The Woes of an ex-President

Lusaka – Rupiah Banda, the ex-President of Zambia, could be prosecuted for alleged corruption during his term of office between 2008 and 2011.
Investigators are putting together a case against the Former President, whose sons – Andrew and Henry Banda – are also facing charges of corruption.
Two weeks ago, the Anti-Corruption Commission asked Former President Banda to come forward to assist with the investigations. Through his lawyers, he snubbed the investigators.
It is understood that Banda is in South Africa.
The lawyers said Zambia’s fourth President had immunity from prosecution as guaranteed under Article 43(3) of the constitution.
The Movement for Multiparty Democracy, which Banda headed when he was President, has also reiterated that the ex-leader cannot be prosecuted.
However, there is a lobby for that immunity to be lifted through a Parliamentary motion.
Article 43(3) of the constitution states: “A person who has held, but no longer holds, the office of 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 has, by resolution, determined that such proceedings would not be contrary to the interests of the State.”
The unfolding situation is reminiscent of what happened to Zambia’s second President, Frederick Chiluba, whose immunity was lifted in 2003 by Parliament.
Chiluba’s successor, Levy Mwanawasa, pushed through the lifting of the immunity resulting in his predecessor facing charges of pocketing tens of millions of US dollars in corrupt dealings during his two terms in office from 1991 to 2001.
It was believed that Chiluba handpicked Mwanawasa as his successor thinking that he would shield him from prosecution for alleged corruption.
In a secret ballot, the National Assembly voted to lift Chiluba’s immunity. The Former President was also prosecuted in London, with a UK court finding him guilty of embezzling US$49 million of public funds.
That ruling has never been registered in Zambia and has thus not been executed in that country.
Zambia has a storied history of prosecuting its former leaders. Founding President, Dr Kenneth Kaunda, was at one point jailed by the Chiluba government.
Dr Kaunda was arrested soon after a small group of mutineers from the army attempted a coup in late 1997. Chiluba claimed Dr Kaunda was involved in the coup attempt, which took place while the Founding President was in South Africa.
In fact, Dr Kaunda spent weeks in Zimbabwe before returning to Zambia after the coup, only going back after getting false assurances that he would not be arrested.
Presidents Julius Nyerere (Tanzania) Nelson Mandela (South Africa), Ketumile Masire (Botswana), Joaquim Chissano (Mozambique), Sam Nujoma (Namibia) and Robert Mugabe (Zimbabwe, and then OAU Chair) reportedly had to intervene to get Chiluba to release Kaunda from detention.
It was probably that arrest that set the precedent, with people saying if the Founding President could be arrested, then so too could Chiluba, and now Banda.
The letter inviting Banda to come forward states in part: “The Government Joint Investigations Team has been carrying out investigations into allegations of corruption and other criminal activities in which you have been named.”
Some analysts say this implies Former President Banda may not be the target of the investigation as his name has merely cropped up in the course of investigations.
As such, notes analyst Ebenezer Osei Opoku, the ex-leader has a constitutional obligation to assist the authorities in their investigations and must make himself available.
One of the Former President’s sons, Andrew, is already on trial on allegations of corruptly benefitting from contracts signed by the state’s Road Development Agency and Italian firm, Fratelli Locci Construction.
It is alleged that Andrew Banda, when he was First Secretary at Zambia’s Embassy in Italy at the time that his father was President, forced Fratelli Locci MD Antonello Locci to sign a two percent “gratification contract”.
He allegedly told the construction firm boss that he would not profit from his dealings in Zambia if he did not give the two percent kickback because he was the President’s son.
The claim is that Andrew Banda – who also served as Deputy Ambassador to India during his father’s administration – pocketed millions of US dollars as a result.
The Former President’s other son, Henry Banda, is also wanted for questioning in relation to allegations of corruption.
He is believed to be holed up in South Africa ‑ along with his father ‑ and has refused to return to face the authorities in Zambia.
It is also unlikely that the Former President himself will be going to assist in investigations back home any time soon.
Former President Banda is part of the Carter Foundation’s election observer mission to the March 4 Kenyan general election.


February 2013
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