Parliament for Kasama Central Constituency. His averments
were further to the effect that on the same date Hon Davies Mwila, MP
Minister of Home Affairs, raised a question on the status of the applicant's
parliamentary seat, during the question and answer session in Parliament
and the 2nd respondent reserved his ruling to a later date. According to
the applicant, on 28th July, 2015, the 2nd respondent delivered his ruling
on the point of order and declared the applicant's parliamentary seat
vacant despite the fact that the applicant had on 24th July, 2015 instituted
legal proceedings in the High Court by way of petition under cause number
2015/HP/1182. He further alluded to the fact that he had earlier
commenced another action under cause number 2014/HP/239 over the
validity of his parliamentary seat and wherein he obtained an injunction to
prevent the Patriotic Front from expelling him from the party.

He further made averments to the effect that a number of Members of

Parliament from the two major opposition parties had been openly and
•
no

freely supporting the ruling Patriotic Front party in various political activities
such as campaigns, attendance of functions, conferences and meetings
and remained members of their parties. The applicant's grievance is that
the 2nd respondent made the ruling without due consideration that the
case is sub judice under cause number 2014/HP/239.

In addition to the affidavit evidence the applicant relies on the

Statement of Facts in the Notice of Application for leave to apply for
th
judicial review, list of authorities and skeleton arguments both filed on 5
th
August, 2015 and the applicant's submissions in reply filed on 29
September, 2015.

With regard to the ground of illegality, it is the applicant's contention

that the 2nd respondent by declaring the applicant's parliamentary seat
vacant, illegally exercised interpretive powers and functions contrary to the
provisions of Article 72(l)(a) of the Constitution. Counsel for the applicant
submitted that it was unconstitutional for the 2nd respondent to exercise
judicial functions of interpretation which is exclusively vested in the
established courts of law of Zambia. To support this argument Counsel
referred the court to Article 72(l)(a) of the Constitution which provides as
follows:

"72 (1) The High Court shall have power to hear and determine
any question whether-
 HI

(a) any person was validly elected or nominated as a

member of the National Assembly or the seat of any
member has become vacant."

It is the applicant's contention through Counsel that the aforestated Article

exclusively vests in the High Court the jurisdiction, power and authority to
hear and determine any question relating to declaring vacant a seat of a
member of Parliament. Counsel submitted that there is no provision in the
Constitution of Zambia that vests such power in the Speaker of the
National Assembly and that therefore the 2nd respondent illegally exercised
a power he does not have by declaring the applicant's parliamentary seat

vacant.

To further buttress their argument that the 2nd respondent acted ultra
vires the provisions of Article 72(1)(a) of the Constitution, Counsel for the
applicant relied on the case of DERRICK CHITALA (Secretary of the
Zambia Democratic Congress) v ATTORNEY GENERAL' in which the
Supreme Court at page 96 opined with regard to illegality as follows:

"By 'illegality' as a ground for judicial review, I mean that the

decision maker must understand correctly the law that
regulates his decision-making power and must give effect to it.
Whether he has or not is par excellent a justifiable question to
be decided, in the event of dispute by those persons, the
judges, by whom the judicial power of the State is exercisable."
.\

Jl2

In relation to this case, it was submitted that the 2nd respondent acted
illegally by declaring the applicant's parliamentary seat vacant and
exercising power reserved for the High Court, failed to understand the law
which regulates his power, being the Constitution. It was further
submitted that the Constitution as the supreme law of the land,
authoritatively places the power to declare a parliamentary seat vacant in
the High Court.

With respect to the excess of jurisdiction, it is the applicant's contention

that the 2nd respondent by illegally exercising interpretive functions
reserved for the courts, exceeded his jurisdiction. Reliance was placed on
2
the case of ROY CLARKE v ATTORNEY GENERAL in which the
Supreme Court inter alia stated that a decision is illegal if:

"(i) It contravenes or exceedsthe terms of power which

authorises the making of the decision; or

(ii) It pursuesan objective other than that for which the

power to make the decisionwas conferred,"

In the case in casu Counsel for the applicant further submitted that
although the 2nd respondent had authority to make a ruling on the point of
order raised by Hon. Davies MP, Minister of Home Affairs, he failed to take
judicial notice of the fact that the point of order arose from issues that
:'
Jl3

were already before the High Court and that by his declaration, he usurped
the adjudicative function of the Judiciary and acted ultra vire the
Constitution.

With regard to the ground of unreasonablenessand irrationality, it is the

applicant's contention that the 2nd respondent by passing a ruling in which
he declared the applicant's parliamentary seat vacant, acted irrationally and
so unreasonable in the Wednesbury sense. To fortify their argument
Counsel for the applicant relied on the case of ASSOCIATED
PROVINCIAL PICTURE HOUSES v WEDNESBURY CORPORATION3
whose principles were later espoused by Lord Diplock in the case of
COUNCIL OF CIVIC SERVICE UNION v MINISTER OF STATE FOR
CIVIL SERVICE' when he stated:

n••••• by irrationality I mean what can now be succinctly

referred to as Wednesbury unreasonableness. It applies to a
decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have
arrived at it."

In relation to the present case, Counsel for the applicant submitted that
the 2nd respondent's decision seriously caused a substantial risk of
detailing the course of justice by impeding or unfairly prejudicing the
determination of the two cases under cause numbers 2014/HP/239 and
.
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J14

2015/HP/1182 was Wednesbury unreasonable. It was also the applicant's

contention through Counsel that the constitutional and controversial issues
of the matter relating to the applicant's parliamentary seat were already
being resolved or determined by the courts of law when the 2nd
respondent passed the ruling which ultimately affected the said cases. It
was submitted that the procedure or action taken by the 2nd respondent
was therefore irrational and Wednesbury unreasonable.

On the applicant's ground of procedural impropriety and unfairness, it is

the applicant's contention that the 2nd respondent failed to observe the
proper laid down procedures with regard to the constitutional instructive
provisions under Article 72(l)(a) of the Constitution when he declared the
applicant's parliamentary seat vacant. To support this ground for judicial
review, Counsel for the applicant relied on the case of STER KINAKOR v
THE ATTORNEY GENERALs and the DERRICK CHITALA case earlier
cited in which Ngulube 0 as he then was described procedural impropriety
thus:

"I have described the third head as 'procedural impropriety'

rather than failure to observe basic rules of natural justice or
failure to act with procedural fairness towards the person who
will be affected by the decision. This is because susceptibility
to judicial review under this head covers also failure by an
administrative tribunal to observe procedural rules that are
expressly laid down in the legislative instrument by which its
 •
J15

jurisdiction is conferred, even where such failure does not

involve any denial of natural justice."

With regard to the applicant's application for judicial review, it is his

contention that the 2nd respondent declared his parliamentary seat vacant
without taking into consideration that the power to do so is vested in the
High Court and thereby totally disregarded proper procedure in the
decision making process. It was further reiterated that according to the
provisions of Article 72(l)(a) of the Constitution, there is no inherent
power in the Speaker of the National Assembly to make a decision on a
matter concerning the vacancy of a parliamentary seat of a member of the
National Assembly. This court's attention was drawn to the case of THE
PEOPLE v THE SPEAKER OF THE NATIONAL ASSEMBLY, THE HON
6
R. M. NABULYATO, Ex parte HARRY MWANGA NKUMBULA in
relation to the question of who has the inherent power to determine
whether or not a seat of a member of the National Assembly has become
vacant. It was submitted that according to the case cited, any allegations
against an elected member have to be furnished by the Speaker to the
Chief Justice for determination by himself or a Judge of the High Court. It
was therefore submitted that the 2nd respondent has no right to usurp the
power of the High Court by determining matters relating to the status of a
parliamentary seat.

Basedon the foregoing, Counsel for the applicant submitted that it was
procedurally improper for the 2nd respondent to declare the applicant's

I
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J16

seat vacant on 28th July, 2015 in total disregard of the proper procedure of
referring the matter to the High court for determination.

It is further contended by the applicant that the 2nd respondent by

proceeding as he did, deprived the applicant an opportunity of a fair and
unbiased hearing as required by the rules of natural justice.

The applicant's last ground of judicial review is breach of legitimate

expectation. It is his contention that the 2nd respondent acted contrary to
the legitimate expectation that he would have reserved the ruling on the
issues concerning the applicant's parliamentary seat until the matters
pertaining to the status of parliamentary seat had been determined by the
High Court. It was further contended that it was his practice to reserve
ruling on matters which are before the courts of law. Counsel for the
applicant submitted that after the Hon Speaker was notified of the pending
matters in the High court under cause numbers 2014/HP/239 and
201S/HP/1182 was expected to reserve the ruling relating to the point of
order raised in accordance with his past conduct but he acted in total
disregard of the information furnished to him.

It was further submitted that the practice of the 2nd respondent

reserving rulings or not making final decisions on matters that are before
the courts is intended to avoid conflicting rulings or decisions. Examplesof
cases were given in which the 2nd respondent has declined to declare
seats vacant on the basis that such matters are before the courts of law
 J17

and these are PONISO NJEULUv WINSTON CHIBWE (2014/HP/0805),

GREYFORDMONDE v WINSTON CHIBWE (2013/HP/0246), RICHWELL
SIAMUNENEv WINSTON CHIBWE(2013/HP/754) and DAWSONKAFWAYA
v STEVENKATUKA(2015/HP/1407).

In conclusion, Counsel for the applicant submitted that based on the

arguments advanced, it is their contention that the 2"d respondent's
decision declaring the applicant's parliamentary seat vacant is illegal,
irrational and Wednesbury unreasonable, procedurally improper, in excess
of jurisdiction and in breach of the legitimate expectation and that
therefore, it should be declared null and void and quashed to that effect.

The 1st and 2nd respondents filed into court an affidavit in opposition to
the originating notice of motion for judicial review and submissions on
which they relied on.

The gist of the 1st and 2nd respondents' affidavit in opposition that was
sworn by Cecilia Nsenduluka Mbewe, Deputy Clerk (Administration) at the
National Assembly is that the applicant ceased to be a member of the
Patriotic Front on whose sponsorship he was elected as Kasama Central
Member of Parliament in the 2011 general elections when he accepted the
position of Vice President, Administration in the United Party for National
Development. She averred that the examples cited by the applicant of
members of parliament are distinguishable from his situation in that after
the 2nd respondent reserved his ruling on the point of order that was

I
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J18

raised by Hon Davies Mwila, MP on 22nd July, 2015, the applicant

commenced an action on 24th July, 2015 under cause number
2015/HP/1182 but the same did not preclude the 2nd respondent from
delivering his reserved ruling. The said deponent of the 1st and 2nd
respondents' affidavit in opposition stated further that the 2nd respondent
was merely enforcing one of the Constitutional provisions which falls within
his jurisdiction when he delivered his reserved ruling. Copies of other
rulings delivered by the 2nd respondent in the post in relation to Hon C.
Mweetwa, Member of Parliament for Choma Central and Hon R. Muntanga,
Member of Parliament for Kalomo Central were exhibited as "CNM1" and
"CNM2" respectively. She concluded by stating that as such the 2nd
respondent in this case did not act irrationally, unreasonably, illegally,
procedurally improper or in excess of his jurisdiction in delivering the
reserved ruling.

The Solicitor-General, Mr. Abraham Mwansa, SC in opposing the

applicant's application for judicial review relied on the 1st and 2nd
respondents' affidavit in opposition and their submissionsfiled into court on
18th August, 2015. He responded to Counsel for the applicant's arguments
and submissions by dealing with each of the four issues raised by the
applicant through Counsel.

He submitted that the first issue was that following the point of order
raised by Hon Davies Mwila, MP, Minister of Home Affairs, on 22nd July,
2015, the Hon Speaker reserved his ruling to a later date whilst the
 J19

applicant commenced an action by way of petition under cause number

2015/HP/1182 on 24th July, 2015 seeking an interpretation of Article
72(l)(a) of the Constitution. The Hon Speaker delivered his reserved
ruling on 28th July, 2015 and it is the applicant's contention that with the
filing of his petition in the High Court, the Hon Speaker's jurisdiction was
ousted as the matter before the floor of the House became sub judice and
that the reserved ruling should not have been delivered.

He submitted that the second issue raised by the applicant is that

besidesthe petition commenced under cause number 2015/HP/1182, there
was subsisting before the High Court cause number 2014/HP/239 in which
the applicant was granted an injunction restraining the Secretary General
of the Patriotic Front from expelling him from the party. Learned State
Counsel observed that it was the applicant's contention that the existence
of the said matter before the High Court equally made the matter before
the floor of the House sub judice.

Mr. Mwansa, SC submitted further that the applicant's third issue deals
with the argument that the power to determine any question relating to
the vacancy in the seat of a member under Article 72(l)(a) of the
Constitution vests in the High Court. He noted it is the applicant's
contention that the 2nd respondent usurped the powers of the High Court
by declaring the applicant's seat vacant.

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J20

The Solicitor General submitted that the fourth issue raised by the
applicant is that the Speaker'sdecision conflicts with his previous decisions.

In response to the issues raised, Mr. Mwansa, SC submitted that the 1st
and 2nd respondent came up with one question which is:

"Did the applicant cross the floor of the House?"

Further in responding to the issues raised, it was submitted that the

authority or mandate exercised by the Speaker is derived from Article 86(1)
of the Constitution which provides that the National Assembly may
determine its own procedure. It was submitted that the known procedure
when a point of order is raised in the House is that the Speaker ought to
rule on it.

State Counsel acknowledged that the applicant is not denying the fact
that he accepted the position of Vice President (Administration) of the
UPNDand thereby 'crossed the floor' as envisaged by Article 71(1)(c) of
the Constitution. He submitted that the applicant is challenging the
invocation or exercise of the jurisdiction under that provision by the
Speaker and argue that it is outside his purview or jurisdiction. It is the
Solicitor General's contention, however, that the applicant's conception is
totally misconceived. He submitted that they would rely primary on the
doctrines of separation of powers, exclusive cognisance and the sub judice
Rule to the extent that the applicant purports that it applies to this case.
 J21

He relied on a number of authorities on the definition of the separation

of powers and its rationale. He submitted further that the operation of the
doctrine of separation of powers and immunity of parliamentary
proceedings from impeachment and question in courts was explained in the
Indian case of STATE OF KERAlA v R. SUDARSANCOURTS BABU &
OTHERS' in the following terms:

" The Indian Constitution conceivesthe judiciary and

legislature as different organs of the State having independent
specified functions. Just as it is within the power of the
legislature to exercise all functions conferred on it, there are
functions conferred on the judiciary by the Constitution which
it is expected to perform in accordance with the Constitution.
Immunity from action would be desirable if proper functioning
is to be secured and such immunity has been conferred on the
legislature by Article 194, as read with Article 212 of the
Constitution, while immunity of the judiciary from discussion
by the legislature has been conferred by Article 211. True
democratic spirit calls for mutual respect by these institutions,
and avoidance of trespass..... "

Mr. Mwansa, SC also relied on the dicta by Lord Wolf, MR on the operation
of the doctrine of separation of powers and impeachment of parliamentary
proceedings which he considered instructive in the case of HAMILTON v
Al FAYED8at page 334 where he stated as follows:
,, "
, •
J22

"The principle is that the courts will not challenge or assault by

any order of their own, an assertion of authority issued by
Parliament pursuant to Parliament's own procedures. This
principle extends to acts and decisionsof Parliament which are
not part of the process of enacting legislation It flows
from the court's constitutional recognition of Parliament as
sovereign legislator. Once it has identified the subject matter
of a dispute as falling within such process, the court will not
proceed,"

State Counsel, thereafter, proceeded to consider the doctrine of exclusive

cognisance. He submitted that by the doctrine of exclusive cognisance the
National Assembly has the power to interpret and administer certain
provisions of the Constitution and other laws and Standing Orders relevant
to its operations. He submitted further that the said doctrine is premised
on parliamentary privilege, namely freedom of speech and freedom of the
House to regulate its own procedure. He stated that the said freedom of
speech and debate in the National Assembly is protected by section 3 of
the National Assembly (Powers and Privileges)Act, Chapter 12 of the Laws
of Zambia which provides as follows:

"There shall be freedom of speech and debate in the Assembly.

Such freedom of speech and debate shall not be liable to be
questioned in any court or place outside the Assembly,"

I
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J23

In relation to the present case, State Counsel submitted that the Speaker
and the National Assembly retained their mandate as provided for under
the aforementioned provision to freely debate and adjudge upon matters
before them. He submitted further that the Speaker was, therefore, duty
bound to deliver his reserved ruling following the point of order, especially
since, the applicant under cause number 2015/HP/1182 obtained no
restraining order to stop him from delivering his reserved ruling.

Further in submitting on exclusive cognisance and the freedom of

parliament to regulate its own affairs, he relied on the definition of
exclusive cognisance by the learned authors of Erskine May's, TREATISE
ON THE LAW. PRIVILEGES. PROCEEDINGS AND USAGE OF
PARLIAMENT Twenty-Fourth Edition at page 227. He also relied on the
case of BRADLUAGH v GOSSET9 in which Stephen J made the following
observation:

"The House of Commons is not subject to the control of .....

(the) courts in its administration of that part of the statute law
which has relation to its own internal proceedings Even if
that interpretation should be erroneous (the) court has no
power to interfere with it, directly or indirectly."

In relation to the present case, Mr. Mwansa, SCsubmitted that the doctrine
of exclusive cognisance is codified or enacted by section 34 of the National
 J24

Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia

which provides as follows:

"Neither the Assembly, the Speaker nor any officer shall be

subject to the jurisdiction of any court in respect of the
exercise of any power conferred on or vested in the Assembly,
the Speaker, or such officer by or under the Constitution, the
Standing Orders and this Act."

He submitted further that in view of the foregoing provision, it is clear that

the procedures and acts done by the National Assembly cannot be
challenged in courts of law as long as they are done within the procedures
established by the National Assembly. He submitted that the Speaker by
delivering his reserved ruling, merely exercised his powers within the
parliamentary procedures and he reiterated that the commencement of
cause number 2015/HP/1182 was not a bar to that parliamentary
procedure.

On the question of whether debating the matter on the parliamentary

floor was sub judice because of cause number 2014/HP/239 being before
the High Court wherein the applicant was granted an injunction to restrain
his expulsion from the Patriotic Front, it is the 1st and 2nd respondent's
contention that the injunction fell off by operation of law when the
applicant crossed the floor.
,"

125

Reliancewas also placed on the Zambian case of NALUMINO MUNDIA

where the doctrine of exclusive cognisance was reaffirmed by the High
Court. State Counsel further relied on the Indian case of HEM CHANDRA
SENGUPTA GUPTA & OTHERS v THE SPEAKER OF THE
LEGISLATIVE ASSEMBLY OF WEST BENGAL!O where the court in
resolving the issue whether court processcould be used to stall an internal
process of the Assembly, relied on the construction of Article 212 of the
1949 Indian Constitution, which is similar to section 34 of the National
Assembly(Powers and Privileges)Act and which provides as follows:

"212(1) The validity of any proceedings in the legislature of a

State shall not be called in question on the ground of any
alleged irregularity of procedure.
(2) No officer or member of legislature of a State in whom the
powers are vested by or under this Constitution for regulating
procedure or the conduct of business for maintaining order, in
the legislature shall be subject to the jurisdiction of any court
in respect of the exercise by him of those powers."

The court further held inter alia:

"The courts could not at that stage seek to regulate the

procedure of the House,and arrogate to itself the powers of the
Speaker. If, however, a law was passed or a resolution
adopted or a motion carried, which was not in accordance with
 J26

the Constitution, such a law, resolution, or motion could be

declared invalid by the court."

It was submitted that similarly, where a power is vested in the National

Assembly by the Constitution, the National Assembly (Powers and
Privileges)Act, and the Standing Orders, the courts' jurisdiction is ousted in
respect of the exercise of that power; and that only after the National
Assembly has exercised its powers, can its decisions, be chailenged if they
are unconstitutional or illegal.

The Solicitor General, further in demonstrating the application of the

doctrine of exclusive cognisance, drew this court's attention to the case of
BENNY TETAMASHIMBA v THE SPEAKER OF THE NATIONAL
ASSEMBLY & 2 OTHERS" where the applicant being dissatisfied with
the Speaker's decision expelling him from the House applied for judicial
review in the High Court in which he sought, among other reliefs, a
declaration that the Speaker's decision was nuil and void. His application
was dismissed as the High Court upheld the expulsion from the House on
the ground that he was guilty of dual membership.

It is the 1st and 2nd respondent's contention that unlike the

TETAMASHIMBAcase in which the Speaker drew an inference of Mr.
Tetamashimba's crossing of the floor by the use of the UPNDletter head as
Secretary General, in the applicant's case, he announced his acceptance of

I
 J27

his appointment as UPND Vice President for Administration at a Press

Conferenceon 22nd July, 2015.

State Counsel's response to the applicant's ailegation that the Speaker

by declaring the applicant's seat vacant, pursuant to Article 71(2)(c) of the
Constitution usurped the powers of the High Court as conferred by Article
72(I)(a) of the Constitution, is that the Speaker merely implemented the
provisionsof the Constitution that do not warrant referral to the High Court
for interpretation when there is a vacancy in the seat of a member of the
National Assembiy. He submitted that the only provision that demands a
referral and interpretation of the High Court is as provided under Article
71(1)(b) when a member acts contrary to the Code of Conduct prescribed
by an Act of Parliament.

It is the 1st and 2nd respondent's contention that when a member

crosses the floor as the applicant did, there is no need for the High Court
to interpret the law. In fortifying their argument that the applicant crossed
the floor when he accepted the position of Vice President of Administration
for the UPND, reliance is placed on section 2 of the Societies Act, Chapter
119 of the Laws of Zambia in which the words "member" and office
bearer" are defined as follows:

" 'member' in relation to a society includes an office bearer of

such society;
'office-bearer,' in relation to any society or any committee or
.
'. i

J28

governing or executive body of a society, means any person

who is the president, vice-president, chairman, deputy
chairman, secretary or treasurer of such society, committee or
body or who holds therein any office or position analogous to
any of those mentioned above."

Mr. Mwansa, SC submitted that the legal implication of the applicant

accepting the position of vice president in the UPND is aptly explained in
the definitions in section 2 of the Societies Act. He submitted further the
two definitions when read together mean that a person holding the office
of president or vice president of a society, such as a political party, is
deemed by operation of law to be a member of that political party.

It is further the 1st and 2nd respondents' contention that by accepting

the appointment of vice-president in the UPND, the applicant not only
ceased to be a member of the Patriotic Front on whose ticket he was
elected as a Member of Parliament for KasamaCentral Constituency but he
also ceasedto be a member of the National Assembly.

In response to the applicant's contention that he accepted the position

of vice-president of UPND without resigning as an active member of the
Patriotic Front, State Counsel submitted that in accordance with Article
71(2)(c) of the Constitution, the applicant crossed the floor as dual
membership of political parties is not permissible in the Zambian
democratic dispensation. He submitted further that in the circumstances,
.• i

J29

the Speaker was on firm ground when he inferred from the applicant's
acceptance statement or address at the press conference held on 22nd
July, 2015 and his conduct that he had in terms of Article 71(I)(c) of the
Constitution crossed the floor, and accordingly lawfully declared the seat
vacant. He further submitted that such declaration however did not
amount to interpretation of the Constitution or usurpation of the power of
the High Court by the Speaker as alleged by the applicant. State Counsel
argued that as the applicant's seat fell vacant by operation of the law, the
Speaker in the exercise of his mandate, merely implemented the law. It is
further contended by the 1st and 2nd respondents that this application for
judicial review is misconceived as it does not fall within the purview of
judicial review to be heard by the High Court.

The Solicitor General also dealt with the issue of sub judice that was
raised by the applicant's Council. In order to explain the notion of sub
judice he relied of the reference by the learned authors of MN KAUL AND
SL SHAKDER PRACTICE AND PROCEDURE OF PARLIAMENT'>, Sixth
Edition, to a ruling of the Indian Speaker on this subject at page 1122
where it was stated as follows:

"The rule whether a motion which relates to a matter which is

under adjudication by a court of law should be admitted or
discussed in the House has to be interpreted strictly. While on
the one hand the Chair has to ensure that no discussion in the
House should prejudice the course of justice, the Chair has also
"
,

BO

to see that the House is not debarred from discussing an urgent

matter of public importance on the ground that a similar, allied
or linked matter is before a court of law. The test of sub judice
in my opinion should be that the matter sought to be raised in
the House is substantially identical with the one on which a
court of law has to adjudicate. Further, in case the Chair holds
that a matter is sub judice, the effect of this ruling is that the
discussion on the matter is postponed till judgment of the court
is delivered. The bar of sub judice will not apply thereafter,
unless the matter becomes sub judice again on appeal to the
"higher court."

In the present case, in view of the preceding observations, Mr, Mwansa, SC

submitted that at the time the applicant filed into court the petition relied
on to plead the sub judice rule, the Speaker was already seised with
jurisdiction regarding the point of order raised and had, in fact reserved
delivery of the ruling. He submitted further that in any event, the issues
raised in the said petition are clearly distinguishable from the subject
matter of these proceedings, namely, 'the crossing of the floor' by the
applicant. He contends therefore, that the plea of sub judice rule is in the
circumstancesincompetent both in law and fact.

On the issue of whether or not the Speaker delivered conflicting

decisions as alleged by the applicant, the Solicitor General's brief response
is that the Speaker is empowered to determine each and every case on its
,
•
J31

own merits and he submitted that the matters referred to by Counsel for
the applicant are distinguishable from this case.

He further submitted that the role of the courts in judicial review

proceedings is to review the latitude or parameters of the decision making
process of administrative bodies, authorities or public officials and not to
substitute its own opinions. To fortify his submission, he relied on the
Supreme Court decision in the case of NYAMPALA SAFARIS (ZAMBIA)
LTD v ZAMBIA WILDLIFE AUTHORITY & OTHERS13 where it was held
inter alia:

"3. That the remedy of judicial review is concerned not with the
merits of the decision, but the decision making process
itself.

4. The purpose of judicial review is to ensure that the

individual is given fair treatment by the authority, to which
he has been subject and that it is not part of that purpose
to substitute the opinion of the judiciary or of the individual
judges for that of the authority constituted by law to decide
the matter in question.

S. The decision is unreasonable in the Wednesbury sense if it

 J32

is a decision which no person or body of persons properly

directing itself on the relevant law and acting reasonably
could reasonably have reached."

Based on the foregoing, it was submitted that the Speaker did not act
without or exceed his jurisdiction or act unreasonably or irrationally as it
was unnecessary, in the circumstances, to hear the applicant because, like
a resignee, he vacated the seat on his own volition. It is further submitted
that in as much as the decisions of the Speaker may be amenable to
judicial review by this court, this particular application must fail as the
applicant's parliamentary seat became vacant by operation of law and was
voluntarily induced by the applicant himself and that therefore, the Speaker
acted lawfully in declaring the seat vacant.

The 3rd respondent filed an affidavit in opposition to the originating

notice of motion for judicial review on lSth August, 2015. In the said
affidavit that was sworn by one Priscilla Mulenga Isaac, Director and Chief
th
Executive Officer of the 3rd respondent, she averred that on 29 July,
2015 she received a letter from the Speaker of the National Assembly, the
2nd respondent herein, notifying the 3rd respondent that a vacancy had
occurred in the elected membership of the National Assembly following the
crossing of the floor of Mr. Geoffrey Bwalya Mwamba from the Patriotic
Front to the United Party for National Development. She exhibited a copy
of the said letter as "PM 1,"
, •,

J33

The 3rd respondent also relied on its arguments filed on 1Sth August,
201S and particularly Article 67(1) of the Constitution which provides as
follows:

"When a vacancy occurs in the seat of a member of the

National Assembly as a result of the death or resignation of the
member or by virtue of Article 71, a by-election shall be held
within ninety days after the occurrence of the vacancy."

Further reliance was placed on Regulation 7(1) of the Electoral (General)

Regulations,Statutory Instrument NQ92 of 2006 which states as follows:

"The Speaker shall, upon a vacancy occurring in the elected

membership of the National Assembly otherwise by reason of a
dissolution of Parliament, inform the President and the
Commission, by notice in writing, of such a vacancy, and of the
constituency concerned, as soon as practicable after it occurs."

It was submitted by the 3rd respondent through Legal Counsel that

according to Priscilla Mulenga Isaac's affidavit, the 3rd respondent did
receive such notification of a vacancy concerning the Kasama Central
Constituencyfrom the Speaker of the National Assembly.

It is, therefore, the 3rd respondent's contention through Legal Counsel

that the notification from the Speaker sets the electoral process in motion
, .
J34

and that the 3rd respondent is bound to conduct a by-election within

ninety days as provided for in Article 67(1) of the Constitution. It was
submitted further that the 3rd respondent considers the Speaker's written
notification as conclusive evidence of a vacancy, unless the court
determines otherwise.

I have carefully considered the application for judicial review, the

affidavit evidence, arguments, submissions and authorities that have been
of great assistance to the court. The facts and grounds upon which the
reliefs are sought by the applicant have already been elaborately stated
and I, therefore need not restate them and I will revert to them. However,
before I proceed to consider the application on the merits, I wiIi briefly
make reference to the basic principies underlying the process of judicial

review.

Under Order 53, Rule 14(19) of the Rules of the Supreme Court, 1999
Edition, (White Book) at page 902, the learned authors deai with the
nature and scope of judicial review which constitute the basic principles to
be considered in granting the remedy of judicial review. They state that
the remedy of judicial review is concerned with reviewing, not the merits of
the decision in respect of which the application for judicial review is made,
but the decision-making processitself.

In CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS" Lord

HailshamL. C. summed up the position at page 143 as follows:
,.
J35

"It is important to remember in every case that the purpose of

the remedy of judicial review is to ensure that the individual is
given fair treatment by the authority to which he has been
subjected and that it is not part of that purpose to substitute
the opinion of the judiciary or of individual judges for that of
the authority constituted by law to decide the matters in
question."

The Supreme Court of Zambia in the case of DEAN NAMULYA

15
MUNG'OMBA & 2 OTHERS v PETER MACHUNGWA & 2 OTHERS
also made the same observation when it stated as follows at page 21:

"Judicial review is concerned with the decision-making process.

Whether the tribunal had to act in the matter, whether they
followed the procedure, whether they exceeded their
jurisdiction and matters of procedural nature. Judicial process
is not concerned with the merits of the decision and authorities
abound on this and we may only refer to our recent decision in
the case of CHILUBA v ATTORNEY GENERAL.... '6"

Based on the aforestated guidelines I will proceed to consider the 2nd

respondent's decision-making process of delivering the reserved ruling in
which he declared the applicant's parliamentary seat vacant. The said
decision-making process has been challenged on the following grounds:
\ •
J36

(i) Illegality
(ii) Excess of jurisdiction
(iii) Unreasonableness and irrationality
(iv) Procedural impropriety and unfairness
(v) Breach of legitimate expectation

On the ground of illegality, the 2nd respondent is alleged to have

improperly purported to exercise a power he does not have when he
declared the applicant's parliamentary seat vacant and thereby acted ultra
vires the provisions of Article 72(l)(a) of the Constitution of Zambia. The
applicant advanced a number of arguments to demonstrate the nature of
the alleged illegality of the 2nd respondent's decision-making process and
to convince this court that under Article 72(l)(a) of the Constitution it is
the High Court that is vested with the power to decide on matters relating
to the declaration of a parliamentary seat vacant. Article 72(l)(a) was
earlier quoted and therefore does not need to be reproduced. However,
since the 2nd respondent is alleged to have exercised his power to declare
the applicant's parliamentary seat vacant by interpreting the applicant's
acts within the provisions of Article 71(2)(c) of the Constitution, I
reproduced the said provision for ease of reference and it states as follows:

"(2) A member of the National Assembly shall vacate his seat in

the Assembly -
(c) in the case of an elected member, if he becomes a member
'.
J37

of a political party, other than the party of which he was an

authorised candidate when he was elected to the National
Assembly or, if having been an independent candidate, he
joins a political party or having been a member of a political
party, he becomes an independent."

Having perused the contents of the aforementioned articles, the issue that
this court has to determine after taking into account the arguments
advanced by the 1st and 2nd respondent's Counsel is whether or not the
2nd respondent understood correctly the law that regulates his decision-
making power and gave effect to it as stated in the authorities cited.

Whilst I accept that the Constitution is the supreme law of the land and
regulates the 2nd respondent's power, I cannot ignore the doctrine of
exclusive cognisance as contained in section 34 of the National Assembly
(Powers and Privileges) Act, Chapter 12 of the Laws of Zambia. The said
provision was earlier reproduced for ease of reference and the gist of the
said provision is that the procedures and acts of the National Assembly are
privileged and cannot be challenged in courts of law as long as they are
done within the established procedures of the National Assembly.

Further on the same issue of illegality, I closely examined Article

72(l)(a) of the Constitution and satisfied myself that ordinarily the
jurisdiction to hear and determine whether any person has been validly
elected or nominated as a member of the National Assembly or the seat of
" .
J38

any member has become vacant is vested in the High Court, However, I
am not oblivious to the contents of Article 71(2) which clearly state the
instances when a member of the National Assembly is required to vacate
his or her seat in the Assembly. Suffice to state that because of the
mandatory nature of this provision, the instances cited therein do not
require the High Court's determination of the circumstances which call for
the member to vacate his or her seat.

Therefore, after reading Articles 71(2)(c) and 72(l)(a) of the

Constitution together with section 34 of the National Assembly (Powers and
Privileges)Act, Cap, 12 of the Laws of Zambia, I am of the considered view
that the 2nd respondent acted illegally or ultra vires the provisions of
Article 72(1)(a) of the Constitution,

I turn to the ground of excess of jurisdiction in which the 2nd

respondent is alleged to have acted in excess of jurisdiction by entertaining
the point of order raised by Home Affairs Minister, Hon Davies Mwila and
ruling on it. The alleged excess of jurisdiction on the part of 2nd
respondent relates to what the applicant terms as exercising interpretive
functions reserved for the courts. It is the applicant's contention that
although the 2nd respondent had authority to rule on the point of order
raised, by declaring his seat vacant, he failed to take judicial notice of the
fact that the point of order arose from issues that were already before the
High Court. First and foremost the 2nd respondent is not a judicial body
that can take judicial notice and secondly, the applicant only filed this
 J39

matter after the 2nd respondent reserved his ruling and in relation to the
matters under 2014/HP/239 and 2015/HP/1182 whilst an injunction was
obtained in the earlier cause 2014/HP/239, in the petition under
2015/HP/1182 no injunction was obtained to preclude the 2nd respondent
from delivering his ruling.

Therefore, based on my earlier reasoning and the mere fact that a

matter had been filed was not a basis upon which delivery of the 2nd
respondent's ruling could be stayed pending the final determination of
those matters.

I am of the considered view that the applicant's mere filing of the

petition under cause number 2015/HP/1182 on 24th July, 2015 seeking an
interpretation of Article 72(l)(a) of the Constitution did not oust the
Honourabie Speaker's jurisdiction to deliver his reserved ruling. I am
fortified by section 34 of the National Assembiy (Powers and Privileges)
Act, Cap 12 which provides for the doctrine of exclusive cognisance which
empowers the Honourable Speaker to exercise his powers within the
parliamentary procedures.

Based on the foregoing, I am of the considered view that the 2nd

respondent was not in excess of jurisdiction by proceeding to rule on the
point of order as he did because in terms of parliamentary procedures he
was expected to rule on the point of order raised in the course of
" .' \
J40

parliamentary proceedings. However, in terms of the declaration of the

vacancy of the seat, the 2nd respondent was in excess of jurisdiction.

The applicant's third ground for judicial review relates to

unreasonablenessand irrationality on the part of the 2nd respondent in the
decision-making process relating to the declaration of the vacancy of the
applicant's seat. I have considered the applicant's arguments that are
based on the contention that the 2nd respondent improperly exercised the
power under Article 72(l)(a) of the Constitution as the same was not
vested in him but the High Court for Zambia. Upon perusal of the said
Article, I am satisfied that the provision empowered this court to hear and
determine any question relating to the vacancy of the seat of any member
of the National Assembly. This is when such matter is referred or brought
to the Court for determination. Counsel for the applicant relied on the
NABULYATO case in it was decided that the High Court has the inherent
power to determine whether a seat of a member of the National Assembly
has become vacant.

I turn to the second part of this ground which relates to the applicant's
contention that the 2nd respondent by ruling as he did acted Wednesbury
unreasonableas his ruling unfairly prejudiced the determination of the two
casesunder cause numbers 2014/HP/239 and 201S/HP/1182.

Since judicial review is concerned with the decision making process not
the merits of the decision as was observed by the Court in the
" '" "
)41

MUNG'OMRA case, it is for this court to determine whether the 2nd

respondent acted irrationaliy or unreasonably in the Wednesbury sense by
ruling on the point of order raised and proceeding to declare the applicant's
seat vacant. As I earlier stated that in accordance with parliamentary
procedures, the Honourable Speaker was expected to rule on the point of
order raised as long as he acts within the established Parliamentary
procedures. Therefore, his act of ruling on the issue raised in itself was
not irrational or unreasonable in the Wednesbury sense as alleged.

However, it is the declaration of the vacancy of the applicant's

parliamentary seat that was irregular and in excessof jurisdiction.

Therefore, I am of the considered view that he acted irrationally and

unreasonably by not referring the determination of the vacancy of the seat
to the court.

The applicant's fourth ground is that of procedural impropriety and

unfairness wherein he alleges that it was procedurally improper for the 2nd
respondent to declare the applicant's parliamentary seat vacant instead of
referring the matter to the High Court for determination.

In considering this ground for judicial review, I had occasion to look at

the provisions of oid Article 72(l)(a) which relate to the High Court's
jurisdiction to hear and determine any question of membership to the
National Assembly or vacancy of the seat of any member. I also looked at
,-:, "
J42

the old Article 71(2) that dealt with tenure of office of members of the
National Assembly and particularly Article 71(2)(c) that provides that a
member shall vacate his seat if he becomes a member of a political party
other than the party of which he was an authorised candidate when he was
elected to the National Assembly. The said provision has been slightly
amended in the Constitution of Zambia (Amendment) NQ 2 of 2016 and
appears under Article 72(2)(d) as follows:

"(2) The office of Member of Parliament becomes vacant if the

Member-
(d) resigns from the political party which sponsored the
member for election to the National Assembly,"

The applicant herein has argued through his advocates that he has not
resigned from the Patriotic Front even if he has assumed the position of
Vice President (Administration) in the UPND, However, this court is not
mandated to decide on the merits of the case as it is concerned with the
decision making process,

On the authority of the NABULYATO case and the constitutional

provisions, I am fortified in finding that there was procedural impropriety
and unfairness on the part of the 2nd respondent when he proceeded to
declare the applicant's parliamentary seat vacant instead of referring the
matter to the High Court for determination.
\.. ", \
)43

The applicant's last ground for judicial review is that the 2nd respondent
breached the applicant's iegitimate expectation to have his parliamentary
seat status determined by the High Court when he proceeded to make a
ruling on the point of order raised instead of reserving it after being
notified of the pending cause numbers 2014(HP(239 and 2015(HP(1l82.

I followed with approval the decision in the NABUL YATO case and
ruled that the jurisdiction to determine the vacancy of parliamentary seats
is vested in the Courts as provided for under the Constitutional provisions.
Consequently, I find that the applicant's legitimate expectation to have the
status of his parliamentary seat determined by the High Court was
breached by the 2nd respondent's deciaration of the vacancy of his seat.

Finally, on the totality of the evidence and the law relating to the
grounds for judicial review and the reliefs sought by the applicant, he
succeedson all the grounds with the exception of a few issues resolved in
the 2nd respondent's favour.

The applicant seeks reliefs for orders of certiorari and prohibition,

deciarations, damages for loss of emoluments and privileges and costs.

For the reasons aforestated I grant the applicant reliefs sought with a
slight variation as follows:
" ", J44

th
The order of certiorari to quash the 2nd respondent's decision of 28
July, 2015 declaring the applicant's parliamentary seat vacant is granted.

The second relief is for an order to declare the 2nd respondent's decision
null and void. However, in view of the fact that the decision complained of
has been quashed for illegality, I find that a declaratory order will serve no
purpose and I accordingly decline to make such order.

As for the reliefs sought under numbers 3 to 4, I am of the considered

view the same have already been taken care of in my comments in the
body of the judgment and I need not restate them.

The orders of prohibition are granted to the applicant as claimed.

The other relief sought by the applicant is for damages for loss of
emoluments and privileges. I must state that that whilst damages for 1055

of emoluments are quantifiable, privileges are not. Furthermore, the

applicant did not give details or particulars of the said privileges and,
therefore, it is difficult for the court to assess the alleged loss and to
determine whether or not damages apply. I am of the considered view
that a claim for damages for loss of privileges would fall in the category of
special damages which require evidence to be adduced of the said loss,
description of the nature of privileges but no evidence was adduced. In
the circumstances I decline to grant the second segment of that claim.
The applicant is however entitled to his lost emoluments.
v .','\
J45

Coststo follow the event and in default of agreement costs to be taxed.

Leave to appeal within the specified period of thirty (30) days is

granted.

DATEDthis ",,~~day of March, 2016 at Lusaka.

..................... .......................
F. M. Lengalenga
JUDGE