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THE Constitutional Court has dismissed an action by Zambia Community Development Initiative Programme in which it sought a determination on whether Edgar Lungu is exempted from investigations as a former president.
The Court said the matter which was moved by businessman Hendrix Nyambe as the director of the organization, is anchored on personal issues that are contentious.
Nyambe had argued that it is illegal for the Drug Enforcement Commission (DEC) to search and seize property belonging to a former president, without Parliament lifting his immunity.
The State opposed Nyambe’s application on reasons that a former Head of State like Edgar Lungu is not immune from being probed by investigative wings.
Emmanuel Khondowe, a senior investigations officer at the DEC, had argued that there is no law which provides for the lifting of immunity of a person who once held office of president or who performed executive functions before investigating them.
He said the seizure of any assets belonging to a former president before lifting of the immunity, is part of the investigation process.
Delivering judgement judge Mary Kawimbe on behalf Court deputy president Arnold Shilimi, Palan Mulonda, Martin Musaluke and Judy Mulongoti said Nyambe has wrongly moved the court under originating summons.
The application is anchored on personal issues that are contentious.
She said the application specifically refers to Lungu’s properties, namely,LUS/38478 and LUS/28479, which were allegedly seized by the DEC.
“This particularity in our view, goes against our interpretive jurisdiction of dealing with issues that are general in nature and seek a legitimate purpose for interpretation,”judge Kawimbe said.
She said that Nyambe’s lawyer Benjamin Mwelwa, equally confirmed that the case bordered on personnel issues, when he submitted that it specifically referred to Lungu as the victim and emphasised that he was the only surviving former president.
Mwelwa claimed Lungu had suffered injustice, contrary to Article 98(5) of the constitution.
“We briefly wish to address a misconception that arose from Mr Mwelwa’s submissions on the status of our court. The Supreme court was allocated final jurisdiction in all civil and criminal matters. On the other hand ,the Constitutional Court was assigned original and final jurisdiction in all Constitutional matters according to Article 128 of the constitution,”judge Mulongoti said
She guided that the consequence is that both courts are at liberty to make law and precedents independent of the other.
“Finally, we hold that the applicant’s case is wrongly before us and is dismissed in its entirety,” said judge Kawimbe.
By Mwaka Ndawa
Kalemba August 4,2023.
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