Former republican president Rupiah Banda has been summoned by the Anti-Corruption Commission to appear before it for questioning in connection with investigations into corruption it is carrying out, but there remains some legal questions, writes journalist Elias Munshya wa Munshya.
In writing the former president, Director-General Rose Wandi did mention that she wanted to question Rupiah Banda in spite of his immunity. There is debate whether Director-General Wandi does have the power to summons the former president and if so, whether she has the power to compel him to appear before her.
This article will argue that the current position of the law is that a former president like Rupiah Banda who still enjoys presidential immunity cannot be compelled to appear before the ACC in connection with investigations involving criminal matters suspected to have been committed during the time he served as president unless such immunity has been removed by parliament. The parent provision that prescribes immunities held by a former president is found under Article 43 (3) of the Zambian Constitution. This is what it says:
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.
This provision is quite specific. It suggests at least two things in connection with presidential immunity. First, a former president cannot be charged with a criminal offence and second, cannot be amenable to the criminal jurisdiction of any court.
However, Director Wandi, seems to be arguing in her letter that all she wants is to question him so that he could explain some matters in which he has been implicated. There probably could be no difference at law between what Article 43 (3) is saying and what Wandi seems to be suggesting. Questioning a former president over criminal matters before his immunity is removed could at law be the same as subjecting him before the criminal justice system. Subjecting Rupiah Banda before the criminal justice system before his immunity is removed by parliament could contravene the constitution.
The purpose of presidential immunity is to help safeguard interests of the State. That is the constitution has envisaged a situation where a criminal probe might actually be prejudicial to the interests of the State. As such, only parliament can make the determination whether prosecuting a former president should go ahead or not. Again, from the way Article 43 (3) is framed a criminal act done by a former president cannot and should not result in automatic criminal prosecution. Prosecution is encouraged only to the extent that it would "not be contrary to the interests of the State." And the primary determinant of that, unfortunately, is not the Anti-Corruption Commission nor the Zambia Police but parliament.
The purpose for presidential immunity was also addressed in the case of Godfrey Kenneth Miyanda v Attorney General (2002) where Madame Justice Mambilima stated that the rationale for presidential immunity was "to avoid the president being unduly cautious in the discharge of his official Duties." Madame Justice J. Kabuka also relied on this position when she passed judgment in the infamous Wynter Kabimba v Attorney General, Richard Kachingwe & the Elections Commission of Zambia (2011) case.
In 2001, when issues to do with prosecuting President Frederick Chiluba for theft and corruption arose, the High Court directed that beginning criminal investigations and questioning Frederick Chiluba did have implications on his immunity. It would be difficult to question and investigate Frederick Chiluba without having to lift his immunity first. As such, without even bothering with bringing Chiluba for questioning, President Levy Mwanawasa instead took "prima facie evidence" before parliament and asked the legislature to determine whether or not prosecuting Chiluba would be contrary to the interests of the State. After a few hours of deliberation parliament found that Chiluba could be prosecuted and decided to lift his immunity.
Chiluba was obviously unsatisfied with parliament's decision and decided to apply to the High Court for judicial review. Chiluba's argument was somewhat circular. He claimed that it was unfair for parliament to remove his immunity without giving him a hearing and in fact, without even investigating the very prima facie evidence President Mwanawasa presented to parliament. In the case of Chiluba v Attorney-General (Appeal Number 125 of 2002)  ZMSC 3, the Supreme Court justices held that what parliament did was only determine that Chiluba could now be amenable to the criminal justice system. It was up to that criminal justice system to determine the rest of the situation. Parliament did not need to hear or to question Chiluba. Parliament is not the Anti-Corruption Commission and neither is it the Zambia Police. It was then after this judgment that the Task Force on Corruption pounced on Chiluba and brought him in for questioning.
As such, if Director-General Rosewin Wandi really wants to question President Rupiah Banda - she must begin by first and foremost convincing parliament that her investigating of Rupiah Banda would not be prejudicial to the interests of the State. She does not need to provide any evidence. All she needs is to convince parliament that she needs to question Rupiah Banda. It is only after parliament lifts Rupiah Banda's immunity that she could then freely question him and possibly prosecute him.
What happens to the letter Director-General Rosewin Wandi has written then? For starters, President Rupiah Banda could ignore it and throw it in a dustbin. But he would not want to do that if that letter is accompanied by a resolution of Zambia's parliament.
This posting is not meant to convey legal advice. Its purpose is to add to the debate on an important national matter. Those who need specific legal opinion on this and related matters are encouraged to consult members of the Zambian Bar. (c) Elias Munshya, B.A., LLB (Hons), M.A., M.Div. (2013)
This article was originally published on the personal website of journalist Elias Munshya wa Munshya.