Written by on March 14, 2019

THE Lusaka High Court has denied former Roan Member of Parliament Chishimba Kambwili leave to commence Judicial Review against the Speaker of the National Assembly’s decision to declare his seat vacant.

This means that the Roan constituency seat remains vacant and by-elections will proceed.

In this matter, Mr Kambwili moved the High Court seeking leave to apply for the Judicial Review to challenge Dr Patrick Matibini’s decision.

Mr Kambwili,  who sued the Attorney General and Electoral Commission of Zambia (ECZ) wanted the court to declare  that the  decision by Dr Matibini  to declare his seat vacant did not conform with  the provision of Article 72 (2)  of the Laws of Zambia and as  such is not only undemocratic  but also illegal , unreasonable , procedurally  improper and unconstitutional .

High Court judge Charles Zulu ruled that it was not a proper case for which the court would grant leave to commence Judicial Review.

The judge stated that it was clear that the judicial challenge raised by Mr Kambwili related to the interpretation and application of Article 72 (2) and that it was also clear that Article 128 (1) of the constitution confers on the Constitutional Court exclusive jurisdiction to hear and interpret the constitution and determine any violation of the constitution.

“A matter that is purely within the exclusive jurisdiction of the Constitutional Court cannot be launched via Judicial Review under Order 53 RSC, under the guise of public law,” judge Zulu ruled.

Justice Zulu noted that Mr Kambwili had previously petitioned the Constitutional Court over the same subject, alleging that the Speaker had contravened the Article 72 (2) but that he discontinued the matter on March 11 and a few hours thereafter, Mr Kambwili re-launched it in the High Court via Judicial Review.

The judge found that the change of forum from the Constitutional Court which had exclusive jurisdiction, to the High Court, to be fallible and inconceivable.

Judge Zulu further dismissed the application for want of jurisdiction.

“I have quite belaboured at leave stage, in order to test whether this is a fit case to warrant a full trial especially that the jurisprudence regarding the interface between order 53 RSC and the new constitutional order espoused in Article 128 (1) is progressively taking shape through various and varied litigation in the courts of law.

Nevertheless, given the obvious want of jurisdiction, as it were, on the part of this court, the answer is certainly that this is not a proper and fit case in which to grant leave for judicial review.

In view of the forgoing, I come to the conclusion that the application for leave should be denied for want of jurisdiction and I so order, the application is therefore dismissed,” the judge ruled.

Dr Matibini declared the Roan seat vacant on February 27 in Parliament after a point of order raised by Malambo MP, Makebi Zulu on February 21, 2019.

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