_By Sunday Chilufya Chanda_

Article 72 of the Constitution makes provision for the vacation of office as Member of Parliament due to a number of circumstances. Of relevance for our purposes is Article 72 (2)(e).

The said Article provides for the vacation of office as Member of Parliament following that Member’s expulsion from the Party that sponsored them to the National Assembly.

*”72. (2) The office of Member of Parliament becomes vacant if the member—*
*(e) is expelled from the political party which sponsored the member for election to the National Assembly.”*

However, in terms of Article 72 (5), an expulsion requires confirmation of the court unless the expulsion is not challenged.

*”72. (5) Where a Member of Parliament is expelled as provided in clause (2) (e), the member shall not lose the seat until the expulsion is confirmed by a court, except that where the member does not challenge the expulsion in court and the period prescribed for challenge lapses, the member shall vacate the seat in the National Assembly.”*

Where the challenge of the expulsion is successful, the expelled Member has two options: They may either remain in the Party and retain the seat or choose to leave the Party and retain the seat as an independent. (Article 72 (6)).

However, once the expulsion challenge is unsuccessful, the Constitution requires that the Member’s shall fall vacant. This is provided for in Article 72 (7).

*”72. (7) Where a court determines that an expulsion of a member, as provided in clause (2) (e), was justified, the member shall vacate the seat in the National Assembly.”*

*An appeal does not automatically operate as a stay on the seat falling vacant*

That the Member whose expulsion challenge was unsuccessful appeals against that decision is not an automatic bar on the expelled Member’s seat falling vacant. This so because the Constitution does not make provision for an appeal to automatically operate as a stay on the seat falling vacant following an unsuccessful expulsion challenge.

This is unlike an appeal against the nullification of a seat following an election petition in which a Member retains the seat pending determination of an appeal. (Article 73 (4)).

Furthermore, case law abounds on the position that an appeal does not automatically operate as a stay on the execution of a judgment.

In *Mulenga and Another v Chainama Hotels Limited and Others [1999] ZMSC 31,* a single judge had refused to stay execution of the judgment of the High Court pending appeal. The Supreme Court ruled that an appeal does not automatically operate as a stay of execution and it is pointless to ask for a stay solely because an appeal has been entered.

Furthermore, an analogy may be drawn from the Honourable Keith Mukata’s case. Once the High Court convicted and sentenced Honourable Mukata, Article 70 (2) (f) which makes provision for the disqualification of Members of Parliament serving a sentence of imprisonment was triggered. In terms of Article 72 (2) (b), Honourable Mukata’s seat fell vacant as a result of his disqualification under Article 70 (2) (f) above.

Honourable Mukata appealed against his conviction to the Court of Appeal but that appeal could not operate as an automatic stay on his seat falling vacant.

The Honorable Speaker proceeded to invoke Article 72 (8) and informed the Electoral Commission of Zambia that a vacancy had occurred in Chilanga Constituency. A By-election took place and the rest is history.

On the strength of the foregoing authorities, it is submitted that although an appeal generally lies as a matter of right, the stay of execution of a judgment is at the discretion of the Court. In this case, Honourable Kambwili has appealed against his unsuccessful challenge of his expulsion but such an appeal is not an automatic bar on his seat falling vacant.

Ends/….

The Author is PF Media Director At the Party Secretariat
In Lusaka

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