Malawi sedition laws ‘declared invalid’: Law scholars discuss inconsistencies

The use of sedition laws to punish government critics is inconsistent with the spirit of the new Malawi Constitution which guarantees freedom of opinion, expression and the press; law scholars have said, revealing that the High Court declared the sedition laws invalid.

Kanyongolo:

Kanyongolo: Violation of privacy

Lawyer Sunduzwayo Madise: Sedition was declared invalid by High Court

Lawyer Sunduzwayo Madise: Sedition was declared invalid by High Court

The comments come in the wake of the arrest of opposition members charged with sedition and treason over allegations that they discussed on WhatsApp  – the mobile messaging service -how to unseat President Peter Mutharika.

University of Malawi law lecture Sunduzwayo Madise – currently pursing further studies in England – put on record that a High Court ruling made by Justice Lovemore Chikopa  (Senior Counsel)-  in the case  involving politicians Harry Mkandawire and Yeremiah Chihana who were charged with managing unlawful Society.

On sedition, Justice Chikopa ruled: “And yes perhaps it is time we decided whether in their present form our sedition laws remain valid in the current Constitutional dispensation or whether we still need them. We think not in either instance”.

Sedition used to be a serious offence during the rule of former president-for-life, the late Hastings Kamuzu Banda. The law used by dictatorial regimes to gag criticism, was used to imprison pro-democracy hero late Chakufwa Chihana, apparently its last victim.

A constitutional law expert Edge Kanyongolo, who is lecturer at University of Malawi’s Chancellor College, has also discussed about the inconsistencies of the law to democratic society.

Writing on his Facebook page, Kanyongolo  stated that before even getting to the question of whether words in private communications  like Whatsapp are seditious, the State has to overcome the question of violation of the right to privacy.

“Section 21 of the Constitution provides that ‘Every person shall have the right to personal privacy, which shall include the right not to be subject to – a. searches of his or her person, home or property; b. the seizure of private possessions; or c. interference with private communications, including mail and all forms of telecommunications.”

He added: “Of course, the right may be limited, but only where the search/interference is authorised by law (usually through a warrant). Any evidence collected surreptitiously without such authority- sometimes referred to as ‘the fruits of a poisonous tree’- will generally not be accepted by a court.

“In addition, any person involved in such illegal collection of evidence is himself/herself committing a criminal offence (akin to trespass) and may be sued for compensation.”

However, Kanyongolo pointed out that “it becomes a different ball game if a participant in the message exchanges voluntarily gives the police the ‘evidence’… snitch-like.”

And responding to a Nyasa Times questionnaire, law expert Madise said Malawi should rethink the use of sedition laws, calling it “archaic” and that it serves “no useful purpose and actually infringes on the constitutional right of free speech.”

Madise told Nyasa Times: “ As long as people are not actually planning to use arms insurrection or force, using sedition law to gag people has no place in the 21st century. This law should either be repealed or redefined to be restricted to cases where attempts are made to use force or arms to overthrow a government.

Justice Chikopa:   Ruled sedition is invalid

Justice Chikopa: Ruled sedition is invalid

“Otherwise mere talk cannot in my view amount to overthrowing the government. Suppose one person rose up today and announced I am President. Most likely he would be dismissed as a lunatic or someone seeking attention. No One would take him or her seriously.

Madise noted that all the sedition and  treason cases in Malawi have actually amounted to nothing but suppression of either the opposition or those deemed to be the next generation of leaders.

“Therefore to use sedition as a means to silence criticism is in my view the wrong application of law. I have always said it that all these calls for resignation or regime change are just empty calls. No one ever takes them seriously. Malawi is a constitutional democracy. The removal of the sitting president is governed by law. He can resign, be impeached or removed if incapacitated. Calls for the president to resign are just that; mere calls. They cannot in the least force at law any president to resign unless the president wishes to resign. Deadlines for resignation have no place in our constitution. Usually I dismiss them as the usual political or civil society talk,” Madise told Nyasa Times.

He also said calls for “regime change” cannot in their own amount to sedition.

“After all people have the right to agitate for regime change should they be dissatisfied with any current regime,” said the lawyer.

Madise pointed out that what would be unlawful is the means employed to affect regime change.

“Civil disobedience cannot in my view be sedition. That is how we (Malawians) forced Kamuzu to concede to a referendum. As long as there are no acts of violence (which can be prosecuted on their own) or use of arms or other state institutions like the army or police, I would opine people should be left to debate their political choices.

“In any event with the opening up of social media such as Facebook, Twitter and others, it begs the question whether you can succeed in gagging up people or whether in the process all you are doing is releasing Pandora from her box. Every time I hear of these sedition cases I always laugh and say we really have better things to be doing.”

He also said politicians in power should stop abusing the Police in victimising opponents and wonderers why MPs who find sedition and treason laws draconian, what are they doing about it, saying they have the power to act.

“Complaining about it will not solve the problem. Maybe it’s time you actually did something in that august House about this draconian law

A South Africa-based law scholar at university of Cape Town Danwood Chirwa stated in the local press that Malawi has a Constitution that protects freedom of expression and political rights, both of which are there to promote robust political engagement and competition.

Using the sedition law to squelch political dissent has also been widely condemned by Malawians on social media, particularly on Facebook.

London-based economist Watipatso Mkandwire wrote on Madise’s Facebook post: “This has become kindergarten stuff. Who is in charge in Malawi? It seems each institution of Government can wake up and perform a function whether illegal or irrelevant as long as it serves someone’s interest. Very chaotic. How would even partners trust us?”

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47 thoughts on “Malawi sedition laws ‘declared invalid’: Law scholars discuss inconsistencies”

  1. sokonombwe says:

    KENI MSONDA SOCIAL MEDIA CASE VS JESSIE KABWILA SOCIA MEDIA CASE IN THE COURT OF MALAWI LAWS.

    Indeed lawyers in Malawi are very interesting in handling cases. They were not even taught anything about precedent in handling cases. They forget easily. That is why a cases with similar elements are treated differently, one may be given 14 year jail in Nsanje while another offender of the same case may be given three year jail. Even our so called democracy defenders are best victims of the same. Even our internationals with interest in Malawi cases have gone mad. The case of Ken Msonda who iniitiated the need of killing all gays in Malawi was from the same social medial as the case is of this prostitute Jessie Kabwila. The case of Ken Msonda was interttained in court while that of Jessie, we are getting the court issue of social media is archaic. When did you know that? Why our laws have big eyes and they where to be applied or not.

  2. Padambo Njobvuyalema says:

    What is wrong with our lawyers in Malawi, the likes of Mr Sunduzwayo Madise? Why are they always playing double standards? It seems anything from or by the government is bad and wrong, and anything from or by the opposition is good and correct. Why is it that in Malawi the only time lawyers side with the government of the day is only when they secure a job with the government or are enjoying some special favours from the government?.
    Just a week ago Jessie Kabwira and company were all over giving the head of state an ultimatum to resign. Prior to that we all heard about the plot purportedly being hatched at some diplomat’s place to unseat the head of state and that Kabwira’s boss was to head an interim government. One of the conditions being proposed was to offer immunity from arrest to the former president Joyce Banda whose party is now being lead by Uladi Mussa. Now the intelligence/police come across seditious communications, arrests Kabwira & co, and guess who rushes to the police station? Uladi Mussa, ofcourse! And who rushes to clear Kabwira & co? the Sundizwayos ofcourse! Schooling us the legally illiterate that sedition law was invalidated by Justice Chikopa yet no lawyer pushed for that judgement to repeal the sedition clause in our constitution. Since I am legally illiterate, I do not know if a mere court judgement can invalidate a constitutional clause which remains unrepealed.
    On the other hand, are these so called lawyers serious enough when they say you cannot act on matters that are raised on the social media? I thought the media is granting human beings the fastest, easiest and even cheapest means of communication? Isn’t the media the most effective way for mass mobilization? Did the lawyers not condemn Msonda for using the social media to mobilize people to deal with gays and homosexuals. Eeee koma maloya a ku Malawi!

  3. Buyelekhaya says:

    @Shokodido, don’t argue when you are consumed by emotions. The result will be hurling of insults not well-knitted arguments. The danger with it comes the revelation you are using a rat brain! Mayi Kabwila akhala hule ngati adachitapo zauhulewo ndi iwe!.

    Nkhani ya a APM ikusiyana kwambiri ndi izi! Ndiye mukamapeleka zitsanzo mudzisamala. Nkhani ya Chilumpha mufunse a APM omwewo chifukwa mkulu wawo ndiye adachita zimenezi ndiye mwina adamuwuzako mng’ono wake zomanga Chilumpha!

  4. Buyelekhaya says:

    @Peter, where is Lake Kariba? Did you complete your formal primary school education?

  5. yandula says:

    Pitaramustfall!

  6. Chimtolo says:

    The big heads we have were made so that we think contsructive ideas with full patriotism. Our leaders have run out of ideas dont want to work in tandem with the solution privided. How can you behave like obama in a poor country like malawi.14 advisors…many vehicles on a convoy some carrying chairs only..thats all nonsense..what happens when you sit a plastic chair..lack of patriotism..obidience to the law..loyalty to voters and faithful in discharging duties thats what brings in this mess..Insteady of acting your busy enjoying confort in public offices and arresting people on false allegatios..God is watching from a distant and we His children are praying watchout…

  7. NZOZO KUNUNKHA says:

    You can force the horse to the river but you can not force it to drink.

  8. Mugonapamhanya says:

    Malawi is an intellectually bankrupt nation. We don’t have competent intellectuals who can be trusted in this poor nation. For instance, when Msonda incited people to turn violent against gays via social media the so called analysts and activists pushed for the arrest of Msonda. When Kabwila and others were planning to violently unseat the president via the same media, the same people say social media cannot be used. What message do they put across about themselves? People like Kanyongolo and others show us that they are educated idiots that speak what their friends would like to hear. They don’t speak the truth but they read the wind first.

  9. The positive side of the story is that you become more popular once politically arrested. Msungama was just an atom in the drum of water.

    After arrests Australia, USA, Europe and Asia have known him. Almost every Malawian has known Msungama either through media like MBC, ZBS or informal discussions.

    To the contrary democratic watchdogs like Germany, Britain and USA have black listed APM as a suppressor.

    What a dull president, can that conversation lead to overthrowing govt? All those who planned and approved the show are worse than decomposing corpses.

    DPP imayiwala msanga, ayiwala kale zidachitika 2012? President wayamba kale kugwa uyu! sorry

  10. chongolopiyo says:

    I thnk our leaders should utilise the constitutional laws very wel. the president shud hav another strategy of handling stupid issues, mudzingomanga anthu? its tym malawians must unite and solve these numerous problems we r facing. its u our leaders whum we voted into power to start helping the needy. cant u see malawians r dying wth hunger????? do something!!!!!!!!!!!

  11. dr tonde says:

    When msonda shouts kill gays then.social media can be used to prosecute him, when attention seeking horny kabwira shouts violently topple mutharika then social media can’t be used! What an oxymoron!!!!!

  12. Peter says:

    This is undone. You don’t hav to compare the economy of other countries to malawi. That is a sign of failure. USA and Malawi r quite different in everything. But the best is our neighbour Zambia whose economy is better than us. Zambia is also a landlocked country and poor interms of nature like few rivers and no lake. But what is making Zambia to do better. Is it about capacity development or something mysterious. Look at the dollar now. Can we sustain the foreign investments. Normally malawi import most raw materials for production of products that r edible or not thats why sugar is priced against the dollar no matter wht. We malawians we r on a flame of fire. Kamuzu went away with everything good of our country, we r cursed thats why we lack to development our land

  13. Nkwapuleni Mwana says:

    Tisanamizane apa, the Police are just doing their job. Ngati si malamulo ofunika munalikuti dzaka zonsezi osawachotsa? Ntchimo lirilonse limayamba ndi kuganiza kenako kulankhula and finally kuchita. Inu ophunziranu nkhondo ikayamba muthawira komwe muliko, ife amphawife tikhalabe konkuno poti tilibe kopita, a Police chonde tetezani dziko lathu.

  14. kabotolokamo says:

    Malawi thew forgotten glory !

  15. Sister Josophine says:

    Ameneyo ndiye Nicholas Dausi amene timudziwa ife. Munthu wa Malawi Young Pioneer yemwe sanasinthe. Ndale zake za ku Mwanza. Fufuzani, mudzaoeza dzanja la Dausi mu zochitika za ku Mwanza.

  16. zoba says:

    Cousing confusion,in sighting revolts,who is this one? The secretary of the main opposition party,does that mean she was planing on her own?If so then. She must be removed from such a sensitive post in a political party,Look how she behaved on thursday @ PACmeeting.The problem is she has gotten too big for her shoes.A shame,is it how to be too Educated brings a person to.Not knowing which platform to do/not to do what? U are becoming Saveges,

  17. Chilungamo Chimawawa says:

    Pitara sangayendetse boma, kumbukilani kuti udamukanika u minister omweu. let him go!!!

  18. Njolinjo says:

    Our police behaves like a political party in government. Shame! Treason is bailable by the high court not the police. Shame!!!!!! Spy machine at work.

  19. State Counsel says:

    A good lawywer gets respect from his peers based on the number of cases they have won in the Court of law. I do not get the logic on why lawyers such as Sunduswaye Madise and Professor Kanyongolo make their legal opinions public.Is it out of good intentions or a public stunt. I would like to know how many cases have the aforesaid lawyers won. I prrsonally think a very good lawyer would make their legal opinions public or comment on anything regarding the law. Be exemplary guys. Mantain your integrity you two.

  20. well wherr is my lesrned brother on domesticvpolicy h.ntsba.mwspusitda a mdals moya apm
    p

  21. The sedition is govt propaganda by dausi…so if invslid who suthirised their srrest ksliati or kachama oe kaphale..who evervit must face consewuenses resl consewuences..

  22. MKWAPU says:

    Harry mkandawire
    Was compesated millions because of this stupid law

  23. KUNENEKUDE says:

    Uyooo! Dausi wagwa nayo! NIB yamatudzi ndi Mbutuma yaku MYP, Kungochokera kwatolonkhondo ku Mwanza, Nthangala za Manachesi M’mimba thooo! Head of state intelligency, Shame on you!

  24. Mphepo Zinai says:

    Nzeru za Dausi, MuNyungwi wopanda nzeru wa ku Mazambiki, Mbuzi yene yene yomwa madzi ometera

  25. ineyo says:

    Mr semani (I know your real name) do u expect people to clapping hands for political leaders to appease them over what? That again sounds callowish and primitive.

    Do u still remember what Bingu did after realising that the whole country was supporting him for the job well done. came his second term he turned into a monster .

    We should complain when things go astray and give appreciation wherever it is due. Fuel prices not going up is not a good indicator for development and good livelihood. Open up your eyes Mr man!

  26. vascotykudhu says:

    zankanika yekha pitala

  27. Giling'ande says:

    I agree with you, level-headed 100%. I thought of the same. Why is it that only law practitioners from the north were asked. It is this useless lawyers that interprete the law subjectively. Msonda was rescued by the state and the people of Malawi. Any govt could have arrested them. People are arrested because of Twitter messages or Facebook messages in other progressive countries not this backward Malawi.

  28. Mbuzi says:

    Umbuli apolisi athu mavuto ndi maphunziro awo ochepa

  29. Achimidizimidzi says:

    Give us a break, please. A Whatsapp chat has been over blown.

    Many people discuss and compare scenarios from other countries, does it amount to court cases. what if I read books about Hilter or Idi Amini, will that amount to treason2.

  30. Shokodido says:

    When did we know that this law is bad. Is it because hule la ku parliament ndi anzake lamangidwa? Where were you when Peter Mutharika was arrested by Joyce banda, where were you when Cassim Chilumpha was arrested by Bingu. We currently have a homosexuality law that is on debate, you are not pushing for its protection or repeal, but you are waiting for the President to make a decision and you come flat out to criticise. Why Malawians, our neighbours are just watching us conflict each other. How can Malawi develop when we don’t love each other. Look now, CAMAis saying ‘please Mr. President fix the Kwacha and others are saying that the kwacha should be left to float freely. The other day somebody says the President is not listening to us. KKKKKKKK Malawi wa lero.

  31. Concerned citizen says:

    The president does not have a problem but his advisors,some are frm UDF,MCP,these people used to hate each other long back,now,this time around is like payback time for them,,mind you,even if MCPs dream come true and rule Malawi again,they will do same since it’s payback time,,,APM who is the president does not know anything about being in presidential position,,,all of his priorities are not for citizens,,during his brothers regime,citizens lived for 4 solid years without dying of hunger,,,inflation,ngati chuma sichikuenda bwino fire the governor and finance minister at a time,,,the governor of the Reserve Bank was appointed by Joice Banda so obviously there is twist,,,the finance minister ,frankly speaking that dude is old enough to resign,he has done enough that Malawians will Neva forget,,plz goo,mwachekura adada!!!!!

  32. john phiri says:

    No 4 (Semani) I guess ndiwe wosemadi, you are not following events. Prices of oil are not going up not because of the dpp government but because the Saudi government has refused to reduction production. The IMF has been pressing the Saudi government to reduce its production so that prices can go up but the Saudi’s have vehemently refused so this has nothing to do with Dpp. People have the right to complain if they have no food, you and me do not have problems that’s why we are sitting behind our laptops like gorillas writing this rubbish. Its not the whole world that is going through tough times, for example there is no hunger in Europe, America, China, Egypt, Tunisia, Zambia, Tanzania. So if you have nothing to say zip and go to the toilet so your stomach will be empty like others. May God slap you.

  33. Chambe says:

    All the so called learned are interpreting the law based on their different opinions about it. Iam sure the Chief Justice would also interpret differently based on his own opinion.
    We hear unless the insurrection is armed then it can be interpreted otherwise. But can a demo organized with an intent to force the President step down be guaranteed to be free of those arms that are flooded in the land?
    Iam sure all of you the having acquired your LLBs at UNIMA know about the gap prevailing on this law yet non of you pressed for its repeal. It therefore renders it valid for proactive measures to those planning to topple the governments as this process starts with discussions before the actual coup could take place. This creates another opportunity for interpretation upon interpretation.

  34. Jhsmn says:

    Now the law is invalid bcoz the current situation does not suit you.Last time you said Msonda should be arrested for saying that Gays should be killed.Typical behaviour of western puppets reflecting their masters,playing double standards.

  35. wanzeru says:

    ukaziputa limba nazo utsogoleri sa thamangira kugona mu cell sikufera a malawi mukamalamula mumaganiz ira anthu akumudzi inu ife tikudziw a mungofuna kudzatidyera all politi cians in malawi are thieves wait till 2019

  36. Denguzman. says:

    Well Mr. Pres. arrest more pipo and expect ur govt to lose more money for compasation. Is this gud leadership? APM, tamasula zingwe zonse za Chilomwe zomwe wamangira each and every corner of ur govt coz anthu amenewa sakukufunira zabwino. Iyi sinthawi yomathangitsana ndi a opposition, this is the time how u can entice the opposition to assist u to solve mavuto amene atigwera mdziko muno. Koma njoka zimene unaweta zikukunamiza kuti uyambe kumamanga anthu amene akukudzuzula. Akulu akulu anati, ukawona wina wake akukuzuzula pagulu osamamuyankha ndipo osadana naye koma umuyitanile kumbali mwaulemu coz ameneyo ali ndi fundo zabwino zoti zitha kukuthandiza pena pake.

  37. Charombanthu says:

    We voted against these draconian laws in 1992. Where were these people? Sedition in this day and age??? My foot!!!!

  38. Guaratontor says:

    As long as sedition is in the constitution the law is valid. Madise is expressing his views in his personal capacity. Why didn’t parliament repeal those laws if they are invalid. Empty thinking

  39. BOKHO says:

    Very bad govt. This is a sign of downfall of DPP. You cant compete with MCP. It has super leaders.

  40. Ivan Mark Radhakrishnan says:

    INFORMATION OVER-LOAD!

    Unless SOMETHING MAJOR IS DONE ABOUT THESE ‘LAWS’!

    Cut-out THE DAMN TALK and ‘discussions’. WE HAVE TOO MUCH OF THIS USELESS STUFF HAPPENING EVERY SECOND OF EVERY MINUTE OF EVERY HOUR.

    If you say it’s ‘INVALID’, IT IS ILLEGAL! GET IT SCRAPPED TOMORROW!

  41. levelheaded says:

    But are they not the same who were writing here that Msonda should be procecuted because of saying that gays should be killed on the Facebook?

    Where is this country going?

  42. Aubrey says:

    The writing is on the wall. Let those with eyes read.

  43. Cigadula says:

    ‘This is pathetic chaos. What’s going in our warm heart of Africa? Can people with frozen hearts govern a country famously dubbed ‘THE WARM HEART OF AFRICA? I don’t know!

  44. Semani says:

    One day we will leave our homes and beautiful houses and run away coz timalimbana ndi boma, bvuto tikuliziwa bwino bwino kuti dziko lonse lapansi likukumana ndi mabvuto azawoneni but here pointing fingers to the President m’ molo moti tisove. Palibe olo ndi m’modzi yemwe akuyamikila boma kuti mafuta a galimoto sakukwela mitengo koma za njala and economy. A Malawi timabesa zinthu zathu coz sitimayamikila asogoleri athu.Tiyeni tiwayamikire kuti tiwapase mphamvu zotipangila zambiri

  45. Akungolonje says:

    Ndiye alangizi a Boma zimenezi sakuzidziwa kapena ndi ukape chabe? A Polisi pa Malawi ndiye tikudziwa kuti sukulu ndi vuto therefore even interpretation of the Malawi constitution ndi apongozi kale, very sad indeed.

  46. Dikisan says:

    Worry not. I am sending one by one to school though old enough not to be schooled. They are living in the past. KKKKKKK Wake Nicoleus!

  47. Mussa says:

    Nzeru zawathera awa, what a shameful government in we have in malawi.

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