End president’s Immunity—report

 

Sitting presidents risk losing their immunity from prosecution on any criminal charges if Cabinet and later the National Assembly endorse recommendations in a report from the April 2017 National Anti-Corruption Conference.

The report also calls for a new and revised legislation to enhance the fight against corruption, including amending the Corrupt Practices Act (CPA) to give the Anti-Corruption Bureau (ACB) more independence.

Reads in part the report: “The Constitution must be revised because it gives too much comfort to the President in terms of the immunity from prosecution during his [or her] tenure.

Former ACB director Lucas Kondowe (L) meets Mutharika at the National Anti-Corruption Conference last year

“Although the fact that the President can be impeached is already a check and a balance, it is surprising that nepotism and tribalism were not raised in the consultations as perpetrating corruption. It was observed that Presidents often appoint those that are from their home districts. Nepotism and tribalism must be checked under the law.”

In an interview yesterday, Minister of Justice and Constitutional Affairs Samuel Tembenu, whose ministry organised the conference under the theme Corruption in Malawi: A Perception or Reality?, said the report will be presented to Cabinet for discussion after his ministry worked on the document.

Delays to release the report led to consternation among partners to the conference, including donors such as the European Union (EU), which recently voiced out frustration over the slow pace of the resolutions.

But Tembenu yesterday justified the delay, saying government  worked tirelessly to produce a credible document.

In a separate interview, ACB director general Reyneck Matemba said the Ministry of Justice and Constitutional Affairs and the bureau are still working on a new Act.

He said: “Yes, it is true that the process is underway. We only need to make the necessary follow-ups. Besides, there might be need to take a fresh look at the initial draft as some of the proposed amendments to the Corrupt Practices Act might have been overtaken by events.”

Currently, a sitting President in Malawi cannot be prosecuted on any criminal charges except after impeachment, but the conference noted the move has left successive presidents in “comfort zone” and with impunity.

Further, the report also calls for the enactment of the Political Financing Bill as well as a new whistleblower protection law.

However, despite calling for the changes to legislation, institutional frameworks and policy, the report says the President’s commitment to fighting corruption remains one of the important prerequisites for any effective fight against the vice.

A review of the CPA will be a thorny issue with the Ministry of Justice and Constitutional Affairs currently sitting on a review process that started in 2013 through a proposed draft submitted by the bureau.

During the April conference, the EU frowned at the slow pace in the graft fight, especially relating to investigating and prosecuting corruption cases involving high-profile personalities.

President Peter Mutharika and Tembenu, in their addresses to the conference, pushed back on calls to trim presidential powers on the appointment and firing of key officers for institutions that fight corruption despite recommendations from delegates.

Calls for the independence of the ACB are not new. In the 2008 National Anti-Corruption Strategy it was indicated: “In order to ensure that the ACB has effective leadership at all times, recruitment of the director and deputy director should be done competitively through interviews and approval by Parliament.” n

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