It should not fall to president to comment on matters that are in court, intimating that a certain accused will be found guilty and rot in jail, long before a case has been concluded. This comment alone, from a president is a serious breach of the rule of law, a contempt of court under the old English rules of “sub judice”.
In English law, the term “sub judice” was correctly used to describe material which would prejudice court proceedings. Sub judice is now covered in England by the introduction of the Contempt of Court Act 1981. Under Section 2 of the Act, a substantial risk of serious prejudice can be created by a media report when proceedings are active. Thus, during the time when a matter is “sub judice” or under consideration by the courts, details of the case cannot be disclosed or discussed. In criminal cases this is from the time a person is arrested, a warrant for their arrest has been issued, a summons has been issued or someone has been charged with an offence. The matter remains sub judice until proceedings have ended and a verdict is given.
In Malawi, the sub judice remains active in its old form, as evidenced by the many orders and pronunciations that the Malawian courts have made over the years regarding matters that are still being deliberated by them. A recent example is the gag order that was issued by the high court to the politicians that were accused of treason not too long ago.
President Joyce Banda’s remarks at the recent National Prayers Service in Blantyre are therefore a contempt of court of the highest order, and indeed an impeachable offence under the Malawian constitution. The president’s remarks were apparently directed at Ralph Kasambara, formerly a Justice Minister in her cabinet, and now accused of allegedly masterminding the shooting of former budget director Paul Mphwiyo. The president said, “yes, you dragged me into the matter but you will end up rotten in jail because you committed a crime.”
Two points are worth noting in the president’s remark.
The first is that the president is convinced that Mr Kasambara will rote in jail. There are no ‘ifs’ or ‘maybes’. She knows for a fact that Mr Kasambara’s destiny is that he will go to jail. She also already knows the sentence that Mr Kasambara will be given. The sentence will be so long that Mr Kasambara will spend the rest of his days in jail, die there, and rot there. (Apparently, after he has died in jail, the president knows that he will not even be buried at a place of his or his family’s choosing, but will be left to rot in the jail). Although as usual, Malawian passivity has again resulted in this point being missed by most Malawians, this is a worrying statement from a president, and those concerned that the rule of law should prevail in Malawi ought to take some time to consider what it means to the Malawian judicial system.
The second part of the president’s remark is that the president has already found Mr Kasambara guilty long before the courts. “You committed a crime”, she says. President Joyce Banda is speaking of a matter that is still under deliberation in the court. The trial has not even really started. The evidence against Mr Kasambara has not been presented to the courts. The president, however, speaks as though she was there when the crime was committed. Again there is no equivocation in her remark. Nothing left to chance. No ifs or maybes.
I could easily link this remark to the remark she made long before any arrests were made in the Paul Mphwiyo shooting, where she said she knew who had done it and what the motive behind the shooting was.
However, the focus here is on the implications of the president’s statements. These statements are disturbing because they suggest, or downright reveal that the presidency in determined to interfere with judicial matters, and is prepared to seriously breach the edicts of the rule of law to do so. It is a demonstration of a type of presidential overreaching that should not be allowed in the presidency. It is an affront to the principles of separation of powers upon which the Malawian constitution is founded. For this reason, it is a serious breach of the republican constitution and an impeachable offence.
If, as Malawians, we are at all serious about our democracy, and desire for it to be preserved and for it to grow, I suggest that we need to get out of our passivity and take comments like these very seriously indeed. A president should not be allowed to get away with railroading the judicial system in this manner. The principle of separation of powers, which forms the foundation of our constitution and our democracy, has clearly been compromised when a president can stick her nose into judicial business as demonstrated here. This is why I must once again ask the Malawian parliament to take its responsibility of representing Malawian seriously. It is parliament that has been given the powers to do something about such deliberate and vain abuses of the constitution by the president. It is high time the legislature acted to send a clear message to the executive: Hands off the judiciary, Madam President.