The Constitutional Court, useless as it is, has ruled and clarified that the immunity of the president contained in the amended constitution is not absolute and that presidents who commit crimes can be prosecuted after leaving office just like in the past.
This is part of the judgment in the case where Brigadier General Miyanda asked the Constitutional Court to clarify a number of issues in the amended constitution.
In one of the issues. Miyanda had argued that it is not right for the constitution to protect a sitting president from being arrested immediately he or she committed a crime.
But the court stated that the constitution in article 98(4) protects the president or acting president from being prosecuted anyhow as this would not augur well for the proper governance of the country if the president will always be afraid of being arrested for any actions or decisions he makes but deemed criminal. The court said this would disrupt the governance of the country.
The court however said that as shown in Article 98(5), immunity of the president is not absolute and can be removed by parliament, because, the constitution does not protect persons who have held the office of president from wanton (deliberate) crimes committed during their tenure.
The constitutional court explained that ‘this immunity applies only to the proper and honest execution of the functions of the president and not to deliberate acts or omissions that, by definition, amount to felonious activity.’ The court said that in appropriate circumstances, article 98(5) can be unlocked, that is to say, the immunity of the former president can be removed.
In practical terms, this ruling means that right now, dictator Edgar Lungu can not be arrested for all the crimes he has committed because he is still in state house. But once he leaves state house, his immunity will be removed by parliament and he will be arrested and jailed.
One of the crimes Lungu has committed is the treason of refusing to hand over power when his ‘election’ was petitioned in the Constitutional Court. That was a clear treasonable offence and Lungu will never escape that unless he dies in office. But the constitutional court did not rule on that particular crime because it was not part of Miyanda’s points.
Instead, Miyanda had argued generally that it is not right for the speaker to act as president when the president elect or vice president were unable to take up office for some reason. Miyanda had argued that in line with the idea of ‘separation of powers’, a member of the legislature should not interfere in the powers of the executive. That executive powers should remain in the hands of the executive, a minister for example.
The full judgement is 2016-CC-0006-Goedfrey-Miyanda-vs-The-Attorney-General-Mar-2017-Justice-E.-Mulembe
But the Constitutional Court said there is nothing wrong with the speaker to act as president for a few days pending elections because there must be someone to hold the country together if the president or vice-president elect is not able to take up the office.
The Constitutional Court here actually failed to answer Miyanda’s concern. Miyanda’s argument was simply that the speaker is the head of the legislature, so by making him the acting president, you have put the legislature and executive powers in the hands of one person. This is clearly against the doctrine of separation of powers. The court’s answer that there must be someone to hold the country together is actually stupid. Who said only the speaker can hold the country together? Why not the secretary to cabinet who is already a member of the executive?
But then, we heard that the judges of the constitutional court are not academically qualified but they have to come up with a judgement anyway. Here is the consequence of appointing unqualified judges.