The People v The Speaker Of The National Assembly The Hon RM Nabulyato Ex parte: Harry Mwaanga Nkumbula ((H.P. /4 / 1970)) [1970] ZMHC 15 (24 November 1970)

THE PEOPLE v THE SPEAKER OF THE NATIONAL ASSEMBLY THE HON RM NABULYATO Ex Parte: HARRY MWAANGA NKUMBULA (1970) ZR 97 (HC) HIGH COURT MAGNUS AND HUGHES JJ (24th NOVEMBER 1970) (H. P. /4 / 1970) Flynote Constitutional law - Speaker of the National Assembly - Duty to inform assembly of complaint from leader of political party in assembly about 45 defection of party member - Constitution of Zambia, s. 65 (4) as amended by Constitution (Amendment) (No. 2) Act, 1966. ■ MAGNUS AND HUGHES JJ Administrative law - Remedies - Mandamus - Whether could be ordered against Speaker of National Assembly. Headnote The applicant applied to the High Court for an order of mandamus directed at the Speaker of the National Assembly ordering him to comply 5 with the provisions of s. 65 (4) of the Constitution on the latter's failure to take action on his allegation that two members of his party had ceased to be members of the party. Held: I 1970 ZR p98 (i) When the requirements of the provisions of s. 65 (4) of the 10 Constitution have been ■ satisfied it is mandatory for the Speaker to inform the National Assembly of the allegations made by the leader of a political party that a member of his party in the Assembly has ceased to be a member of his party. It is then a matter for the Chief Justice, either by himself or through a 15 judge of the High Court nominated by him, to ■ determine the truth or otherwise of the allegations. The discretion of the Speaker of the Assembly under s. 65 (4) of the Constitution is limited to recognising a member as leader of his political party in the Assembly. Having exercised his discretion under the 20 section, it is mandatory for the Speaker to take action thereunder. ■ (ii) The remedy of mandamus is available against the Speaker of the National Assembly in case of his failure to discharge his statutory obligation under s. 65 (4) of the Constitution. I Legislation referred to: 25 Constitution of Zambia 1965 (App. 3), s. 65 (4). Constitution (Amendment) (No. 2) Act, 1966 (No. 47 of 1966), s. 3. Cobbett - Tribe & Co., for the applicant. Judgment Magnus and Hughes JJ: This is an application for an order of mandamus to the Speaker of the National Assembly ordering 30 him to comply with the provisions of sub-s. ■ (4) of S. 65 of the Constitution as amended by s.3 of the Constitution (Amendment) (No. 2) Act, 1966 (No. 47 of 1 966). This provides: "(4) If notice in writing is given to the Speaker of the National 35 Assembly, signed by a member of the Assembly who is recognised by the Speaker as being the leader in the Assembly of a particular political party, alleging that an elected member of the Assembly - ■ (a) conducted his campaign for election to the Assembly as a member of such political party; and 40 ■ (b) has, since his election to the Assembly, ceased to be a member of such political party, the Speaker shall inform the Assembly of such allegations and shall furnish the Chief Justice with a copy of the notice given to him." 1970 ZR p99 MAGNUS AND HUGHES JJ The affidavit of the applicant, Mr Harry Mwaanga Nkumbula, alleges that in December, 1968, in the election for the National Assembly, one Mr Mututwa and one Mr S. Maboshe conducted their election campaigns as members of the African National Congress and they have ceased to be members of that Party. He accordingly wrote to the Speaker in I ■ terms 5 of the letter attached to his affidavit and marked "H. M. M. I." This letter was written on the 18th September, 1970, and in a statement to the National Assembly on the 30th September, 1970, it appears from an uncorrected transcript of Hansard that the Speaker alleged that he did not recognise the applicant as the leader of a political party in the National 10 Assembly and therefore he was under no constitutional obligation to comply with the provisions of s. 65 (4) of the Constitution. A copy of Hansard was however exhibited to the applicant's affidavit, from which it appeared that, on 22nd July, 1969, the Speaker, whilst refusing to recognise the applicant as the leader of the official opposition, 15 referred to him as leader of the African National Congress and made further reference to the African National Congress as a party in the Assembly. On the strength of this affidavit leave was given to the applicant on the 4th November, 1970, to serve notice of motion for an application for 20 an order of mandamus on the respondent returnable on Monday, 23rd November, 1970. We are satisfied from the affidavit of Martin Banda, a court messenger, that proper service on the Speaker of the notice together with documents required to be served therewith was effected on the 9th November, 1970, but as it appeared that in other correspondence from 25 the court addressed to the Speaker, the date of the hearing was inadvertantly given as the 24th November, 1970, the hearing of this motion was adjourned until today. The respondent, however, has not seen fit to appear or to be represented, and we are left to decide this I motion on the material adduced by the applicant. 30 The essential requirements of s. 65 (4) may be summarised as follows: ■ ■ ■ 1. Notice in writing must be given to the Speaker by a member of the Assembly recognised by the Speaker as the leader of a political party in the Assembly. 2. The notice must allege that an elected member who conducted 35 his campaign for election as a member of such political party has since ceased to be a member of such political party. ■ 3. Once the above conditions have been satisfied then it is mandatory for the Speaker (a) to inform the Assembly of such allegation, and (b) to furnish the Chief Justice with a copy of 40 such notice. ■ It is then a matter for the Chief Justice, either by himself, or through a judge of the High Court nominated by him, to determine the truth or otherwise of the allegations. 1970 ZR p100 MAGNUS AND HUGHES JJ The applicant has satisfied us that he has given a notice in writing to the Speaker making the allegation concerning two members of the National Assembly, as set out in paras (a) and (b) of sub-s. (4). The real question to be decided is whether he has been recognised by the Speaker 5 as the leader in the Assembly of a particular political party. In this connection we have before us a copy of Hansard No. 17 for the 21st January, to the 23rd April, 1969, in which at columns 27 and 28 is given the following statement by Mr Speaker: I "Hon. Members, I have to announce that I have received an 10 application from the hon. Harry Mwaanga Nkumbula, Esquire, an hon. Member of Parliament for the Monze West Constituency, and the Leader of the African National Congress, stating that I should consider recognising him as the official Leader of the Opposition in the House. 15 ■ Hon. Members will be interested to know that the state of the Parties in the House is: United National Independence Party - eighty - one elected Members and five Nominated Members. ■ African National Congress - twenty - three elected Members. 20 ■ Independents - one elected Member. It will be clear from the above figures that the Independents and the African National Congress form what would be regarded in lay circles as the Opposition of the House." At column 29 occurs the following sentence: 25 "I have, therefore, reluctantly decided not to recognise the African National Congress and its Leader as the ■ Official Opposition." He therefore expressly described the applicant as "the Leader of the African National Congress" and went on to show clearly that the African National Congress was a political party in the National Assembly holding 30 twenty - three seats. He further referred to the ■ applicant as "an honourable Member of Parliament for the Monze West Constituency" and the applicant is, in fact, a Member of the National Assembly as evidenced by the list of Members included in this particular edition of Hansard. He could not, therefore, have used more unequivocal terms of recognition of the 35 applicant as leader of a specified political party in the Assembly. Clearly what Mr Speaker intended on that occasion was to exercise his discretion not to recognise the applicant as the leader of the official opposition in the Assembly, but in doing so, he did, in fact, recognise him as the leader I of his party in the Assembly. 40 This is the limit of discretion given to the Speaker by s. 65 (4) of the Constitution, and, having exercised it, as he undoubtedly did, in favour of the applicant, the other requirement of the subsection became mandatory and the Speaker is under a statutory duty to comply therewith. It seems to us, therefore, that an order of mandamus must go addressed 45 to the Speaker as prayed. ■ ■ 1970 ZR p101 MAGNUS AND HUGHES JJ We would add one word on the question of privilege of Parliament, although it was not raised before us in the absence of any representative of the respondent. It is clear there is no privilege as such attaching to the Speaker as distinct from that attaching to Parliament. Certain privileges in the carrying out of Parliamentary duties are certainly 5 enjoyed by him through Parliament. This does not, however, relieve him from the obligation to comply with statutory duties imposed on him by the Constitution and if he does not comply with them he is subject to the jurisdiction of this court. Order as prayed. Costs to be paid by respondent to be taxed in 10 default of agreement. Application allowed ■ I