Medical board made easy
IT will only require a Member of Parliament supported by at least one third of the House to move a motion in Parliament to institute investigation of the physical and mental capacity of the President to perform executive functions if the new Constitution would be enacted as it has been presented to Parliament.
This is unlike in the current Constitution where Cabinet is required to constitute a medical board if there was impairment in the presidency.
And the lifting of the immunity of a former President will be made difficult if Zambians adopted the final draft constitution as has been presented to Parliament.
The draft Constitution has recommended that an MP with the support of one third of the National Assembly can move the motion to have a medical board constituted to investigate the physical and mental capacity of a President.
The draft recommends that if the motion gets the support of the National Assembly, the Speaker would be compelled within 48 hours of the adoption of the resolution to inform the Chief Justice to constitute a medical board.
It states that the Chief Justice would immediately inform the President of the resolution whereupon the President shall cease to perform the executive functions and the Vice-President shall take over but would not have power to make appointments or dissolve the National Assembly.
After the President has been asked to stop performing executive functions, the Chief Justice would within seven days be required to constitute a medical board to inquire into the physical and mental capacity of the President.
“Where the medical board reports that the President is not capable to perform the executive functions, the Chief Justice shall, within 48 hours cause a copy of the report to be presented to the National Assembly which shall resolve that the President should cease to hold office,” the draft Constitution reads.
And according to the final draft constitution, a sitting President would have to apply in writing to the Speaker of the National Assembly to have the immunity from prosecution of a former president removed if he suspects that a prima facie case could have been committed. The final draft constitution proposes that before removing the immunity of a former president, the President would have to submit a report to the Speaker of the National Assembly outlining the grounds relating to the alleged offences against the person who performed executive functions.
The draft Constitution directs that the President would have to request the National Assembly to consider removing the immunity of a former president if there were suspicions that he may have committed a crime while performing executive functions.
The draft Constitution stipulates that after the report has been received by the National Assembly, a select committee shall be constituted to scrutinise the grounds so submitted that would warrant the removal of immunity of a former president from criminal proceedings. The select committee would then recommend its decision to the National Assembly.
In the draft Constitution, the person who held the office of President or who performed executive functions would now have the right to appear or be represented and be heard before a select committee so constituted.
When second republican president Frederick Chiluba’s immunity was removed, it was president Levy Mwanawasa who went to Parliament and outlined the alleged transgressions his predecessor could have committed.
Under the Patriotic Front (PF) Government, fourth republican president Rupiah Banda lost his immunity from prosecution when Wynter Kabimba who has since been dismissed as justice minister and secretary general of the ruling party moved the controversial motion that saw opposition Members of Parliament rejecting the motion and walking out of the House.
But the draft Constitution now demands that a sitting President would have to seek the permission of the National Assembly to have the immunity of the former president removed.
“The person who held the office of president or who performed the executive functions has the right to appear before or be represented and be heard before the select committee so constituted. Where the committee recommends the removal of the immunity from criminal proceedings, the National Assembly may remove the immunity by a resolution supported by a vote of not less than two thirds of the Members of Parliament,” reads part of the draft.
The draft has proposed the former president would have his immunity restored if he had been acquitted as it shall be deemed that his immunity had not been removed.
The draft has recommended that a presidential candidate shall only be declared a winner of an election if he receives more than 50 percent of the total valid vote and that there shall be a re-run within 37 days if a presidential candidate does not receive more than 50 percent in the initial vote.
Meanwhile, the draft Constitution has suggested that a President shall not, in the President’s private capacity institute or continue civil proceedings against a person.