THE Lusaka High Court has refused to stop the criminal proceedings and investigations against former president Rupiah Banda but has allowed him leave to commence judicial review proceedings.
Judge Anne Sitali yesterday said the leave granted to Banda will not operate as a stay of the National Assembly's decision to lift his immunity.
This is a matter where Banda applied for leave to the High Court, seeking a judicial review of National Assembly Speaker Dr Patrick Matibini's decision to preside over what he described as an illegal and irregular motion that saw the lifting of his immunity last month.
In a ruling delivered yesterday, judge Sitali granted Banda leave to commence judicial review proceedings in the matter but was quick to say that this would not operate as a stay of the National Assembly's decision to lift his immunity.
Judge Sitali said she was aware that Banda was already facing criminal charges in the subordinate court but that she could not allow the granting of the judicial review application to operate as a stay because she was bound by the Supreme Court decision that civil proceedings ought not to be used to arrest criminal proceedings.
Judge Sitali said for one to be granted leave for judicial review, they had to prove that they had sufficient personal interest in the matter and had filed their complaint promptly; that is within a space of three months.
She said Banda was the country's fourth president and was, therefore, personally interested in the case for which he had applied judicial review.
She said Banda had fulfilled both requirements and that the only issue she had to resolve was whether he had an arguable case that could be investigated at the substantive judicial review hearing.
Judge Sitali said the state had not disputed the fact that there was a petition that had been filed in the High Court prior tithe moving of the motion that led to the removal of Banda's immunity but that when a point of order was raised by one of the members of parliament, Speaker Dr Matibini said no parliamentary motion could be curtailed over a matter in court. Judge Sitali said Speaker Dr Matibini relied on the principle of separation of powers. However, judge Sitali said in allowing justice minister Wynter Kabimba to move the motion that led to the removal of Banda's immunity, Speaker Dr Matibini had departed from the National Assembly's practice
of not debating matters that were before court.
She said the Speaker on several occasions reminded parliamentarians that they could not
discuss issues that were before the courts of law since the National Assembly of Zambia adopted the Laws of England.
Judge Sitali said she was satisfied that Banda had demonstrated that there was procedural impropriety and she granted his application to commence judicial review proceedings but that this would not act as a stay. Judge Sitali said she had not considered the other ground of
illegality.
"Leave to appeal is granted, "said judge Sitali.
The National Assembly has argued that its removal of Banda's immunity was in accordance
with constitutional provisions and procedures of the House and thus there was nonprocedural impropriety.
In an affidavit sworn by National Assembly Deputy Clerk Administration Cecilia Nsenduluka Mbewe and filed in the Lusaka High Court principal registry, the Legislature argues that there was no requirement for a former president to be heard before the removal of his or her immunity.
"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 insofar 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 Dr Matibini's ruling, the House proceeded to debate and vote on the motion for the removal of Banda's immunity.