Miyanda Speaks Out On The Summoning Of Rupiah Banda By The Anti Corruption Commission


The rising crescendo about the removal of former President Banda’s immunity is indicative of our polarised political climate. It is an unnecessary but well-orchestrated stratagem to distract attention from real issues that require answers by the PF regime. Unfortunately the public have once again swallowed the bait and have joined in the unproductive quarrels.

The ACC summons for President Banda to respond to criminal allegations is not tenable and may itself render useless any case the ACC may have against him.

The public may wish to know that it is not only presidents that enjoy immunity. There are other categories of immunity, such as that which concerns foreign dignitaries and diplomats, witnesses and statutory immunity such as exists among certain callings and professions; but each type has its own terms and conditions, depending on the purpose of that immunity. Such are granted because it is public policy. For example it is public policy that no legal suit can be brought against any judge arising from his or her judicial acts. Neither can they be removed from office unless certain procedures are followed. There is even immunity of a criminal who has been enticed to testify as a State Witness against his or her co-accused in order to secure a conviction; such a witness is indemnified from being prosecuted using the evidence that he or she gave during the trial.

The Chief Government Spokesman’s argument lacks merit as it suggests that soon the ACC will be summoning any judge who is “not being prosecuted” to answer queries concerning their conduct on the bench. That is definitely not the law. It is imperative for the ACC to observe the sacred tenet of Article 43 (3) of our constitution.

To make clear this contention it is necessary to analyse issues surrounding the controversy created by the ACC. The intention or motive of the ACC summons is contained in their own statement, where, inter alia, they have said that they have summoned President Banda “for interviews in connection with alleged corrupt and other criminal activities in which you have been named and to avail yourself to provide answers to allegations made against you without losing your immunity”. He is clearly a man already charged without being charged. The ACC are merely leaving behind a paper trail to show that they handled the matter professionally and transparently.

Claims by some unnamed Government legal experts that the former president is only immune from prosecution and not interviews or questioning are misleading as he has been asked to go and clear himself, which is another phrase for giving evidence to the ACC to prove his innocence. Should the former President make statements to the ACC he will have waived his immunity.

The question must be asked: when is a crime a crime? I say that it is a crime as soon as it has been committed and an interview will not change this fact. The “interview” by the ACC is intended to confirm his participation in the crimes as alleged by those already interviewed. As stated by the ACC if he does not show up they will still “pursue” him. This is because they believe that they have sufficient information of his involvement in the alleged crimes. So why beat about the bush? This “interview” has already set in motion the proceedings for prosecuting him. For goodness sake an investigation is part of the proceedings leading to prosecution. In recent times we have seen those summoned in the morning to a Police Station to be interviewed spend a night at the Police station!

Article 43 (3) provides the procedure for commencing proceedings against a former president. Two ingredients stand out, namely that a former 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 determines that such proceedings would not be contrary to the interests of the State. So the first hurdle that has to be crossed is to apply to the National Assembly for the Members to debate the allegations tabled. The second hurdle is for the Members to debate whether, even if the former president had committed the alleged crimes, such proceedings would not be contrary to the interests of the State. As far as I can recall no such debate took place in the case of former President Dr Chiluba.

So the only legal avenue is a motion in Parliament by the Executive because only Parliament can remove a former President’s shield of immunity after a properly laid case in the National Assembly. If, as stated by the Chief Government Spokesman, the ACC can investigate a former president they can also investigate a sitting president, in this case President Sata: imagine that mountain – graves would be shattered! However there is a complete bar against prosecuting a sitting president for civil or criminal actions. There is also a complete bar of proceedings against a former president for criminal or civil actions committed during his tenure of office UNLESS the National Assembly so resolves. Clearly the ACC is circumventing the Supreme Law of the land.

Regardless of the nature of the offence, the only way a former president can be proceeded against is by the removal of his shield of immunity in accordance with Article 43. This strict and deliberate procedure is to prevent vexatious actions being initiated.

If the ACC has information that President Banda committed crimes while in office they should give that information to President Sata to decide what to do with it.