By Linda Banks | Journalist
STATE HOUSE, THE CONSTITUTION IS NOT YOURS TO SUSPEND
The JJ Banda Affair: When a Government Must Answer to the Law. The presidency is not a courtroom, Its communications specialists are not judges. And a press release cannot substitute for a judicial verdict……….
20 October 2026
There is a dangerous moment in the life of any democracy when those entrusted with protecting the Constitution begin to behave as though they are above it.
The State House statement of 20 October concerning Emmanuel Jay Jay Banda is troubling, not merely for its combative language, but for its apparent attempt to substitute allegations against an accused person for answers to serious constitutional questions.
Let us be absolutely clear: defending JJ Banda’s constitutional rights is not defending any crime he may have committed. It is defending the principle that neither the President nor his Government may determine who deserves the protection of the law.
State House has recited allegations of violence, incitement and other criminal conduct against Mr Banda. Such allegations must be investigated and prosecuted where evidence warrants it. But accusations, however grave, are not convictions. Under Article 18(2)(a) of the Zambian Constitution, an accused person is presumed innocent until proved or pleading guilty.
The presidency is not a courtroom. Its communications specialists are not judges. And a press release cannot substitute for a judicial verdict.
Where Is JJ Banda?
Reports and accounts from those concerned about Mr Banda’s welfare raise deeply disturbing questions. His mother and wife have reportedly been denied access to him. It is alleged that he has not been brought before a court or permitted access to his lawyer, while reports circulating on social media suggest that he is seriously injured and receiving treatment at Maina Soko Military Hospital.
These claims require urgent independent verification. But their seriousness demands answers, not insults.
Article 13 of the Constitution protects personal liberty. Article 18 guarantees fair-trial protections. Article 15 prohibits torture and inhuman or degrading treatment.
If Mr Banda is in state custody, the authorities must account for his whereabouts, the legal basis of his detention, his access to legal representation and the arrangements for safeguarding his health.
Medical treatment does not extinguish constitutional rights. Nor does detention make a human being the private property of the State.
If the Government maintains that Mr Banda has been lawfully apprehended, it should demonstrate that lawfulness through verifiable procedures, not political declarations.
Sovereignty Is Not a Licence to Abduct
State House argues that a fugitive does not acquire immunity simply by crossing an international border.
That proposition is correct. But it is also an answer to a question nobody needed to ask.
The real question is whether Mr Banda’s transfer from Mozambique complied with the applicable laws of both countries and the relevant international agreements.
The SADC Protocol on Extradition exists because criminal cooperation between sovereign states must operate within recognised legal procedures.
A government cannot invoke sovereignty to justify an operation while refusing to explain the law under which that operation was conducted.
If there was a lawful extradition, deportation or other authorised transfer, let State House identify the procedure and the authority responsible
If there was not, then the Government has a much more serious constitutional and international legal question to answer.
Civil Society Is Not on Trial
Perhaps the most revealing aspect of the State House statement is its attack on civil society organisations, describing them as bogus and insinuating that their advocacy is financially motivated.
What an extraordinary response from an office entrusted with defending constitutional democracy.
Articles 20 and 21 protect freedom of expression and association. Civil society organisations are entitled to scrutinise government actions, question detentions and demand transparency without first securing the approval of the presidency.
These organisations have not declared Mr Banda innocent. They have asked whether the State itself has obeyed the law.
That is not subversion. That is democratic accountability.
And since State House has chosen to question the funding of civil society organisations, perhaps it is time to introduce an inconvenient fact into the discussion.
Zambia’s own Social Cash Transfer Programme has benefited substantially from international development partners, including the World Bank, the United Kingdom and Sweden. In July 2024, the World Bank approved an additional US$200 million grant to expand social protection for vulnerable Zambian households.
These international development partnerships have also supported civil society participation, advocacy and social protection initiatives.
So one must ask: When international funding supports the Government’s social programmes, it is welcomed as development cooperation. But when international partners support independent organisations that question the Government, does that same funding suddenly become evidence of questionable motives?
Surely State House cannot have it both ways.
Funding does not automatically confer credibility upon civil society, just as receiving international assistance does not compromise a government’s sovereignty. Both must be judged by transparency, accountability and the proper use of resources.
The source of funding cannot be respectable when it benefits the Government and suspicious merely because it enables independent scrutiny.
Zambia is also bound by international human rights commitments, including the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights.
International human rights organisations are therefore entitled to question whether Zambia is honouring its obligations.
Human rights are not a popularity contest. They belong to the innocent, the accused, the unpopular and even the convicted.
A government that cannot distinguish between defending constitutional rights and endorsing alleged criminal conduct has fundamentally misunderstood the rule of law.
A Warning from South Africa: When the Courts Held the Government Accountable
State House would do well to study Mohamed v President of the Republic of South Africa (2001).
In that case, South African authorities handed a terrorism suspect to American agents without securing the necessary protection against the death penalty.
The South African Constitutional Court ruled that the Government’s conduct was unlawful and violated constitutional protections. The consequence was a formal judicial finding against the state itself, despite the seriousness of the allegations against the suspect.
The lesson for Zambia is unmistakable.
A suspect’s alleged criminality cannot legalise unconstitutional conduct by the Government.
The South African judgment did not prevent every prosecution arising from the case. It established something more fundamental: that the Government itself could be held legally accountable for how it exercised its powers.
Zambia must not wait for a similar judicial rebuke before remembering that the Constitution binds the presidency as firmly as it binds ordinary citizens.
State House Must Answer, Not Intimidate
Amnesty International has called for clarification of Mr Banda’s transfer, a qualified medical assessment, confidential access to his lawyer and family, and disclosure of the lawful grounds for his detention. Civil society organisations have also demanded an explanation of reports that he is critically ill.
These are neither unreasonable nor revolutionary demands.
They are the minimum questions any responsible democracy should be prepared to answer.
The Government must clarify Mr Banda’s present condition, facilitate appropriate independent access, establish the legal basis of his detention before a competent court and explain the procedure used to bring him from Mozambique.
Until then, attempts to discredit civil society will only deepen public concern.
Mr Hichilema’s Government cannot demand respect for the rule of law while treating those who invoke it as enemies of the State.
The presidency is a constitutional office, not a personal instrument of political retaliation. Its authority comes from the people, and its legitimacy depends upon obedience to the Constitution.
JJ Banda is entitled to justice, not preferential treatment. His family deserves truthful information, not uncertainty. Civil society deserves substantive answers, not insults.
And the international community is entitled to ask whether Zambia is honouring the human rights obligations it voluntarily accepted.
Let the evidence be produced. Let the courts perform their duties. Let the Constitution prevail.
Because if State House cannot demonstrate that it has obeyed the law in pursuing one man, it has no moral authority to lecture the nation about the rule of law.
And let State House be reminded of something even more fundamental: the Constitution was not written to protect governments from scrutiny. It was written to protect the people from the abuse of government power.
A government that begins to regard constitutional accountability as an inconvenience should remember that the very Constitution it is tempted to disregard is the same instrument that gives it the authority to govern.
The presidency is temporary. The Republic must endure.
Mr Banda may stand accused before the courts, but State House must never place itself beyond their reach. For when those entrusted with enforcing the law begin to behave as though they are exempt from it, the danger is no longer confined to one accused man. It becomes a danger to every Zambian.
The Constitution does not belong to State House. State House belongs to the Constitution.