Law experts say Malawi President can testify in court: JB ‘shocked’

Law-experts have said President Joyce Banda can stand as a witness in court following the absence of a law that gives her immunity.

Former Justice Minister Ralph Kasambara, charged with attempt murder of Budget Director Paul Mphwiyo, told Lilongwe Magistrate Court on Monday that he would want President Banda to testify in court as witness in the matter.

Kasambara, one of the country’s prominent lawyers and a senior counsel (SC), submitted to court that he would want in the witness dock President Banda, a State House official Cecilia Kumpukwe (a sister to President Banda), Minister of Information Brown Mpinganjira, ruling People’s Party spokesman Hophmally Makande and Prophet Elias of Machinjiri.

In separate interviews with Nyasa Times, law-experts and analysts Justin Dzonzi and John Gift Mwakhwawa said President Banda enjoys no protection from being drawn to court as a witness.

President Banda: Surprised and shocked

Lawyer Dzonzi argued that in the absence of the law, President Banda could stand as a witness in Kasambara’s case.

Dzonzi said: “To my knowledge, there is no law that bars her from testifying in court, therefore she can be loped in as a witness and considering the nature of current -a criminal case- she might be forced to testify. But she can’t be prosecuted as she is immune to that”.

The renowned human rights activist and law-expert was however quick to point out that President Banda might become a witness depending on the prominence of her testimony.

“I think for her to stand in court it will depend on how critical her testimony in the case is. If it is not all that important or is of no significance to the case, she might choose not to testify,” added Dzonzi.

And Mwakhwawa said President Banda would be considered as a witness to Kasambara’s case following her public remarks in which she alleged to have knowledge of those who were responsible for the shooting of Mphwiyo.

Mwakhwawa said: “The President can be called to court or subpoenaed as a witness to a case in any court, she is not protected by any law from not doing so. And if we are to talk of current case of Mr. Kasambara, she is a prime witness”.

Mwakhwawa said President Banda’s public comments about those who shot Mphwiyo indicates that she have knowledge and information important to the case.

“If she could make such statement to the public, then she can as well be drawn to make it under oath,” he added.

Former presidential legal advisor Allan Ntata told Nyasa Times from England  where he is teaching at a university that a Malawian Head of State can be subpoenaed as a witness in a criminal case.

“The President is not immune to orders of the court concerning rights and duties under the constitution,” he said.

Malawi Law Society (MLS) president Mandala Mambulasa also  said the fact that the Office of the President enjoys immunity from prosecution does not prevent the office bearer from testifying in court.

Section 91 (1) of the Constitution says a President may not be sued in any civil proceedings but he/she shall not be immune to orders of the courts concerning rights and duties.

And Section 91 (2) says: “No person holding the office of President shall be charged with any criminal offence in any court during his [or her] term of office, except where he or she has been charged with an offence on impeachment.”

But University of Malawi’s Chancellor College Associate Professor, Mustapha Hussein was of different view, saying being a Head of State, Banda cannot testify in court.

Hussein said despite the absence of the law to give her immunity, but the virtue of being a President of a country, Banda was protected from being a witness in any court of law.

“Incumbent President cannot be drawn to court to give testimony to anybody. Though there is no law giving her immunity, but the position she is holding offers her that protection. Remember she is immune from prosecution and that can be extended to bar her from standing in a witness dock,” Hussein explained.

Hussein, a political analyst, said there should be a way of obtaining information from President Banda that could be used in court rather than allowing her physically testifying.

“There are people like the Attorney General who could stand in place of incumbent president. But I don’t think it is befitting for a president of a country to physically testifying in court considering the nature of her office. She can only do that once she is out of office,” he said.

Asked to comment on the matter Presidential Press Secretary Steven Nhlane said President Banda “has heard about the statement, she is surprised and shocked with it. But since the matter is in court, the President will not say anything more than this.”

Meanwhile, analysts say there is already a precedent when  Bakilli Muluzi while serving as the President of Malawi,  became the first leader in his country’s history to testify before a court of law in 2003.

He appeared before the Lilongwe Magistrate Courts as state witness in a case involving the then main opposition Malawi Congress Party president Gwanda Chakuamba  and his personal secretary Grace Mhango who were  charged with forging the president’s signature.

The presidential testimony, which took more than three hours, was intensive with tempers sometimes frayed.

Muluzi told journalists  that time that as citizen number one, he came to court to show that he respects the rule of law.

With reference to the grilling he had received, Muluzi jokingly said: “As lawyers do, they had a field day today but I enjoyed it.”

President Banda has said the shooting of the budget director was linked to his efforts to fight corruption.

Kasambara, who is  ruing PP’s director of legal affairs,  has been charged with attempted murder of Mphwiyo.

He has no yet entered a plea. –(Additional reporting by Thom Chiumia, Nyasa Times)

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