As the Speaker of Parliament I think that it is only fair to the public that Parliament’s position is made clear and to explain why I hold that position.
To fully understand the issue it is best that we look at the chronological order of events.
Hon. Lusibaea was charged with unlawful wounding and assaulting a police officer in the execution of his duty on 14 February 2007.
These offences were committed on 1 September 2000. He was granted bail on 22 October 2007.
A trial date was set sometime in September 2010. He was put in custody on 16 November 2010 after he entered a plea of guilty on the first day of trial.
The High Court sentenced him to 2 years 9 months, a total of 33 months on both charges.
On December 3 Hon. Lusibaea lodged an appeal against his sentence. It became apparent that the Court of Appeal will not hear his appeal soon so he wrote to my office seeking an extension of 30 days to pursue his appeal (under section 51 (1) of the Constitution).
The sentence handed by the court is more than the 6 months that is required by the Constitution for a MP to vacate his seat.
Hon. Lusibaea was caught by section 51 (1) of the Constitution which states that if a MP is sentenced to a term of imprisonment exceeding 6 months he shall immediately cease to perform his function as a MP and his seat shall become vacant at the expiration of 30 days from the date of sentencing.
Thus, Hon. Lusibaea’s seat would have been vacant on 30 December 2010. However, section 51 (1) has a proviso that allows an MP appealing conviction or sentence to request the Speaker for an extension of time to pursue an appeal.
It was apparent that the Court of Appeal will not sit until sometimes in March. To avoid vacating his seat, therefore, Hon. Lusibaea applied to my office for an extension of time to pursue his appeal.
This was on December 9 2010 before the initial 30 days expired.
I exercised my discretion under section 51 (1) and granted him an extension of 30 days which will expire on 30 January 2011. At that point, therefore, the North Malaita seat was not vacant.
However, Hon. Lusibaea was precluded from performing his function as an MP unless he satisfies any of the grounds set out under section 51 (2) of the Constitution. At that time that was not the case.
I learned from the media that Hon. Lusibaea had been released on licence on January 14 2011. On January 20 2011, I received a letter from Hon. Lusibaea’s lawyer that the Minister of Police, National Security had granted a further 95 % remission to Hon. Lusibaea’s effective sentence. This was the first time that I had been made aware of this and it changed my initial view because the facts have changed. Let me explain myself why this is so.
Under section 37 of the Correctional Service Act every prisoner is granted a one-third remission to the sentence imposed by the court.
Section 38 of the same Act and Regulation 198 of the Correctional Service Regulation gives the Minister power to grant further remission. Thus, one-third remission of 33 months is 11 months.
The balance would then be 22 months. Considering that High Court backdated Hon. Lusibaea’s sentence to 11 March 2010 the 14 2011 is totaled up to 10 months.
When the Minister granted a further 95 % to Hon. Lusibaea’s effective sentence he is left with 1 month 1 day. This is the effective sentence.
The Correctional Service Act defines effective sentence as “the term of imprisonment that a prisoner is to serve, after taking into account remission granted under this Act.”
Thus, it is this effective sentence (1 month 1 day) that Hon. Lusibaea is released on licence to serve outside prison.
In light of this information I am of the view Hon. Lusibaea no longer falls within the ambit of section 51 (1). The relevant provision of the Constitution now is section 51 (2) which provides, “If at any time before the member vacates his seat he is granted a free pardon or his conviction is set aside or his sentence is reduced to a term of imprisonment of less than six months or a punishment other than imprisonment is substituted, his seat in Parliament shall not become vacant under the provisions of this section, and he may again perform his functions as a member of Parliament.” [My emphasis]
Hon. Lusibaea’s sentence was reduced to a term of imprisonment that is less than 6 months by the Minister under the Correctional Service Act 2007 and Correctional Service Regulation 2008.
Therefore, Hon. Lusibaea’s seat is not vacant and he may again perform his functions as a MP as provided for by the Constitution d unless decided otherwise by the High Court.
I hope this clarifies the Speaker’s position on this matter. On the face of things the Minister has exercised his powers under the relevant laws.
I do not have the legal mandate to decide otherwise. The question of whether the Minister exercised his discretionary power in a lawful manner is for the courts to decide. Only the courts have jurisdiction to make a decision on such matters.
Therefore, as it stands Hon. Lusibaea may again perform his functions as a MP.
I hope this clarifies my position on this matter.
By Sir Allan Kemakeza
Speaker of National Parliament
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