7 February 2013

Zambia: Is Rupiah Banda Hiding Behind Presidential Immunity Clause?

Photo: Nation
Zambia President Rupiah Banda inspects a guard of honour during the swearing-in ceremony in Lusaka.


THE decision of the Anti-Corruption Commission (ACC) to summon former Republican president Rupiah Banda for questioning over his alleged involvement in suspected acts of impropriety has once again ignited heated public debate on immunity from prosecution enjoyed by former Heads of State in Zambia.

Mr Banda has been summoned by ACC to appear before the Government Joint Investigations Team at the Drug Enforcement Commission (DEC) premises today to clarify certain issues pertaining to the ongoing probe into corruption-related offences that occurred during his three-year reign as Head of State.

But the former president has opted to snub the investigations team, and his lawyers will be leaning heavily on Article 43 of the Zambian Constitution which confers immunity from prosecution on all former Heads of State. The full import of this clause is that no prosecution of a former Republican president can commence until his immunity is lifted by the National Assembly.

Article 43 (1) of the Constitution states, that: "Civil proceedings shall not be instituted or continued against the person holding the office of President or performing the functions of that office in respect of which relief is claimed against him in respect of anything done or omitted to be done in his private capacity."

Further, Article 43 (2) states that: "A person holding the office of President or performing the functions of that office shall not be charged with any criminal office or be amenable to the criminal jurisdiction of any court in respect of any act done or omitted to be done during his tenure of that office or, as the case may be, during his performance of the functions of that office."

The protection conferred on former presidents is further buttressed by Article 43 (3) which states that: "A person who has held, but no longer holds, the office of President shall not be charged with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him in his personal capacity, while he held office of President, unless the National Assembly has, by resolution, determined that such proceedings would not be contrary to the interests of the State."

One school of thought is that Presidential immunity is absolutely necessary to ensure that an incumbent Head of State is not unduly encumbered in the execution of national duties because of fear of possible prosecution when one vacates office, whether voluntarily or otherwise.

However, others argue that Presidential immunity should not extend to acts of a criminal nature. This argument is premised on a moral principle that the framers of the Zambian Constitution could not, wittingly or unwittingly, have sanctioned commission of criminality by extending immunity to acts of a criminal nature.

It is this moral principle that appears to have largely influenced the debate in Parliament when President Levy Patrick Mwanawasa addressed a special session of Parliament in July, 2002 to make a case for the lifting of immunity of his predecessor, Dr Frederick Jacob Titus Chiluba, to pave way for criminal prosecution.

Although the veracity of the charges levelled against Dr Chiluba were still unproven and, therefore, constituted mere allegations, the National Assembly decided to lift his immunity so that he could clear his name and reputation and avoid the indignity of being perceived as a wrong-doer.

After a seven-year trial, Dr Chiluba was acquitted of all charges. The controversy surrounding his acquittal notwithstanding, the magistrate's decision still stands because the Zambian judiciary enjoys autonomy which is enshrined in the Constitution.

In the Zambian context, this case provides an important precedent, even though the lifting of Dr Chiluba's immunity was criticised by some because he was not availed an opportunity to give his side of the story to the National Assembly before the law-makers made their decision.

By contrast, Mr Banda is being offered an opportunity to clear the air regarding his alleged involvement in suspected impropriety so that the investigating wings, in their summation of events surrounding the former president, can determine whether there is, to borrow legal parlance, a prima facie case against the ex-president.

If he is innocent, Mr Banda should avail himself before law enforcement officers, and he will be vindicated. He cannot possibly hide behind Presidential immunity forever as that could be construed negatively in some quarters.

The removal of Dr Chiluba's immunity is an important precedent that cannot be erased from Zambia's history.

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