THE National Assembly says its removal of former president Rupiah Banda's immunity was in accordance with constitutional provisions and procedures of the House and that there was no procedural impropriety.
And Lusaka High Court judge Anne Sitali has set April 12, 2013 as the date for ruling in a matter where former president Banda asked the court to quash Speaker Patrick Matibini's decision to proceed to deliberate the motion which led to his immunity being lifted.
This is a matter before Lusaka High Court judge Anne Sitali where Banda has asked the court to quash the decision by Speaker of the National Assembly Dr Matibini to preside over an illegal and irregular motion that saw the lifting of his immunity about a fortnight ago.
But in an affidavit in opposition to Banda's ex-parte summons for leave to apply for judicial review sworn by National Assembly deputy clerk Administration Cecilia Nsenduluka Mbewe and filed in the Lusaka High Court principal registry on Tuesday, the Legislature argues that there was no requirement for a former president to be heard before the removal of his or her immunity.
"On Wednesday, 13th March, 2013, a Notice of Motion to remove the legal immunity of the former Republican president, Mr Rupiah Bwezani Banda, the applicant herein, was laid on the table of the House,"
Mbewe submitted. "On Thursday, 14th March, 2013, the applicant served a petition on the National Assembly to prevent the National Assembly from debating the motion."
Mbewe submitted that however, on March 15, 2013, justice minister Wynter Kabimba moved the above-mentioned motion in the National Assembly.
"That during the presentation of the motion by the Honourable Minister of Justice, Honourable Jack Mwiimbu, member of parliament for Monze Central Constituency, raised a point of order in the House on whether, in light of the sub judice rule, the House was in order to debate the motion for the removal of the applicant's immunity when there was a petition before the High Court on the matter," she stated in part.
"The Honourable Mr Speaker ruled on the aforesaid point of order and accordingly guided the House that under the doctrine of separation of powers, the House had a very unique freedom to determine and deal with its internal proceedings and that in so far as the internal proceedings and procedures of the House were concerned, they were not amenable to the jurisdiction of the court."
Mbewe submitted that on the basis of Speaker Dr Matibini's ruling, the House proceeded to debate and vote on the motion for the removal of Banda's immunity.
"That eighty 80 members of parliament voted for the applicant's immunity to be removed, three 3 voted against the removal of the immunity and four 4 abstained. That the applicant's immunity was accordingly removed," Mbewe submitted further. "The matter was duly deliberated upon and the House resolved in accordance with the provisions of the Constitution of Zambia in relation to the removal of the immunity of a former President."
Mbewe argued that there was no requirement for a former president to be heard or for an inquiry to be undertaken by the National Assembly before their immunity is removed.
"The removal of the applicant's immunity was done in accordance with constitutional provisions and the procedures of the House and thus there was no procedural impropriety," stated Mbewe. "I verily believe that the contents of this my affidavit are true and correct to the best of my knowledge."
And according to originating notice of motion for an order of certiorari filed by Banda's lawyers led by Prof Patrick Mvunga on March 19, 2013, the former president cited Attorney General Mumba Malila as respondent in the matter he is challenging Speaker Matibini's ruling of March 15 that it was in order for the motion to be laid before the National Assembly notwithstanding that the legality of the motion was being challenged in the High Court.
But Banda has argued that the decision of the National Assembly of Zambia to proceed to remove his immunity on a simple majority of 80 out of a total of 158 members of parliament was illegal and irregular.
Banda further stated that the decision by National Assembly to resolve that he may be charged with any criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him regardless whether such offence or allegations was included in the catalogue of offences or allegations presented by justice minister Wynter Kabimba in his speech as grounds to move the motion was illegal and in excess of the jurisdiction of the House.
Banda has since pleaded not guilty to one count of abuse of authority of office before a Lusaka magistrate.
When the matter came up in chambers yesterday, judge Sitali asked Banda's lawyers to file written submissions by April 2 while the state should respond by April 5.
She said she would deliver her ruling on April 12.
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