AMERICA-BASED Zambian law Professor Muna Ndulo says there is no constitutional provision which grants anyone powers to grant immunity from criminal prosecution.

On Tuesday, Milingo Lungu disclosed that he entered into a bargain with the State to resign as KCM provisional liquidator and to participate in an audit to reconcile his remuneration fees, in exchange for payment of outstanding fees, dropping of criminal charges and immunity against prosecution.

Lungu revealed that the various state agents involved in the bargain, led by Principal Private Secretary to the President Bradford Machila, were Attorney General Mulilo Kabesha SC, Solicitor General Marshal Muchende SC, Director of Public Prosecutions Lillian Fulata Siyunyi SC, Special Assistant to the President for Legal Affairs Christopher Mundia and Administrator General and Official Receiver Natasha Kalimukwa.

He discloses that he was approached by these State Agents to negotiate a settlement for his exit after a crisis ensued at KCM which put its assets and business at risk.

Lungu further discloses that the Solicitor General informed a meeting called by him (Muchende) on March 14, that he together with Machila had been tasked by the President to deal with the subject matter of his resignation from KCM, adding that in the said meeting, an agreement was reached as regards how he was to exit from his said position.

He has also revealed that in furtherance of the bargain, he resigned as Provisional Liquidator, while the DPP, pursuant to the Immunity Agreement, entered nolle prosequi in the matters pending before magistrate Felix Kaoma for the alleged theft and money laundering involving K4.4 million and those before magistrate Jenipher Bwalya for alleged theft and money laundering of K17.25 million.

He also revealed that he requested and was granted permission to hold a meeting with the President in which Vice-President Mutale Nalumango, Minister of Finance Dr Situmbeko Musokotwane and Machila were also present.

But commenting on Milingo’s immunity deal in an interview, Prof Ndulo said no one had powers to grant anyone immunity from criminal prosecution.

“No one has power to grant immunity from criminal prosecution. It is not provided for in the constitution or under any law. There is no constitutional provision for this. The only immunity provided for in the constitution is that of a President. The power to enter a “nolle does not include granting immunity. The so called immunity document has no legal effect whatsoever. It is telling that the document does not reference any law under which it is issued,” Prof Ndulo said.

He said Siyunyi was abusing her office.

“I think what one can say is that she is abusing her office. You can not exercise power which you do not have and does not exist. The exercise of constitional authority is governed by the constitution and legality. There is no constitutional issue to go to a court here. The DPP’s power is governed by legality and rationality. That is the true meaning of rule of law. There is an abundance of case law on this issue. The South African Constitutional Court has dealt with this matter, coincidentally in a matter involving the DPP in South Africa,” he said.

Asked to comment on the meetings which Lungu claimed he held with President Hichilema and several other officials to negotiate the said deal, Prof Ndulo said he would wait for the state to respond to those allegations in court, but argued that the DPP’s immunity deal was badly drafted which exposed her incompetence.

“It seems to me that Milingo has alleged specific facts. He did this in affidavit filed in court. The court process demands that the respondents answer the allegations. If they do not the court is entitled to accept them as facts. Right now all we have is Milingo’s statement. The court rules require the respondents to respond. I would wait for that,” said Prof Ndulo.

“What shocks me is that the DPP could have drafted such a badly put together document. It does not even cite the constitutional provision or legislation that authorises her to do what she is purporting to do. That is a must for every legal document. To me, it exposes her incompetence.”