Wed, 30 Nov 2016 13:57:39 +0000
PRESIDENT Edgar Lungu and Vice-President Inonge Wina enjoy absolute immunity and cannot be party to any legal or civil process before any court in Zambia and beyond, says Lusaka High Court Justice Mwila Chitabo.
This was in a ruling delivered at the High Court yesterday in a matter where Attorney General Likando Kalaluka challenged the inclusion of President Lungu and Mrs Wina as respondents in a legal suit challenging their victory in the August 11, 2016, general elections.
UPND president Hakainde Hichilema and his vice-president Geoffrey Bwalya Mwamba cited President Lungu and his Vice-President and the Electoral Commission of Zambia (ECZ), the Attorney General, Chief Justice Ireen Mambilima, her deputy Justice Marvin Mwanamwambwa and the Constitutional Court in the matter.
Mr Justice Chitabo said he acknowledged a Supreme Court ruling which upheld that a President enjoyed full immunity from any legal suit as long as he remained in office, and as a lower court, he could not overturn a ruling of a superior court.
He said even the petitioners had not argued the fact that the President enjoyed immunity as did his Vice President, which was provided for in the law.
“Having thus traversed the written submissions, the skeleton arguments and oral submissions and having taken care to consider the judicial precedents in support of all parties’ interests, I have come to a firm conclusion that the respondents’ applications are meritorious on account of immunity provisio in respect of all respondents except the 4th respondent (Attorney General); that the petition does not disclose a cause of action and the petition does not comply with the rules relating to protection of fundamental rights promulgated in 1969.
“I therefore make the following order(s) that the respondents 1,2,3,5,6,7 namely President Chagwa Lungu, Inonge Mutukwa Wina (Vice President), the Electoral Commission of Zambia, the Chief Justice of Zambia, the Deputy Chief Justice of Zambia and the Constitutional Court are hereby disjoined from the proceedings,” Mr Justice Chitabo said.
Mr Hichilema had charged that his rights and that of his co-petitioner were violated when the Constitutional Court decided to dismiss the presidential election petition challenging the decision by the Electoral Commission of Zambia (ECZ) to declare President Lungu and his running mate Ms Wina as winners of the August 11, 2016, general election without such a declaration by the Constitutional Court.
But Mr Kalaluka argued in his application he was the only eligible respondent among the seven cited in the case because while the first two were immune from any legal process, he was mandated by law as Attorney General to represent them in any legal case. And Mr Justice Chitabo upheld that the Republican Constitution provided for the protection from legal suit of anybody holding the Office of President.
Mr Justice Chitabo said although the High Court was also a superior court, it would be folly for him to disregard the interpretation of the Constitutional Court to dismiss court proceedings before the determination of the matter.
Mr Kalaluka applied for the misjoinder of all parties except himself as he was already mandated as Government legal advisor to represent public institutions in legal proceedings.
The UPND had asked the court to quash the decision by the Constitutional Court that halted proceedings of a presidential petition to allow their case to be heard and determined in line with Article 18 (9) of the Constitution.
