RB’s immunity was removed in bad faith and motion was flawed – Gen Miyanda


An analyst and human rights activist has urged that in view of the purported lifting of the immunity of former President Rupiah Banda (RB) debate be stopped; I disagree. It is important to continue debate regarding the process in spite of RB’s new status because this is another assault by the executive on one of the pillars of our democracy: the legislature. Those proceedings were conducted in bad faith as they were predetermined and the Motion itself is flawed.

Bad faith arises because of the questionable process schemed by the Executive, including bringing this contentious constitutional issue on the last day of seating and holding a caucus to instruct the PF MPs and opposition Deputy Ministers how to vote; the issue is not partisan but constitutional and legal. Further, some MPs supporting the Motion introduced prejudicial and extraneous matters. Honourable Nkandu Luo gave ‘evidence’ that President Banda spent one million dollars in her Munali constituency. Honourable Panji Kaunda gave ‘evidence’ about his family without formally declaring interest; another MP claimed that for 20 years his constituency has not been developed and that all this time his people had been suffering. These submissions were prejudicial. These MPs are potential witnesses who should give evidence on oath and be cross examined at the trial. Are these the grounds for lifting RB’s immunity? Was he answerable for what happened 20 years ago? Interestingly why not mention 49 years ago?

The Motion is flawed because it is speculative and inconclusive. It is not for the accused former President to prove his innocence or provide the proof before he is arraigned and prosecuted. I contend that a motion under Art 43 is like an indictment or a criminal charge in the ordinary courts because the direct outcome of an affirmative resolution is the trial and punishment of the former President. Hence in such proceedings the National Assembly acts as a quasi-court. I contend that proceedings under Article 43 (3) are akin to a Preliminary Inquiry (PI) in a subordinate court, verifying and determining whether the allegations indicated meet the requirements set in the specific provision under which the Motion has been moved. I say so because the purpose of a PI in a criminal proceeding is not to try the accused but to establish whether there are sufficient grounds to warrant sending a case to the appropriate court to try the matter because the court conducting the PI has no jurisdiction to try the case but acts as a sieve for another court. The proceedings in a PI are inconclusive, just like the proceedings in the National Assembly, as they do not try the accused but refer him or her to the ordinary courts of the land.

Additionally the ingredients of the Motion were never debated by any of the supporters of the Motion, including the Minister who moved the Motion.

Last but not least the fast-tracking of the GJIT summons to President Banda is suspicious. The Motion was debated on Friday 15th March, 2013 and within hours they had issued their summons that was covered by the media. Who informed the GJIT of the resolution, when and how? Did the Speaker or his office communicate to the GJIT in the night for them to summon RB based on the proceedings that were concluded on Friday after 19.00 hours?  It is the practice of Parliament to edit the record of proceedings before passing them as a true record. This includes circulating the verbatim record to be corrected by MPs who debated. Has editing been done?

There is no need to summon President Banda to answer questions. The Minister informed the House that the State was ready to proceed to trial because the GJIT had finalized their investigations. Did he lie to the members? Besides, Article 43 is intended to prosecute a former President after removing his or her shield; that is why the Motion has to disclose in full what the acts are that bring the allegations within the ambit of that Article. To interview him may amount to badgering and harassing him. Is the State not ready and do they now want to go fishing for evidence? THE STATE MUST GO TO COURT WITH THE CASE THEY HAVE LAID BEFORE THE NATIONAL ASSEMBLY WHICH THE MPs ENDORSED AND RESOLVED IN THE AFFIRMATIVE, unless they are now not ready! The State should not be allowed to bring other charges that were not determined by the National Assembly. It is the duty of the accusers to prove their case before he can respond, that is if the court finds him with a case to answer. If there is no case to answer end of story; there are no short cuts in these proceedings.




[17th March 2013]

Share this post