Motion to strip Malawi President of immunity from corruption prosecution
Malawi Parliament will hear the motion to lift President’s immunity from prosectuion for crimes comitted while serving as Head of State mostly bordering on corruption.
Member of parliament (MP) for Chiradzulu North (independent) Willet Karonga has filed a notice to move a motion calling for the amendment of a constitutional provision that shields a sitting President from criminal prosecution.
A notice seen by Nyasa Times has been circulated to legislators.
Karonga intends to move the motion on a Private Members Day, which is Thursday, before Parliament rises on Friday.
“That considering the serious implications of corruption on the economy and wellbeing of Malawians, and in order to ensure accountability and sustenance of the constitutional principle that no one is above the law, this House resolves that a Constitutional (Amendment) Bill be brought into the House to amend Section 91 (2) of the Constitution to allow for the investigation and prosecution of a sitting President suspected to be corrupt,” the motion by Karonga reads.
The motion comes after State Vice-President Saulos Chilima advocated for the lifting of the immunity, saying it gives the presidency licence to commit corrupt crime.
The MP to move the motion, is a member of the so-called Chilima Movement, a breakaway grouping from the ruling Democratic Progressive Party (DPP) which has been against President Peter Mutharika seeking another mandate in 2019 elections.
Chilima recently voiced his opinion that the President whose occupants are employees of citizens, should not be immune from prosecution during their term of office.
The vice-president who recently dumped DPP and accused the regime of “embarrasing levels of corruption” said it did not make sense for an employee [occupant of the presidency] of citizens not to be charged or prosecuted for criminal acts carried out during the period of employment while the employers, Malawians, did not enjoy such a luxury.
“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,” he said.
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.
Malawian constitutional law commentator Professor Danwood Chirwa argued that a criminal trial for a Head of State “could bring a government to a standstill.”
He also noted that at core of the challenges is the lack of independence of the investigative and prosecutorial agencies and “a corrupt political culture that reproduces itself.”
A Mzuzu-based governance commentator Makhumbo Munthali said the bid to remove immunity for Malawi President 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.
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.
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this will be meaningless if the institutions to enforce it remain powerless and having him as appointing authority.
I THINK KALONGA SHOULD HAVE STARTED WITH REMOVING IMMUNITY OF PARLIAMENT, SPEAKER & MPs first. If it is ok then move to the President
Immunity yo musaichotse pano iyayi…nane mundidikire kuti ndidzakhale president, ndidzidzangotenga ndalama ndikuponya ku ma account anga amene ndikufuna popanda ondifunsa. Inu, mwatani kodi?
Its not that there are lack of laws to deal with those that commit crime whether by ordinary citizens, politicians or head of state. Under the current laws, if the head of state is found wanting and has committed any crime, an impeachment process can take effect. The problem with Malawi is the implementation of existing laws. We have a law enforcement agencies that are completely useless and captured. No one would dare risk their livelihood by reporting crime committed by a powerful politician. No one within DPP would move a motion of “no confidence” on their president even if there is evidence that he commuted crime. Chilima is aware and has evidence to the effect that his boss is corrupt to the core but he has chosen to be quite over the past 4 years. The best he has done is to whisper to the nation via his cryptic messages hoping that someone courageous enough will pick up the queue. Chilima is complicit in these crimes and therefore should also be charged under the law. He is shielding and protecting criminals and so is his boss! Even if Malawi changes the constitution to charge a sitting president for crime……who is going to charge him. e already have a VP who is shout scared to report glaring crime. Miyambi ili thoooo, afraid to come out clearly. In any case to change the constitution, one needs two=thirds majority; where would one get 130 MPs to support the motion.
Malawians we are too respectiful or rather worship ‘our presidents’. Why should they be above the law? This endeed acts as a licence to commit crimes, hence the need of this law. They must face prosecution as any citizen. Kudos Willet & may the house support the motion
That is what is developing all nation . A sitting president should not tasa thinking people will forget about his corrupt act. We need to strip every president from immunity even in every case. Previously, Malawians have been abused due to this immunity issues. Remember the govt. without justice is just a bunch of robbers (Philosopher Augustine) and that people have rights to overthrow abusive government (Philosopher St. Thomas of Aquinas)
Uku ndiye kuganiza kwa ana. There is already an impeachment provision to deal with the concern of these babies.
Malawians, let us stop designing laws that target an individual. We are having problems today with presidential age limit because we designed a law that suited the over aged Kamuzu that time.
No one is above the law is a very lawful provision indeed. I find the move by Kalonga very hypocritical. Is he aware that paying taxes including paying duty is a law passed by the legislature? Is he aware that any group not paying taxes is being placed above the law? Can he amend his motion to remove the exemption of members of parliament from paying taxes including duty so as not to place them above the law. After all we have seen them silently increasing their perks at a rate higher than that applicable to civil servants. In 1994 they silently removed the recall provision from the Malawi constitution. As long as the impeachment provision remains in the constitution the recall provision must be reinstated in our constitution.
Ukapanda mano osamaswa phale. Mwana wanuyo akudziwa kuti sadzakhala pulezidenti m’malawi muno choncho asaononge malamulo athu.
Heey boss you sound too much pro DPP in your arguments. All the article is saying is that for along time now not only with te current government but from UDF time when this provision effectively used,we have allowed people that we vote into power to mass obscene wealth that is very conspicuous if the massions they build,posh cars they drive and the standard of live they have is anything to bank on.This is very bad and extremely unacceptable regardless of whether the President is your cousin or not.Legislators too must indeed be responsible and be prosecuted by the arm of law for abusing LDF meant for the poor.
The issue of impeachment has never worked boss the reason is that people like yourself will not allow their President to be removed as that will be biting a finger feeding you.
Be wise and rise up petty politics and regionalism point of view.
This is to all the MPs. Time has come to show your mother, mother Malawi, how patriotic are you. You all very well know of the current situation of our country, so be brave and show your pride to be a true Malawian and help move this motion. Hats off to honorable Willet Karonga. If one can do it why not others. May GOD help you all with the right decision. GOD bless Malawi
They don’t even have to change the constitution to impeach the president if he is found wanting. The question is who would move the motion of “no confidence” in the president. The challenge is that we Malawians are just anthu a mantha. Why waste time changing laws when the current laws are enough to get rid of a criminal president.
This was long overdue. Presidents are elected by the mass citizens and hence an employee of the citizens, yet they behave like a god to the 17m people and live lavishly yet poor mass are suffering to meet even the basic needs on day to day basis. Presidents when sworn in take oaths to serve the same citizens as national leader and to provide them with the basic needs under UNIVERSAL SERVICE OBLIGATIONS to which every citizen has a right, as every nation under UN is obliged to provide USO ( affordable food, water, healthcare, education and ict). But here in our country government is run as if it is one’s property, and this starts from top and the chain starts all the way down in the system thus making all those in various positions according to the system ranks, “THE BOSSES”of their own little govt positions in the respective departments / institutions. The whole system is in tatters, and hence the need and a strong willpower to put back the system in place. Government are meant for the people of the nation and must have a strong forward plan to develop the nation to uplift the people out of poverty. Everyone who is in positions with various powers related to that dept is busy milking for oneself. If the principle of a school will not display any discipline than all the students will obviously follow suit, with some taking full advantage of the system failure thus enrichin themselves beyond ones imagination, and all this at the expense of the poor.
Malawi needs, first of all, a leader who MUST BE A PATRIOTIC, who must love his or her country with a passion and have unconditional love for his/her citizens regardless of the tribe. Must show strict discipline and leadership. It’s a pity really to see after 24 years into democracy, our graphs have been declining on all the sectors. This only indicates poor management. Malawi is extremely rich country if only right drivers are put in place, otherwise we will be a poor country in reality within next 10 to 15 years, at the rate things are going. Malawi with a total area of 118,000 kms and with only approximately 8 million eligible voters, we don’t need 193 MPs. 3 MPs per district is more than enough to develop the nation. This will bring results. Every district to have skills development centers in various fields, create economic growth zones, with directed investments in each district. This will create employment for the growing youth population. Let’s all pray to GOD to give our beloved nation a truly patriotic leader. GOD bless Malawi.
Why should the head of state be above the law ?
We already have the provisions in our constitution. Kuona kwanga ndikugwilizana ndi amene akuti bill imeneyi ikhoza kubweletsa chisokonezo .chifukwa zikutanthauza kuti pulezidenti adziyimbidwa mulandu ali pampando wa upulezidenti pamene malimulo apanopa akunena kuti pulezidenti akapalamula mulandu kapena kuba kumene nyumba ya malamulo iri ndi udindo ochotsa mbalayo pampando kuti ayimbidwe mulandu. Achotsedwe pampando choyamba mundondomeko yovemelezeka kenako aimbidwe mulandu. Mumvetse what is immune in this case is not the ‘holde’r but the ‘post’ (chair). Malamulo akuti achotsedwe osati achoke chifukwa mbala ingavomere kuchoka koma iyenela kuchotsedwa. Malamulo omweo akuti mbalayo ikachoka wachiwiri wake ayenera kutenga mpado ‘post’ wakewo. Popoza motion ikuenedwayi ikuchokera kwa BEBE amene akufunitsitsa munjira iri yonse (at all cost) kuyimba belo maganizo anga ndioti motion imeneyi isapasidwe mpata, Ngati alindiumboni asangolubwalubwa akamang’ale kupolisi ndi ku ACB. Komanso ku parliament komwe atha kubweretsa motion yomuneneza pulezidenti.
What does the word IMMUNE mean?Zuma a former South Africa president was being tried but the Government was not at a standstill and things were moving smoothly as usual.It will be business as usual even if the President is being tried.
When Zuma was being tried, the Republic of South Africa never came to a standstill. Government and Head of State and two different things if government is anchored on strong institutions
Which government came to a standstill? Maybe you could see it from Malawi. Ife amene tili mu South Africa sitinazione bwa?Osamangowanamiza a Malawi iyayi…kunamizana muli mumdima ndikaletu uku?
For sure it is unfair for the sitting Head of state to have an immunity of any crime including corruption. It is one way of checking and controlling greedy and corrupt leaders in our country.