By DARLINGTON CHILUBA
One of the most prominent presidential pardons in political history was by President Gerald Ford in favour of his immediate predecessor Richard Nixon from facing criminal charges in 1974. This set an impressive standard in the United States of America (USA) and abroad on the exercise of presidential authority from a human, judicial and institutional vantage point.
Moreso because of the overwhelming evidence which would have almost certainly sent Mr. Nixon to prison. Arguably, the record of having a former US President behind bars would have had more lasting damage on the institution of state and its reputation. It was better to fix the problem institutionally than expose potential weaknesses of their state system.
It is only recently in the USA that debate in the Senate and House of Representatives suggested a possibility of removing former President Donald Trump’s presidential immunity after his tenure of office to face charges related to his re-election bid. In both scenarios, the law is not oblivious to political interests and the mileage to be gained from such high-profile cases but takes a legalistic position to public interest. In other words, the law asks the question, what does the nation gain?
By taking this angle, the decision to pardon or prosecute is removed from the fore so that the president does not become the main player in the process since the judiciary is now the custodian of public interest in favour of evidence and the cost of that evidence to the nation, now and in future. The historical weakness in the Zambian legal system was that it assumed that, simply because allegations were made in parliament by a sitting president, then those allegations should be treated as fact. That those accused became automatic enemies of the state even before the courts determined the merits of the accusation.
That weakness has previously overlooked personal and political interests in the formulation of accusations by any current administration. Especially when investigative wings – outside the core government legal judicial system – are suddenly manufactured to deal with political accusations. Once government fails to remove itself from the side of accuser or accused then justice could be denied. The system of law may function to ensure that an accusation is justified irrespective of the process. This is the classic case of political and personal interest overriding judicial – and therefore, national interest.
The 2016 Constitution understood this weakness in Zambian law and revised it as seen in Article 98 (1) to (11): Protection of President from legal proceedings. Learning from history, the current law proposes that an accusation against a former head of state cannot be for political or personal mileage. Therefore, a sitting president, who is the principal custodian of public and national interest must present the charges before parliament and the accused former head of state must respond to those charges in parliament before they are relayed to the courts.
Interestingly, neither parliament nor the judiciary have ever gone back to review past accusations of those presidents that were not called in parliament to make their case. If crimes can be committed at presidential level as suggested in the law; it must not be beyond conception that crimes could also be committed under the disguise of investigations. This is why public interest does not find nobility in mere accusations; it rests in the function of truth. It is here that the current law attempts to remove politics from matters of law.
Whatever the case, it is hard to argue against presidential immunity because it enables presidents to make the most difficult decisions in supreme national interest without the fear of retribution. Yet, there appears dissatisfaction in some quarters for presidents to not have immunity at all, with some arguing that immunity should be withdrawn immediately after a president’s term of office. Indeed, acts committed against public interest, or for personal gain, cannot be shielded using a law of public interest. Crimes do not deserve the protection of immunity.
These crimes include false accusations at high level. Where crimes are evidentially committed, it is critical to follow the legal process as South Korea did when it arrested, jailed and after 5 years pardoned their former president in 2021. In the event of acquittals, the judicial and investigate functions must do thorough introspection instead of continuously arguing political cases in the halls of law; reappealing to save reputations instead of national interest.
To conclude by firm observation, there is no greater harmonization and concentration of constitutional power than the Presidency in most countries. On one hand, the position can be a middle-point for public interest with all its breadth of emotional contests, rationalizations and retributions were possible. On the other, it can lend logic and direction to a faceless bureaucracy in a way that creates an enduring institutional balance and national identity for generations. Ultimately, it is a matter of legacy.
