I
intended to write about the 145. But I changed my mind and settled on writing
about electoral authoritarianism. I changed my mind yet again after that press
conference. That one where members of the Democratic Progressive Party
politburo said that the 145 will be refunded to the “donor”, Zameer Karim
trading as Pioneer Investments.
There
is civil litigation that has been instituted in the High Court of Malawi on
account of the 145. The court case is Registered
Trustees of Youth and Society versus Greizedar Jeffrey and Charles Mhango (on
their own behalf and on behalf of the Democratic Progressive Party), Zameer
Karim trading as Pioneer Investments and Innocent Bottomani. Standard Bank
Plc, National Bank of Malawi Plc, the Director of the Anti–Corruption Bureau
and Dr. Ronald Mangani are parties cited in the case. The case is yet to be
resolved by the High Court. For present purposes, I will note that the facts so
far reveal that the trail of the 145 is that it is money that arose out of (possible)
fraud perpetrated at the Malawi Police Service; a fraud that involves the Payaniya Bizimezi. Payaniya then
deposited the 145 into a bank account whose name is ‘Democratic Progressive
Party’ and whose sole signatory is the incumbent State President of the
Republic, Professor Arthur P. Mutharika.
In
the case that I refer to above, the bank accounts belonging to Payaniya and Democratic Progressive
Party have been frozen because of court orders that the High Court has issued. The
accounts that have been frozen relate to the 145 transaction trail. This means
that unless the freezing orders are removed on applications by the affected
bank account holders, no transactions can take place using the respective bank
accounts. A–Payaniya sangatape khusa mu
akawunti–mo. Kwinakonso bwana–wo cheke akalemba chibawunsa.
The
press conference that the members of Democratic Progressive Party politburo
held raises more questions than answers. Where will the refund of the 145 come
from? It cannot come from ‘The Account’; that account is frozen. Where will the
refund be made? Akawunti ya Payaniya ayamba atseka a–Khothi. Besides,
should it not be the sole signatory of the Democratic Progressive Party’s
account – the State President – explaining to the people of Malawi how moneys
in an account he is in charge of got into the account in the first place? Why
is it that overzealous ‘pseudo–proxies’ have bombarded us with zillion
explanations regarding transactions in an account that they probably did not
know existed before that leak? Indeed, since the 145 is proceeds of (possible) fraud
at the Malawi Police Service, what are these fervent go–betweens telling Malawians?
Is it some unwitting admission of participation in a criminal enterprise
unfolding right in front of us? Is that what it is? Beware what you say! There
is Republic versus John Chikakwiya
and Republic versus Yusuf Mwawa out
there!
Beyond
the manic mganda of Payaniya and ‘The Account’, as a country
we must re–open the debate regarding the extent to which the State President of
the Republic is immune to criminal prosecution under the Constitution. I am
aware that there is a Private Member’s Motion pending in Parliament on the
matter. However, I think it is a matter that the wider Malawian society should
reflect on. The purported immunity of the State President from criminal
prosecution is covered under section 91 of the 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 or her 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.”
The
prevailing view has been that because of the language under section 91
sub–section (2) of the Constitution, a sitting State President cannot face
criminal charges in any circumstance. I differ from this position because of
what section 91 sub–section (3) of the Constitution says. The provision says
that when a State President leaves office he cannot be liable for things he or
she did in an official capacity; underline ‘official capacity’. The question
that arises is that what happens when a sitting State President has done things
that are clearly unofficial and also reveal criminality? My position is that
criminal behaviour cannot amount to the exercise of official functions of the
State. It cannot be protected under section 91 of the Constitution. In any
case, the exercise of legal and political authority of the State is based on
the sustained trust of the people of Malawi. How will the people of Malawi
trust a public officer – including the State President – if they discern
criminality? How does a public officer – including the State President –
discharge the constitutional obligation regarding open, accountable and
transparent governing if they are involved in criminality? Perhaps, the High
Court can settle the ‘Section 91 Question’ once and for all. I conclude that
shenanigans like ‘The 145 Affair’ were never meant to be protected under
section 91 of the Constitution. Wawa.
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