FORMER PRESIDENT EDGAR CHAGWA LUNGU STILL ENJOYS PRESIDENTIAL IMMUNITY
Analysis of Presidential Immunity and Alleged Constitutional Violations in Zambia
Legal Framework of Presidential Immunity
According to the current Constitution,
Article 98(1) stipulates that no civil proceedings may be initiated or continued against the President, or any individual performing executive functions under Article 109, regarding actions or omissions made in their private capacity during their tenure in office.
Article 98(4) extends immunity from criminal proceedings to the President or any individual performing executive functions, as outlined in Article 109, and specifies that this immunity persists even after the individual ceases to hold or perform the functions of the office.
Article 98(9) provides that if the immunity is removed following clause (8), the individual who previously held the office of President or performed executive functions shall be charged with the offense for which the immunity was removed.
Article 98(10) clarifies that if a court acquits the individual of the offense for which their immunity was removed, the immunity shall be considered never to have been removed, for all purposes, without further proceedings.
Case of President Edgar Chagwa Lungu
Former President Edgar Chagwa Lungu retains the same immunity from criminal proceedings as the current head of state. The distinction lies in the fact that the current head of state performs executive functions, whereas the former head of state does not. The immunity specified in Article 98(1) is identical to the immunity enjoyed by a former head of state under Article 98(4). Furthermore, Article 98(10) emphasizes the continuity of immunity by stating that, upon acquittal, the immunity is deemed not to have been removed.
Concerns and Constitutional Violations
Recent actions by government officials and law enforcement suggest a misunderstanding or disregard for these constitutional provisions. Statements indicating that President Lungu has no immunity contradict the clear language of the Constitution, thereby setting a dangerous precedent of constitutional abrogation.
The incident where the police embarrassed former President Lungu during his visit to Bishop Clement Mulenga of Kabwe Diocese demonstrates a violation of his constitutional rights. Although an apology was issued to the Catholic Church, a formal apology is also warranted to former President Lungu and the Zambian people. Moreover, future conduct by the police should reflect a genuine respect for the Constitution.
Under the current constitutional framework, the former head of state cannot be summoned or arrested by the police. Any attempts to do so would constitute a flagrant violation of Zambia’s Supreme Law and should not be tolerated. It is imperative that all Zambians, including public officials, familiarize themselves with the Constitution to prevent such unlawful acts. The abrogation of constitutional law with impunity can lead to anarchy, which must be avoided at all costs.
Claim Regarding Arrest of Former Presidents
No law states that a former head of state can be prosecuted without first removing their immunity. The same constitutional provisions apply. If a current head of state commits a crime, they cannot be arrested and taken to court directly; the impeachment process must be initiated as outlined in the Zambian Constitution. Similarly, if there are allegations against a former head of state, the appropriate proceedings to remove their immunity must be initiated in Parliament, not by the police.
Conclusion
The Constitution of Zambia provides clear and continuous immunity to the President and former presidents from civil and criminal proceedings. The recent actions against former President Edgar Chagwa Lungu represent a significant breach of these constitutional protections. Upholding the Constitution is crucial to maintaining the rule of law and order in Zambia
BY FR JOHN KABINDA
A CATHOLIC PRIEST BASED IN NDOLA.