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Thursday, 6 January 2011

Constitution of Zambia (Amendment) Bill 2010 : Part IV

Protection of President from Legal Proceedings

Article 46  provides specific provisions on presidential immunity. Provisins (1) - (2) below are specific to the sitting president :
(1) Civil proceedings shall not be instituted or continued against a person holding the office of President or performing the functions of that office in respect of which relief is claimed against that person in respect of anything done or omitted to be done in that person’s private capacity.
(2) 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 that person’s tenure of office or, as the case may be, during that person’s performance of the functions of that office.
Parts (3) - (12) provides further detail relating to ex-presidents. There are of course some who believe that presidents should never have immunity, but once one reconciles themselves to the idea, the provisions seem perfectly sensible. These provisions of course are largely in line with the current Constitution with minor alterations. 

But, and this is a big but, there's a significant omission under Article 46. Although this article makes it clear that the immunity relates solely to "legal proceedings", some have misinterpreted these existing provisions as immunity from investigations. It is an inexcusable posture, but one that is unfortunately not rare. Consider this recent media report regarding the Drug Enforcement Commission :
Drug Enforcement Commission (DEC) spokesperson John Nyawali has said the commission cannot question or investigate the sources of campaign finances which President Rupiah Banda has been donating to various NGOs and individual citizens. Mr. Nyawali said the commission was limited in its mandate because the sitting president enjoyed absolute immunity to such investigations. He was reacting to numerous calls from the civil society organisations who were calling on the commission to extend their investigations of money laundering to the ruling party.
This is clearly nonsensical! The current constitution does not prevent investigation of the President. It prevents bringing forward prosecutions without prior lifting of immunity. The law enforcement agencies have every right to bring forward investigation. In fact their freedom to do that is cardinal to reining in the presidency. How else can impeachment allegations ever be done? Impeachment should never be lifted to "investigate" someone. It should be lifted to bring forward prosecutions. That means that before impeachment is done a cast iron proof case must be made. 

I have been surprised  that no one has made this clear to the DEC that their position is not supported by the law.  So to make things clear, I propose that an additional clause is added in the constitution that makes it explicit for some that "immunity from prosecution" does not mean "immunity for investigation". 

The Zambian Economist is currently reviewing the Constitution of Zambia (Amendment) Bill 2010 before it formally responds to the Legislature. All posts in this ongoing review can be found at the Constitution of Zambia page

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