4 October 2008
THE Lusaka High Court has ruled that acting Republican President Rupiah Banda should continue to enjoy presidential privileges and benefits despite filing his nomination as MMD presidential candidate.
This is in a case in which the Anti-Rigging Zambia Limited sued Mr Banda that he should cease to be vice president from the time he filed his nomination papers for the presidential by-election.
Anti-Rigging Zambia said Mr Banda was not entitled to perform presidential functions or the benefits of that office and that he should not enjoy or use public resources to fund his campaign.
But Lusaka High Court judge Philip Musonda ruled that article 43 (1) gave the acting president absolute immunity from having proceedings instituted against him in any court of law in respect of anything done or omitted to be done in his private capacity.
"I therefore order that Rupiah Bwezani Banda shall continue to act as president and enjoy the privileges and benefits attached to that office until the democratic process resolves the issue of the presidency, and it is so ordered," he said.
He noted that the case was a constitutional matter that had raised a novel issue and that there would be no order for costs.
During hearing Attorney General, Mumba Malila said under Article 43 (1) of the Constitution, a person holding the office of the president was not amenable to criminal or civil proceedings in respect of anything done during his tenure of office.
Mr Malila said that the article was categorical and operated to prevent the institution of any court process against the acting president or as a person performing the functions of the president.
But lawyer for Anti-Rigging Zambia Limited, Kelvin Bwalya argued that the article referred to instances when such a person was taking administrative action or an executive decision in consultation with cabinet.
He argued that the filing of nomination papers as presidential candidate was not an executive function or that of a president because even any other person could have filed the papers.
"The filing of nomination papers by a candidate is not made pursuant to the Constitution but to the Electoral Act or subsidiary legislation," he said.
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