By Linda Kasonde Executive Director
Reports have surfaced to the effect that the Drug Enforcement Commission, hereinafter referred to as “DEC”, is currently investigating former President Edgar Chagwa Lungu on allegations of money laundering. The former President, his supporters, and some members of the public are questioning the legality of the actions by DEC in investigating the former President in light of the fact that he possesses presidential immunity from prosecution under Article 98(4) of the Constitution.
The question is whether there is a distinction between criminal investigations and criminal proceedings and whether presidential immunity applies to both. In the case of Frederick J.T Chiluba v The Attorney General Appeal Number 125 of 2002, former President Frederick Chiluba appealed against the decision of the High Court dismissing his application for judicial review of the decision of the National Assembly removing the Appellant’s immunity against prosecution in respect of alleged acts or omissions made by him while he held office of the President. In upholding the decision of the lower court, the Supreme Court in the Chiluba case stated as follows:
“The lifting of immunity as envisaged in the Article is not for purposes of facilitating investigations but for facilitating prosecution. Thus, under immunity, the appellant can still be investigated, but he cannot be prosecuted because immunity is his shield…. However, the 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. Immunity can be removed even for a purpose of making a former President amenable to the criminal jurisdiction of the court. Amenability to criminal jurisdiction can envisage allegations of criminal conduct, which in essence, was the gist of the President’s address to the National Assembly.”
In the 2016 case of Godfrey Miyanda v The Attorney General, the Constitutional Court held that –
“The Constitution does not, therefore, protect persons who have held the office of president from wanton criminality committed during their tenure. Modern constitutions use the mechanism of Head of State Immunity to avoid unnecessary disruption in the execution of executive functions; to ensure that the Head of State is not inhibited in performing his or her executive functions [whilst holding office].”
It can therefore be said that the immunity referred to in Article 98 of the Constitution refers to criminal proceedings and not to criminal investigations. With regard to the powers of the Drug Enforcement Commission to investigate President Lungu, section 4(1)(b) of the Narcotic Drugs and Psychotropic Substance Act No. 35 of 2021 provides that one of the functions of DEC is the preventing and investigating of money laundering and related offences.
Article 98(5) of the Constitution sets out what happens in the event that the criminal investigations establish cause to prosecute:
“Where there is prima facie evidence that a person who held the office of President or who performed executive functions committed an offence whilst in office or during the period that person performed executive functions, the President shall submit a report, outlining the grounds relating to the offence allegedly committed, to the National Assembly, requesting the National Assembly to remove the immunity from criminal proceedings of that person.”
Thus, in order for there to be prima facie evidence, there must have been investigations in order to that to be established. Previously, there was no laid down procedure for removing the immunity of a former President. However, Article 98 of the Constitution, as amended in 2016, now provides for that procedure.
In relation to allegations that the former President is being persecuted by the authorities, Article 18 of the Constitution provides for the right to protection from the law and it enshrines the principle of the presumption of innocence. This means that every person who is charged with a criminal offence is presumed to be innocent until proven guilty. The law does provide redress for persons who believe that they are being unfairly targeted or maliciously prosecuted, and anyone who believes they are, including former Presidents, may explore that avenue through the courts.