THE Attorney General has contested the High Court’s declaration that United Party for National Development vice president for administration Geoffrey Bwalya Mwamba is still the Patriotic Front Member of Parliament for Kasama Central constituency.
This is contained in a Supreme Court notice of appeal filed yesterday which challenged High Court Justice Florence Lengalenga’s ruling that it was a procedural impropriety for the Speaker of the National Assembly Patrick Matibini to declare the seat vacant after Mr Mwamba crossed the floor to the opposition.
The appeal was filed together with the application for a stay of execution of the judgment before High Court Justice Lengalenga.
Solicitor General Abraham Mwansa has since applied for a stay of execution of Justice Lengalenga’s judgment to award the matter to Mr Mwamba with costs in the sum of emoluments he could have missed as a result of the Speaker’s decision.
According to the memorandum of appeal, Mr Mwansa contended that the judge in the court below erred in fact and law when she found that Mr Mwamba’s legitimate expectation to have the status of his parliamentary seat determined by the High Court was breached when the Speaker declared the seat vacant.
“The judge in the court below erred in law and in fact in deciding that the Speaker of the National Assembly acted illegally or ultra vires the provisions of Article 72(1) of the Constitution,” he said.
In his affidavit in support of ex-parte summons for an order to stay execution of the judgment pending determination of an appeal, he said the State was dissatisfied by Ms Justice Lengalenga’s judgment to declare the Speaker’s decision null and void, including the awarding of the applicant’s emoluments.
“That this honourable court delivered judgment on 23rd March, 2016, in which the court declared null and void and quashed the ruling of the Speaker on the Point of Order, declaring the applicant’s parliamentary seat, Kasama Central constituency, vacant. Further, the court ruled that the applicant be entitled to his emoluments.
“That the 1st and 2nd respondents being dissatisfied by the judgment of this honourable court have caused a notice of appeal and memorandum of appeal to be filed before the Supreme Court of Zambia,” he said.
He explained that the application for stay had merit and reasonable prospects of success at the hearing of the appeal, until the matter’s determination before the Supreme Court. Justice Lengalenga in her judgment overturned the Speaker’s decision to declare Kasama Central constituency vacant and maintained that the opposition party leader was still MP for the ruling party.
Ms Justice Lengalenga said Dr Matibini acted in excess of his powers when he declared the seat vacant which action was a prerogative of the courts of law.
Mr Mwamba had earlier applied for judicial review to restrain Parliament from expelling him from the House, as well as prevent the Electoral Commission of Zambia (ECZ) from holding a by-election in his constituency.
But Speaker Matibini had declared the seat vacant owing to Mr Mwamba’s acceptance of a position in the opposition UPND.
Mr Mwamba contested that it was in total disregard of judicial proceedings of an injunction obtained earlier that restrained the ruling PF from expelling him from the party which sponsored his candidature in the 2011 general elections.