The Lusaka High Court will by April 12 determine whether to grant former President Rupiah Banda leave to seek judicial review of the removal of his immunity.
Lusaka High Court Judge Anne Sitali ruled in chambers that the lawyers representing the two parties file their written submissions next week.
Mr Banda, through his lawyers Shamwana and Company, Prof Patrick Mvunga, Eric Silwamba and Sakwiba Sikota and others are expected to file their submissions on Tuesday while the State which was represented by Solicitor General Musa Mwenya will respond on Thursday.
This is in a matter in which Mr. Banda is challenging the removal of his immunity from prosecution by Parliament.
His lawyers stated that the decision of the National Assembly of Zambia to proceed and to remove his immunity on a simple majority of 80 out of a total of 158 MPs was illegal and irregular.
He wants an order that the record of how immunity was removed to be brought to court so that the court can review it.
Mr Banda further stated that the decision of the National Assembly to deny him an opportunity to be heard and adopt a summary procedure prior to resolving that he was amenable to the jurisdiction of any criminal court was contrary to the principal of ‘no person should be condemned unheard’ was therefore illegal and irregular.
He added that the decision to move the motion without due and proper inquiry as to whether the allegations presented as grounds constituted acts performed in his personal or office capacity was illegal and irregular.
The former President also contends that it was unreasonable for Speaker Matibini to proceed with the motion notwithstanding that a petition challenging the state’s intention to lift his immunity had been filed at the High Court and therefore subjudice.
Ok…lets wait and see.
The motion in parliament may have been irregular but it wasn’t illegal and was not prejudicial to RB. He has now got an opportunity to present his side of the oil story in court.
So the issue of not being heard by parliament is a nullity ab initio.
This case is going nowhere for RB
Though I am not a lawyer, I believe I can offer better legal services than his team led by Gabon disaster widows swindler and chief opportunist, Sakwiba
@Sisi
You are wrong again. Separation of power in the three institutions is important for a reason. The Judiciary has a role to play and one of those roles is to interpret the Law and settle desputes and no one (except the sitting president) is beyond the arm of the Law. Parliament may make the LAWS but it too is subject to court rulings. Rare has it maybe it is the role of the courts and I guess it will stand its ground.
@its a worry:
When parliament passes law, the court interprets them. That’s not the issue here.
The issue is, like the courts, parliament has it own rules and procedures to follow and apply in conducting its business and the courts cannot overrule parliament on that.
Like you rightly said separation of power!
Therefore, RB’s grounds are null and void and the court will dismiss his claims.
One wonders why RB wants back the immunity so bad which is just a privilege.
The only reason RB is putting up this immunity fight is that he knows he is a pompwe
Looks like RB is now suffering from Lifted Immunity Deficiency Syndrome (LIDS), hence his fight…wow!!
@Sisi
My key point here is that no one, not even Parliament is out of reach of the arm of the Courts. Therefore in this case RB having raised an issue on the legality of the motion, Parliament should have waited for the Court ruling, and not the speaker hiding behind the fact that “they have their own procedures” which the courts cannot overrule. Yes! On procedures to some extend but if the procedure is not applied as prescribed then one as the option to seek legal redress through the courts. And please note that its only the courts that have the authority to rule on legality especially where someone’s liberty is at stake.
@Its a worry
RB’s application for judicial review will fail. FJT Chiluba tried, his application was dismissed too. In ruling the court looks at the following:
1.The court will not on Judicial Review application act as a court of appeal, from the body concerned, nor will the court interfere in any way with the exercise of any power or discretion which has been conferred on that body, unless it has been exercised in a way which is not within that body’s jurisdiction or the decision is Wednesbury unreasonable
2The plain meaning of Article 43 (3) does not stipulate that specific charges have to be presented to the National Assembly before the Immunity of the former President can be removed even for a purpose of making a former President amenable to the criminal jurisdiction of the…
continued from above:
@Its a worry
3.The discretion conferred on the National Assembly by Article 43 (3) is wide and it can be validly exercised by resolution once the National Assembly has before it allegations showing prima facie criminal conduct to the National Assembly’s satisfaction.
Therefore, given the above precedent on FJT Chiluba, RB stands no chance that his application for judicial review will be granted.
4.The decision of the National Assembly was based on serious and unprecedented allegations of criminal conduct in this country
5.It was never the intention of the framers of the Constitution that when the issue of removal of immunity of a former President arises, the former President would have the right to be heard.
wow..I see RB and his team winning ..he’s got better legal minds..viva !!
this is all winter trying to punish as if he is God,he also have pending issue once he is out of power they will follow him also
Judiciary Vs Legislature Vs Executive
But why is he so desperate for immunit if he is not guilt?
Why makamaka? Why is he scared?
RB is not scared.He merely wants the due process of law to be followed.Just like you cannot be sent to a prison sentence without being convicted by a legally constituted court.
It’s appalling that he abused his position,he could have at least built a University in Chipata but the shameless man was just eating with his both fat hands.
Forget about Banda he is just an *****.
why comment on issues you dont understand
anywy we hope he succeds but from t
he look of things it wil be an exercise in futility
And the Judge!
these lawyers really know how make easy money…
that immunity is gone whether rupiah likes it or not.
his lawyers are just buying time cos if the case is not strong enough, they would have rushed it through the same courts at supersonic speed so as to embarrass the state…. believe you me..
CANDID. Can you improve your grammar. ( he has, is the correct english)
1. RB has assembled the best defence team around.
2. Except for the head on ‘audi alteram pertum'(right to be heard), all other heads could find merit in the eyes of the law.
3. Hence a fertile ground for judicial Review.
MPC
@temwani mwanza. what do you understand at law mr. online lawyer?
The issue here is not about immunity but its whether RB stole or not.
Let him be prosecuted. But from the look of things, it seems RB is scared-Why?
What would happen if RB did win and the removing of the immunity is deemed illegal?
Does that then mean his immunity will be re-instated?
Legal brains please advise.
Zambia needs to be redeemed from the dangerous path taken by Sata and his thugs. A courageous judiciary can stop this downward trend and a timid judiciary will send ZAMBIA the DRC way. Someone must stand up to that dictator, yes it is dangerous but that person will be celebrated when statues of that dictator pulled along cairo road.
Its the reason why Zambia is still poor because of leaders like RB. Why can’t he just wait for the court rulling and if is not found wanting then he can start yapping. As for now he should wait.Why didn’t he wait to remove the abuse of office clause when Zambians stopped him. It seems he was in hurry to steal. So he shouldn’t cry now but wait!
Three arms of the government checks and balances each other. The Legislature is the law and statute maker and does so through debates in parliament. The Judiciary is the law interpretor and does so through debates in courts. The Excecutive is the law applier through governance using the Legislature and the Judiciary without presiding over the two. The separation among these three is based on the fact that one cannot dictate on the other what they should do at any time of their business. The Judiciary cannot tell the legislature what to debate. The Legislature cannot tell Judiciary what or how to prosecute. The question being checked here is: did the Legislature abuse its power?
If filing something before the courts stops parliament from debating then each time someone knows an issue will be debated in parliament they would just file an injuction/stay before the courts. Imagine how much business would be frozen. Expelled MPs should stop the Speaker from announcing the vacancy of their seats by filling a stay before the courts. I think RB’s lawyers just want to show they are doing something because their client is complaining about how easy the lifting of his immunity was. The same lawyers had advised and assured him that his immunity will not be lifted and he grew pompous by snapping the investigation team. The same lawyers now say they will not go without a fight but they have already bought theeir tickets and have their bags packed. The fight b4 leaving is on.
It was all steamrollered for political gain and with no evidence of wrong doing.What goes around comes around.
If RB wins this case, it will be a huge political embarrassment for President Sata. Wynter has a long history of being a unless lawyer so i wonder why the President even listen to him. As some blogger say, bring the pop corn, things are about to get very interesting.
Let akulu mphuno just defend himself in court. These gymnastics Sir-Steal Sikota is playing is making the big man look guilty in the eyes of the general public.
yes my dear @ Fodya, the so called big man is afraid because he has been guilty since he started stilling in the eyes of the public….I mean everyone saw it with necked eyes, no law no micro-scope needed. So these lawyers will try to keep dragging the case in order to make a bit of money, but it is easy enough and will not take long to conclude, simply because RB was not complicated in his stealing.
RB should keep the change from the loot instead of engaging these lawyers (International and local) who just make him broke.Nibachani bonse abo?!! Easy mudala.Even if you are found guity, you will never be caged.
The biggest threats to our democracy and rule of law are dictatorship and the non-presumption of innocence until proven guilty respectively. Currently the mind set of most Zambian is that once allegations are leveled against you, then you are guilty. This scenario is not only unfortunate but it has eroded our moral standards and promoted the schemes of Satanists who have flourished in exploiting this situation as they hold the print and governance machinery to form public opinion. It is these schemes that have started bringing our beloved motherland back to the period of super Ken’s reign of the mid 80s and early 90’s those who lived during that time will understand what I am talking about. The current symptoms experiencing our mother land are too conspicuous to be overlooked.