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.
* Chikosa is a lawyer & consultant at The Mizumali Foundation. He holds a PhD in Law from The University of Warwick in Coventry, England.