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Wednesday, 27 February 2013

A Problem of Immunity, 2nd Edition

Justice Minister Wynter Kabimba says Government will now seek to lift the 4th President's immunity to facilitate prosecution :
"You cannot be prosecuted unless your immunity is lifted by Parliament; that is what the law says. You can even be charged, what you cannot do is prosecute. To be charged is not the same as to be prosecuted. The Constitution says you shall not be prosecuted; it does not say you shall not be charged for any civil or criminal wrong that you did during the time when you were head of state...The ACC was saying to Mr Banda, 'come here because according to our investigations, there are issues we would like to clarify with you...Now you cannot claim immunity against that...Now that he has been given an opportunity to go to the ACC for him to go and answer questions and without submitting to the ACC, he has pleaded immunity, we have no choice now but to take the matter to Parliament so that his immunity against prosecution can be lifted, so this is not an academic exercise."
(Source : The Post)

It should be clarified that though presidential immunity relates to solely to "legal proceedings", it is more or less equivalent to immunity from criminal investigations as well because some of the criminal evidence can only be obtained by search warrants or record warn and caution statements from the presidential suspect. This is certainly the way investigating agencies currently understand the provisions. So either the Justice Minister does not understand the law or he is playing political football with an assumed ignorant public.

The more important point is that it is now time to reform presidential immunity. As we concluded last year. The best way forward is to allow the President to enjoy criminal immunity during the presidency but ensure but this immunity expires automatically upon leaving office. This concedes the argument for him to get on with the job unimpeded and free from countless criminal lawsuits. But in doing so we should be clear that what would be happening is “suspending prosecutions” rather than introduction of criminal immunity. The public needs to understand that no one is above the law. It is vital that criminal prosecutions can be brought at immediately when he/she leaves for crimes committed against the State.

It is time to end this madness - the timing is right because the constitution is under review. The only puzzle is why no one appears willing to change the law!

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