Mwila seeks judicial review on Kambwili’s seat
PF secretary general Davies Mwila has sought leave to commence judicial review proceedings in the Lusaka High Court to challenge the decision of the Speaker of the National Assembly to refuse to declare Chishimba Kambwil’s Roan seat vacant. And Mwila wants the court to quash Dr Patrick Matibini’s refusal to declare the seat vacant and seeks an order of mandamus directing him to declare it vacant. According to a statement of facts and grounds upon which reliefs are being sought, Mwila stated that the Speaker should declare that there was no suit on the part of Kambwili pending before court to challenge his expulsion from the PF.
He stated that the decision of Dr Matibini to refuse to declare the seat vacant was illegal as it was in contravention of Article 72 of the Constitution of Zambia. Mwila stated that Dr Matibini’s decision to refuse to declare the seat in order to give the court latitude to deal with the matter conclusively was unreasonable and illegal as it amounts to use of discretion that the Speaker does not possess. And in his affidavit in support of application for leave to commence judicial review, Mwila stated that the resolution passed in a meeting of Central Committee of the PF on July 22, 2017 resolved to expel Kambwili as the member of the party and the decision was communicated to him by a letter dated July 24, 2017.
He stated that on July 26, 2017, the Speaker was informed of the decision to expel Kambwili and requested him to declare the seat vacant.
Mwila stated that on July 27, 2017, Kambwili issued a writ out of the High Court at Lusaka, challenging his expulsion on the ground, inter alia, that due process was not followed by the Central Committee when they made the decision to expel him but the matter was later dismissed for want of prosecution.
Mwila, however, stated that on October 26 this year, he wrote to the Speaker requesting him to declare Kambwili’s seat vacant since there was no cause or matter pending determination before the High Court in respect of the decision to expel him from the PF.
He stated that on October 31, 2018, Dorothy Kapumbu, on behalf of the Speaker, cited Article 72 (5) of the Constitution and refused to declare the seat vacant on the basis that the court had not pronounced itself on the merits of the case to confirm the expulsion or otherwise and in any case there was an appeal against the dismissal of the case pending before the Court of Appeal.
Mwila stated that in response to Kapumbu’s case, he wrote a letter on November 1 to the Speaker to point out that the appeal pending before the Court of Appeal was in respect of the dismissal of the case and not the expulsion and reiterated his request to have the seat declared vacant on account that there was no case pending before court to adjudicate on the propriety of Kambwili’s expulsion.
He added that the Speaker, writing through Kapumbu, refused to declare the seat vacant and also reiterated that the matter had not been determined on the merits and that since Kambwili might succeed in his appeals either in the Court of Appeal or the Supreme Court, the seat cannot be declared vacant in order to (give the courts latitude to deal with the matters conclusively).
Mwila added that the dismissal of Kambwili’s matter entails that there was no challenge currently pending before courts.
“I am advised and do verily believe that the route Hon Kambwili has chosen to appeal the dismissal rather than commence a fresh action entails that his seat is liable to be declared vacant,” said Mwila.
Source: The Mast