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Experts doubt presidential immunity’s removal

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By Serah Makondetsa:

Chilima

Some legal experts in the country have expressed doubt over Vice-President Saulos Chilima’s campaign pledge to strip a sitting president of immunity if voted into power come May 21.

Chilima, who is also leader of UTM, during the launch of the party’s manifesto at Dowa Community Ground in Dowa promised to remove presidential immunity from the country’s laws.

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Chilima argued that the legislation delays justice when a president is implicated in a matter that is being investigated.

Section 91(2) of the Republican Constitution reads: “No person holding the office of President shall be charged with any criminal offence in any court during his [or her] term of office, except where he or she has been charged with an offence on impeachment.”

However, Malawi Law Society Secretary, Martha Kaukonde, and legal experts Edge Kanyongolo and Michael Goba Chipeta said that repealing that provision in the Constitution would neither be a one-person’s job nor is it an easy task to accomplish.

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Kaukonde said the Constitution provides immunity to a sitting president on civil and criminal actions.

She said promises made by some of the presidential candidates in the elections may not be as straightforward considering that there would be several factors into play.

“One of them being the numbers of Members of Parliament who will be in favour of such a proposed amendment. All the procedures set out in sections 195 and 196 will have to be satisfied in line with the provisions in Section 200. It will, therefore, not be an automatic act or decision by one arm of the government,” she said.

She said it is important to note the importance of Section 91(2) in the Constitution in the first place.

“The person taking the position of president is supposed to be with the highest integrity whose business should be to run the affairs of the State and not be involved in criminal activities or other civil wrongs.

“By providing immunity where such acts are committed, the office is safeguarded from any distractions that would affect the effective running of the government business. That’s why presidents and their vices take oath to uphold the Constitution in terms of Section 81,” she said.

Chipeta said the issue of presidential immunity is based on the concept of philosophy and not just a mere law.

“The concept of presidential immunity is put in the law based on philosophical grounds, it is not just a common sense issue and so if someone says they are going to remove the presidential immunity, all it tells you is that they don’t know the philosophy behind that law and, secondly, they know very little about human nature,” he said.

Kanyongolo described the promise as a mixed picture, arguing it has its advantages and disadvantages.

“By removing presidential immunity, you are removing an environment where presidents do not feel they are above the law when they are in office, so it will confirm that no one is above the law and they will be scared to commit crimes like the rest of us.

“On the other hand, people say, if you have a president constantly looking over their shoulder worrying about whether they will be sued or prosecuted, that is not good for the efficiency and effectiveness of the office,” he said.

Former president Bakili Muluzi was off the hook until 2006 when the State, during the late Bingu wa Mutharika’s reign, dragged him and his personal secretary Lyness Whiskey to court to answer charges of corruption on the money which the government alleged was public funds diverted to the former president’s personal account.

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