By Chola Mukanga
The First Draft Constitution provides specific provisions on presidential immunity. Article 96 states: (1) Civil proceedings shall not be instituted or continued against the President, or a person who is performing the executive functions, in respect of anything done, or omitted to be done; and, (2) The President, or a person performing the executive functions, subject to clause (6), shall be immune from criminal proceedings.
Parts (3) - (8) provides further detail relating to ex-presidents, including the possibility of Parliament lifting immunity after a two-thirds vote. These provisions of course are largely in line with the current Constitution with minor alterations. The bottom line is that all sitting presidents are immune from civil and criminal proceedings. Ex-presidents are permanently immune until parliament decides otherwise.
It should be noted that the immunity is for both criminal and civil actions. And though it relates to solely to "legal proceedings", it is more or less equivalent to immunity from criminal investigations as well because some of the criminal evidence can only be obtained by search warrants or record warn and caution statements from the presidential suspect. This is certainly the way investigating agencies currently understand the provisions. As this 2010 media report exemplifies:
Drug Enforcement Commission (DEC) spokesperson John Nyawali has said the commission cannot question or investigate the sources of campaign finances which President Rupiah Banda has been donating to various NGOs and individual citizens. Mr. Nyawali said the commission was limited in its mandate because the sitting president enjoyed absolute immunity to such investigations. He was reacting to numerous calls from the civil society organisations who were calling on the commission to extend their investigations of money laundering to the ruling party.
The situation makes it difficult to ever impeach a sitting president, which in turn means the President is not only above the law but he towers above all criminal prevention and legal institutions. Indeed, de-facto he is above Parliament because it is nearly impossible for Parliament to impeach a sitting president. How else can impeachment allegations ever be investigated if removal of immunity is required for thorough investigations? One would need to lift immunity to investigate the president and then impeach him and then prosecution. But to lift the immunity you need cast iron proof evidence to persuade MPs which is impossible without investigations. This is the de facto power. It is a paradoxical situation that has not been thought through by those who have sat on constitutional commission after commission.
The real question of course is whether all of this matters! That boils down to whether it is beneficial to the country to have immunity at all. Does immunity simply breed corruption? To answer that we must necessarily turn to empirical evidence. A new paper examines evidence from a range of countries on that very issue. It emphatically concludes:
Our empirical investigation demonstrates that immunity provisions are strongly associated with poorer governance; stronger immunity is associated with greater corruption, bribery, and the diversion of public funds after controlling for a number of economic, political, historical, and demographic determinants and correlates of corruption. Our theoretical model illustrates how legally unaccountable politicians may attempt to enhance their chances of re-election through illegal means by supporting interest groups through lax law enforcement, non-collection of taxes, and other forms of favouritism. Interest groups return the favour through favourable propaganda, generous campaign financing, or even outright vote-buying.The influential work of North (1990), as well as the books of Besley and Persson (2011), Acemoglu and Robinson (2012), and the therein cited research, argue that informal and formal institutions, such as the constitutional provisions that we examine here, can play a pivotal role in the social and economic prosperity of a nation. Our research uncovers serious evidence that provisions that supply politicians with immunity from criminal prosecution should be reconsidered due to their link with poor governance outcomes.
That would seem to suggest that we should be looking to eliminate it. The usual argument in favour of criminal immunity is that the president may undertake illegal activities to protect the Republic whilst in office and he should be protected from that. That argument lacks merit because it is not obvious why someone should need immunity if they are acting within their legal powers. It is surely up to the to Courts to decide if indeed a specific president’s action were in the national interest because the president can only act within his/her constitutional powers. To the best of my knowledge our laws has no discretion for illegal activities by anyone. We are all equal before the law.
The only credible alternative explanation for criminal immunity therefore is that it protects individuals against politically motivated charges. But surely the answer to that is to ensure you have a sufficiently independent and robust judiciary. Indeed it might be argued that removing immunity not only reduces corruption, it may also incentivise the Executive to have a robust judicial system. When their immunity is secure the president has little incentive to encourage judicial independence.
Across the world, immunity regimes in democratic countries vary between two extremes. On one side of the spectrum stand countries without criminal immunity protection, exemplified by the United Kingdom. While the Prime Minister and his Cabinet may speak without the threat of legal retaliation, there exists no procedural obstacles that impede or limit the criminal prosecution of these political actors. At the other extreme lie countries with strong criminal immunity regimes, exemplified by Paraguay. Where any arrest or prosecution of a member of the legislature must be authorized by a two-thirds majority vote in the legislative chamber to which the legislator belongs. Should prosecutors wish to take action against a minister or the president, the lower house of the legislature must first impeach the politician by a vote of two-thirds, followed by a two-thirds majority vote for removal in the Paraguayan Senate. It is within the sole purview of the Senate to determine whether the removed politician should be referred to a competent court, which may only then proceed with criminal prosecution. Zambia is closer to Paraguay in terms of presidential immunity though it retains significant latitude on members of parliament and ministers. The challenge now is to move closer to the United Kingdom. Sadly, this does not appear to be something that the current generation of politicians would be willing to support.
One potential compromise they may accept is to allow the President enjoy criminal immunity during the presidency but ensure but this immunity expires automatically upon leaving office. This concedes the argument for him to get on with the job unimpeded and free from countless criminal lawsuits. But in doing so we should be clear that what would be happening is “suspending prosecutions” rather than introduction of criminal immunity. The public needs to understand that no one is above the law. It is vital that criminal prosecutions can be brought at immediately when he/she leaves for crimes committed against the State.
The situation in terms of civil lawsuits is more straightforward. The president should never be immune from civil actions against him/her in his/her personal capacity or be disallowed from commencing civil actions in such capacity, at any point. It seems to me that it would be unfair to provide for suspension of such legal actions during his/her time in office. Zambians have right asked, why should people who are owed money by a president wait 10 years or why should a president be allowed to develop a property in dispute leaving no realistic recourse once he has left office? The current constitutional provisions (maintained in the Draft Constitution) are unfair in that the president can sue others while in office but proceedings against him/her cannot be commenced or continued during this time. It therefore important that immunity is removed for civil lawsuits completely.
