HIGH JUDGES SIAVWAPA AND MUSONA MUST BE COMMENDED FOR THE GREAT WORK ON ELECTION PETITIONS AND STAYS.
The era for Members of Parliament to cling on to stays, and illegally draw salaries, gratuities, and other emoluments, after losing election petitions in High Court, may now be in the twilight. This culture may come to an end, thanks to momentous, thoughtful and courageous decisions of Judge Siavwapa and Judge Musona in petitions against the election of Margret Mwanakatwe and Nkandu Luo as Members of Parliament.
Following the two decisions, it is now almost certain that once a parliamentary seat is rendered vacant, either as a consequence of Article 72 or Article 81, there is no chance for stay. The MP concerned loses the seat forthwith. Even if he or she appeals, that person is not entitled to draw a salary, and enjoy any other emoluments that go with that office of Member of Parliament.
The two decisions appear to be in line with the decision of the Constitutional Court in the matter of Ministers who illegally occupied their offices following dissolution of parliament. Minsters were ordered to pay back to the State all the emoluments they accrued while illegally occupying the offices. So once the office of MP becomes vacant, there is no illegal occupation in the name of representing the people.
The decisions Judge Siavwapa and Judge Musona have made also confirmed that an election petition and an appeal are two mutually exclusive events; that an election petition is determined by the High Court. As Judge Siavwapa ably put it, once that role is played, the Judge becomes “functus officio”. In other words, once a Judge nullifies a seat, he has no further role to play, not even to grant stay pending an appeal to the Constitutional Court.
If they become principles that lead courts to make the decisions In election petitions in future, Zambia stands to save its meager public resources from abuse. Since the advent of multi-partyism in 1991, the country has lost colossal sums of money, through MPs clinging on to their seats through stays. In some instances, MPs have clung on to the seats for almost the entire life of a sitting of parliament (5 years), through stays, drawing salaries, gratuities and other hefty emoluments which they are not entitled to draw.
In life, there must come a time to say, enough is enough.