Attorney General Mulilo Kabesha has asked the Constitutional Court to remove President Hakainde Hichilema from a case in which he is accused of breaching the Constitution by initiating a constitutional amendment process without broad public consultation, despite an earlier court ruling against such actions.
The case was filed by Patriotic Front (PF) Mporokoso MP Brian Mundubile and Tonse Alliance Youth Chairperson Celestine Mukandila.
The petitioners want the court to declare President Hichilema ineligible to be nominated as a presidential candidate in future elections and have cited him as First Respondent, while Mr. Kabesha appears as Second Respondent.
However, Mr. Kabesha has argued that the allegations relate to actions President Hichilema took while performing his official duties, not in a personal capacity.
He says this makes him as an Attorney General the correct party to be sued, and therefore the President has been wrongly joined to the case.
He has cited Article 98(1) of the Constitution of Zambia (Amendment) Act No. 2 of 2016, which prohibits civil proceedings against a sitting President or persons performing executive functions for actions or omissions in their private capacity during their tenure.
Mr. Kabesha says the petitioners’ request to bar Mr. Hichilema from future presidential nominations is a private relief and goes against Article 98.
He has also referenced Article 98(2), which prevents a President from pursuing civil proceedings in a private capacity while in office.
He has further cited the 2021 case involving former President Edgar Lungu and Chapter One Foundation, where the Supreme Court reaffirmed presidential immunity as necessary to allow public officers to perform their functions without fear of personal liability.
Mr. Kabesha has argued that the Constitutional Court has the authority to order the removal of President Hichilema from the matter and that all such proceedings must instead be directed at him, as Attorney General and Chief Legal Advisor to the Government under Article 177.
He insists that President Hichilema cannot be sued for acts alleged to have been done in a personal capacity, as protected by Article 98 of the Constitution.
By Darius Choonya
