By Chola Mukanga
Parliament has lifted the 4th President's immunity from prosecution. Mr Banda will now be investigated and fully prosecuted if the case is strong. Historians and lawyers will be quick to remind us, that if the Chiluba saga is anything to go by, the process takes long and Mr Banda is unlikely to face jail. In the end it is all a 'storm in the tea cup'. It is all academic and the greatest impact is on Mr Banda's personal pride.
Every moment of course presents an opportunity for us as a people to move in a positive direction. The question this saga raises is a simple one. What is the future of presidential immunity in Zambia? Is Zambia consigned to perpetual wrangles over former President's immunity? Or should now be the time to end the madness?.
The First Draft Constitution provides specific provisions on presidential immunity. Article 96 states that President, or a person performing the executive functions, subject to shall be immune from criminal or civil proceedings. It also says relating ex-presidents cannot have their immunity lifted without a two-thirds vote. These provisions of course are largely in line with the current Constitution with the only difference being a shift away from simple majority. The bottom line is that all sitting and ex- presidents are immune from civil and criminal proceedings.
Crucially, though the immunity relates 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. Hence the reason why the ACC and Justice Minister called for Banda's immunity to be removed.
The situation makes it difficult to ever impeach a sitting president, which in turn means the President is not only above the law but he towers above all criminal prevention and legal institutions. Indeed, de-facto he is above Parliament because it is nearly impossible for Parliament to impeach a sitting president. How else can impeachment allegations ever be investigated if removal of immunity is required for thorough investigations? One would need to lift immunity to investigate the president and then impeach him and then prosecution. But to lift the immunity you ideally need cast iron proof evidence to persuade MPs which is impossible without investigations. This is the de facto power. It is a paradoxical situation that has not been thought through by those who have sat on constitutional commission after commission. And as we have seen, it also leads to political arm twisting of MPs - who now vote largely on political lines.
Does all this matter? That boils down to whether it is beneficial to the country to have immunity at all. Does immunity simply breed corruption? To answer that we must necessarily turn to empirical evidence. A recent paper examines evidence from a range of countries on that very issue. It emphatically concludes: "Our empirical investigation demonstrates that immunity provisions are strongly associated with poorer governance; stronger immunity is associated with greater corruption, bribery, and the diversion of public funds after controlling for a number of economic, political, historical, and demographic determinants and correlates of corruption"
That evidence seems to suggest that we should be looking to eliminate it. The usual argument in favour of criminal immunity is that the president may undertake illegal activities to protect the Republic whilst in office and he should be protected from that. That argument lacks merit because it is not obvious why someone should need immunity if they are acting within their legal powers. It is surely up to the to Courts to decide if indeed a specific president’s action were in the national interest because the president can only act within his/her constitutional powers. To the best of my knowledge our laws has no discretion for illegal activities by anyone. We are all equal before the law.
The only credible alternative explanation for criminal immunity therefore is that it protects individuals against politically motivated charges. But surely the answer to that is to ensure you have a sufficiently independent and robust judiciary. Indeed it might be argued that removing immunity not only reduces corruption, it may also incentivise the Executive to have a robust judicial system. When their immunity is secure the president has little incentive to encourage judicial independence.
Across the world, immunity regimes in democratic countries vary between two extremes. On one side of the spectrum stand countries without criminal immunity protection, exemplified by the United Kingdom. At the other extreme lie countries with strong criminal immunity regimes, exemplified by Paraguay. Zambia is closer to Paraguay in terms of presidential immunity though it retains significant latitude on members of parliament and ministers. The challenge now is to move closer to the United Kingdom. Sadly, this does not appear to be something that the current generation of politicians would be willing to support. Perhaps the Banda saga will be a blessing in disguise that will change their minds!
One potential compromise they may accept is to allow the President 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.
The situation in terms of civil lawsuits is more straightforward. The president should never be immune from civil actions against him/her in his/her personal capacity or be disallowed from commencing civil actions in such capacity, at any point. It seems to me that it would be unfair to provide for suspension of such legal actions during his/her time in office. Zambians have right asked, why should people who are owed money by a president wait 10 years or why should a president be allowed to develop a property in dispute leaving no realistic recourse once he has left office? The current constitutional provisions (maintained in the Draft Constitution) are unfair in that the president can sue others while in office but proceedings against him/her cannot be commenced or continued during this time. It therefore important that immunity is removed for civil lawsuits completely.
Question : Has the presidential immunity clause in our laws outlived its usefulness? Is it doing more harm than good?