Talking Blues: Does Malawi need Section 91? Strip president of immunity: Isn’t this section enabling corruption

Last Sunday’s Times Television flagship “Hot Current” programme broached the nascent debate over Section 91 of the Republic of Malawi’s Constitution.

The Section reads as follows:

(1) No person holding the office of President or performing the functions of President may be sued in any civil proceedings, but the office of President shall not be immune to orders of the courts concerning rights and duties under this Constitution.

(2) No person holding the office of President shall be charged with any criminal offence in any court during his term of office.

(3) After a person has vacated the office of President, he or she shall not be personally liable for acts done in an official capacity during his or her term of office but shall not otherwise be immune.

This is not unique to Malawi. The Global Legal Research Directorate (2017) lists 32 jurisdictions with such provisions where presidents enjoy immunity from criminal prosecution except in cases of “high treason” or other “grave crimes”.

However, by and large, presidents do not enjoy absolute immunity. An example is the United States, where last year the U.S. Supreme Court firmly rejected former President Donald Trump’s arguments for sweeping presidential immunity.

“We hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor is he entitled to a heightened standard of need,” the USSCA said, overturning a few precedents, Nixon v. Fitzgerald being the most commonly cited.

Before we dial the discourse back to Malawi, let us examine the concept and evolution of immunity.

What is it? Or rather, what are the implications of granting a president civil and /or criminal immunity?

When granted immunity:

  • Under civil law, the President does not need to defend the merits of a complaint against him. Section 91(1) will see the case dismissed early in the proceedings.
  • Under criminal law, Section 91 (2) militates against one of the most highly valued principles of democratic government that “no man is above the law”. Immunity also exempts the President from Section 4; Section 12(1)(e) and Section 45(2)(g) “the right to equality and recognition before the law”; hence makes a mockery of the notion that a president is employed by the citizens, the ultimate bearers of power.

You might now be wondering: what gave rise to this phenomenon? Why did the framers of our Constitution deem this presidential immunity necessary?

Let us start with the first question.

Stein (1983) traces immunity to English common law and the maxim “the king can do no wrong”.

In those days, it probably made sense. Rooted in the now-discredited idea that a king can do wrong, not only the king but even the king’s men were equally enjoying immunity, subject and accountable only to the king.

You probably know how this invariably ended.

Anyway, this spilt over to modern times and today, government officials, for better or for worse, enjoy varying degrees of immunity.

We now move to the second question: why would a law-abiding president or government official need “immunity”?

Stein (1983) and Fombad & Nwauche (2012) suggest four reasons, viz.:

  • to protect from personal liability those officials whose work requires exercising discretion;
  • so that the threat of civil liability doesn’t deter such officials from making decisions;
  • to save the time and effort that these officials would waste defending civil suits at the public’s expense; and
  • to protect the dignity of the “office” of the President.

In a perfect world, these justifications would make sense. However, it is precisely because the world is imperfect that they are required.

Hence, they should be taken with a pinch of salt because living as we are in an imperfect world and country, we must learn to think critically.

For example, what then is the remedy for citizens when a president breaks the law or laws?

In theory, there are two options. The first is that the case can wait. Once the President is out of office, subject to Section 91(3), immunity would no longer apply.

The second option is that the President can be impeached, and once removed from office, the long arm of the law would do its work.

The reality check is: here in Africa, how many presidents have been impeached? Does this mean that African presidents are shining examples of upright law-abiding leaders?

Following this line of enquiry, Fombad & Nwauche (2012) ask some very pertinent questions.

  • Why should a person under a cloud of criminal prosecution be allowed to stay in an office as important as that of the President without clearing his name first?
  • Shouldn’t this cloud be sufficient to cast doubt about his credibility to run such an office?
  • In a case where the issue is, say, alleged embezzlement or corruption, can such a person really be expected to run a clean government?
  • Won’t the dude use his time in office to either cover up or prolong his stay in power to continue benefitting from the immunity or even change the law to escape from liability?

All these are very pertinent questions.

Fombad & Nwauche (2012) continue: what measures would need to be implemented so that such leaders do not further abuse their period in office to destroy evidence or intimidate or kill witnesses?

Consider the Mwanza Case, for example. From the time of the deaths to the time of the trial, had that case been tried, say 3 or 4 years after the murders, wouldn’t witnesses’ memories have been fresher and perhaps even more witnesses alive to testify?

Fast forward to today: take Norman Chisale’s latest line of defence for the mind boggling convoy of vehicles registered in his name: he reportedly claims they were bought by former president Peter Mutharika. Let us say some official was investigating Chisale back then, and Chisale had given this explanation. Would anyone have dared challenge Mutharika, knowing that he was shielded by Section 91?

These questions and examples show that once a president has immunity, be it absolute or qualified, he cannot be stopped.

Seen from this perspective, immunity overrides the President’s permanent and fundamental duty as a citizen to act within the law.

Worse, as evidenced by the predatory behaviors of Norman Chisale and others, practically every Jim and Jack at the State House, OPC and inner circle are tempted to and are indeed encouraged to join the bandwagon and loot with impunity.

It is for these, among other reasons, that scholars – including Malawians of goodwill – argue that granting immunity to presidents is one of “the factors making African presidents so powerful that conventional constitutional checks and balances are failing to restrain their and /or their henchmen’s excesses” at the expense of the citizens.

Does Malawi need Section 91?

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Wadi Wilisoni
Wadi Wilisoni
30 days ago

On top of removing this section 91 after crooked individuals take advantage of the framing of the section, Malawi basically need a “Federal Government” so that each region should be in a position to govern itself according to what the owners of the region sees fit. The presidency should be on a rolling basis, say after 2 to 3 years. The Chihana guy had a point when he suggested the same. There are people in some regions who think they can prosper on their own without resources pumped in by other stakeholders, in whatever form, from other regions which assist… Read more »

Bauleni
Bauleni
30 days ago

Kudzikhala kuchezela kukhothi, this will only benefit lawyers not the populous. Did you see the amount of legal teams Trump had? Nde ma bill akumalawi mlandu umodzi 7 billion. Tingalimbe?

Mwini muzi
Mwini muzi
30 days ago

This section needs to be removed thereby removing the immunity. Doing this will then strengthen the access to information from anywhere: the state residences, army, police and high profile people. The army and the police usually would hide under ” security matters” but again these should be classified accordingly without mixing it with information that doesn’t qualify to be classified.

Ndafera Nkhande
Ndafera Nkhande
30 days ago

What ever precedent in law a thief is a thief and some of framers of our constitution were not wise to foresee the implication of section 91.Cases of high level corruption are still imaging from the previous DPP government may be due to the knowledge by former president who thought Malawian are as they were in 1930. Our society has matured enough to revisit the constitution and make amendments where ever possible.

Jobasi Chikweche Ngozo

Very unwelcome comment, why is it that any bad thing happening with Tonse alliance DPP is mentioned? I am not a pro DPP person but the tendency of not accepting Tonse Alliance with its mistakes is worrisome. Tonse Alliance has terrorized the country right from the word go, fuel has gone up, inflation has gone up, cost of living is unbearable, no forex, corruption has increased, thieves in the Tonse Alliance are covered, within 9 months ministers are rich beyond recognition, K6.2 billion meant for covid has been looted out, money meant for independence cerebrations was looted, judges and Tonse… Read more »

Ngoni
Ngoni
30 days ago

I may not agree with everything you have written but this one point. Stop pointing at DPP failures and acknowledge that Tonse alliance is failing to deliver even in matters that are not affected by covid e.g. corruption. The fact that corruption is rampat today even involving state house officials is a clear manifestation that the current regime is just the same, even worse than, the previous regime.

MCP Diehard
MCP Diehard
30 days ago

This is one very dumb idea proposed by Saulos Chilima. There is a very deliberate reason why the President has immunity during time in office.
If you don’t know why, then just stay kumudzi ku Lima basically.

The news Nyasatimes needs to announce is that SKC as it stands now, cannot run for another term for vp or presidency past 2025. There is a clear case that forbids him from running again.

President Chisokonezo
30 days ago

That’s why most African countries have dictators in Democratic mantle. In England the queen is head of state and the prime
bombings Minister head of the govt. Now to honor royal family they made such laws because the have no govt affair

Franklin's Justice
Franklin's Justice
30 days ago

Perfectly Written Great Information

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