By A Correspondent
Ever since Rupiah Banda left office as Zambia’s fourth president on September 23, 2011 there have been sharp calls from some people to have his immunity removed so he may be prosecuted for the perceived wrongs he may have done while in office. In a smear campaign spearheaded by the Post Newspaper Rupiah has been accused of all sorts of things, simply that he stole billions from Zambia’s coffers. He has been labeled corrupt, a very serious allegation against Zambia’s forth Republican President.
If Rupiah’s immunity is removed, a move that has to be ratified by parliament, he will become the second former head of state in Zambia to suffer such a fate. We all know that Frederick Chiluba’s immunity was removed after his hand picked successor Levy Mwanawasa went to parliament in 2002 to lay bare serious allegations of wrong doing on the part of Chiluba and to seek the ratification of legislators to remove Chiluba’s immunity. This was subsequently done and Zambia’s second president was arraigned before the courts of law on various charges bordering on corruption. It is also a very well known fact about which people and organisations were behind Mwanawasa’s move because he surely did not stride on his own as he merely succumbed to pressure against all advice from security and legal advisors. Chiluba was eventually cleared, acquitted as it were, and he passed on to be with the Creator a free man.
Removing a former president’s immunity is practically undressing him or her. So if this is encouraged then it may as well be that even the immunity of the serving president must be removed so that perhaps we do not have to wait until he leaves office to arraign him before the courts. Simply put if Rupiah’s immunity is removed then so should President Michael Sata’s as right now there are far too many allegations of wrong doing, especially bordering on corruption and abuse of office, pointing to him as the head of state.
We may as a matter of fact just completely do away with the particular clause in the constitution that provides for this immunity so that even president Sata may face the music right away. May be that is why he is doing all the things he is doing with impunity simply because he knows he has immunity. Instructing the Anti-Corruption Commission, ACC, for instance, to first report to him before they commence any investigation on anyone of member of his cabinet and government is just one simple example of wrong doing, as it appears the head of state may be sweeping something under the carpet, in which case his hands are soiled too.
Yes, surely somewhere in the Zambian constitution it says, “No civil proceedings shall 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 which relief is claimed against him in respect of anything done or omitted to be done in his private capacity.”
It is also said in our constitution that, “A person holding the office of President or performing the functions of that office shall not be charged with any criminal offence 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.”
Further, it is stated 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.”
The constitution goes on to add that, “Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the term of any person in the office of President shall not be taken into account in calculating any period of time prescribed by that law which determines whether any such proceedings as are mentioned in clause (1) and (3) may be brought against that person.”
Zambia right now has two living former heads of state, Rupiah Banda and Kenneth Kaunda and of course one serving head of state, Michael Sata. All the three fall under the section in the constitution called Protection of President in respect of legal proceedings. This particular clause of the constitution basically gives each one of these three individuals immunity from prosecution. For Banda and Kaunda it simply means they may not be prosecuted for any criminal offence for what they may have done while in office. For the serving president in this particular case he may not be arraigned for any criminal wrong he may be committing while in office.
So in removing Rupiah’s immunity may this also extend to Kaunda, may it also extend to the incumbent, president Sata. May this whole clause be done away with right now as the so called new constitution is being revised. Let us have it removed from the constitution. It really would be nice to try having a president with no immunity while in office so that we see how ruling a country without such a provision would be like. It would be a positive change don’t you think? No immunity for the incumbent president, no immunity for former presidents!