Parliament and HIV in Society

1] PARLIAMENT AND HIV/AIDS IN THE ZAMBIAN SOCIETY: A Legal Guide For Non- Parliamentarians’ Participation in the Law-

Making Process

Parliament and HIV/AIDS IN THE ZAMBIAN SOCIETY:

A Legal Guide For Non- Parliamentarians’ Participation in the Law-

Making Process

© 2011 Justin Sipho Chitengi1 PhD Cand (Law & Policy); LLM (Germany/RSA); LLB Merit (UNZA); BSc Forestry (CBU); PGC; CETP; AHCZ

1 Formerly the Founding Assistant Dean of the Law School- University of Lusaka, Adv. Chitengi is a seasoned teacher of

law and renowned researcher as well as publisher. He has lectured both in public and private universities in Zambia and

abroad including the University of Zambia and the Copperbelt University among others. He also served as Postgraduate

Researcher on Financial/Economic Crimes Law at the German-South African Centre of Excellence, collaboration between

Humboldt Universität zu Berlin & University of the Western Cape. Chitengi was appointed by the then Republican Vice

President & Minister of Justice in 2011 to serve as a Council Member of the Zambia Institute for Advanced Legal Education

(ZIALE) - the only Bar School in Zambia. Adv. Chitengi is a recipient of many prestigious scholarships and fellowships both

locally and internationally in recognition of his contribution to the legal fraternity.


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Table of Contents

Acknowledgments….…………………………………………………………………………………..………...………3

Executive Summary.……………………………………………...………………………………….…..………………4

Acronyms……………………………………….…….…………………………………………….………..……………5

Working Definitions…………………………………...………………….……………………..……….....……..……6

Table of Cases………...…………………………………...……………………………………..………………...……8

(a) Domestic Cases…………………………………….…………………………………..……………………………8

(b) Foreign Cases………………………………….……………………………………..……………………..………8

Table of Legal Instruments…………..………………………………………….……..………….……………………9

(a) Municipal Legislation…………………………………………..……………….…………….……………………9

(b) Foreign Legislation…………………………………………………………….……………….……………..……9

(c) Miscelleneous Instruments………………………………………………….………………….……………..……9

1.0: Introduction……………………………………..…………………………………………….....….….10

2.0: Possible Avenues/Channels of CSOs’ Participation in the Law-Making Process.…………….…..…..10

2.1: The Local MP Avenue……………………………………………………….………………..……….11

2.1.1 Advantages of the Local MP Avenue……………………………….…………………….....………..11

2.1.2: Disadvantages of the Local MP Avenue……………………….……………………..……..……….12

2.2 The Parliamentary Committees Avenue………………………………………………...….…….……..12

2.2. (a) Committee on Health, Community Development & Social Services………….…….......…………12

2.2. (b) Committee on Delegated Legislation………………………………………..…….........………….13

2.2.1 Advantages of the Parliamentary Committees Avenue………………………....…………………….13

2.2.2 Disadvantages of the Committees Avenue…………………………………..……….……..……...…14

2.2.3 Legal Requirements for Introducing a Bill………………………………….……………………..….14

2.2.4 Proceedings at the Bill Stage…………………………………………………………….……...…….15

2.2.5 The Hybrid Bill: Most Appropriate Draft Bill for CSOs:……….………………….………....….…..16

2.2.5.1 Advantages of the Hybrid Bill………………………………………………………....….……...…16

2.3 The Back-benchers Avenue…………………………………………………………..……...………….16

2.3.1 Advantages of the Back-benchers Avenue……………………..……………………….…………….17

2.3.2 Disadvantages of the Back-benchers Avenue……………….…………...……………..…………….17

2.4 The Judicial Review Avenue…………………………………………….......................……………….17

2.4.1 Advantages of the Judicial Review Avenue………………………..............……….…….…………..18

2.4.2 Disadvantages of the Judicial Review Avenue…………………………………………...…….…….18

3.0 Restrictions on CSOs/Individuals’ Participation: Lost Opportunity……………..…….…….…......…..20

4.0 Conclusions…………………………………………………………………….……...………...….…21


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Acknowledgments

The author wishes to particularly acknowledge the many individuals and Civil Society Organizations

(hereinafter referred to as “CSOs”) that made invaluable contributions to the realization of this legal guide.

Special thanks go to the Deputy Speaker of the National Assembly of Zambia (hereinafter referred to as

“NAZ”), Hon. Mutale Nalumango who spared part of her very scarce time to proof-read this Manual; the

former Clerk of NAZ, Mwelwa Ng’ona Chibesakunda, from whose publications and writings this legal

guide drew guidance.

J.S. Chitengi

February, 2011


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Executive Summary

Considering the magnitude of the impact of the HIV/AIDS pandemic on human life world over, it is trite that there is

need for concerted efforts in the response to the same. From a wider perspective, all efforts are imperative ranging

from the socio-economic intervention, political and leadership intervention through to legal and policy interventions

if an equitable and sustainable HIV/AIDS multi-sector response at all levels2 is to be achieved. In a bid to realize

such a mammoth achievement, there is dire need for collaboration, mutual support and appreciation of efforts from

all relevant stakeholders in the field of HIV/AIDS especially among the Government (through its three fundamental

organs); CSOs and well-meaning individuals, among others. For instance, certain CSOs may hold a well-founded

opinion on the best practices or work place programs capable of yielding positive results and yet their said opinions

will remain mere opinions owing to lack of technical know-how and expertise on how best to opine their views

without any purported breach of the law. Usually, the most ideal and effective mechanism to have such opinions

recognized and operationalized at national-wide is the involvement of political and legal influence through policy

and law. As such the political will of both the Government and political leaders becomes a vital factor in the

promulgation of well-meaning opinions from CSOs and the ordinary citizenry into subject matters of consideration

for possible enactment into law. However, this ideal multi-sector corroboration is neither feasible nor tenable until

there is an enhanced, conducive and enabling policy and regulatory environment where political powers do not

clash with CSOs for difference in opinions. Though the aspect of legislation is ordinarily a sole preserve of

parliamentarian, from the legal point of view, without restrictions only to the matters pertaining to HIV/AIDS, legal

provisions do exist whereby CSOs and individuals may indeed participate in the legislative process through

interactions with the legislative wing of Government for purposes of lobbying the Government to possibly have their

respective opinions, on any subject matter, reach the wider paradigm and spectrum of society through enactment of

their thoughts into national laws. The rationale of this legal guide, therefore, lies in its pioneering attempt to identify

and highlight avenues and opportunities on the one hand and offer legal cautions and requisites on the other, that

CSOs and private citizens ought to be conversant with if and when they desire to have their thoughts, pressing

subject matters, concerns, grievances, suggestions and indeed mere opinions legislated into law. Equally

appreciating the aforesaid rationale and indeed the magnitude of the HIV/AIDS impact on the nation, the Assembly

has since assigned HIV/AIDS-related liaisons matters to a parliamentary staff in the office of the Deputy Principal

Clerk (Health), National Assembly of Zambia, Parliament Building, P.O. Box 31299, Lusaka, Tel 292425-

36.

2 Part of the SHARe II vision.


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Acronyms

AC: Appeal Cases

AIDS: Acquired Immune Deficiency Syndrome

Cap: Chapter

CSO(s): Civil Society Organization(s)

DPP: Director of Public Prosecutions

DRCs: Departmental-Related Committees

HIV: Human immunodeficiency virus

IRC: Industrial [and Labor] Relations Court

JR: Judicial Review

MP: Member of Parliament

NAZ: National Assembly of Zambia

NCC: National Constitutional Conference

PLHIV: People Living with HIV

SCZ: Supreme Court of Zambia

SOP: Separation of Powers

UNZASU: University of Zambia Students’ Union

ZR: Zambia [Law] Report


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Working Definitions

Back-benchers: MPs who do not hold ministerial positions (usually members from the opposition

parties).

Bill: A proposed law under consideration by the legislature before being assented to by the Republican

President to make it law.

Delegated Legislation: Laws enacted under exceptionally deserving circumstances by persons or

bodies duly authorized and delegated, under written law, with powers to so enact laws on behalf of

Parliament as though they were agents of parliament.

Effluxion: The treating of a situation as having duly come to an end in the eyes of the law,

notwithstanding its continued existence in fact.

Enactment: The whole process of moving an idea or subject matter from being a mere idea to becoming

law.

Government Bill: A bill introduced to the House by a member who holds a ministerial position

(Minister).

Government Members: MPs who also hold Ministerial position and/or belong to the Ruling Party.

Hansard: Printed transcripts of parliamentary debates in the Westminster system of government;

named after Thomas Curson Hansard, an early printer and publisher of the same.

House: The National Assembly while in session and conducting business in Chambers.

Hybrid Bill: A bill which by nature advocates the concerns/topics and petitions of only a certain private

or local interest group; yet it is general in application- affecting the whole nation.

Ibid: As cited immediately above.

Inter alia: Among other things.

Inter alios: Among other persons.

Judicial Review: A judicial process by which administrative actions of public institutions and public

persons (collectively known as “public agencies”) are subjected to review by competent tribunals

and/or courts for purposes of either validating or quashing them to ensure that the said public agencies

exercise their powers both within the law (intra vires) and according to the law (secundum legum).

Jurisdiction: Legal authority and domain.

Justiciability: The element of ability to rely on a particular entitlement as the sole cause of action

capable of legal recognition and admission as a valid ground giving the claimant a right to bring a law

suit.

Law: A body of rules, regulations, norms and practices aimed at regulating the conduct and interactions

of persons in a given society for purposes of maintaining social order in that particular society.

Legislation: Written laws, otherwise known as statutory laws or Acts of Parliament.

Legislature: One of the three fundamental organs of the Government charged with the duty to enact

laws; composed of the Republican President acting together with the Speaker of the National Assembly

and his/her Members.

Locus Standi: Otherwise known as “standing”, this is the sufficient connection to the subject matter

that one must have in order for the law to deem them as persons imminently connected to or interested

therein, by demonstrating how they are so affected and/or are likely to be affected by the same.

Malafide: Intent of bad faith, especially by political leaders, to use one’s public office to influence the

objectivity of other decision- makers for personal gain.

Mutatis Mutandis: A situation of applying a principle, notion or doctrine to a latter case as similarly

applied to former cases in order to maintain precedence and consistence.

http://en.wikipedia.org/wiki/Legislature

http://en.wikipedia.org/wiki/Transcription_%28linguistics%29

http://en.wikipedia.org/wiki/Parliament

http://en.wikipedia.org/wiki/Westminster_system

http://en.wikipedia.org/wiki/Government

http://en.wikipedia.org/wiki/Thomas_Curson_Hansard


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Non-members: All persons who are not MPs and are not at law delegated with authority to enact laws

(not members of the legislature).

Op cit: Already cited somewhere before in this paper.

Order of Certiorari: A Court Order issued in public administrative matters against public agencies to

have their decisions or actions quashed for being outside the law (ultra vires) or contrary to the law

(insecundum legum).

Order of Mandamus: A Court Order issued in public administrative matters against public agencies to

have the said public agencies compelled to act in a manner mandated or expected of them by law.

Portfolio Committee: A departmentally-related type of committee with a ‘permanent’ nature as opposed

to a temporal or ad hoc one.

Prima facie: An aspect of having a situation so apparent and evident on the face value until rebutted by

adducing actual evidence to the contrary.

Private Bill: A bill that is restricted to only a certain private or local concern/topic and does not apply

to or affect the entire national populace.

Private Members’ Bill: A bill (public, private or hybrid) introduced to the House by a back-bencher.

Public Agencies: Government institutions and/or other institutions that provide services of a public

nature sufficient to be classified as public; and the persons that run such institutions.

Public Bill: A proposed law relating to matters of public policy and of a general application introduced

to the House by an MP in draft form.

Readings: The nominate practice of having clerical officers or MPs read the Bill and contents therein to

the House.

Res judicata: A stage, in law, after which a court case is legally deemed to have reached finality and

closed with no further appeal or any other form of progression.

Select Committee: Issue/topic- related ad hoc committee created as needs arise for a specific mandate

and purpose with a limited life span coming to effluxion once the said Committee has carried out its

investigations and presented the final report to the House.

Subpoena: To order a person that they appear before the body so ordering them; with punitive measures

prescribed and attached for its breach.

Trite: A settled matter or aspect that needs no evidence to substantiate as it is so apparent and has since

become common knowledge in the public domain.


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Table of Cases

(a) Domestic Cases

Attorney General v Dora Siliya (MP) Ex Parte William Harrington

Attorney General v Roy Clerk, (2008) SCZ Appeal No. 96A/2004

Attorney General v Speaker of the National Assembly Ex parte Dr. Ludwig Sondashi, (MP), SCZ

Judgment No. 6/2003

Chilufya v City Council of Kitwe (1969) ZRL 115

Christine Mulundika & 7 Others v The People, SCZ Judgment No. 25/1995

Fred M’membe and Another v. Speaker of the National Assembly [1996] 1LRC 584

Resident Doctors’ Association & 51 Others v The Attorney General (2003) ZR 88

(b) Foreign Cases

Associated Provincial Picture Houses v Wednesbury Corporation [1947] 1 KB 223

Burmah Oil Company Ltd. v Lord Advocate [1965] AC 75

http://en.wikipedia.org/wiki/Burmah_Oil_Company_Ltd.

http://en.wikipedia.org/wiki/Lord_Advocate

http://en.wikipedia.org/wiki/Case_citation


Making Process

Table of Legal Instruments

Municipal Legislation

Constitution, Cap 1 of the laws of Zambia

English Laws (Extent of Application) Act, Cap 11 of the Laws of Zambia

High Court Act, Cap 27 of the Laws of Zambia

National Assembly (Powers and Privileges) Act, Cap 12 of the laws of Zambia

Foreign Legislation

Rules of the Supreme Court of England (RSC), 1883 edition

Miscellaneous Instruments

Erskine May, Parliamentary Practices, 23rd

edition

NAZ, National Assembly Standing Orders, 2005 edition

10] PARLIAMENT AND HIV/AIDS IN THE ZAMBIAN SOCIETY: A Legal Guide For Non- Parliamentarians’ Participation in the

Law-Making Process

1.0 Introduction

Any person’s3 desire to have an idea or subject matter enacted into law may take either of the following

two modes: (a) a motion or (b) draft Bill. The said motion or draft bill has to be presented to the National

Assembly (hereinafter referred to as “the Assembly”) as it is the institution legally vested with the

jurisdiction to legislate. The process of presenting an idea to the Assembly for possible adoption and

subsequent legislation thereon is known as petitioning.

A motion is a proposal made to the House or a Committee of the whole House for purposes of having the

said House or Committee act on an expressed opinion or subject matter with the view to legislate on the

same.4 It is indeed the originating process of parliamentary debates; and like any other paper/essay it must

comprise of a problem statement, executive summary, main body, conclusion(s), observations and/or

recommendations. A draft Bill, on the other hand, is a proposed law readily drafted awaiting Presidential

assent after due scrutiny (through adoption and debates) by the Assembly; and is sometimes also an

originating process when so presented.

2.0: Possible Avenues/Channels for CSOs’ Participation in the Law-Making Process

There are basically four possible legal avenues through which non-parliamentarians may have their mere

ideas, concerns and grievances enacted into law, namely;

i) Through a local MP in whose constituency the CSO and/or individual is resident

(hereinafter referred to as “the Local MP Avenue”);

ii) Through Parliamentary Committees (hereinafter referred to as “the Parliamentary

Committees Avenue”);

iii) Through any Back-bencher/private MP (hereinafter referred to as “the Back-benchers

Avenue”); and

iv) Through a direct petition to the Speaker of the National Assembly (hereinafter referred to as

“the Judicial Review Avenue.”)

Whichever avenue opted for from the aforementioned; the concerned party may present their petition either

through a motion or a draft bill. As defined by the National Assembly Standing Orders,5 a petition is a

written plea presented to the Assembly on a subject matter intended to be legislated into law; whether

3 At law, the term ‘persons’ generally connotes both people (human persons) and legal entities (fictitious persons) legally constituted and

recognized by the relevant applicable law(s) 4 M.N. Kaul and S.L. Shakdner “Practice and Procedure of Parliament” (1991), 6th edn, p 593 in Mwelwa Ng’ona Chibesakunda, The

Parliament of Zambia (2001), National Assembly of Zambia, Lusaka, p 72 5 (2005), Order 2(2)


Law-Making Process

relating to public or private matters of general policy, or to redress local or personal grievances. It is a plea

intended to lobby the Assembly to legislate on the proposed motion or drafted bill6 premised on the fact

that no person is legally authorized to speak on the floor of the House save for members. Therefore, CSOs

as fillers of voids in the legislative system, can only speak through MPs as individual members or as

representatives of particular committees.

2.1 The Local MP Avenue

Under the law, all constituents have a right to instruct their MP to represent their views to the Assembly.

However, these views must be of a general effect upon the constituency in question and lodged through

collective action. Otherwise, a view by a sole constituent or a small sect thereof is likely to be deemed

“busy body” acts without sufficient nexus. As such, the legal doctrine of locus standi would fetter the

intended views unless the concerned MP is willing to treat such views as though they were collective and

general to the constituency.

This was demonstrated in the recent attempt and failed law suit by two former UNZASU executive leaders,

one Antonio Mwanza acting together with one Stanford Kabwata, in which the two attempted to remove

into the High for purposes of obtaining an Order of Mandamus to have their purported MP sit at the NCC

and participate in the proceedings thereof as opposed to the stance taken by the said MP’s political party to

boycott the same.7

2.1.1 Advantages of the Local MP Avenue

The main advantage hereof is that the local MP is or ought to easily identify with and understand the

problems and concerns in their constituency; which problems and concerns are the subjects of petition.

The other advantage hereon is that the local MP is or ought to be easily accessible by the

petitioners/constituents due to the already existing representor-representees relationship.

2.1.2: Disadvantages of the Local MP Avenue

The most irking disadvantage of this avenue is the likely political inclinations and allegiance by some MPs

to their parties so much that their representees’ view must be first subjected to political party leadership for

approval prior to the MP presenting them to the Assembly.

6 Ibid 7 See a commentary at http://www.times.co.zm/news/viewnews.cgi?category=4&id=1260770916 accessed on 17 May 2011.

http://www.times.co.zm/news/viewnews.cgi?category=4&id=1260770916


Law-Making Process

Secondly, some MPs are in a habit of not visiting their constituencies; thus not readily available to receive

petitions from their representees, especially constituencies in remote areas.

Thirdly, some local MPs are not that vigorous and assertive or endowed with requisite skills and expertise

to understand and adequately advocate for their constituents’ views, especially none-routine technical

views.

2.2 The Parliamentary Committees Avenue

Through this avenue, a petition may lie to a particular committee, either a portfolio committee or a select

committee. In Zambia, there are basically two portfolio committees that are likely to be seized with

conduct of petitions relating to HIV/AIDS. They are (a) Committee on Health, Community Development &

Social Services and (b) Committee on Delegated Legislation. In certain cases, other Departmentally-

Related Committees (DRCs) may deal with issues of HIV/AIDS from their respective context through

mainstreaming or otherwise.

2.2. (a) Committee on Health, Community Development & Social Services

For HIV/AIDS related issues, the most appropriate Committee explicitly vested with jurisdiction to handle

legislative matters associated with HIV/AIDS and incidental thereto is the Committee on Health,

Community Development & Social Services.8 This Committee is mandated with overseeing all overarching

activities and issues pertinent to health and social well-being including HIV/AIDS concerns in the Ministry

of Health as well as Ministry of Community Development and Social Services.9 The key contact person

therein is: Assistant Committee Clerk, Committee on Health, National Assembly of Zambia, Parliament

Building, P.O. Box 31299, Lusaka, Tel 292425-36.

Ordinarily, this committee puts up advertisements in the public media, from time to time inviting members

of the general public to make submissions, oral or written submissions, on different subject matters being

considered for possible legislation. Common practice dictates that members of the public, CSOs inclusive,

should wait for such ‘calls for submissions’ before they can air their views. In this manner, certain

CSOs/individuals have so far participated in the legislative process. Nevertheless, they may invoke the

process of legislation through this avenue on any relevant subject matter provided they demonstrate that the

same affects them; hence have sufficient nexus to that particular subject matter, and not just being mere

‘busy bodies’ contrary to the legal concept of locus standi.

8 Chibesakunda, op cit, p 109 9 Ibid


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2.2. (b) Committee on Delegated Legislation

This is another relevant Committee largely sanctioned to receive actual draft bills, mostly public bills, and

not mere petitioning motions.10

By practice and norm, public bills are usually introduced to the House by

MPs who belong to the Committee on Delegated Legislation. Such members may be either ministers or

simply back-benchers, and as such a public bill could be either a Government or Private Members’ Bill

depending on who introduced it.11

2.2.1. Advantages of the Parliamentary Committees Avenue

Intrinsically, there are three major advantages of pursuing the Committees Avenue namely that; first and

foremost, motions that are made through a Committee, like those by a Minister, do not necessarily require

seconding.12

Therefore, a motion through this avenue would not lapse for want of seconding.13

Secondly, Chairpersons of Committees are given precedence over other members of the House, when

moving such a motion, equivalent to the Speaker’s powers.14

Therefore, motions presented in this manner

are unlikely to be ‘shot-down’ by members anyhow, except for valid reasons after a serious debate. It is

like a motion being presented by the Speaker himself/herself with a high command of veneration.

Third and last, on the authority of the National Assembly (Powers and Privileges) Act (hereinafter referred

to as “the Act”)15

Committees have legal clouts to subpoena any person to appear before the Committee

and give oral evidence; or issue an order of subpoena duces tecum16

just like in a court of law.17

If the

summoned persons refuse to appear before the Committee or produce the requisite documents, they shall

be guilty of contempt of the House18

punishable “on conviction to a fine not exceeding five hundred

penalty fee units or to imprisonment with or without hard labour for a term not exceeding three months, or

to both.”19

This provision has been tainted with legal controversy because it seemingly usurps and

intermeddles with the adjudicative powers and functions of the Judiciary contrary to the doctrine of

separation of powers as entrenched in the Constitution, Cap 1 of the laws of Zambia.20

10 Ibid, p 120 11 Op cit, Order 98 (1) 12 Ibid, Order 41 13 Ibid 14 Ibid, Order 43 15 Cap 12 of the laws of Zambia, sections 13, 14 and 20 16 Otherwise translated as “appear with documents”; this is an order not just to appear, but to also produce specified documents and records if

and when demanded. 17 The Act, op cit, section 14 18 Ibid, section 19 19 Ibid, Section 21. One penalty fee unit is equivalent to K180.00 20 See the High Court Judgement of Fred M’membe and Another v. Speaker of the National Assembly [1996] 1LRC 584


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2.2.2 Disadvantages of the Committees Avenue

The main disadvantage, inter alia, associated with this avenue is that committees are normally21

composed

of back-benchers though not restrictedly so,22

hence difficult to obtain government backing thereon such

petitions as unsurprisingly ‘Government’ MPs are readily opposed to back-bencher, and vice versa.

Another disadvantage arises from the legal fact that for purposes of proceedings a Bill initiated by a

portfolio committee is always treated as a Private Member’s Bill23

even if it were a public bill by

substance- addressing matters of public policy and concerns. Consequently, posterity evidences bills of this

nature seldom progress to the assent stage because they are politically deemed as doings of the opposition;

thus ‘shot down’ by members of the ruling party who are usually in the majority.

2.2.3 Legal Requirements for Introducing a Draft Bill

On a plethora of authorities, no Bill is allowed in the House save by a Minister after giving sufficient notice

or upon a motion made by a private member with leave of the Speaker to introduce such a bill.24

Notice to

introduce a bill must state both the short and long titles of the said bill.25

Once leave has been granted or

notice crystallized, as the case may be, the draft Bill must be introduced to the House accompanied by a

memorandum signed by the Attorney General or the Solicitor General in the case of a Government Bill,

and the Private Member in the case of a Private Member’s Bill. The memorandum must also furnish the

objects and rationale of the Bill, the name and address of the member who has since signed the

memorandum.26

The cost-related advantage of following this sub-avenue is that all costs relating to the printing and

publishing of the Bill hereunder shall be borne by the Assembly. This may, vice versa, operate as a fetter to

the progression of the Bill as the Assembly may aver lack of funds, thus stalling the process.

2.2.4 Proceedings at the Bill Stage

By procedure, when a Bill is presented to the House it is read the first time (first reading) without questions

or debate and stands referred to a portfolio or select committee.27

As espoused by Chibesakunda, this stage

21 This situation is considered to be normal and ideal in most commonwealth jurisdiction as one of the mechanisms to provide checks and

balances to the Government 22 Chibesakunda, op cit, p 109 23 Op cit, Order 98(6) 24 Ibid, Order 98(2)(a), (b) 25 Ibid, Order 98(3) 26 Ibid, Order 98(5). See also Chibesakunda, op cit, p 61 27 Ibid, Order 98(4)


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is ideally meant for the Bill to be considered and voted upon for possible adoption.28

At the end of the first

reading session the Bill must be accompanied by an order of the House that it be printed in adequate copies

and considered again when it returns from the relevant Committee.

At the second reading, the principle of a Bill is debated with the pros and cons of having the said Bill

considered with particular attention to the details of general merits of the said Bill. By order of practice, the

House is not allowed to criticise the Bill for technical defects at this stage.29

From this stage the Bill reverts

to a committee for further consideration, line by line, and proposes amendments thereto. As such, this stage

involves a detailed scrutiny by the relevant portfolio committee when forth referred to; which committee

will subsequently report back to the House with proposed amendment thereto.30

Thereafter, the Bill goes for a third reading; at which stage the Bill, together with its prior amendments31

is

considered in its entirety before being published in a technically approved format by the legislative drafting

wing of the legislature immediately prior to sending it to the Republican President for possible assent.

After this stage, no questions about the said Bill shall in any way be entertained as it is deemed to have

passed awaiting assent.32

The subsequent joining of the President to the legislative functionaries of the

Assembly constitutes Parliament;33

which is the only competent body vested with legislative powers,

unless legally delegated.

2.2.5 The Hybrid Bill: Most Appropriate Draft Bill for CSOs

It is evident that from the various types of draft bills available in the Zambian jurisdiction, the most

appropriate and recommendable for CSOs would be a Hybrid Bill due to its uniqueness in terms of nature

and application.34

A Bill is considered to be hybrid if by nature it addresses only the concerns of an

individual, organization, association, body corporate or a faction of society35

and yet by application and

resultant benefits it is likely to spread to the entire nation. It is trite that the powers to deem a bill as hybrid

lie in the sole discretion of the Speaker. Where the Speaker is of a considered view that a particular bill is

28 Op cit, p 74 29 See article accessed on 23 May 2011 at http://en.wikipedia.org/wiki/Bill_%28proposed_law%29 30 Ibid 31 As a general rule and indeed on the authority of Order 122 (2) op cit, no further amendments are made at this stage as it is the committal

stage. 32 Ibid, Order 123 33 From a legal point of view, Parliament is not an institution, per se, but the situation of having the Republican President act together with the

Speaker of the National Assembly and his members (MPs) to perform the special function of enacting law, inter alia. 34 Chibesakunda, op cit, p 68 35 Op cit, Order 167

http://en.wikipedia.org/wiki/Bill_%28proposed_law%29


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hybrid as such, s/he shall refer it to the examiners36

of private Bills after it has been ordered to be read a

second time on a future date.

2.2.5.1 Advantages of the Hybrid Bill

The main advantage thereof is that the examiners have a discretionary right to proceed with the draft bill as

a private one, mutatis mutandis, or treat it as a public bill as they deem fit for ease of progression and

resultant benefits to the nation.37

The other advantage is that where a Bill is so deemed to be Hybrid, the promoters of the same may enjoy a

waiver or exemption in terms of the requisite fee to cover associated expenses determinable and deposited

with the Clerk of the Assembly as stipulated by Order 170(b) for private Bills.38

2.3 The Back-benchers Avenue

Some MPs, mostly back-benchers have joined an international voluntary HIV/AIDS forum known

Coalition of African Parliamentarians against HIV/AIDS (hereinafter referred to as “CAPAH”) for

purposes of, inter alia, promoting HIV/AIDS- related motions arising from their respective constituencies.

As is the practice among back-benchers, these MPs are readily willing to promote any motion even those

petitioned by members of the public outside their constituencies. Such MPs are usually accessible

individually or through CAPAH via the office of the National Coordinator, CAPAH- Zambia Chapter,

National Assembly of Zambia, Parliament Building, P.O. Box 31299, Lusaka, Tel 292425-36.

Motions presented through this avenue generally constitute private member’s motions because by

definition, a private member’s motion is a proposed resolution presented to the Assembly by an MP,

ordinarily a back-bencher, requesting the House to take action on a particular issue of an administrative

concern. When such a resolution is accepted by the House, it then becomes a decision of the House and no

longer that of the private Member moving it.39

By procedure, a private Member who wishes to move a motion must give notice of motion by delivering a

copy of their proposed motion to the Clerk of the Assembly for further action.40

The said proposed motion

should include the name of the proposer and a seconder, both of whom should append their signatures

36 This is a body composed of the Clerk of the National Assembly, the Chairperson and Deputy Chairperson of Committees as per Order 171,

op cit. 37 Chibesakunda, op cit, p 68 38 Op cit 39 Kaul and Shakdner, op cit, 594, in Chibesakunda, op cit, p77 40 Ibid.


Law-Making Process

thereto.41

Apart from moving a motion, a private Member may also directly introduce a Private Member’s

Bill; especially if it is a public Bill42

or a private Bill with the stringent legal requirements prescribed under

Orders 168- 17043

adhered to.

2.3.1 Advantages of the Back-benchers Avenue

Private Members are usually keen to work with CSOs by virtue of their being in the opposition. CSOs may

take advantage of this fact and target certain vigorous private MPs, inter alios.

The other advantage herein is that back-benchers have a high tendency of seconding and supporting one

another’s motions in a bid to challenge Government Members. Posterity indicates that the opposition

simply support each and every motion moved by fellow back-benchers as opposed to those by Government

Members.44

This advantage may also operate as a disadvantage if considered from a different perspective

as it, prima facie, takes away the necessary element of objectivity is debating motions.

2.3.2 Disadvantages of the Back-benchers Avenue

The main disadvantage hereon is that resolutions adopted by the House as prior moved by a private

Member are not binding on the Executive. As rightly enunciated by Chibesakunda, such resolutions simply

provide a check on the administrative process of the Government through legislative attempts.45

Therefore,

if Government (mostly the Executive) lacks political will to legislate on the adopted resolution, it may use

its numbers in the House to ‘shoot down’ a Bill arising therefrom at the earliest opportune time.

Other disadvantages herein include subjective criticism rather than constructive critique in the debating and

adopting motions between the two opposing camps in the House as aforeseen.

2.4 The Judicial Review Avenue

The Judicial Review Avenue (hereinafter referred to as “JR”) provides an interface between a

parliamentary petition and a judicial petition through legal redress in form of a law suit. That is to say,

petitioning the court to intervene where a non-member’s prior petition to the Assembly proves futile. JR is

a common law practice which starts with a petition to the Speaker of the Assembly through the office of

the Clerk of the Assembly.46

It is legally deemed to be a petition to the entire House thus petitioning

41 National Assembly, op cit, Order 25 42 See Chibesakunda, op cit, p 68. 43 Op cit 44 In fact, various researches indicate that had it not been for their majority numbers in the House, government members would seldom see

their motions adopted by the normal requisite two-third majority. 45 Op cit, p 78 46 Cf: oral interview with the National Assembly Deputy Chief Research Office, Eugene Mumba.


Law-Making Process

Parliament itself. Upon receipt of such a petition, the Speaker will direct the same to the appropriate

technocrats or constitute a committee, where necessary, to analyse the feasibility of enacting law from the

gist and contents of the petition in question.

This is a very difficult but tenable avenue which should only be resorted to after all the foregoing avenues

have failed. After pursuing this avenue and the House is still not acting positively on the petition, the

concerned CSOs or individuals would be entitled to institute JR proceedings under Administrative Law

against the legislature; by proving to the High Court or any legally constituted tribunal of competent

jurisdiction that they have satisfied the legal requisite of exhausting all available and possible avenues. In

the case of Attorney-General v The Speaker of the National Assembly Ex parte Dr. Ludwig Sondashi, MP,47

the Supreme Court of Zambia held that the High Court for Zambia has Constitutional Jurisdiction to hear

applications for JR in matters involving parliament provided the applicants have exhausted all the available

existing avenues.

2.4.1 Advantages of the Judicial Review Avenue

One peculiar advantage of this avenue is that once a Court Order has been granted, especially after the res

judicata stage of proceedings, it settles disputes and legally confirms the right of the CSO/individual to

have their view enacted.

Equally, the legislature is impliedly compelled to act on the petition in a reasonable manner and not enact a

mere façade or sham of a law where a Court Order is issued48

through this avenue. Therefore, failure by

legislative officers or Members to act diligently and reasonably; out of malice, frustration, neglect or

otherwise is tantamount to contempt of court actionable with a jail sentence and/or fine.

2.4.2 Disadvantages of the Judicial Review Avenue

From the foregoing, it is clear that the JR Avenue is a very cumbersome process and usually tainted with

political malafide. For instance, the first stage of the process namely; the leave stage is absolutely

adjudicated upon at the discretion of the Judge; consequently commencing of JR proceedings is not a

litigant’s right, per se, notwithstanding the gravity of their complaint.49

Secondly, this avenue is very expensive owing to the legal technicalities involved whereby engagement of

legal representation is hardly inevitable. The said legal technicalities are rather too complex for most

47 SCZ Judgment No. 6 of 2003 48 The case of Christine Mulundika & 7 Others v The People, SCZ Judgment No. 25 of 1995, hereto applies by implication and analogy. 49 See Rules of the Supreme Court of England (RSC) popularly known as “the White Book” Order 53, applicable to Zambia by operation of the

English Laws (Extent of Application) Act, Cap 11 of the Laws of Zambia.


Law-Making Process

litigants ranging from the bureaucratic legal rigors and niceties such as the requirement to adduce prior

evidence that all other available avenues have been exhausted; 50

to the procedural requirement that all

pleadings and submissions be made on oath through affidavits to the exclusion of viva voce submissions.51

Thirdly, petitioning the legislature on any subject matter always triggers the controversy relating to the

perceived supremacy of parliament and usurpation of court jurisdiction. For instance the Act still provides

for “[C]ourts not to exercise jurisdiction in respect of acts of the Assembly, Speaker and officers”52

notwithstanding the recent enunciation where the Supreme Court, citing article 94(1) of the Constitution53

and section 9 of the High Court Act,54

rejected the ‘court jurisdiction- ousting powers of Parliament’

submission and held that “[T]he High Court... has Constitutional jurisdiction to hear applications for

judicial review in matters involving parliament”55

because the High Court is constitutionally conferred

with both unlimited and original jurisdiction to hear any dispute except labuor-related disputes which are

constitutionally a preserve of the IRC [just like Presidential election petitions which are now a preserve of

the Supreme Court].

The fourth disadvantage herein relates to the atypical averment by the Assembly that the Judiciary would

be intermeddling in its functionary powers contrary to the legal doctrine of separation of powers

(hereinafter referred to as “SOP”), as averred in the Fred M’membe case,56

resulting in the reluctance and

complacency on the part of the Judiciary to intervene.

The fifth disadvantage is associated with the possible defence of collective responsibility. By practice, the

mere erection of the ‘collective responsibility’ defence by public agencies has repeatedly rebutted claims

under JR unless exceptionally sur-rebutted.57

As such, the Speaker is likely to sufficiently rebut the claim

by CSOs/individuals because the Speaker’s dismissal of petitions by non-members is deemed to be a

decision of the House collectively.

The sixth disadvantage concerns the ‘excessive’ protection of the Members from contempt of court

proceedings through the Act,58

as well as the Standing Orders59

whereby the House would profess legal

50 Ibid 51 See the case of Attorney General v Roy Clerk, (2008) SCZ Appeal No. 96A of 2004 52Per section 34, op cit 53 Op cit 54 Cap 27 of the laws of Zambia 55 Per Ernest L. Sakala CJ, in Attorney-General v The Speaker of the National Assembly Ex parte Dr. Ludwig Sondashi, MP, op cit 56 Op cit 57 See the obiter dicta in Chilufya v City Council of Kitwe (1969) ZRL 115. See also the landmark case of Associated Provincial Picture

Houses v Wednesbury Corporation [1947] 1 KB 223 58 Op cit


Law-Making Process

jurisdiction to deal with its erring Members to the exclusion of the Courts. In this vein, applicants in JR

proceedings are equally subjected to the rigors and niceties of justiciability as well as nexus, with the

burden of proof on them to demonstrate locus standi, nexus and privy to the exclusive Parliamentary

business.

Lastly, there is too wide latitude of societal considerations as against individual recourse to the law

premised on the purported object of keeping Government machinery in motion for the substantial benefit of

the whole society as opposed to individual justice.60

In this way, applicants are likely to be cynically

required to discharge the improbable burden of justifying the necessity of their individual redress as against

the public benefit(s), cost-saving or otherwise, of the Assembly’s decision not to legislate the said

applicant’s views. This usually operates as a legal technicality ‘knocking out’ to the applicant’s claim at the

very initial stage of commencement of action (the leave stage) with leave to commence proceedings denied

for want of nexus and/or necessity to proceed. This is one of the main reasons why the Zambian citizenry

has not frantically pursued this avenue.

3.0 Restrictions on CSOs/Individuals’ Participation: Lost Opportunity

To curtail both prejudice and sub judice, non-members are legally restrained from participating in

Parliamentary business, via petition or otherwise, concerning a Bill which has already been printed and

simply awaiting assent because no motion may be moved to deal with a subject matter of such a Bill.61

Secondly, “[N]o motion may be moved which is substantially the same as the one on which the House has

already come to a decision during the session or which is still pending. This rule cannot be evaded by

merely altering the language of a motion.”62

4.0 Conclusion

On the authority of Article 86(1) of the Constitution,63

the Assembly is empowered to determine its own

procedures including the manner of participation by interested stakeholders, such as CSOs, in the

legislative process. Therefore, the Assembly reserves the right to admit or dismiss non-members petitions

for improper avenue or vary the foregoing avenues of participation. However, in exercising such powers,

the Assembly must be subjected to Constitutional provisions and guided by the codified procedures

59 Op cit 60 See the Tribunal deliberations in the recent case of Attorney General v Dora Siliya (MP) Ex Parte William Harrington 61 See Chibesakunda, op cit, p 76 62 Ibid at 76 63 Op cit


Law-Making Process

enshrined in its aforementioned two major legal instruments namely; the Standing Orders64

which carry the

force of law65

and the Act,66

as opposed to the Hansard or Erskine Parliamentary practices of England67

whereby Parliament is capable of changing its procedures and practices at its own whims and caprices. This

legal restraint on the Zambian Parliament is not only about maintaining predictability in the procedural law

governing Parliament, but also to entrench the doctrine of SOP as per the norm in Constitutional

Democracies as opposed to Parliamentary Sovereign Monarchs, such as England, where Parliament is

legally condoned to act at its own pleasure stretching even to the extent of meting out judicial punishment

against any person as though it were a court. This position was enunciated, inter alia, in the case of

Burmah Oil Company Ltd. v Lord Advocate.68

Though not as dire a situation as in England, Parliament is Zambia should be approached with caution.

Indeed, CSOs/individuals ought to be cautious in their petitioning the Assembly because, notwithstanding

the that fact that all persons including CSOs have a Constitutional right to freedom of expression69

and a

natural law right to participate in issues of national governance,70

the aforementioned Parliamentary legal

instruments assign ‘excessive’ powers, privileges and discretion to the Assembly. As elucidated from the

foregoing, even the JR avenue, which is a right-based avenue, is overwhelmed by legal and political clogs

and fetters as evidenced in the aforementioned disadvantages which prima facie outweigh the advantages.

There are currently controversies existing as to the powers of the Assembly to impede the aforementioned

citizenry rights as evidenced in the controversial case of Fred M’membe71

and other cases where orders of

certiorari have been pronounced against the Assembly and yet legislation is not adequately amended to

reflect the efficacy of these orders. For instance, under sections 26, 27, 28 and 34 of the Act, the Assembly

still has powers of summoning to the bar, arrest, prosecute in concurrence with the DPP, reprimand,

imprison and/or fine any person whose conduct, either in speech, writing or otherwise is purported to be in

breach or contempt of the Assembly’s powers contrary to decided case law. This controversy is

exacerbated by the realism jurisprudential debate on whether or not adjudicators are endowed with inherent

powers to make law, acceptably referred to as ‘judge-made law,72

hence the true givers of law to society or

64 Op cit 65 See Chibesakunda, op cit, p 126 66 Op cit 67 Erskine May, Parliamentary Practices, 23rd edition 68[1965] AC 75 69 The Constitution, op cit, Article 20 70 See De Smith, Judicial Review of Administrative Action (1995) 5th edn, Sweet and Maxwell, London 71 Op cit 72 As expounded by Justices Hoffman Jnr and Chipman under the controversial School of Thought called ‘Realists School of Legal Thought.’

http://en.wikipedia.org/wiki/Burmah_Oil_Company_Ltd.

http://en.wikipedia.org/wiki/Lord_Advocate

http://en.wikipedia.org/wiki/Case_citation

http://www.saflii.org/cgi-bin/LawCite?cit=%281995%29%20P%20295


Law-Making Process

they are merely interpreters of the law as enacted by Parliament. This controversial debate is typically

beyond the scope of this work.

Therefore, CSOs/individuals are implored to readily employ diplomatic strategies when engaging

Parliament if their views are to receive the desired positive consideration for possible enactment into law.

Otherwise, CSOs/individuals pressing and advocating for participation in any other ways outside the ambit

and gist of the foregoing avenues, especially through activism, are likely to be accused of committing

criminal illegalities. The said criminal illegalities may include alleged breach of the Public Order Act73

and

certain provisions therein as in the Christine Mulundika Case74

or conduct likely to disturb the public peace

as in The Resident Doctors’ Association & 51 Others v The Attorney General75

or unlawful assembly

contrary to section 74(1) of the Penal Code.76

Furthermore, in a bid to protect and uphold the integrity of the House, it is equally an offence for any

person to disrespect the Speaker in speech or otherwise, or to conduct oneself in any manner that suggests

intentional disrespect to or with reference to the proceedings of the House or to any person presiding over

such proceedings.77

As per the Deputy Speaker of the Assembly, “I strongly advise you to farmiliarise

yourselves with the provisions of the Constitution of Zambia, Cap 1 of the Laws of Zambia, the National

Assembly (Powers and Privileges) Act, Cap 12 of the Laws of Zambia and the Standing Orders of the

House and other documents so that you know how members of the public can interact with their National

Assembly. This will help you to avoid offending the House….”78

----------------------------------------------

J.S. Chitengi

73 No.1 of 1996 74 Op cit 75 (2003) ZR 88 76 Cap 87 of the Laws of Zambia 77 The Act, op cit, section 19 (d) and (e) 78 See the “Daily Parliamentary Debates for the Fourth Session of the Tenth Assembly” (6 August 2010), on the reprimand and admonishing of

offenders who are private citizens and not MPs for uttering disparaging remarks against the Speaker and the House on a private-own television

station. Available and accessed on 17 May 2011at

http://www.parliament.gov.zm/index.php?option=com_content&task=view&id=1215&Itemid=86

http://www.parliament.gov.zm/index.php?option=com_content&task=view&id=1215&Itemid=86

Documents

Parliament and HIV in Society