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Ruling on Nkombo Point Of RULING BY THE HON MR SPEAKER ON A POINT OF ORDER RAISED BY MR G G NKOMBO, MEMBER OF PARLIAMENT FOR MAZABUKA CENTRAL PARLIAMENTRAY CONSTITUENCY ON WHETHER THE HOUSE WAS IN ORDER TO DELIBERATE ON THE CONSTITUTION OF ZAMBIA (AMENDMENT) BILL N.A.B. NO. 10 OF 2019 WHICH CONTAINED A CLAUSE WHICH WAS THE SUBJECT OF LITIGATION IN THE MATTER OF DIPAK PATEL AND THE MINISTER OF FINANCE AND THE ATTORNEY- GENERAL – CAUSE NO. 2020/CC/005 1.0 INTRODUCTION Hon Members will recall that on Wednesday, 18th March, 2020, while the House was considering the Second Reading Stage of the Constitution of Zambia (Amendment) Bill, No. 10 of 2019, and the Hon Member for Chipata Central was debating, Mr G G Nkombo, Member of Parliament for Mazabuka Central Parliamentary Constituency, raised a Point of Order in the following terms: "Mr Nkombo: Sir, I rise on a very serious point of order and I wish to begin by thanking you most sincerely for the opportunity. 1 Mr Speaker, there have been precedents to the effect that when a matter that is under discussion in this House is admitted in the courts of law, to continue deliberating on it, is sub judice. Sir, I am aware of the precedents that I am referring to. For ease of reference, this Member of Parliament here (Referring to himself), assisted by the Member of Parliament for Roan, Dr Kambwili, moved a Motion to impeach the President of the Republic of Zambia, His Excellency President Edgar Chagwa Lungu. The Motion was even admitted for deliberation. During the course of consideration of when to bring this Motion on the Table for debate, some citizens decided to approach the courts and I, as mover of the Motion, was informed by your office, Mr Speaker, that since the matter I brought before the House had now become a subject in the courts of law, it had become difficult for the Assembly to proceed, because the two matters could not run side by side. One process required to have been completed before the House could admit the Motion of impeachment of the President for deliberation. 2 Mr Speaker, I am aware that your office, today, the 18th of March, 2020, has been served with court documents, copies of which I have in my hands, and I will lay them on the Table when I finish raising my Point of Order. They are duly stamped "Received" by the office of the Clerk of the National Assembly. This is in the matter of the following parties: Mr Dipak Patel, citizen, as a Petitioner, and the Minister of Finance, who is sitting here, as the First Respondent, and the Attorney- General as the Second Respondent. In this matter, the Constitutional Court of Zambia has a petition, and for ease of reference, I will go ahead and deal with the first copy of this particular matter which is subject for you, Sir, to go through and hopefully decide whether to halt the proceedings on the Constitution (Amendment) Bill, No. 10 of 2019, which is on the Order Paper and on the Floor of the House right now, just as you did in the case where I intended to move a Motion to impeach the Republican President, Mr Edgar Chagwa Lungu. For ease of reference my quote is: "In the Constitutional Court of Zambia". This is dated 18th March, 2020, holden at Lusaka Constitutional jurisdiction, in the matter of Part 1, 3 Article 2 of the Constitution of Zambia (Amendment) Act, No. 2 of 2016, in the matter of Article 63, which is the most relevant Article in this particular matter, because it deals with the authority of the Minister of Finance or the Executive to borrow without due permission, as the Constitution says, from this House. It reads: In the matter of Part 16 of the Constitution of Zambia (Amendment) Act No. 2 of 2016; in the matter of Article 177 (5) of the Constitution of Zambia (Amendment) Act No. 2 of 2016; in the matter of the Loans and Guarantees Authorisation Act, Cap 366 of the Laws of Zambia; in the matter of public borrowing by the Government of the Republic of Zambia. I have already mentioned the petitioners, and the respondent. However, for me to conclude, I will just take a part of the issues that are in the petition. Fifthly, the petitioner shall say, that as a Zambian citizen and a taxpayer, he is affected directly by any debt that the first and second respondents authorise and sign on behalf of the Government of the Republic of Zambia, and as such, he has requisite standing to bring this claim before the court. The petitioner shall also say that Article 2, under Part 1 of the Constitution of Zambia 4 (Amendment) Act No. 2 of 2016, recognises the right and duty of every citizen or every person to defend the Constitution and resist or prevent the overthrow, suspension or illegal abrogation of the Constitution of Zambia. I read in part. Mr Speaker, would this House, therefore, be in order to continue to deal forthwith with the issue of Bill 10, which contains this particular Article that I have quoted in this document from court? It is my prayer that in your ruling after you have studied the matter you will, like you have done before, halt the proceedings on the Constitution of Zambia (Amendment) Bill No. 10, until this matter is disposed of in the courts of law. Mr Speaker: Hon Member for Mazabuka Central, for completeness sake, do you have the letter which you said I wrote to you? In your Point of Order you referred to a letter I wrote to you. Mr Nkombo:I was communicated to by the office of the Clerk, not yourself, Sir… Mr Speaker: Yes that very letter… Mr Nkombo: … that the matter is now in court and, therefore, you could not proceed. It is in my office. 5 Mr Speaker: Alright, in due course supply it." Hon Members, on 23rd March, 2020, after the House adjourned sine die, the Clerk wrote to Mr G G Nkombo, MP, requesting him to avail her a copy of the letter that he had referred to in his Point of Order, and indicated was in his office. The letter in question, was couched in the following terms: “RE: POINT OF ORDER RAISED BY YOURSELF The above subject matter refers. Sir, on Wednesday, 18th March, 2020, when the House was considering the Second Reading Stage of the Constitution of Zambia (Amendment) Bill, No. 10 of 2019, you raised a Point of Order. In the said Point of Order, you asked whether the House was in order to deliberate on the Constitution of Zambia (Amendment) Bill, which contains a clause which is the subject of litigation in the Constitutional Court in the matter of Dipak Patel v the Minister of Finance and the Attorney-General, under cause Number 2020/CC/005. In couching your Point of Order, you made reference to a letter from the National Assembly when you stated, inter-alia, as follows: "…During the course of consideration of when to bring this 6 Motion on the Table for debate, some citizens decided to approach the courts and I, as mover of the Motion, was informed by your office, Mr Speaker, that since the matter I brought before the House had now become a subject in the courts of law, it had become difficult for the Assembly to proceed, because the two matters could not run side by side." Further, in the following excerpt of the verbatim record of the House, the Hon Mr Speaker directed you to avail the said letter: “Mr Speaker: Hon Member of Parliament for Mazabuka Central, for completeness sake, do you have the letter which you said I wrote to you? In your Point of Order you referred to a letter I wrote to you. Mr Nkombo: I was communicated to by the office of the Clerk, not yourself, Sir... Mr Speaker: Yes, that very letter... Mr Nkombo:...that the matter is now in court, and, therefore, you could not proceed. It is in my office. Mr Speaker: Alright, in due course, supply it.” Sir, as you are aware, the Hon Mr Speaker reserved his ruling on 7 the Point of Order. In view of the foregoing, we hereby request you to furnish us a copy of the letter from the National Assembly that you referred to in your Point of Order. It would be appreciated, Sir, if the said letter is submitted to the Office of the Clerk of the National Assembly as soon as possible, but not later than Wednesday, 25th March, 2020. Yours faithfully Cecilia Sikatele (Ms) for/CLERK OF THE NATIONAL ASSEMBLY” Mr G G Nkombo, MP responded to the letter referred to above, on 6th April, 2020, and his response was expressed in the following terms: “RE: POINT OF ORDER RAISED BY MYSELF Kindly refer to above subject and your letter dated 23rd March, 2020, in which you demanded that I avail a letter that the Speaker said he wrote on the matter of the motion I sought to impeach the 8 President of the Republic of Zambia H.E President E. C Lungu in March, 2018. Firstly and most importantly, I am astounded that you could classify a matter of such public interest and magnitude as confidential. Please note that there is no justification for such classification, as this matter is already in the public domain. Kindly take note of the three cardinal facts surrounding my point of order, 1.
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