My free legal advice to President Lungu

Lawyers do dumb things. Presidents do dumber things. Lawyer-presidents do dumbest things. Disclaimer: I have done dumb things myself. And I have paid for them and I keep paying for them. Thus this article is not written from a holier-than-thou perspective.

What was President Edgar Lungu of Zambia thinking when he publicly issued a death threat against the most visible of Zambia's journalists and editors, Mr. Fred M'membe? Issuing such a statement in the modern context, far removed from the yesteryears of one party dictatorships and lack of international criminal courts as well as the absence of removal of presidential immunities, is reckless.

In most jurisdictions, what President Lungu issued against Mr. M'membe constitutes a criminal offence of threatening or uttering a death threat. In international criminal law, it is called incitement to murder of a civilian or similar wording. This offence is separate and apart from the offence of murder. It is still an offence even if it is not carried out. Uttering such words in international immigration law makes one inadmissible to countries such as Canada on the basis that there are reasonable grounds to believe that one committed a criminal offence abroad, which if committed in Canada would constitute a criminal offence.

Even if the offence is not carried out, the utterance constitutes both the mens rea (intention) and actus reus(the doing). It may be that President Lungu just uttered these words in the heat of the political speech and resulting atmosphere and had not meant what he said, nor did he ever intend to carry out the threat. In law, however, political speech of this nature regardless of the atmosphere or consequences, is no defence. Genocide has resulted from such speeches. These utterances could be carried out by some cadres, sane or deranged, who think they have heard the call of duty.

A Rwandese mayor called Leon Mugesera called for the death of “cockroach” Tutsis in a radio interview in April 1994, and shortly thereafter, thousands of Tutsis and Hutus were killed. Mugesera fled to Canada where he claimed refugee status which was stripped of him once the radio interview was played. He was deported back to Rwanda where he was criminally prosecuted along with thousands of others who incited and committed the crime of Genocide.

If Mr. M'membe gets killed by anybody, there is no sane person who would think that the death did not result from the President's threat, no matter how or who causes it if it happens between now and the next presidential elections. Zambia has already set a precedent that any president who is suspected of having committed a criminal offence during his presidency can have his immunity revoked.

M'membe could also report this matter to the police. The Zambian police could also on their own motion investigate this matter and wait until the president is stripped of his immunity.

The international Criminal Court holds accountable presidents and others who commit offences but are not charged by local authorities because of incapacity or inability or unwillingness to prosecute the powers-that-be. As a lawyer, President Lungu can also be sanctioned by the Law Association of Zambia.

There are no modern leaders who openly threaten death to opponents by name. Even under apartheid, the leaders merely used to say that those who break the law would face the wrath of the law. They didn't threaten death. Amin never directly threatened death by name. Political bravado rarely carries leaders that far.

It is possible that President Lungu never deliberately set out to utter the threat, let alone have the intention to carry it out. It was political bravado and feel-good muscle flexing. But that is beside the point.

If I were President Lungu's legal or political adviser, I would immediately advise him to pick up that State House phone and apologise to Mr. M'membe. I would advise him to call a press conference to publicly apologize. President Obama has apologized many times for things he said or did that were dumb and he had been called on them. He set aside his ego. Apologizing does not diminish anybody's status. It enhances the character of a man, especially a president.

* Munyonzwe Hamalengwa, PhD, is a Zambian lawyer living in Canada.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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