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.

Mutharika: May lose immunity is Parliament approves constitutional amendment

Willet Karonga, MP for Chilima Movement files notice of motion to strip President of immunity

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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nsssn
Guest
nsssn

this will be meaningless if the institutions to enforce it remain powerless and having him as appointing authority.

Joseph Banda
Guest
Joseph Banda

I THINK KALONGA SHOULD HAVE STARTED WITH REMOVING IMMUNITY OF PARLIAMENT, SPEAKER & MPs first. If it is ok then move to the President

Kadzakumanja
Guest
Kadzakumanja

Immunity yo musaichotse pano iyayi…nane mundidikire kuti ndidzakhale president, ndidzidzangotenga ndalama ndikuponya ku ma account anga amene ndikufuna popanda ondifunsa. Inu, mwatani kodi?

#DzukaniAmalawi
Guest
#DzukaniAmalawi

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… Read more »

Paradign Shift
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Paradign Shift

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

President Mkango Lion Manthakanjenjemereza
Guest
President Mkango Lion Manthakanjenjemereza

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)

Mesimadzi
Guest
Mesimadzi

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… Read more »

Flames
Guest
Flames

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… Read more »

pundit guru
Guest
pundit guru

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

#DzukaniAmalawi
Guest
#DzukaniAmalawi

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.

pundit guru
Guest
pundit guru

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… Read more »

Muswahili Mambo Sana
Guest
Muswahili Mambo Sana

Why should the head of state be above the law ?

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