President Michael Sata waived his immunity the moment he subjected himself to the jurisdiction of the Lusaka High Court because the shield of Presidential immunity was not intended as a spear to disparage, defame and malign citizens, State Counsel Eric Silwamba has told Lusaka High Court judge Florence Lengalenga.
“The plaintiff has brought himself into the jurisdiction of this court and cannot be heard to use immunity.” He said, referring to the evidence President Sata gave when he disparaged the professional competence of prominent Lusaka Lawyer Vincent Malambo early this month.
“This court has inherent powers to protect non-parties from being defamed especially where the person involved is an officer of the Court.” Mr. Silwamba told Judge Lengalenga who is presiding over the matter.
Mr. Silwamba was responding to objections against prominent Lusaka Lawyer Vincent Malambo to join the case in which the President has sued the Daily Nation for defamation following the publication of a story that he was shielding his friends Mutembo Nchito the DPP, Fred M’membe the owner of Post Newspaper and Nchima Nchito- all directors of the defunct Zambian Airways from paying back K14billion to the Development Bank of Zambia which according to Judge Nigel Mutuna was obtained by fraudulent misrepresentation.
Order 15 of the laws, he said, conferred wide discretion on the court to join parties, even against the wishes of the plaintiff.
The shield of immunity attached to the presidency as an institution, he said, was not licence for the office holder to use as a spear to execute malicious defamation of individual, because such defamation during court proceedings was not protected by law.
Instead, he said, the court enjoyed wide discretionary powers to join individuals whose character and professional standing would be injured by such court proceedings.
The President, he said, could not enjoy immunity to maliciously defame and injure the professional standing of an individual, such as Vincent Malambo, a lawyer who was also an officer of the court.
Earlier, one of the lawyers representing President Sata argued that Vincent Malambo could not be joined to the proceedings because the President enjoyed immunity and that the Lawyer had no interest in the matter.
In response, Mr. Silwamba described as a strange argument advanced by the complainant suggesting that immunity consideration precluded Mr. Malambo from joining the case.“Admittedly Article 43 of the constitution grants the plaintiff immunity, but this immunity is not absolute and cannot be used as a spear to injure other people.” The Supreme Court, he said, had already given guidance that the President was not above the law, hence was bound to observe the law. Earlier, President Sata’s lawyers apologised for submitting their document late as a result the defence could not offer comprehensive arguments against the objection to Malambo’s joinder application. After discussion, it was agreed that Mr. Silwamba would submit his submission Monday Morning and a decision would be rendered early in the week to ensure that cross examination of the President scheduled for Tuesday June 24 and Wednesday June 25 would take place.