By Jameson Chauluka:
The government has backed Section 4 of the Protected Names and Emblems Act which criminalises insults targeting the President. Minister of Information, Henry Mussa, made the position this during a press briefing held in Blantyre on Monday.
However, Chancellor College law expert, Edge Kanyongolo, said the section is invalid because it is inconsistent with the Constitution of the Republic of Malawi.
“The Constitution says any law that is inconsistent with the Constitution is invalid and I am emphasising the word ‘is’. In my view, the law is inconsistent with the Constitution; so, it is invalid now. Challenging it in court or Parliament is just a matter of making it clear and behind any doubt, but the law is already invalid by virtue of being inconsistent with the constitution,” he said.
Mussa said although the law is old, the fact that it remains in our statutes means it must be respected.
“We have a law in this country which prohibits insulting the President, national flag, and other emblems. The Act is still part of the country’s laws and, according to the separation of powers, the police arrest those who are deemed to have insulted the President.Advertisement
“As [the] government, we are surprised—in fact perplexed—when some members of Parliament and civil society organisations criticise [the] government when the law is being implemented. I have been in Parliament for 20 years now and nobody has challenged the Act. And it is not only about the government because even opposition members of Parliament have not challenged the provision through private members motion,” he said.
But Human Rights Defenders Coalition (HRDC) Chairperson, Timothy Mtambo, maintained that the law is outdated and unlawful as it contravenes some provisions of the country’s 1994 Constitution.
“The DPP [Democratic Progressive Party]-led administration should be ashamed of itself. It claims to be democratic—a very powerful name—yet what they do is far from being democratic. That Act contravenes the constitutional right to freedom of expression and it does not take one to be a lawyer to know that it is invalid as per Section 5 of the Constitution which says any law that contradicts the Constitution shall be invalid,” he said.
“If the President wants to be respected, then he should act in a way that Malawians can respect him. He should be making decisions which benefits Malawians to gain their respect; otherwise, we will not be afraid. The President is our servant but such laws are making him appear like a god,” he said.
Mussa’s remarks come when UTM director of youth, Bon Kalindo, is in court answering charges of insulting President Peter Mutharika.
HRDC and Malawi Congress Party president, Lazarus Chakwera, have condemned the arrest of Kalindo, who is a Mulanje South legislator.
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