Commentators have backed calls to have Section 91(2) of the Republican Constitution removed so that sitting presidents can be facing prosecution.
Currently, the law protects presidents from prosecution while in office, permitting legal action only after their tenure.
Governance commentator Moses Mkandawire said the purpose of immunity was to avert criminal prosecution, civil lawsuits and limited accountability.
“However, it has been abused,” Mkandawire said.
Mkandawire said immunity was there to ensure stability and continuity of State administration and management, protection from political manipulation, such that it enhances the separation of powers and national security.
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“However, State presidents lack accountability. Now, in moving forward, let us ensure that we reform our scheme to have at least limited accountability and immunity. 100 percent absolute immunity is terribly dangerous.
“Above all, it is terribly important to have a process of constitutional review to define the scope of the immunity. It’s only [the fact] that the majority of our leaders have not lived up to the expectations of accountability that is motivating others to call for reforms,” Mkandawire said.
Similarly, Youth and Society Executive Director Charles Kajoloweka said removal of presidential immunity would demonstrate the highest measure of accountability by the top leadership of the country.
Kajoloweka said history has it that, just like all other public officers, State presidents are prone to serious and organised corruption and abuse of power.
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“They need no special protection from prosecution. It is unfortunate that President [Lazarus] Chakwera has not lived up to his promise. To amend the law, you need strong political will and commitment to the fight against corruption by the leadership.
“Unfortunately, the current administration has done everything to undermine the fight against the vice. We, as citizens, must sustain our demand for the removal of immunity. Those that steal from the people need no special protection from accountability,” he said.
The call for a Constitution amendment was sparked by UTM president Dalitso Kabambe, who recently proposed a referendum on the matter.
But the Malawi Law Society (MLS) argued that the proposal for a referendum on presidential immunity could, while politically exciting, be legally misplaced.
MLS President Patrick Mpaka argued Monday that amending Section 91 does not require a referendum, as it is not listed among constitutional provisions needing one under Section 196(1)(a).
Mpaka also defended the principle of immunity, arguing that it serves a crucial purpose when State power is exercised in good faith.
The removal of presidential immunity was a campaign promise of the disbanded Tonse Alliance government and remains unfulfilled.
