Wednesday, September 02, 2009

Presidential immunity for a non-president

Presidential immunity for a non-president
Written by Editor

The reasons for the withdrawal of the appeal against Frederick Chiluba’s acquittal are becoming clearer by the day. We have said before and say again that the facts and circumstances surrounding the sordid Chiluba affair will become clear. It is not possible to hide information and conceal such schemes for too long. Those who have been involved in it will be known. And our people will have a chance to say what they think about this matter.

We are not surprised that a good appeal was withdrawn. It seems it had to be withdrawn because it was interfering with a laid down programme that should have culminated into the illegal restoration of Chiluba’s immunity as president. Those that wanted to do this were determined even if it meant doing something which was absurd in law.

We agree with FODEP that it does not makes sense for people to talk about giving back immunity once it has been taken away. We say this because even the very demand that immunity be restored by a person who has just come out of a prosecution is a basis for not doing it. Why should a former president demand presidential immunity once it has been stripped? What is it that he did as president that he does not want to be probed? Why should he be scared if he has been genuinely acquitted? If Chiluba believes in his own innocence, why does he need immunity? These are legitimate questions that deserve honest answers. Chiluba knows that he has a lot to answer for. He also knows that he just survived by the skin of his teeth, he cannot risk being tried for anything else. This is why Chiluba was quick to demand immunity. An innocent man does not need immunity from prosecution in much the same way as a healthy man does not need any medicine.

For Chiluba to have immunity, he would have to be sworn in as president. We say this because presidential immunity is a direct consequence of someone being sworn in as president. As FODEP says, there is no constitutional mandate for restoring presidential immunity once it has been taken away. You do not need to be a very intelligent constitutional lawyer to agree with FODEP. Their position stands to reason. What Chiluba is crying for is presidential immunity. He wants Parliament to confer him with presidential immunity. How can he ask for presidential immunity when he is no longer president? Who is going to confer it? According to Chiluba, Parliament should give a non-president, presidential immunity. This type of proposition does not make any sense at all and yet Chiluba is determined. And we have no doubt his backers would have no problem breaking the law to protect their criminal friend. We call him their criminal friend because as we have just said, if he was not a criminal, he would not be worried about immunity.

Chiluba’s excitement and determination to carry on like nothing happened seems to know no bounds. Obviously, somebody has assured him that everything will be fine. This is why they were quick to announce that Chiluba had received his certificate of acquittal even before the time set up for appeal had elapsed. How did Chiluba’s camp know that Chalwe Mchenga, the Director of Public Prosecutions, was not going to appeal? Their whole conduct suggested that they knew that Mchenga was not going to appeal. This is why they were insisting that only Mchenga could appeal even when an appeal had been duly lodged. Did Chiluba know something that the Task Force did not know? Indeed, it was not just Chiluba’s people who were saying only the Director of Public Prosecutions could file an appeal. George Kunda was also quick to emphasise the ‘exclusive’ right of the Director of Public Prosecutions to appeal. This was all an orchestrated attempt to derail the appeal that had been lodged. This behaviour is consistent with the pronouncements that Chiluba has been making. This also explains why Chiluba can so confidently lay a complaint at the Law Association of Zambia against Mutembo Nchito on behalf of the Director of Public Prosecutions. If Chiluba thought the Director of Public Prosecutions was not supportive of his position, he would not dare file this complaint because it would be an exercise in futility.

It is these types of inconsistencies and contradictions that demonstrate the criminal complicity of all those involved in the withdrawal of the appeal against Chiluba’s acquittal.

The issues that have been raised by FODEP are important and deserve careful attention by all those involved in the attempt to give presidential immunity to a man who is no longer president. FODEP and other civil society groups would do well to continue speaking impartially and clearly on issues of national importance. This is the role that genuine civil society needs to play. A civil society that champions the cause of those in government is irrelevant because government has enough power and resources to champion its own causes. Civil society must speak for the voiceless majority.

Our people have every right to expect guidance and objective analysis of the many issues that are facing us as a nation today from civil society. There are many legal questions today about which our people need guidance. Our people have got every right to look to civil society for answers. On the question of Chiluba’s immunity and appeal against his acquittal, FODEP has come up and given its position. This is commendable. But it would be more helpful if the Law Association of Zambia were clearer and offered guidance based on their professional knowledge. It is worrying when a usually vibrant association like the Law Association of Zambia on which many of us have relied for guidance on vexing questions of law chooses to remain quiet on almost every important legal question being discussed in our country today.

A country will not have to deal with many questions of law that are more important than Chiluba’s demand for his immunity. Keeping quiet on such an important question of law renders the Law Association of Zambia irrelevant, which is unfortunate. With other publicly minded organisations such as the church mother bodies, the Law Association of Zambia has been an important voice calling for accountability in our country. The role that the Law Association of Zambia played in stopping the illegitimate constitutional amendment to allow Chiluba’s third term cannot overemphasised. It was an important, if not pivotal, role. Our people were able to fight that wicked attempt to rape the Constitution because their lawyers had guided them and demonstrated to them that it was wrong to allow Chiluba to do what he wanted to do.

We are coming into a time where the Law Association of Zambia has to come out in the open and show whether they stand on the side of the people or not. Keeping quiet or being ambivalent will not help the nation or the legal profession.

It is not only Chiluba’s immunity that requires their comment. Mchenga has told the nation that he is not going to appeal Chiluba’s acquittal because according to him, there are no winnable grounds of appeal. Many of our people would have expected the Law Association of Zambia to take a stance on this matter. But for some reason, they have chosen to remain quiet. This compels us to ask the question: what is the purpose of the Law Association of Zambia? Does it have a role to play in discussing legal questions of a general public interest?

We are saying this because a civilised society requires a civilised way of settling its disputes and conflicts. We are a society which is supposed to be governed by laws. And for laws to have legitimacy and acceptability amongst our people, they must be understood and explained where necessary. This is the method that ensures that society is kept intact and the rule of law respected by all. We believe the Law Association of Zambia has an important role to play in this regard. Keeping quiet about important legal questions that are being discussed publicly does not further the image of the legal profession or help the country in any way. FODEP has given its legal opinion on Chiluba’s immunity and made a demand on the withdrawal of the appeal. Why is the Law Association of Zambia quiet? It is worrying that Chiluba thinks that the Law Association of Zambia should come up with a position that is different to the one FODEP has come up with. The question is, why?

Labels: , ,


Post a Comment

Subscribe to Post Comments [Atom]

<< Home