President Lungu has the authority to pardon convicts during the transition period-LAZ

According to the Law Association of Zambia (LAZ), outgoing President Edgar Lungu is completely within his authority to release inmates despite the country being in a transitional stage by using the provisions of Article 97 (1)(a) of the Constitution.

In a statement sent to the media following the president’s pardoning of several high-profile offenders, LAZ stated that there have been numerous enquiries and speculations on various media platforms questioning the constitutionality of the move, considering that the country is in a transitional time.

The Association further said that this speculation has prompted it to guide the nation, pursuant to its mandate under Section 4 of the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia.

However, LAZ was quick to point out that the expectation is that that the President acted on a recommendation from the Advisory Committee as he exercised his constitutional power of prerogative of mercy, as the absence of such a recommendation would render the decision unconstitutional.

Below is the full statement

PRESS RELEASE
ON THE PRESIDENT’S DECISION TO RELEASE 60 PRISONERS

On Thursday, 19 th August, 2021 the President of the Republic of Zambia, His Excellency Dr. Edgar Chagwa Lungu invoked Article 97 (1)(a) of the Constitution of Zambia to release 60 prisoners. In accordance with the said constitutional provision, the President exercised his prerogative of mercy.

Following this decision, there has been significant inquiries and speculation through various media platforms questioning the legality of the decision, given that the country is in a transitional period. This speculation has prompted LAZ to guide the nation, pursuant to its mandate under Section 4 of the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia.

Article 104 (2) of the Constitution of Zambia, as read together with The Transitional Period and Inauguration of President Act No. 32 of 2016, makes it clear that the President has power to perform functions of that office during the transitional period.

Limitations on the exercise of this power are that the President is precluded from making appointments and dissolving the National Assembly.

Therefore, the President is well within his powers, in invoking the provisions of Article 97 (1)(a) of the Constitution, to release prisoners despite the country being in a transitional period.

A caveat to the exercise of this executive power though is that a prisoner being released should not have any appeal pending in any court against the conviction.

Further, the President does not act on his own accord in exercising this power, but does so only after receipt of a recommendation from the Advisory Committee, which is constituted by the President pursuant to Article 96 of the Constitution of Zambia.

It is LAZ’s expectation that the President acted on a recommendation from the Advisory Committee as he exercised his constitutional power of prerogative of mercy, as the absence of such a recommendation would render the decision unconstitutional.

Dated this 21 st day of August, 2021.
_________________________________
Sokwani Peter Chilembo
HONORARY SECRETARY

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