Wed, 23 Nov 2016 10:02:52 +0000
PRESIDENT Edgar Lungu enjoys immunity from any legal or criminal proceedings, as provided for in the Zambian Constitution, and so must be removed from the list of respondents together with his Vice-President Inonge Wina in a petition challenging their victory in the August 11 general elections, says Attorney General Likando Kalaluka SC. Mr Kalaluka said in his application for the High Court to remove the President and Vice President and three others in that the Republican Constitution provided for the protection of the holder of the Office of the President with immunity, which was the basis of his application for the misjoinder. This was in the ongoing petition before the High Court initiated by United Party for National Development (UPND) president Hakainde Hichilema together with his running mate Geoffrey Mwamba over the 2016 general election against the Constitutional Court’s decision to discontinue a petition before its determination and declaration of a winner.
The petition before Justice Mwila Chitabo requested to quash the Constitutional Court decision to halt proceedings of a presidential petition hearing before its full determination and declaration of a winner thereof, which was alleged to be a violation of Article 18 (9) of the Constitution. The petitioner also challenged the decision of the Chief Justice Ireen Mambilima and her deputy Marvin Mwanamwambwa to go ahead with the swearing in ceremony of the two winners, Edgar Lungu and his running mate Inonge Wina when there was no declaration thereof. But Mr Kalaluka submitted that the President should not appear on a legal proceedings as he enjoyed full immunity during the entire five year tenure of his office. “A regards the 2nd respondent, we submit that the office of Vice-President is a creation of the Constitution of Zambia (Amendment) Act No. 2 of 2016. We contend that upon being sworn into office the Vice-President elect became part of Government and cannot be sued in her own name regarding her office,” he said.
He asked the court to evoke provisions of Order XIV Rule 5(2) of the High Court Rules, Chapter 27 of the laws of Zambia and misjoin the President and this Vice from the proceedings, on the basis that they enjoyed immunity from being sued during their tenure of office. But opposition UPND lawyer John Sangwa argued that there was no immunity vested in the President to prevent him from bring party to proceedings in a petition as that is not provided for in the Zambian Constitution. Mr Sangwa said there was nowhere in the law that provided for the President’s immunity on a matter which was of civil nature because the case before the court was a civil matter, and appealed for the commencement.
“There is no immunity vested in the President against proceedings. If it were not so, the makers of the Constitution should have included it in Article 28 and 98 for that argument to be sound,” he said. But Mr Justice Chitabo on Monday refused to commence hearing the main matter before the determination of the preliminary which had been raised including the misjoinder applications of five respondents out of the seven initial respondents in the matter. Mr Hichilema and Mr Mwamba have cited President Lungu and his Vice-President, and the Electoral Commission of Zambia (ECZ), the Attorney General, Chief Justice Mambilima, her deputy Justice Mwanamwambwa and the Constitutional Court in the matter.
