FORMER president Rupiah Banda may get back his immunity from prosecution if the Supreme Court upholds his appeal.
This means that if the Supreme Court agreed with Mr Banda’s appeal, all cases in which the former head of State was being currently prosecuted would stall.
In March 2013, Mr Banda had asked the Lusaka High Court to stop Parliament from considering a motion to strip him of his immunity because he had not been given a chance to defend himself.
He asked the court to rule that “the executive cannot lay before the National Assembly and debate grounds or charges for lifting my immunity without giving me an opportunity to be heard.
“The executive cannot lay before the National Assembly for debate grounds or charges of lifting my immunity that relate to duties that I did undertake in my official capacity and not in my personal capacity”.
Judge Sitali agreed to grand Mr. Banda judicial review but did not allow it to stop proceedings in Parliament. He has since appeald that the judicial review should have acted as a stay of proceedings in parliament.
But the State has asked the Supreme Court to dismiss with costs Mr Banda’s appeal where he is challenging Lusaka High Court’s refusal to grant him a stay of the decision by National Assembly to strip him of his immunity from prosecution.
The Attorney General’s Chambers, in its response to Mr Banda’s cross appeal filed in the Supreme Court yesterday, submitted that High Court judge Annie Sitali did not err in her ruling as regards the non-grant of a stay in the matter.
It argued that it was misleading to argue that an order of stay in judicial review proceedings was ancillary to the order granting leave to move for judicial review.
“It is therefore, our prayer that this ground of appeal be dismissed with costs,” the Attorney General’s Chambers said.
It stated that Order 53 rule 3 (10) of the Supreme Court practice, gave discretion to the judge whether or not to grant the stay of the proceedings to which the applicant related.
“It is, our submission that this order gives discretion to the judge whether or not to grant a stay of the proceedings to which the application relates. A proper reading of the order (cited above) clearly demonstrates that the court has the discretion to grant a stay or not and that it is not mandatory as it depends on the discretion of the court.”
Judge Sitali had granted Banda judicial review of the National Assembly’s decision to lift the immunity of the former President but refused that the leave should operate as a stay.