Wednesday, September 02, 2009

Chiluba dismisses FODEP’s position on immunity

Chiluba dismisses FODEP’s position on immunity
Written by Patson Chilemba
Thursday, September 03, 2009 12:16:04 AM

FORMER president Frederick Chiluba has asked Foundation for Democratic Process (FODEP) to stop abusing its position and allow legal experts like Law Association of Zambia (LAZ) to interpret constitutional provisions on the lifting of his immunity.

Reacting to the FODEP legal committee's interpretation that the National Assembly has no jurisdiction to restore the legal immunity of Chiluba according to the Zambian Constitution, Chiluba's spokesperson Emmanuel Mwamba said FODEP's interpretation was wrong and misdirected.

He said Chiluba's immunity was lifted by a motion of Parliament and it could be restored by such a motion.

Mwamba said FODEP was concerned with procedure and processes and not the constitutional provisions.

"FODEP should be aware that the Constitution does not provide for procedures and processes. That is usually the preserve of subsidiary regulation, subsidiary laws," he said.

Mwamba said Chiluba's immunity was lifted for a specific purpose to make him amenable to criminal investigations and prosecutions.

He said there was nowhere in the Constitution where it was stated that the legal immunity of a president could not be lifted.

However, Mwamba said now that Chiluba had been acquitted, his immunity should be restored.

He said the legal immunity was a right for a president.

"You can't pick Article 43 sub-article 3, which provides for his lifting of immunity to say, there is no restoration," Mwamba said.

He said Chiluba ought to enjoy his immunity because of the fact that he was president.

"And Dr Chiluba feels very strongly that FODEP should remain, FODEP and other organisations should remain focused on their specific areas of competence. In this case, FODEP's area of competence is election monitoring, voter awareness," Mwamba said. "Let LAZ interpret that. Let us allow LAZ to interpret that, or eminent constitutional officers or constitutional lawyers. Let the court interpret that. FODEP is assuming to be constitutional experts when their role and their specific area of competence is well known."

Mwamba said FODEP should not be seen to be hijacking the place of others.

He said the organisation should not be a master of all issues.

"They are abusing their position in this country. What we hold is that Dr Chiluba's immunity should be restored. That is what we hold. And I don't think that there is any strong ground not to restore [the immunity]," said Mwamba. "We emphasise that the immunity was lifted by a motion of Parliament, and it can be restored by a motion in Parliament."

In an analysis of the legal provisions in relation to Chiluba's application to the Speaker of the National Assembly Amusaa Mwanamwambwa seeking the restoration of his legal immunity from prosecution, FODEP legal committee chairperson Charles Chanda guided Speaker Mwanamwambwa to decline Chiluba's request because the Constitution had no provision for the National Assembly to confer immunity on a former president whose immunity was lifted.

Chanda stated that the jurisdiction of the National Assembly was only limited to removal of such immunity.

He said FODEP strongly opposed the idea of restoration of Chiluba's immunity because doing so would be unconstitutional.

"Article 43(3) of the Constitution provides as follows: (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. In this Article, the jurisdiction of the National Assembly with regard to the issue of immunity is clearly limited to the removal of such immunity only and nothing can be read into it empowering conferment of the same. It is on this basis that we are urging the Speaker to respectfully decline such demand and call upon all the members of parliament not to even entertain the idea," stated Chanda.

Recently, Chiluba's lawyers wrote to Speaker Mwanamwambwa demanding the restoration of his immunity following his acquittal by Ndola High Court registrar Jones Chinyama of embezzling public funds.

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