HERITAGE Party president Brigadier General Godfrey Miyanda has accused the Anti-Corruption Commission (ACC) of circumventing the Supreme Law of the land, the constitution, when they called former president Rupiah Banda for questioning.
Gen Miyanda said that summoning of former President Rupiah Banda by ACC to respond to criminal allegations was untenable and may itself render useless any case the ACC may have against him.
Gen Miyanda stated that ACC was now clearly circumventing the Supreme Law of the land by breaching the constitution in the course of duty by not following the procedure.
In a statement made available to the Daily Nation, Gen Miyanda said that the argument by government Spokesperson Kennedy Sakeni lacked merit because it the move to interrogate a former head of state was illegal and unconstitutional as Mr. Banda continued enjoying imunity.
“The rising crescendo about the removal of former President Banda’s immunity is indicative of our polarised political climate. It is an unnecessary but well-orchestrated stratagem to distract attention from real issues that require answers by the PF regime. Unfortunately the public have once again swallowed the bait and have joined in the unproductive quarrels,” he said.
Gen Miyanda said that the constitution was clear in the manner issues of former presidents and other people enjoying immunity the way they should be handled.
“To make clear this contention it is necessary to analyse issues surrounding the controversy created by the ACC. The motive of the ACC summons is contained in their own statement, where, inter alia, they have said that they have summoned President Banda “for interviews in connection with alleged corrupt and other criminal activities in which you have been named and to avail yourself to provide answers to allegations made against you without losing your immunity”. He is clearly a man already charged without being charged. The ACC are merely leaving behind a paper trail to show that they handled the matter professionally and transparently,” he said.
He said that claims by some unnamed government legal experts that the former president was only immune from prosecution and not interviews or questioning were misleading as he had been asked to go and clear himself, which was another phrase for giving evidence to the ACC to prove his innocence. Gen Miyanda observed that by going to give statements to ACC the former President would have waived his immunity.
“The “interview” by the ACC is intended to confirm his participation in the crimes as alleged by those already interviewed. As stated by the ACC if he does not show up they will still “pursue” him. This is because they believe that they have sufficient information of his involvement in the alleged crimes. So why beat about the bush? This “interview” has already set in motion the proceedings for prosecuting him. For goodness sake an investigation is part of the proceedings leading to prosecution. In recent times we have seen those summoned in the morning to a Police Station to be interviewed spend a night at the Police station,” he said.
He reminded the government and ACC that Article 43 (3) provided the procedure for commencing proceedings against a former president.
Gen Miyanda explained that two ingredients stand out, namely that a former 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 determines that such proceedings would not be contrary to the interests of the State.
“So the first hurdle that has to be crossed is to apply to the National Assembly for the Members to debate the allegations tabled. The second hurdle is for the Members to debate whether, even if the former president had committed the alleged crimes, such proceedings would not be contrary to the interests of the State. As far as I can recall no such debate took place in the case of former President Dr Chiluba,” he said.
He reminded Mr. Sakeni said that, “ if as stated by the chief government spokesman, the ACC can investigate a former president they can also investigate a sitting president, in this case President Sata. However there is a complete bar against prosecuting a sitting president for civil or criminal actions. There is also a complete bar of proceedings against a former president for criminal or civil actions committed during his tenure of office unless the National Assembly so resolves.”