Monthly Archives: March 2013

Bombasa Dribblers: Why Rupiah Banda is Winning Against Sata Where Frederick Chiluba Lost to Mwanawasa

Chiluba and Banda

By E. Munshya wa Munshya

Frederick Jacob Titus Chiluba was never part of the political elite that developed in Zambia after independence in 1964. He was an outsider. In fact, this is the only reason that made him more attractive to his MMD colleagues in 1990 to challenge Kaunda in the first multiparty elections since independence. As such, Chiluba was not as politically sophisticated and his roots in power were very shallow. Apart from his trade union days – Chiluba was never at the axis of power during the Kaunda regime. He was never a part of the ruling aristocracy. As such, when his immunity was lifted after leaving office in 2002, he was an easy target. President Mwanawasa managed to put Chiluba in a corner and his lack of support depth demonstrated itself in the lack of real public and abiding backing for a man who had just ruled Zambia for ten years. On the other hand, Rupiah Banda had for many years been part of Kaunda’s ruling aristocracy. The years he had spent in Kaunda’s government both within the country and outside the country have proved that Banda could be a more formidable opponent against President Sata even as his immunity has been lifted. In the public relations battle after the stripping of his immunity, Rupiah Banda appears to be winning battles that Chiluba completely lost at the time that he (Chiluba) faced similar accusations.

Rupiah Banda had been a diplomat under Kaunda for many years. He had in fact, as Zambia’s Minister of Foreign Affairs, served at one time as President for Namibia under a special United Nations mandate. As such, when he assumed the office of presidency in 2008, he could very easily tap into the power structures all across the SADC region and beyond. Since, power in much of SADC region is still held by the same clique of people that had held it since the 1960s, it was easy for Rupiah Banda to rekindle old political flames and sustain for himself a political base both within and outside Zambia. This political base included power brokers in Namibia’s SWAPO, in South Africa’s ANC, in Zimbabwe’s ZANU-PF and in other ruling political parties across SADC. As such, faced with accusations of theft and corruption by President Sata, Rupiah is able to very easily garner some sympathy from his friends in the region. This is the feat that President Chiluba facing the same problems could not just achieve. There is also an important observation to be made here. Whereas both President Banda and President Sata were Kaunda’s political children, between the two, Rupiah Banda had more diplomatic connections than President Sata. As such, while Sata is rarely known within the African independence political aristocracy, the same cannot be said of Rupiah Banda. As such, in the battle for public relations after the stripping of his immunity, Rupiah Banda is appearing as a victim and is able to freely tap into his old friends.

It is said that Chiluba had about nine children. Rupiah Banda also has about the same number of children. It is quite interesting to note that Michael Sata does have a similar number of children too. Some put President Sata’s children beyond ten with different women. When Chiluba was assuming the presidency in 1990, none of his children were close to the political power base too. In spite of having children in the same age brackets as his other colleagues, Chiluba’s children were for the most part away from the political limelight and additionally; they lacked any real political, business or diplomatic clout. As such, in terms of family, Chiluba could not tap into the energy of his children for any political significance. This is one reason why to-date, none of Chiluba’s children have ever experimented with real interest in political affairs. Not only that, of Chiluba’s older children, none of them are as educated as children of either Sata or Banda. At the turn of the 1990 anti-Kaunda revolution, Rupiah Banda’s children were actively involved in MMD politics. In fact, one of Banda’s children Andrew was the MMD’s candidate for Chipata Central Constituency. The young Banda lost terribly in those 1991 elections in Chipata.

When Chiluba was fighting his immunity battles and answering criminal charges, he had no visible support from any of his children. As stated above, they had no political or business clout. Chiluba was left to fight battles alone. With Banda, however, there is a huge difference. Banda’s children could be seen as liability, but they could also be seen as assets too during this bombasa prosecution. This is because, having children appear in public for him and support him, humanizes him and creates some doubts in some Zambians that the old man is just being persecuted by President Sata for no real reason. In fact, Banda’s son Henry is exiled in South Africa tapping into his father’s old friends. And as the Zambian police continue to whine about young Henry’s criminal allegations, President Zuma and his ANC stalwarts are happy to provide Henry the protection he needs. Henry is, somewhat, helping feed into the perception that President Sata is just treating President Rupiah Banda unfairly.

Henry Banda, Andrew Banda and several of Rupiah Banda’s children realized the international significance of his father’s impending prosecution. As such, they moved quickly to find an international lawyer to represent them and to represent their father.

Robert Amsterdam provides no real legal help to the Rupiah Banda criminal charges. What he brings to the table, however, is a powerful public relations stunt disguised as law. Amsterdam has represented several politicians around the world. But his real role is that of managing his client’s interests not in the courts of law, but in the courts of international public opinions. For example, it is clear from the way he has commented on immunity removal and parliamentary privilege that Amsterdam does not quite understand the operation of Zambian laws. But that is a secondary matter to him. He is a powerful force in helping Rupiah Banda and team to win a public relations battle -especially outside Zambia. Very early, after Rupiah lost the elections, Amsterdam started defending the legacy of his client. Before the face of the UN and other international agencies, Amsterdam was quick to ensure that his client received favorable coverage as a victim of President Sata’s corrupt intentions to fix his predecessor. And for that reason, Amsterdam has succeeded.

When Chiluba was fighting Mwanawasa there was no Amsterdam to defend him. Chiluba’s public relations battle was not fought very well. He was left alone to face the Mwanawasa machinery. This time around that we have identical issues playing around, Rupiah Banda is more prepared than Chiluba ever was.

Chiluba was acquitted shortly after Rupiah Banda assumed the presidency. Mwanawasa had died and the prosecution, which started in 2002, only concluded some six years latter. Zambians had grown tired of this prosecution. Chiluba came to be taken as a victim rather than as a criminal during this long trial. Indeed, when the acquittal came in 2009, it did not come as a surprise. In the minds of many Zambians, the immunity removal and subsequent prosecution of Chiluba had taken too long to be any significant in the fight against corruption. As such, Rupiah Banda is winning the public relations battle against President Sata partly because of how Zambians remember the last time an ex-president was prosecuted by the State.

Among charges Mwanawasa had leveled against Chiluba was that Chiluba had stolen millions of dollars and stashed the cash in assets and bonds overseas. However, six years latter Chiluba had been acquitted of the $400,000 theft charge he had ever been prosecuted for. Additionally, the London civil case that the State had won in London returned to Lusaka without any significant seizure of the so called assets and bonds that Chiluba had stashed overseas. What happened, to all those allegations? Well as it turned out, the allegations that Chiluba had assets hidden in London came out to be false. With the London judgment President Mwanawasa could not even obtain one asset that belonged to Chiluba. The only solace the State found was to domesticate the London judgment so that they could go for Chiluba’s house in Kabulonga. As it turned out, all those assets Zambians were told Chiluba stole could not be found. The few tractors and boats that the State confiscated to date have not been accounted for and the Task Force on Corruption has not explained where they took the money they had collected from a few assets they had seized.

The finding of the Chiluba cases left a bitter taste in many Zambians. They had been duped. This being the case, most Zambians do not seem to be eager to follow through another court case that might end up like Chiluba’s. It is this Chiluba outcome that is gifting Rupiah Banda with a public relations bonanza. If Mwanawasa’s accusations proved to be false, what makes an ordinary Zambian believe that Sata could be right about President Banda this time around? And of course the time and money spent on Chiluba’s prosecution amounted to $10 million dollars most of which was funded by the donors to go to legal fees in both London and Lusaka. In Lusaka, Mutembo Nchito and Company lawyers were the main beneficiaries of this money.

The donors had also believed that Chiluba had stolen. This is why they invested their millions in Mwanawasa to help him find the culprits and punish them. Except that it had taken very long, and the case against Chiluba had turned into a debacle only to have significance latter this year with the removal of Rupiah Banda’s immunity.

After the death of Mwanawasa, European countries and donors did not like the Rupiah Banda presidency. They had some belief that Rupiah was corrupt. In view of this, they found a willing candidate they could support – opposition leader Michael Sata. Europeans, especially liked Sata’s anti-Chinese stance. In a battle for resource supremacy, surely, the West was going to benefit from an anti-China future President Sata. Except that, the West really did not know what they had bargained for.

After Sata had won the 2011 elections, the first act of his presidency was to decree the change of names of the Zambian international airports. If anyone thought that Sata was going to be a president for the future of Zambia, it left no doubt that Sata was not going to be a president for the future but for the past. Western capitals got more shocks when instead of deriding the Chinese; a newly installed President Sata did a U-turn and feted the Chinese instead. More policy confusions were to follow. In appointing cabinet, President Sata abrogated constitutional requirements and nominated 2 more MPs than the constitution allowed. Even if this was a small mistake – what it represented was worrisome. A president with a tax paid contingency of staff and advice cannot make such a basic mistake. It is either he did not ask for help from his advisors or he asked for it and ignored them. Regardless of how you look at it, a dictator had been birthed in Zambia, and the Western capitals would regret the support they gave him.

Within months of a Sata presidency, civil liberties had deteriorated in Zambia. Opposition leaders were arrested and faced intimidation from the police. These singular acts of presidential terrorism would make ex-president Rupiah Banda appear like a saint. Already, Western civil society organizations looking for an African hero, started to court Rupiah Banda. Boston University called him into residency and Jimmy Carter asked him to observe elections in many parts of Africa. In the meantime, Michael Sata’s thirst for confusion continued unabated. While all this is going on – Banda’s esteem in the eyes of the West was growing while Sata’s was diminishing. The same trends were happening in Zambia among the ordinary population. Suddenly, Banda started to appear like a saint.

Chiluba never had anything like the fortunes Banda has. Mwanawasa received lots of support from the West during the prosecution of Chiluba. Additionally, students, churches, as well as general population went to parliament hill to support a parliamentary motion to strip Chiluba of his immunity in 2002. In 2013, when parliament was debating to remove Rupiah Banda’s immunity, not even a single crowd had gathered to offer support. Michael Sata had lost a public relations battle that Mwanawasa handled very well when dealing with prosecution of his predecessor.

On 15 March 2013, Wynter Kabimba stands up in parliament and moves a motion to strip Rupiah Banda of immunity. Among charges Kabimba reads are Rupiah’s acquisition of lollipops and branded underwear. The charges appear similar to what Mwanawasa had alleged Chiluba had done. But there is a difference. President Mwanawasa was regarded as quite sincere in his desire to prosecute Chiluba. With this perceived sincerity came some public sympathy. But with Kabimba moving a motion to strip Banda of his immunity, the public is not as sympathetic. Hon Kabimba himself is facing accusations of corruption. He is alleged to have solicited a bribe from an oil company within days of the Michael Sata presidency. If a maxim of equity states that “he who comes to equity should come with clean hands”, the public does not perceive Kabimba to come to equity with those clean hands. Kabimba has dirty hands and his involved in the immunity saga just goes to work to Banda’s advantage in the public opinion. Banda is winning where Chiluba had lost because of shady characters such as Wynter Kabimba.

If Mwanawasa fought Chiluba due to corruption, it is clear that Sata is fighting Banda not because of corruption but because of politics and personal unbridled hatred. Indeed, now that Zambia is having the second crack at the bombasa prosecution, it is clear from the outset, that times and circumstances have greatly changed. Chiluba, the accused lost much of the public relations battle when dealing with Mwanawasa, but this time around it seems it is Banda, the accused who is winning the public relations battle. What remains, however, is to see how this will actually translate before a court of law.

“Not guilty” is what Rupiah Banda has pleaded before Magistrate Joshua Banda. The public does seem to agree with him.

Chiluba and Banda2

Bombasa Fyapena: Why We Must Not Blame the Law When Our Politics Go Berserk

By Munshya wa Munshya

Over the issue of the lifting of Rupiah’s immunity, we are conflating too many issues and I am afraid it is becoming confusing for me. I have not said that what parliament did was FAIR. I have not even supported the action of parliament. I have not said what they said was good for the country. I have not said Kabimba and Sata are sincere about what they have done.

In my earlier article  on parliament’s lifting of Dr. Rupiah Banda’s immunity, I was merely evaluating the legal and constitutional perspective of whether the Speaker was right at law to go on with the motion. I drew the conclusion that the Speaker was right taking into account Article 43(3) and the case of Chiluba v Attorney General (2003). I do understand that parliament rushed through what they did, but that is not a problem of law, but of politics. We have to agree on something before we suggest some changes we want to see in Zambia.

The removal of immunity is happening within a political and legal framework. If the argument is about politics, I would be the first to admit that the action was politically controversial, but this controversy should not be attributed to law or constitution. That was the point I was trying to put across. MPs are confusing matters and conflating too many matters. If they want to argue that the Speaker was wrong they better get what exactly the Speaker did wrong. If it is a legal wrong then they are sadly mistaken I am afraid.

I am for justice. I am for fairness. For example, I have written to defend people like Kay Figo when the law could not defend her. I have written for women’s rights  and I have urged the male dominated Zambian politico to respect women like Dora Siliya. I am for Zambia. But please do not make into an enemy. I am on your side with regard to where we are politically as a nation. My legal opinion that the Speaker was right must not be taken to mean that I then support what he did. Obviously, I do not. But I am very concerned though with some positions that my colleagues have taken. It disturbs me for some of our people to treat immunity like a fundamental human right. Banda or Sata do not obviously have a fundamental human right to immunity. Immunity is a creature of our laws and our constitution. Immunity is not our master, we are its master. Immunity should not divide us.

In any case, the people of Zambia voted in the last election for a parliament that was going to bring checks and balances on the executive. Parliament is a creature of our laws and constitution. Each MP is part of the legislative arm of government. But when they got to parliament, our MPs sold out to the executive. They decided to join the other side and betray us by voting on motions that some of us never supported, those motions I am afraid could include the motion to remove RB’s immunity. Had these MPs not sold out, RB would still have his immunity intact. This issue is a political issue, why is it that we always like to fault the law when our politics go bonkers? Why aren’t we outraged at these MPs the same way you are outraged at me for just pointing out that what Matibini did was within his constitutional mandate?

Unfortunately, regardless of how we feel about the fallen politics, when RB goes to court, he will have to deal with legal questions and not political questions. Dr. Rupiah Banda cannot use political arguments to deal with legal matters. Politicians had a role to play in parliament and obviously they never helped him, instead they sold out to Sata by a loaf of bread. That is the kind of debate we need to be having. We are a nation and should be a nation of laws. But if politics betray us, please let us not for a moment heap the blame of the laws. I want to make it clear – I do not support the PF government. I am its critic. But what happened in parliament was a matter that dealt with politics as well as laws, and my position was simply one sided – the question of law.

The hypocrisy of politicians is becoming nauseating to me. Where were they when Article 43(3) was being drafted? Where were they when Chiluba v AG (2003) was being passed? Where were they when the 1996 Constitution was being passed? Did not Hichilema say Banda was corrupt in the run up to the 2011 elections? What has changed now?

I am aware of the misdeeds of Sata and his minions and I have highlighted in my small way on my blog www.eliasmunshya.org the misdeeds of this government. I have said it that President Sata has appointed the most nepotic and tribalistic cabinet in the history of our country. I have mentioned that President Sata has no proper plan for Zambia. I have struggled with issues of his political legitimacy. However, Zambia is bigger and greater and we should allow ourselves to look at issues from different perspectives. I had to answer like this because there are many other of my fellow compatriots thinking I am taking too much of a legal side.

For now Rupiah Banda is in court. But legally, I do not think he will be successful. Saying so, however, does not and should not in any way mean that I am siding with injustice. I am merely siding with a reality that President Banda’s immunity has been legally removed from him and he must now begin preparing his defence if at all he will be prosecuted. We are on the same side – let us never forget that.

Sound At Law: Why Speaker Matibini Was Right to Ignore the Bombasa Injunction

RB

By E. Munshya wa Munshya

On Friday, 15 March 2013, the Zambian parliament debated a motion that sought to remove the presidential immunity enjoyed by former president of Zambia, Dr. Rupiah Banda. The motion passed by 80 votes, with most of the opposition members of parliament staying away from the proceedings.

A day earlier, on Thursday, lawyers of the former president had successfully obtained an injunction from the High Court which sought to stop parliament from proceeding with the motion of removing Rupiah Banda’s immunity until the case had been disposed of in the courts of law. When the matter came up in parliament, Speaker Matibini ruled that he could not follow the injunction because it was irregularly issued. Among reasons given by Speaker Matibini is that “parliament enjoys protection of its internal processes, and these processes cannot be subjected to judicial interference.” I will argue in this article that Speaker Matibini’s position is sound at law.

Separation of powers is the cornerstone of the Zambian democracy. In its simplest form, government power is divided between three branches of government namely, the executive, the legislature and the judiciary. All the three arms of government derive their power from the constitution. Article 1(4) states that “this Constitution shall bind all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels.” As such, the three arms are not only creatures of the constitution but they are also supposed to all be bound by it. In its basic form, the principle of the separation of powers states that the executive implements executive power and laws, the legislature makes laws and the judiciary arbitrates and interprets the law. Specifically, Article 78(1) states the following about the powers of parliament:

78 (1) Subject to the provisions of this Constitution, the legislative power of Parliament shall be exercised by Bills passed by the National Assembly and assented to by the President.

For the legislature to make laws freely, it should enjoy certain privileges and immunities derived from both the constitution and the common law (Such as Article 87 of the Zambian Constitution). Among these immunities and privileges are that the members of parliament should be able to debate freely without fear of repercussions from outside parliament. It is this fundamental doctrine that grants immunity to debates carried out by members of parliament while in the House. Additionally, parliament in its law making functions, works like a legal entity on its own, with internal disciplinary procedures. For example, no police can access National Assembly grounds without consent from the Speaker. In fact, even if there is a crime committed on parliament grounds, police investigators can only access parliament on invitation from the Speaker.

Another important aspect of parliamentary power is that it has its own internal procedures that cannot be interfered with by a court of law (Article 86 of the Zambian Constitution). For example, parliament has its own rules with regard to how it disciplines its members and how it deals with the law making process. In fact, unless a procedure is enshrined in the republican constitution, parliament can mend and amend its rules as it wishes.

This therefore, comes to the issue of what happened with regard to the injunction against parliament. Parliament was going to debate a motion on removing the immunity of the former president. This motion having been an internal matter of the legislative body could not be subjected to an injunction by the High Court.

Indeed the High Court does have jurisdiction to hear all legal matters and disputes in Zambia. But that power cannot possibly extend to internal procedures of parliament. Article 86 (1) of the Constitution states thus:

86(1) Subject to the provisions of this Constitution, the National Assembly may determine its own procedure.

However, I must here mention some limited circumstances in which the courts might interfere with parliament’s exercise of its powers.

First, the courts might interfere if parliament is exercising power that has not been conferred upon it by the constitution. Since Zambia is a constitutional democracy where the constitution is supreme over all other branches of government, if parliament exercised power that is beyond its mandate that power might be ruled unconstitutional by a court of law. This was the issue in the case of Bright Mwape & Fred Mmembe v The Speaker. In this case, the duo were charged and sentenced by parliament to imprisonment for a case known as “contempt of parliament.” The courts of law ruled that parliament does not have such powers under the constitution to try criminal matters and impose a custodial sentence upon offenders. Clearly, debating to remove the immunity of a former president is not a criminal matter and it does not involve parliament imposing any custodial sentence on an offender.

Second, the courts of law can interfere if parliament does not follow procedure set out in the constitution. This principle here is similar to the one mentioned above. If the law or the constitution specifically mentions that two-thirds of parliamentarians must vote on an issue and parliament ignores this constitutional requirement, the courts might intervene. For example, Article 37(2) prescribes how a motion to impeach a seating president should be passed. According to the constitution the vote to impeach the seating president should be “supported by the votes of not less than two thirds of all the members of the National Assembly.” With this clarity, any move by parliament contrary to this provision is subject to judicial review and reversal. Parliament would have abrogated the constitution if such a motion were passed without the constitutionally prescribed quorum. But where the constitution does not prescribe any specific procedure – it then remains for parliament to take its own procedures over such matters. In that regard then, the courts of law would not intervene or interfere.

Third, the courts of law can interfere if parliament enacts a law that is contrary to the constitution. Zambia practices a constitutional supremacy system. If parliament went against the constitution to enact a law that is contrary to the constitution the courts would be at liberty to strike it down. Unfortunately, the principle of parliamentary sovereignty has its limitations under the Zambian constitutional regime. This principle however, deserves some elaboration. Parliament can still pass a law that is unfair or ill timed, if this law is done within the constitution, the courts cannot interfere with parliament.

Some are suggesting that the speaker should have deferred to the High Court since the High Court had issued the injunction. They are suggesting that parliament should have respected the High Court. This is probably a misunderstanding of our constitution, parliamentary business does not need to wait for the judiciary to dispose of its cases. If that were the case, then the principle of the separation of powers itself would be in peril. At the heart of the doctrine of separation of powers is the understanding that no one arm of government should interfere with the constitutional exercise of the others’ powers. As was stated by the Supreme Court of Canada in Canada (House of Commons) v. Vaid (2005), “it is a wise principle that the courts and Parliament strive to respect each other’s role in the conduct of public affairs”.

Some of our fellow citizens are also suggesting that Speaker Matibini displayed double standards by deferring to the courts of law in some matters while refusing to do so when it came to Rupiah Banda’s injunction against the motion. The double standards come from the fact that when some MPs are expelled by their respective parties and appeal to the courts of law, the Speaker always waits until their cases are disposed of by the courts of law. This accusation of Mr. Speaker is unfounded. These are completely different matters. In the case of MPs losing their seats – these matters concern MPs membership to a party that brought them to parliament and is therefore a matter that is outside parliament. Since, it is a matter outside parliament it is important that parliament intervenes only after such matters have been disposed of from outside parliament. However, tabling a motion to strip Rupiah Banda of immunity is an internal parliamentary matter and the Speaker does not need to subject himself to the courts of law even before the matter is tabled for consideration.

However, after the legislature has made its ruling and passed its motion, Dr. Rupiah Banda and his legal team still have recourse to the courts of law to challenge a decision of parliament. That challenge, however, should be based upon constitutional objections. Looking at the precedence from the Frederick Chiluba v Attorney General (2003) case, the Supreme Court is likely to pay no attention to internal procedures taken by parliament in removing Dr. Rupiah Banda’s immunity. It suffices for the courts that parliament exercised its power rightfully accorded it by Article 43 (3). According to this article removal of immunity of a former president in Zambia requires a “resolution of parliament.” When addressing this question in the Chiluba (2003) case Chief Justice Ernest Sakala for the court stated:

It was never the intention of the framers of the Constitution that when the issue of removal of immunity of a former President arises, the former President would have the right to be heard.

Here is what Article 43 (3) states:

(3) A person who has held, but no longer holds, the office of President shall not be charged with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him in his personal capacity while he held office of President, unless the National Assembly has, by resolution, determined that such proceedings would not be contrary to the interests of the State.

Since, this particular act of “determining” whether criminal proceedings against Rupiah Banda would not be contrary to the interests of the State, can be done by a parliamentary resolution, it remains for parliament to determine what a resolution would comprise. Precedence and parliamentary practice suggests that a parliamentary resolution could be done by simple majority of a parliamentary quorum.

Further, specific articles are relevant to the question of how parliament makes its resolutions. According to Article 84 (1), all questions at any sitting of the National Assembly are determined by “a majority of votes of the members present”. For there to be a valid quorum only a third of parliamentarians need to be present. This is what Article 84 (4)

84(4) The quorum for a meeting of the National Assembly shall be one third of the total number of members of the National Assembly and if at any time during a meeting of the National Assembly objection is taken by any member present that there is no quorum, it shall be the duty of the Speaker or person acting as such, either to adjourn the National Assembly or, as he may think fit, to suspend the meeting until there is a quorum.

As such for a parliament of 158 members it would take only about 52 members to make a quorum and out of these 52 a simple majority of 27 MPs could pass a parliamentary resolution. Whether this is indeed desirable or politically sound is beyond the scope of this present article.

Notwithstanding the provisions of Article 84 it is important to note that the simple majority rule does not apply in specific cases such as the impeachment of a seating president. For those questions, it requires two-thirds of MPs, as I have alluded to above.

It is my opinion that the decision to strip Rupiah Banda is politically flawed. However, I would not for a moment blame the law nor the constitution for it. It was a politically toxic decision for the Michael Sata government to make. But as far as the law and the constitution are concerned, Speaker Matibini was right. We can now watch closely the next legal circus to unfold. Dr. Rupiah Banda’s Bombasa has been stripped; it is now time to see the naked emperor.

In immunity we do not trust.

This article and opinions expressed are not meant to convey legal advice. Those needing specific legal advice on this issue and related matters should consult members of the Zambian bar. (c) Munshya wa Munshya 2013

The Zambian parliament has today, 15 March 2013, passed a motion to strip former president Rupiah Banda of his immunity. This is what I wrote in January about presidential immunity.

Elias Munshya, LLM, MBA, MDIV

 By E Munshya wa Munshya

Former republican president Rupiah Banda has been summonsed by the Anti-Corruption Commission to appear before it for questioning in connection with investigations into corruption it is carrying out. In writing the former president, ACC Director-General Rose Wandi did mention that she wanted to question Rupiah Banda in spite of his immunity. There is debate whether Director-General Wandi does have the power to summons the former president and if so, whether she has the power to compel him to appear before her.

This article will argue that the current position of the law is that a former president like Rupiah Banda who still enjoys presidential immunity cannot be compelled to appear before the ACC in connection with investigations involving criminal matters suspected to have been committed during the time he served as president unless such immunity has been removed by parliament. The parent provision that prescribes…

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