The constitution grants President Rupiah Banda immunity from all acts that he performed under his official capacity as President and can not therefore be charged with any criminal offence, the defence counsel argued yesterday.
The immunity removed by Parliament involved acts committed in his personal capacity, but the charge before the court involved a matter concerning his official duty for which he still enjoys immunity under Article 43(2).
The Defence led by Professor Mvunga noted that according to Article 43(2) a person holding the position of President could not be charged and therefore was not amenable to the criminal jurisdiction of any court in respect of any act done or omitted to be done during his tenure of office.
Therefore, they said, the Government to Government contract on oil procurement which the prosecution were charging him with fell within the performance of official capacity for which he could not be charged.
They further argued that the law under which he was charged had been annulled and could not be applied retrospectively.
The prosecution however argued that the former President was still amenable for prosecution.
Senior Resident Magistrate Joshua Banda has set April 17 2013 for ruling in the matter which the Defence has now demanded to be heard in the High Court in view of the constitutional context.
Magistrate Banda made the decision after the legal team representing Mr Banda argued that the alleged offences were not committed in his personal capacity but in his official capacity and therefore could not be tried in a lower court.
Professor Patrick Mvunga one of the defence lawyers insisted “This is a constitutional matter which neither I nor my colleagues or indeed the learned Director of Public Prosecution can interpret hence the reference to the High court on what constitutes private or official capacity.”
And Sakwiba Sikota said the former President had immunity to any acts done in his official capacity and therefore could not be prosecuted.
“There is no provision in the constitution that allows any party to deal directly with the immunity of the President in acts done in his official capacity,” Sikota said.