By KENNEDY LIMWANYA –
CAN law enforcement officers conduct a search at the residence of a former president without having their immunity lifted?
This is the question that has been raised by some sections of society following the search that was conducted by the Zambia Police at former president Edgar Lungu’s Ibex Hill residence in Lusaka.
Senior Patriotic Front (PF) officials reacted to the search by saying that the police presence at Mr Lungu’s residence was a breach of the presidential immunity enjoyed by the former president.
As it turned out yesterday, Mr Lungu was not the subject of the search but his wife, Esther, who is alleged to have grabbed title deeds and three motor vehicles from a Lusaka family.
The most important question to ask here is whether the immunity enjoyed by a former president also extends to his family, in this particular case, former First Lady, Ms Lungu.
At no point does Article 98 of the Zambian Constitution mention that a former president’s enjoyment of presidential immunity against criminal proceedings extends to members of a former first family.
So, if law enforcement agencies reasonably suspect a former first lady or any member of a first family to have committed an offence, it is within their rights to investigate and even charge and arrest such a suspect.
Additionally, there is no law in the Zambian Constitution that stops law enforcement agencies from conducting a search at a former president’s residence if the suspect lives there.
What PF lawyers, officials and supporters should do is to cite the existence of the law that has been breached by the action of the police who went to Mr Lungu’s residence where the suspect, Mrs Lungu, also lives.
Secondly, the lawyers should cite the law which states that it is unconstitutional to search a former president’s residence without having his immunity lifted.
Mr Lungu’s lawyers and supporters have even alleged that yesterday’s search was an attempt to find incriminating evidence against Mr Lungu who still enjoys immunity against criminal proceedings.
As very senior PF official and lawyer yesterday alleged that even if the suspect was Mr Lungu, no search or investigation could be carried out without having his immunity lifted.
In the opinion of this lawyer, the constitutional procedure of beginning an investigation, which is not supported by the Zambian Constitution, would be the tabling of a motion in the National Assembly for the removal of presidential immunity. This lawyer, who is a senior member of the PF legal committee, appears to have read a different Constitution from the Constitution of Zambia (Amendment) Act Number 2 of 2016.
These are the same lawyers who misled Mr Lungu into believing that he had only held office once despite having held office from 2015 to 2016 and, later, from 2016 to 2021.
It would not be surprising if they, again, mislead Mr Lungu, a lawyer himself, into believing that an investigation against him should begin with the lifting of his immunity.
As one constitutional lawyer asked the Times of Zambia yesterday, how would the Zambian people know that a former president committed or did not commit a criminal offence without carrying out an investigation?
Article 98 (5) of the Zambian Constitution is very instructive on the procedure for the lifting of a former president’s immunity against criminal proceedings.
It states: “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.”
Prima facie is a Latin word whose literal meaning is “at first sight” or “on the facie of it”.
So, prima facie evidence is “evidence at first sight” or “evidence on the face of it”.
How can prima facie evidence be gathered and confidently submitted to the National Assembly without thoroughly investigating a former president who is alleged to have committed a criminal offence while in office?
It all has to begin with investigations and, if the investigations include searching a former president’s residence or summoning him for questioning, Mr Lungu’s lawyers should cite the part of the Zambian Constitution which states otherwise.
In short, no one, not even a former president is immune from investigations, which include searching.
Besides, the immunity is for offences a former president is alleged to have committed while in office.
For offences allegedly committed after leaving office, a former president, just like any ordinary citizen, does not enjoy any immunity at all.
(The author is Times of Zambia Features Editor)