FODEP'S FULL STATEMENT ON THE ACQUITTAL OF CHILUBA

August 27, 2009

FOR IMMEDIATE RELEASE

FODEP’S STATEMENT ON THE ACQUITTAL OF CHILUBA, HIS DEMAND FOR THE RESTORATION OF HIS IMMUNITY AND ON THE WITHDRAWAL OF THE APPEAL

1. Finally the protracted and heavily contested prosecution of Dr. Chiluba has come to pass with his acquittal by the Subordinate Court . While being mindful of the financial implications that such a prosecution had on the meagre state resources and the politicking that came with it, one cannot but be gratified that this case, the first of its kind had run a full course of the legal process. There were genuine fears that the prosecution may abruptly, for political convenience be brought to an end. This indeed confirms and entrenches the rule of law that “no man is above the law”.

2. That said, we are however concerned with the current events of the aftermath of the Judgment which are raising fundamental Constitutional and jurisprudential issues. Although we are yet to read and study the said Judgment as it is not yet typed and ready for distribution, we can not keep quiet for long but to comment for the time being as we await receipt of a copy of the typed Judgment, as these issues are very important for the good, democratic, transparent and accountable governance firmly founded on the rule of law.

3. At the outset, we are happy to note that the Task Force being dissatisfied with the Judgment have decided on behalf of the Zambian People, in whose name all prosecutions are conducted, to appeal against the said Judgment to the High Court. In this regard we will not comment on the merits or demerits of the Judgment as the matter is now subjudice. Our comments therefore are on the demand for the restoration of the immunity and the current dispute or argument that the DPP is the only person to file the Notice of Appeal or that he must first give the consent before such an appeal is lodged, which appeal regrettably has been withdrawn.

4. We note that barely 24 hours of his acquittal, Dr. Chiluba wrote to the Speaker demanding that he immediately convenes a special session of Parliament to consider the restoration of his immunity claiming that it is his accrued Constitutional right. He even suggests that if it would not be possible to do so immediately, to refer the matter to the Standing Orders Committee whose decision would then be ratified by the House when in session.

5. By making such a move initiating the process so to say, as an Organisation, we can reasonably assume that Dr. Chiluba has now recognised and accepted that Parliament had properly and lawfully removed his immunity despite having demonised that institution for what they did arguing among other things that he was not afforded the right to be heard. It is incumbent, and we call upon all leaders and citizen alike to respect democratic institutions that have been created and submit to their authority. Leaders must lead by example and therefore must be the last ones to condemn these institutions that they were party to and whose authority they also benefited from.

6. We strongly oppose the idea of “restoration” of Dr. Chiluba’s immunity as doing so is unconstitutional. We urge the Honourable Speaker not to convene a Special Session as demanded or any Session at all for that matter, for the consideration of this issue as doing so will be tantamount to using Parliament to engage in unconstitutional business which is ultra vires its jurisdiction.

7. We submit that the immunity that is enjoyed by a President against criminal prosecution in respect of crimes committed during his/her tenure of office is not a right but a privilege which can be taken away at any time in accordance with the law as was the case. This privilege we must add is never conferred by Parliament but by the Constitution. Parliament therefore has no authority to “restore” Dr. Chiluba’s immunity so to say. Parliament cannot confer that which it has no powers to do.

8. We wish to emphasize that this privilege is only enjoyed by a person who is holding the office of President or performing the functions of that office. It is our firm submission that Dr. Chiluba is neither holding the office of President nor is he performing the functions of that office to claim and enjoy such privilege.

9. Article 43(2) of the Constitution, Chapter 1 of the Laws of Zambia (herein after referred to as the Constitution) provides as follows:

Article 43...

(2) A person holding the office of President or performing the functions of that office shall not be charged with any criminal offence or be amenable to the criminal jurisdiction of any court in respect of any act done or omitted to be done during his tenure of that office or, as the case may be, during his performance of the functions of that office. (emphasis added)

10. It is very clear from the above Article that it is the Constitution itself that confers such protection, and not Parliament, by virtue of one holding the office of President or performing such function. It does not require an act by any person or institution for that person to enjoy such immunity.

11. As we have stated above that immunity from prosecution is not enjoyed as a right but as a privilege, because the Constitution having granted such protection, vests in the National Assembly the power to lift such immunity and open such person to criminal prosecution.

12. Article 43(3) of the Constitution provides as follows:

“(3) A person who has held, but no longer holds, the office of President shall not be charged with a criminal offence or be amenable to the criminal jurisdiction of any court, in respect of any act done or omitted to be done by him in his personal capacity while he held office of President, unless the National Assembly has, by resolution, determined that such proceedings would not be contrary to the interests of the state.” (emphasis added)

13. In this Article, the jurisdiction of the National Assembly with regard to the issue of immunity is clearly limited to the removal of such immunity only and nothing can be read into it empowering conferment of the same. It is on this basis that we are urging the Speaker to respectfully decline such demand and call upon all the Members of Parliament not to even entertain the idea.

14. There is no provision in the Constitution providing for restoration of immunity and any move to do so shall be void to the extent of its inconsistency with the constitution.

15. If we are wrong with our interpretation of the relevant Articles of the Constitution, which we think we are not, we still submit that once the immunity has been lifted, it can never be restored. The lifting of the immunity is never temporal but final. It is not even conditional on the outcome of the criminal prosecution. If that was the case, the Constitution would have expressly said so.

16. Assuming Dr. Chiluba was convicted, would he still have claimed the restoration of his immunity since his prosecution has come to an end? This is a very important question that must be answered by those advocating the restoration of his immunity. In his letter of demand, the restoration is premised on his acquittal and is not independently based on the conclusion of his case. Otherwise his acquittal would have had no relevance or even worth mentioning in his letter.

17. To that extent we are fortified in our humble submission that immunity once lost can never be restored however innocent or guilty a person is. In our view immunity is like an egg shell which once broken can never be made whole again.

18. What Article 43(3) of the Constitution is saying is that for as long as Parliament has not removed your immunity, you will never be prosecuted. But once that has been done, then sorry you have to be subjected to criminal jurisdiction, period. It does not make any legal sense to reclaim the privilege of not to be prosecuted after you have been already prosecuted. What are you preventing when the act has already been done?

19. Coming to the argument as to who should file the Notice of Appeal or whether indeed the DPP must first give consent before the same came be filed, we find such an argument to be self defeating and contradictory in many respects. It is our humble submission that it is not just the DPP himself who can file a Notice of Appeal and you do not need the consent of the DPP to file same.

20. While recognising the exclusive authority of the DPP under the Constitution to conduct criminal prosecutions, it is our view that once consent has been given to conduct a private prosecution as was the case in this matter, unless the DPP terminates such prosecution before a judgment is delivered or he has taken over such prosecution, the Task Force has the right to file a Notice of Appeal.

21. It is our submission that “criminal proceedings” does not only relate to conducting the trial but that it encompasses the appeal processes as well. This means that a private prosecutor, who is not satisfied with the outcome of the trial, has the right and authority to file a Notice of Appeal as the initial authority extends to appeals as well. This is why, from a layman’s point of view, the ACC, DEC, NAPSA and other prosecuting authorities do not require the consent of the DPP when prosecuting their appeal or responding against appeals.

22. Our above submission is based on Article 56(6) of the Constitution which provides as follows:

“(6) For the purposes of this Article, any appeal from any judgment in any criminal proceedings before any court, or any case stated or question of law reserved for the purposes of any such proceedings, to any other court in Zambia shall be deemed to be part of those proceedings:” (emphasis added).

23. Therefore, since he had authorised a private prosecution in this matter, it goes without saying that the private prosecutor has the right to file a Notice of Appeal as well. There is no law that requires that it is only the DPP who shall file a Notice of Appeal nor is it a legal requirement in the circumstances that he must give consent before the filing of the Notice of Appeal.

24. We are fortified in our humble submissions when regard is had to the provisions of Article 56 (3) (b) and (c) as material to this matter which provides as follows:

(3) The Director of Public Prosecutions shall have power in any case which he considers it desirable so to do –

(b) to take over and continue any such criminal proceedings as have been instituted or undertaken by any other person or authority; and (emphasis added)

(c) to discontinue, at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority (emphasis added)

25. It is plainly clear from these provisions that criminal proceedings including an appeal can be instituted or undertaken by any other person or authority while the DPP is at liberty if he so desires to take over and continue or to discontinue such criminal proceedings.

26. All the above Constitutional provisions we have referred to, are written in plain and clear language and must be given their natural and ordinary meaning. We therefore demand that all the players in the issues we have raised above must uphold the letter and spirit of the Constitution by not restoring Dr. Chiluba’s immunity and by allowing and respecting the rights of the Task Force in filing the Notice of Appeal which was properly lodged.

27. We therefore appeal to the DPP to immediately restore the Notice of Appeal in keeping with the strict observance of the rule of law as provided for in the Constitution.

Charles Chanda

CHAIRPERSON LEGAL SUBCOMMITTEE