By Emmanuel Luciano
HEAD of Foundation Law at Chancellor College, Mwiza Nkhata, says the Speaker should first seek courts’ interpretation before declaring the seats of convicted MPs vacant because of an apparent lack of authoritative definition or listing of what amounts to an offence or crime of moral turpitude.
Speaker of National Assembly Louis Chimango is yet to decide the fate of Lucius Banda, Yusuf Mwawa, Maxwell Milanzi and Clement Chiwaya who were convicted of various offences.
Nkhata said it would be safe for the Speaker to tread carefully on the issue to avoid a multiplicity of litigation “by asking the courts to determine in the specific instances involving the convicted members whether the offences at hand could be deemed to be ones involving moral turpitude.”
He said the seats of the members could thus only be declared vacant if the court confirmed that the crimes are those involving moral turpitude.
“I am convinced that a reading of sections 63(e) together with section 51 (2)(c)leads to the conclusion that a member of Parliament who is convicted within 7 years prior to his becoming a member of Parliament of a crime involving dishonesty or moral turpitude will lose his seat.
“The two provisions read together lead to the conclusion that the vacancy in a member’s seat shall occur by operation of law—-vide section 63(e) of the constitution, therefore, under section 63(e) the occurrence of particular events, in this case the conviction on a crime of dishonesty or moral turpitude, will by itself create a vacancy in relation to the concerned member’s seat.
“However, the not-so clear issue presently is that, while offences involving dishonesty may be easy to circumscribe it has yet to be conclusively established which offences amount to those of moral turpitude,” Nkhata said.
The law lecturer cited the contempt of court case involving MCP president John Tembo and former MCP secretary general Kate Kainja, which led to the two MPs losing their seats before the Supreme Court ruled otherwise.
“The Supreme court in the Tembo case did not define what amounts to an offence involving moral turpitude within our local context.
“The court in that case was concerned with the question of whether contempt of court in civil proceedings could amount to offence of moral turpitude, which they answered in the negative.
“This is why I am saying, in the light of the apparent lack of authoritative definition or listing of what amounts to an offence or crime of moral turpitude, if I were the Speaker, I would opt to proceed cautiously otherwise any decision by the Speaker is bound to raise further litigation contesting whether the particular offences involve moral turpitude or not,” he said.
But Dean of Law Necton Mhura at Chancellor College said there was no need for the Speaker to seek court’s interpretation on the issue.
“Cases that are set on moral turpitude are very clear. Of all the cases that are there, it is only the one involving [Clement] Chiwaya that is doubtful. It is within the Speaker’s power to decide on the issue. Let the courts decide only when someone challenges the Speaker’s decision.
Mhura said it was surprising that the Speaker was taking time to decide on the issue.
“I am surprised that the Speaker has not declared the seats vacant but that can only be answered by the Speaker himself,” he said.
According to Nkhata moral turpitude cases are generally understood as crimes which involve conduct considered to be against societal norms of justice, honesty and good morals.
One lawyer who opted for anonymity said although the law was clear on convicted MPs, the Speaker’s delay in declaring the seats vacant could be attributed to other factors.
“Perhaps the Speaker has not been served with judgment on the cases. Those who tried the cases should first serve the Speaker with judgment because he cannot just act on media reports.
“It could also be because he hasn’t had time to allow principles of natural justice to take its course by meeting these people to hear their side because of the schedule of Parliament considering how Parliament business is conducted,’’ he said.
Efforts to talk the speaker proved futile as he could not be reached on his mobile phone.
HEAD of Foundation Law at Chancellor College, Mwiza Nkhata, says the Speaker should first seek courts’ interpretation before declaring the seats of convicted MPs vacant because of an apparent lack of authoritative definition or listing of what amounts to an offence or crime of moral turpitude.
Speaker of National Assembly Louis Chimango is yet to decide the fate of Lucius Banda, Yusuf Mwawa, Maxwell Milanzi and Clement Chiwaya who were convicted of various offences.
Nkhata said it would be safe for the Speaker to tread carefully on the issue to avoid a multiplicity of litigation “by asking the courts to determine in the specific instances involving the convicted members whether the offences at hand could be deemed to be ones involving moral turpitude.”
He said the seats of the members could thus only be declared vacant if the court confirmed that the crimes are those involving moral turpitude.
“I am convinced that a reading of sections 63(e) together with section 51 (2)(c)leads to the conclusion that a member of Parliament who is convicted within 7 years prior to his becoming a member of Parliament of a crime involving dishonesty or moral turpitude will lose his seat.
“The two provisions read together lead to the conclusion that the vacancy in a member’s seat shall occur by operation of law—-vide section 63(e) of the constitution, therefore, under section 63(e) the occurrence of particular events, in this case the conviction on a crime of dishonesty or moral turpitude, will by itself create a vacancy in relation to the concerned member’s seat.
“However, the not-so clear issue presently is that, while offences involving dishonesty may be easy to circumscribe it has yet to be conclusively established which offences amount to those of moral turpitude,” Nkhata said.
The law lecturer cited the contempt of court case involving MCP president John Tembo and former MCP secretary general Kate Kainja, which led to the two MPs losing their seats before the Supreme Court ruled otherwise.
“The Supreme court in the Tembo case did not define what amounts to an offence involving moral turpitude within our local context.
“The court in that case was concerned with the question of whether contempt of court in civil proceedings could amount to offence of moral turpitude, which they answered in the negative.
“This is why I am saying, in the light of the apparent lack of authoritative definition or listing of what amounts to an offence or crime of moral turpitude, if I were the Speaker, I would opt to proceed cautiously otherwise any decision by the Speaker is bound to raise further litigation contesting whether the particular offences involve moral turpitude or not,” he said.
But Dean of Law Necton Mhura at Chancellor College said there was no need for the Speaker to seek court’s interpretation on the issue.
“Cases that are set on moral turpitude are very clear. Of all the cases that are there, it is only the one involving [Clement] Chiwaya that is doubtful. It is within the Speaker’s power to decide on the issue. Let the courts decide only when someone challenges the Speaker’s decision.
Mhura said it was surprising that the Speaker was taking time to decide on the issue.
“I am surprised that the Speaker has not declared the seats vacant but that can only be answered by the Speaker himself,” he said.
According to Nkhata moral turpitude cases are generally understood as crimes which involve conduct considered to be against societal norms of justice, honesty and good morals.
One lawyer who opted for anonymity said although the law was clear on convicted MPs, the Speaker’s delay in declaring the seats vacant could be attributed to other factors.
“Perhaps the Speaker has not been served with judgment on the cases. Those who tried the cases should first serve the Speaker with judgment because he cannot just act on media reports.
“It could also be because he hasn’t had time to allow principles of natural justice to take its course by meeting these people to hear their side because of the schedule of Parliament considering how Parliament business is conducted,’’ he said.
Efforts to talk the speaker proved futile as he could not be reached on his mobile phone.
No comments:
Post a Comment