Can a Zambian President Sue in Tort? – Elias Munshya

23/05/2014

PRESIDENT Michael Sata at the Lusaka High Court - Photo Credit THEPOST

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I have seen from quite a number of our people who rush to resolving problems by resorting to finding a “lacuna” where there is absolutely no need to find one. The idea that if faced with a difficult constitutional question and if the constitution does not give a clear answer then it is a lacuna is a very difficult and problematic proposition.

There is no lacuna in the case at hand. The President of Zambia enjoys a shield of immunity in civil and criminal case. This does not mean that he cannot commit a civil wrong and neither does it mean that he cannot commit a crime. Immunity simply means that the President can use the shield of immunity and that shield protects him from being sued in a court of law.

However, the president is still a person and he still does have personal interests. The Office does not extinguish the president’s civil rights. As such, he can buy and sell and engage in commerce. He can own property and can dispose of such property. He can marry and divorce and submit himself to a civil court for that purpose.

He can be in family court to do with custody of his children. Additionally, he can commence private proceedings to defend his personal or family name if he is defamed. This is exactly what he did in this case. The issue is that he has decided to personally testify in court as a witness. This is a wrong move. It is wrong on several grounds.

I will not go into details here. However, if it is found that he lied on oath, he still enjoys immunity from criminal prosecution. So the President can go to court, sit in the dock as a witness, and in fact can lie on oath. But the State cannot commence proceedings against him for perjury. He enjoys immunity in that regard. This absurdity does not lead to any lacuna at all.

The President’s appearance in court provides logistical problems for lawyers and for the judge. It in fact, does bring serious issues to court. This matter will have to be resolved between his lawyers, the judge and the defendant’s lawyer. This case is quite unusual.