…But when the state wakes up on another side of the bed, it denies its existence
State Counsel, Sakwiba Sikota has told the Constitutional Court that the state has admitted the existence of an immunity agreement between his client Milingo Lungu which it entered except, he added, it has now changed its position.
“In their arguments they say, there is no immunity agreement. They wake up on the other side of the bed, yes there is an immunity agreement, but it has been revoked now. What was the petitioner to do seeing the constant change of position by the respondent? The only thing the petitioner could do was to come to court”, Sikota told a five-member Constitutional Court.
In an apparent reference to established global practices where immunities are treated as serious and inviolable agreements, Sikota submitted that immunities must be respected irrespective of which DPP presided over the agreement as they all do so in the name of the state which remains constant while public officers come and go.
The State Counsel said by referring to the revocation of the immunity agreement on the 22nd of December 2022, the state was admitting its existence contrary to their current position which denies its existence. Sikota was referring to the characterization of the immunity agreement by lawyer for the state, Robert Simeza, State Counsel, as “the purported agreement”.
Instead, Sikota said the revocation of the immunity agreement amounted to a retrospective revocation whose legality he questioned.
“Indeed, we can argue that it is not possible to retrospectively revoke a right which has been granted to someone. Our argument goes even further that you cannot even revoke an indemnity agreement granted by your predecessor or even granted by yourself. You can’t tomorrow turn around and say I have changed my mind, you no longer have immunity. Our constitution says that we must advance the rule of law. Doing that is not advancing the rule of law”, Sikota said.
Even if the immunity agreement had indeed been revoked, Sikota argued that the court must still address the reliefs his client placed before it. For instance, Sikota said his client was seeking a declaration as illegal his rearrest and the criminal proceedings against him that followed as this was done while he enjoyed his immunity against prosecution.
In his submission earlier, Simeza had argued that the court must dismiss the petition by Lungu saying entertaining it amounted to what he termed “an academic exercise”. Commenting on this characterization, Sikota told the court that “Even if on 22nd December 2022, the DPP purports to revoke the immunity, it does not cure this wrong which was done, of arresting and detaining the petitioner whilst he had an immunity agreement. Seeking relief by someone who lost their liberties, who was made to go before criminal proceedings cannot be said to be an academic exercise”.
Lungu, who holds a masters’ degree in insolvency from the University of Cape Town, South Africa, was appointed provisional liquidator for the Konkola Copper Mines, KCM, during the term of the previous government.
But the government of President Hakainde Hichilema, facing apparent political pressure to resolve the KCM legal challenges mounted by Vedanta Resources, an Indian-based company, which was operating the facility, went into an immunity agreement with Lungu as he stepped down as provisional liquidator paving way for a commercial resolution.
However, in a surprising turn of events, the government of President Hichilema sought to distance itself from the deal alleging that the DPP at the time did it on her own. Members of the ruling party mounted pressure on the President to fire her and subsequently replaced her with another DPP, who, on the 22nd of December 2022, a day after assuming office, announced the revocation of the immunity agreement.
