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Monday, November 14, 2022

The Legality of the Drug Enforcement Commission’s Investigations of former President Edgar Chagwa Lungu

Columns The Legality of the Drug Enforcement Commission’s Investigations of former President Edgar...

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.

18 COMMENTS

  1. The fear is simple to explain. They must know what Edgar Lungu did under protection of the law. They therefore know that any audit is going to expose their 24/7 and 365 Father Christmas. Don’t worry, if there’s nothing, the audit will find nothing. If there’s something, the audit will find it. After that justice will follow. Why should anyone looking for support from the Zambian people be against justice?

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    • When you seek office, you come on the pretext of serving the masses, you even go down on both knees. Once you are in office we pay for your meals, beers, tissue, rent, security… Whole of a sudden you become millions – when we ask you which product or service you are producing and who is buying. You say bushi nendalama shakwanoko (is it your mother’s money). So if you are using your mother’s money, why did you have to wait for a govt job to build 48 flats or buy a Rolls Royce. When the taxman has received more money from your garden boy compared to you.

  2. If lungu is not a theif, him and his supporters should not worry………..

    The truth shall set him free…………

    Why the panic ???????

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  3. Indeed ECL can be investigated and let it be done quietly like how the ACC have conducted most of their investigations. The DEC is being used as a tool to intimidate and embarrass political opponents and that’s the reason they’re receiving sympathy. What has come out of those widely publicized seizures? It’s easy to tell when something is wrong because we’ve been around long enough to compare DEC and SITET

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    • The truth is that every implicated politician and his political party will always cry foul……they will call it political intimidation or other nonsense.
      Do you think if done in secrecy that politicians will keep quiet should they be investigated? You and me know that PF has a mobile Press Conferences at Police Post. would that be a thing of the past? On the other hand, Zambians are calling for transparency, to know what is going on, and ACC & DEC has an obligation to the Zambians to let them know what they working on, unless you want to remove that right.
      NONETHELESS, the greatest sin committed by UPND, is that non of the big fish has been prosecuted and jailed. And this has given room to all sorts of speculation and manipulations

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    • #3.1, that’s the kokai thinking of most UPND zealots. We have witnessed more sensible arrests at ACC than DEC. The only thing happening at DEC is seizure and sometimes of wrong properties, dramatized searches that don’t yield anything. It’s a circus!

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  4. Good madam Kasonde can you also come out open on the Kwacha and Kabushi By-election stop being biased and do your work properly,stop sidelining.Zambians are not foolish but wise people.On some impotant matters you are mute but those you have ……….. you are very active we appriciate your work but we belive you can do more than that,you need not to be intimidated so to fall into the fallen system.Be the Kasonde we know please come out of slumber be youself.Your ALIGENCE for mother zambia will always be remembered.

  5. How much did Chiluba steal? What was recovered as a result? Before courts finally aquitted FTJ, he was undressed, stripped naked. The whole world saw his OO7 Bond pants. Boogie and eleganza type stilletos were publicly displayed as some of his loot. DEC and the Task Force gave back nothing in recoveries to Zambians. What this corruption fight will achieve is purge the former PF government leaders, leading them to the books of history, while the UPND are cementing their own 10 to 15 year reign. This they will manage because there is no opposition yet to challenge UPND survival. CSOs are fast asleep except for one-eyed Chapter1Foundation still on honeymoon. Meanwhile, let the already started criminal investigations on EL continue..

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  6. Sad that every president has to be investigated after leaving office. That is why we should adopt the RSA or UK system of leadership…..where an erring leader can easily be recalled instead of hiding behind the invisible shield called IMMUNITY.

  7. The former president has immunity against prosecution. He is not immune against investigation or the law. He can still be investigated and found wanting. The only thing is you cannot take that evidence to court to prosecute,him.

  8. Past legal battles against ECL by Linda Kasonde explains her hidden support for UPND. The message she is trying to convey is tactically extremely vague.

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  9. Illegal but neccessary. Like many laws that we inherited from colonial masters but which our presidents conveniently ignore when in office, we need to repeal or re-enact presidential immunity, presidential defamation etc etc. The immunity should be only for the time the president is serving his term. There should be no defamation of the president crime. The president shouldnt appoint the Chief Justice, and top civil servants. His appointments should be restricted to political posts. Parliament can appoint the CJ and Police Chief

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