WE CANNOT STOP BY-ELECTION - COURT - The Zambian Observer
GUEST ARTICLE: WE CANNOT STOP BY-ELECTION – COURT
By Dickson Jere
A Member of Parliament was jailed for 12 months by the Subordinate Court on libel charges. Subsequently, his parliamentary seat was declared vacant and by-election called to replace him as MP on account of his conviction.
However, he then appealed against the conviction and sentence in the High Court. He further filed another case in the Constitutional Court in which he challenged the proceedings that led to his imprisonment. Both the appeal and the Petition in the ConCourt were yet to be heard and determined.
In the interim, the MP filed an application in the ConCourt asking the Court stop the holding of the by-election in his constituency until these two cases were determined. He argued that if the by election was conducted, it would render his appeals nugatory or academic even if he wins the two cases.
At most, he argued, he is innocent until his appeal is determined. What if he wins the appeal against conviction? Will he get back his parliamentary seat? He asked the pertinent questions.
A single Judge of the ConCourt heard the application and determined thus;
“It would be a usurpation of legislative power for me to suspend or defer the constitutional effect of a vacancy on the basis of a potential outcome of the appeal,” the Judge said.
He said public interest in the matter weighs heavily towards allowing the by election and therefore cannot issue any stay.
“If granted, the people of Lumezi Constituency would be left without representation in the National Assembly for an unknown period, contrary to the democratic principles that underpin representative democracy,” the Judge ruled.
“In a representative democracy, such a vacuum cannot be justified on the speculative possibility that a conviction maybe overturned on appeal,” the Judge said.
The Court also noted that the 1996 Constitution had provided that once a convicted MP appealed against his conviction, the seat could not be declared vacant but that provision was omitted in the 2016 Constitution amendment.
“In my view, this omission is a clear display of the framers’ intention to abolish the remedy of a stay from the Constitution,” the Judge said.
The single Judge heavily relied the recent recent case of Nickson Chilangwa in which the ConCourt full bench ruled that the mere conviction and imprisonment of an MP triggers the bye election automatically regardless of any appeal.
“I do not have the liberty to disregard judgments of the full bench,” he said.
Case citation – Munir Zulu v Attorney General and Others – 2025/CCZ/0011 and Ruling delivered on Wednesday.
Lecture Notes;
1. The 1996 Constitution was clear that once the convicted MP appeals, he keeps his seat in Parliament until the final determination of the appeal. However, in 2016, this provision is missing. Was it removed or it was an omission? In legislative drafting,we say nothing is omitted but done by intention.
2. But then the question still begs. What happened if the convicted MP wins his appeal? The ConCourt here tried to separate the criminal proceedings from the constitutional case. It says the vacancy occurs by mere imprisonment and the counting of 90 days to hold the by election immediately starts.
SOURCE: DICKSON JERE
