Breaking the myth of Presidential Immunity 

By Eugene Makai

There is a popular myth in our country cultivated by political parties in power about the immunity of a sitting President and by opposition political parties about the immunity of former Republican Presidents from their own parties.

It is important to understand that according to our Constitution, protection of the President from legal proceedings begins with Article 98.

Under this Article, NO ONE can institute civil action or continue civil proceedings already in court against a sitting President. Likewise, the President CANNOT during his tenure of office institute or continue civil proceedings in his private capacity against ANYONE.

Article 98 also provides that a sitting President is IMMUNE from CRIMINAL PROCEEDINGS from personal acts of omission or commission which immunity CONTINUES after he ceases to hold or perform the functions of that office. However, this is CONDITIONAL on clause 9 of this article which stipulates that if the immunity is lifted by the National Assembly, he/she can be proceeded against for ANY criminal conduct covered by the immunity previously held.

There is a clear distinction between CRIMINAL PROCEEDINGS (Prosecution) and INVESTIGATION (gathering of evidence).

Now, it is just common sense to understand that you CANNOT impeach a President or lift the immunity of a former President without EVIDENCE.

Consequently, there is NO LAW under our sun that protects a sitting or former President from INVESTIGATIONS.

Article 108 of the Constitution of the Republic of Zambia which article deals with the impeachment of a President can only have meaning if it unfettered in its capacity to acquire EVIDENCE through the avenue of INVESTIGATION.

In simple terms, if you cannot investigate and gather evidence, how will you satisfy and justify your charges for impeachment?

So therefore, NO sitting or former President of the Republic of Zambia is IMMUNE from CRIMINAL INVESTIGATIONS but ONLY from CRIMINAL PROCEEDINGS.

It MUST also be noted that according to Article 98 (1) of the Constitution of the Republic of Zambia, immunity from criminal proceedings against former Presidents are ONLY for acts committed during their tenure of office and NOT those before or after it.

Also to be noted, is that immunity of a former head of state is not absolute.

The question of inviolability and search warrants against the premises or property of former Presidents can best be exemplified by recent events elsewhere.

US Federal Bureau of Investigations (FBI) agents searched former President Donald Trump’s Mar-a-Lago home in Palm Beach, Florida on 8th August, 2022.

The agents recovered 11 sets of classified documents, including some marked as top secret and meant to be only available in special government facilities, according to a search warrant released by a Florida court on 12 August, 2022. The warrant listed three criminal laws as the basis of its investigation.

The perception that sitting or former Presidents of the Republic of Zambia 🇿🇲 are above the law is a MYTH originating from the notion that they are equivalent to absolute monarchs rather than servants and former servants of the people.

We even use the word “RULING” party rather than “GOVERNING” party because of the notion that we run a monarchy in this country.

Of course it is an emotional thing to see politicians we may support especially those who held high office in our land be visited by law enforcement officers.

Our Constitution and laws are based on English law. To this effect it is noteworthy that like our President, the British monarch can’t be arrested or be the subject of civil and criminal proceedings, meaning he is effectively exempt from the law.

King Charles enjoys sovereign immunity.

However, if he abdicated today or was overthrown, he would face the law as if he weren’t monarch.

The history behind this is a political crisis that threatened civil war in England under the reign of King John resulting in the signing of the Magna Carta (Great Charter) on 15th June, 1215, which declared the sovereign and his government to be subject to the RULE OF LAW and also documented the liberties held by “free men” or his subjects. It was reissued, with alterations, in 1216, 1217, and 1225.

Prior to that, the British monarchy was ABOVE THE LAW right from the time of the Norman conquest of William the Conqueror in 1066.

In this regard, ALL citizens of the Republic of Zambia including those that GOVERN them are UNDER the LAW.

Kalemba May 4, 2023