opinionBy Ebenezer Osei Opoku
This is an academic critique of the article by Elias Munshya wa Munshya titled "Penetrating Presidential Bombasa: Why the ACC Can't Question President Rupiah Banda Without Parliamentary Sanction," by Ebenezer Osei Opoku, guest contributor to Zambia Reports.
The article1 by Elias Munshya wa Munshya which I seek to critique, questions the power of Zambia's Anti-Corruption Commission (ACC) to compel a former president to attend a criminal investigation hearing by asserting constitutional immunity and legal precedence. By this article I tackle the position adopted by the author by first analysing the purported immunity and precedential value ofChiluba v Attorney-General2 on this matter and briefly consider why the ACC has the power to do so under the laws of Zambia. The heads of consideration are Immunity, The value of the Chiluba Precedence and the ACC Power to Summon".
The Issue of Immunity
Determining the extent of immunity afforded former presidents under the Zambian Constitution necessarily require the purpose of the relevant provisions conferring that immunity to be first explored. To begin with, Article 43 (3) of the Constitution 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.3
Considering the wordings it is obvious that some protection is afforded to ex-Presidents and that this protection which has the characteristics of immunity can be removed. That duty of removing or piercing this veil of protection is entrusted with the National Assembly and in exercising its discretionary duty it was the intention of the framers that "interests of the State" should be assured at all times. Therefore the National Assembly must only avail itself this right to remove this veil only when it has so determined by resolution that removing this veil "would not be contrary to the intention of the State. But really is this bounden duty of securing the "interests of the State" not an overarching duty of every citizen of Zambia or indeed every state institution [including the Police and the ACC] or any arm of government in the Republic? And if the National Assembly is expressly reminded of this purpose, could it not be inferred that the Constitution thus perceives the National Assembly to be in a better position, on the balance of power and in consonance with their check and balance role, to do so rather than the Police or a Commission which may exercise functions somehow under the control of the executive arm of government.
The provision refers to the "personal capacity" of the former president as needing this protection. Whilst this phrase is not uncommon in constitution provisions of this nature, it reminds us that there is another capacity, the public capacity of a president. So in the same persona we have both the personal and public capacities. Why would the law expressly protect the "personal capacity"? Should it be assumed that in the public capacity presidents may be acting on behalf of and in the name of that State and therefore any resulting benefits and liabilities of his actions and omission are equally accrued to the State as the presidency indeed has perpetual succession regardless of who may at anytime be the occupant? If the action or omission of a former president can be rightly attributed to his personal capacity qua personal capacity, would or should the law preclude him from being held liable? It is to be appreciated sometimes the thin line that may exist between personal capacity and public capacity of a president. It is my supposition from these forgoing arguments that while "interests of the State" is the stated purpose, the motives implied were to "prevent capricious use of the coercive power of the state" and particularly so "to protect the dignity and integrity of the office of the President" at all times given that a former President while in office would be obligated by law to conduct the affairs of the state and it is fair and proper to safeguard his conducts with further privileges. In doing so, framers of the constitution were equally mindful of the importance of requiring accountability and therefore not appearing to have provided blanket immunity.
What real protection is then intended under this immunity clause? The relevant provision of Article 43 (3) of the Zambian Constitution affords the former President protection from being
- charged with a criminal offence or
- amenable to the criminal jurisdiction of any court
Of course this protection as observed supra is limited to actions or omissions inhis personal capacity while he held office of President and is rightly excepted where parliament has by resolution, determined that such proceedings would not be contrary to the interests of the State. The constitution does not expressly states at what point parliament must make that determination if it finds it necessary to do so but I want to presume from the foregoing provision that it must precede being "charge with a criminal offense" or where the "criminal jurisdiction of any court" is to be invoked i.e. prosecution. First I think it would not be accurate to equate "charging" and "criminal jurisdiction of a court" with "criminal justice system" as used in the article. The criminal justice system includes these two (2) essential elements yet it is not limited to them. That being the case a prior criminal investigation does not come within the intendment of the intended constitutional immunity. This was the position of the Supreme Court in Chiluba v Attorney-General (Appeal Number 125 of 2002)  ZMSC 3 [one of the cases cited and which I separately deal with, infra].
Not all criminal investigations necessarily leads to being charged with a criminal offence and in fact a suspect whose conduct may have prompted an investigation may not be the only target of a criminal investigation. Therefore the mere stage of an investigation by the Police or the Commission if initiated suo moto cannot come within the meaning of the intended "criminal jurisdiction of any court" if it has not be prompted for that purpose. Let me add obiter dictum that as civil prosecution, which the former President is not so immuned, can proceed from a criminal investigation, an assistance can be requested in that regards if civil actions are contemplated within this investigations. Of course given the adversarial nature of common law justice system and particularly where a former President can stand to become the object of even a civil action one is not obliged and indeed is not even advised to just comply. Perhaps it should be stressed that the letter inviting President Banda [whose case has occasioned this debate] stated in it
"The Government Joint Investigations Team has been carrying out investigations into allegations of corruption and other criminal activities in which you have been named", 4
Therefore the intention of the investigation is manifested in the phrase "criminal activities in which you have been named" and as result the Former President must avail himself of his "constitutional immunities" if in fact they are available.
The value of "Chiluba v Attorney-General"
The case of President Frederick Chiluba, where the High Court observed that beginning criminal investigations and questioning of Frederick Chiluba did have implications on his immunity was stated to reinforce the argument. In deed in the letter5 from lawyers of President Banda they equally mention that "precedence has been made in Zambia on how to go about issues surrounding a former head of State". This would appear prima facie to strengthen your argument but in law precedence does not end a matter in dispute; it does however reasonably provide a point of reference, the bar of the real arguments. The Supreme Court decision in the case of Chiluba v Attorney-General reveals points deserving of commentary which I would briefly note for your attention. It is settled law by their Lordships ruling that former presidents cannot choose to avail themselves of natural justice requirements before parliament in respect of Article 43 (3) and Parliament is not obligated to adopt any particular procedure for this discretionary duty. What is intriguing is the opinion of the court on the "interests of the State".
Their learned Justices' conclusion that the National Assembly must look to the "interests of the State" is very right but their lordships' arrival at this conclusion does not come without defect. Their Lordships observed that
"The former President in terms of this article must be alleged to have committed some acts while in office which amount to criminal offences or would make him amenable to the criminal jurisdiction of the court and it is in the interest of the State that his immunity be lifted".
This would not be consistent with the true construction of the provision. Article 43 (3) states that their resolution should not be "contrary to the interests of the State". The Constitution assumes, with the benefit of doubt that the actions or omissions of the former President would be in the interests of the State and therefore forewarn that the removal of this veil must not carry with it a contrary intention. Thus the National Assembly's real test is that it must be satisfied that the removal of this veil does not negate the interests of the State rather than being satisfied that it is in the interests of the State. It is the former that accords with the notion of immunity and privilege. The Constitution does not leave to the National Assembly to determine what is in the interests of the State from time to time. The Constitution, an aspiration of the Sovereign Republic, manifests adequate expression of the "interests of the States" but requires that the very nature of dealing with the former president must be attended to with extra carefulness. It is understandable that their Lordship were not considering before them a substantive case of interpretation of Article 43(3) or even acting as a court of appeal on the merits of that provision. I would err then to describe this finding as per incuriam since before them was an appeal of an application for judicial review and the remedy of judicial review is concerned with reviewing the decision-making process itself other than the merits of the decision. The precedential value of Chiluba v Attorney-General thus lies in its authoritative pronouncements on procedural propriety of Article 43 (3) and not on its substantive issue of immunity. I believe invoking the interpretative jurisdiction of the Court through an application in this respect could settle once and for all the true intendments of Article 43(3) of the Constitution.
ACC and Power to Compel Witness
Again you seemed not to be convinced whether the Director- General (D-G) of the Anti-Corruption Commission (ACC) has power to summon. I accord with the proposition that it has or that it was in the least intended to have. Proponents of such position may be relying on Section 11 (c) of the Anti-Corruption Act, 2012 6where the D-G is expressly allowed to
"require any person to answer, to the best of that person's knowledge and belief, questions with respect to the whereabouts or existence of any documents or records that may be relevant to an investigation".
It is my averment from this provision of this anti-corruption statute that granted even that a former President is immuned in the forceful manner as you argued, he would be still required under the foregoing section of the statute to assist where he has knowledge of records and documents which is relevant to the investigation and which leads to prosecutions not of himself but other citizens who are not so immuned. Refusing such request would not only raise issues of such a conduct being at variance with the law but issues of whether such conducts promotes or obstructs justice. In the wider interpretation of the phrase "require any person to answer" it can be inferred that powers of summons were intended for the Commission. Given that a cardinal function of the Commission is to
"prevent and take necessary and effective measures for the prevention of corruption in public and private bodies" (Section 6(a) of the 2012 Act)
it would be inconsequential if such powers were not intended as other functions of the commission as enumerated in s.6 (c) cannot be effectively met if each time and for each person within the same investigation it would have to obtain such order from the court.
Let me conclude by making a brief comparative commentary on an analogous provision in the Constitution of the Republic of Ghana. Article 57(6) of the Ghanaian constitution provides that
"Civil or criminal proceedings may be instituted against a person within three years after his ceasing to be President, in respect of anything done or omitted to be done by him in his personal capacity before or during his term of office notwithstanding any period of limitation except where the proceedings had been legally barred before he assumed the office of President".7
The foregoing version of the Ghanaian constitution limits proceedings against a former president to the three years after leaving office, while as the Zambian Article 43 (3) does not restrict criminal prosecutions within stated duration, perhaps except where otherwise provided for under relevant statutes of limitation. This posits the Zambian Constitution in a more proactive position in curbing potential corruption of ex-presidents. On the converse given that the intended "immunity" is subject to parliamentary determination, unlike the Ghanaian version which prima facie affords sacrosanct immunity, the Zambian situation could easily suffer political abuse in polarised political system where parliamentary whip is pursued to satisfy executive ends. Again the Zambian situation affords a greater dignifying approach to calling for accountability on the part of a former president, at least in that Parliament must be convinced of the need to proceed against the ex-leader. This latter utility on the converse as well has implication on fair trial as a "parliamentary sanction" if achieved has the resemblance of public condemnation.
It is this apparent unfairness which Chiluba contended at the Supreme Court when he sought the Supreme Court to have the National Assembly to have regards to his Natural Justice rights. Be that as it may it is now settled law in Zambia that the National Assembly is not obliged to hear a former President when considering its Article 43 (3) duty. What really is the value of immunity which can easily be tempered with politics? It is my opinion that the framers of the Constitution intended to grant immunity to persons while they served as Presidents but only intended to privilege them when they become former Presidents.
This article is intended purely to be an academic critique of another article and it is not intended to substitute for any legal opinion that may be required on this subject. Relevant legal advice should be sought where appropriate.