Malawi VP Chilima raising an alarm on presidential criminality — Analyst

A Mzuzu-based governance commentator Makhumbo Munthali has said the recent call by State Vice-President Dr. Saulos Klaus Chilima to remove immunity for Malawi President to face criminal proceedings should not just be easily dismissed but rather perceived from a broader picture as the Veep might be raising an alarm on the possible existence of gross presidential criminality.

The press on Friday reported that the call by Chilima to repeal the law which guaranteed immunity for Head of State from prosecution during their term of office, saying the President should face criminal proceedings for his or her actions as giving such immunity was like giving the Presidency licence to commit corrupt crimes.

“This provision is a licence for the presidency to conduct corrupt practices knowing he would not be prosecuted. I am calling for an amendment to this section in the Constitution if we are to truly fight corruption in this country,” said Chilima as quoted by The Nation newspaper on Friday.

Malawi’s Professor of Public Law at University of Cape Town Danwood Mzikenge Chirwa told the newspaper that a criminal trial for a Head of State could bring a government to a standstill, and further noted that at the core of the challenges is the lack of independence of the investigative and prosecutorial agencies and a “corrupt political culture that reproduces itself”.

However, in a Nyasa Times questionnaire response Makhumbo Munthali said that while it was difficult to prosecute a sitting Head of State it was important that as a country “we should not miss the broader picture or message the Vice President might have been indirectly communicating” to the country.

“Being an insider and someone exposed to the Presidency, the Vice President might have been raising an alarm on the possible existence of ‘embarrassing’ levels of Presidential criminality particularly in relation to the fight against corruption in the country.

“And by calling for removal of immunity of the President, the Vice President might have been using this as a strategy to get the much needed public attention towards the magnitude of the alleged corruption in the country – which he had earlier on described as reaching embarrassing levels – and indirectly communicating that at the centre of this embarrassing levels of corruption was a higher political and public office something beyond the bureaucrats,” said Munthali.

While concurring with Chirwa’s observations that a criminal trial for a Head of State could bring a government to a standstill, Munthali said the issue of the immunity of the Head of State and senior government officials was a contentious issue even at global level especially when it comes to serious crimes that offend human dignity like those under the jurisdiction of the Rome Statute of the ICC which Malawi is party to.

“Perhaps as a country we should not only be warry about a country being brought to a standstill but also asking ourselves this question: should political or public office be a safe haven where one can run to in order to escape justice over ‘serious crimes’ [in our Malawi context] like corruption which put the lives of many Malawians at risk? One possibility would be to isolate those serious crimes which the President can be prosecuted while in office and retaining immunity over ‘smaller’ crimes to just ensure that there is some order.

“Corruption is fastly becoming a ‘serious’ crime not only in Malawi but also at regional level as clearly reflected in its inclusion as one of the serious crimes of international concern under the proposed African Union’s Malabol Protocol.  After all, there is no guarantee that after serving his or her term of office the President can face justice as there have often been allegations of a successor government shielding the former head of state from prosecution and in some cases evidence being lost,” said Munthali.

He continued to say Malawians should not allow to be a society that massage impunity over serious crimes that offend human dignity.

Section 91 of the Republican Constitution gives immunity from civil lawsuits and criminal charges to a person holding the office of President or performing the functions of President.

Section 91 (2) reads: “No person holding the office of President shall be charged with any criminal offence in any court during his term of office.”

However, a former president loses immunity and is liable to prosecution for any acts done in his official capacity.

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