27 February 2016
Let me start by saying upfront that I consider treason to be a serious offence. However I qualify what treason is. In this regard, I have problems with the law as it stands that tends to include mere trivialities in the realm of treason. In my view treason should be limited to provable cases of armed insurrection, coups or toppling a lawfully instituted government by use of armed force. In my view calls for ‘regime change’ per se can never be treason, unless it is effected by unlawful means as described above. That said, treason-wise, the past week has been an interesting one on many; full of contradictions. Even the most serious among us would struggle not to find a moment of laughter in what has been what in drama we would call a ‘tragi-com’ (mixture of tragedy and comedy).
It all started when the nation woke up to the fact that 3 members of the Malawi Congress Party (MCP) top brass, Ulemu Msungama, Dr Jessie Kabwila and Louis Chakhwantha were being sought on allegation of plotting a coup against the lawfully instituted government of Malawi. The latter two are members of parliament (MPs). Indeed one by one the named three soon found themselves in Police custody. Let us start at the beginning, always very good place to start. Msungama was the first to be arrested. The media reported that he had been charged by the Police with sedition and released. And that led to the first contradiction as the bail bond that Msungama obtained indicated a charge of treason. But we will get to that later.
So after the release of Msungama over the reported sedition charges, the logical conclusion was that if the charged emanated from the same WhatsApp discussion, then Kabwila and Chakhwantha would also be charged with the same offence of sedition. And that is where the dancing started.
I and some legal scholars were quoted in an online publication providing our personal views about sedition in these modern times. Essentially the arguments being raised were that sedition was inconsistent with the present Constitutional dispensation and should be repealed. Now before people go up in arms it is important to reflect back. Where did we get our sedition laws from? This was a law that was brought in as part of the colonial legacy. Now in 2010, the colonial masters, themselves decided to abolish this old common law offence. The United Kingdom’s Justice Minister Claire Ward said ‘Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today.’ To this statement, I think I can add nothing, she said it all. It is a relic of a bygone era, with no place in the modern world. I and others were simply saying it is time we did the same.
Yours truly had also earlier made a social media comment regarding the decision of Justice Chikopa in Republic v Harry Mkandawire and Yeremiah Chihana. In that case, these are the words that Chikopa J used: ‘perhaps it is time we decided whether in their present form our sedition laws remain valid in the current Constitutional dispensation or whether we still need them. We think not in either instance.’ In my view, the High Court in the case invalidated our seditions laws. If that view is correct, any sedition charge would meet a legal hurdle in a court of law. If the trial court were to agree with my view, then the charge would be thrown out altogether as being invalid. The power of the High Court to invalidate a law comes under the Constitution. Now others disagreed with me and argued that the High Court did not actually invalidate the law but merely expressed a wish. To this my response was that Judges are not birthday boys and girls. Judicial officers make no wishes. They are not in the business of offering advice. Their word is a command. Judges order and their order is law. My understanding therefore of Justice Chikopa’s judgement is that the High Court decided that sedition laws under the Penal Code as they stand are unconstitutional and therefore invalid. That case was not appealed. The Malawi Supreme Court of Appeal has not overruled this case in any subsequence case that I am aware of. Therefore the law as it stands is that in their present form, our sedition laws are invalid in the current Constitutional dispensation. Legally speaking therefore, unless and until this decision is overruled, it remains law. That is how the law operates.
This raised a controversy. I was alerted to a jibe that a fellow lawyer had made at me and others that I was trying to confuse the population. I was being accused of declaring a law that is on the statute book invalid on social media and attempting to get media mileage from my posts. It was also said that I was a mere academic and not a practitioner so what did I know? Now as a teacher, one gets accustomed to such jibes from people. And for the record I am both an academic and a practitioner. In fact I teach practical courses, something that requires possession of a legal practical licence. It is however, important that what I said be understood for what it meant. For starters, I have no power to declare any law invalid. Whom am I but a mere mfundisi? But one thing I can confidently say is that I know that when a High Court in Malawi makes a decision, it is law unless overruled. Now let us be clear, when a High Court declares a law invalid that does not by some magic operation amend the letters of the law in the statute books as they stand. The words in the Penal Code, for example, still remain as they were printed. There is no magic wand to miraculously amend them. It is up to Parliament to formally repeal the law. In practice, any invalidated law under the Constitution is no longer law. What is means is that whenever a person is reading that part of the law, they must bear in mind what the High Court decided. Did the High Court in R v Mkandawire and Chihana declare sedition laws invalid? I would say yes it did. Is it possible that I could be wrong? Yes it is possible, and that is the beauty of law. The fact that I say this is my understanding of the law does not mean it is the only true understanding of the law. It may be right, but it may equally be wrong. No one has a monopoly of wisdom. What matters is what one believes in and the reasons for doing so. I believe the High Court invalidated the law because the High Court has that power under the Constitution. Is it possible that the words of Justice Chikopa did not mean what I think they did? It is possible indeed. Language by its nature is capable of being interpreted in many ways. However, having been an avid Chikopa scholar, and followed his style of writing, I am convinced that the High Court invalidated the sedition laws. Now others have raised an issue that the question of sedition was never really before the judge and therefore he decided outside the boundaries of the case. That may indeed be so, but the way the law works is that unless and until another Court or a superior Court makes that determination, the decision of the Court is still binding and law. That is how the Common Law legal system works. In summary therefore, yours truly did not declare any law invalid. I have no such power. Neither was I seeking any so-called media mileage. For what utility may I ask? I was merely expressing my views on my Facebook wall and some of those views were picked on by the media, something I have no control over. If the media decided to quote me, what could poor mfundisi do?
But let us come back to the case involving the so-called WhatsApp coup plotters. It was reported that the Police wanted to effect an arrest of the two within the precincts of Parliament. And that a road-block was mounted for this purpose. It was further reported that this was angrily rebuffed when opposition members actually walked out, dismantled the so-called roadblock and confronted the Police who wisely, in my view, drove off. The online version of the Nation Newspaper provided a video of what went down at the Parliament square. It is stuff only seen in movies! Now there has been a lot of talk whether MPs were entitled to confront the Police. This would depend whether the Police were entitled to be within the precincts of Parliament in the first place for the purposes of arresting an MP. Under the common law, a person is entitled to resist an unlawful arrest. Under law, MPs are immune from arrest while going to, returning from or while within the precincts of Parliament unless on a treason charge. Therefore on the basis that Msungama had been charged with sedition, if the same charge were to be proffered against Kabwila and Chakhwantha, then the Police had no jurisdiction to arrest the two while Parliament was sitting. Now this should not be mistaken with a blanket immunity given to MPs. That is not what the law is saying. The law merely provides a temporary reprieve from arrest to MPs while Parliament is sitting. However, there is a proviso in the Constitution, and that is unless the person is charged with treason. In other words, for all other offences, the arrest can pend. That does not in any way affect the execution of any warrant of arrest after Parliament rises.
The media reported that Kabwila then sought to seek refuge at the German Embassy and was arrested at the gate. Another question arises. Was Kabwila arrested within the precincts of the German Embassy? If so, then this is against the Vienna Convention on Diplomatic Immunity. Under the said Convention, the ‘premises of the [foreign] mission shall be inviolable. The agents of the [host] State may not enter them, except with the consent of the head of the mission.’ So depending on where exactly the arrest was effected, there may be an issue here. However, luckily we have an answer to this. According to MCP’s Ezekiel Ching’oma, Kabwila ‘was picked outside Ministry of Tourism offices, which are near the German Embassy.’ This therefore would rule out any contravention of the Vienna Convention on the part of Malawi regarding this incident.
On the premise that the charge was sedition, yours truly among other legal scholars cautioned that the Police could not validly execute any arrest of the two while Parliament was sitting. Furthermore that if indeed any such arrest was effected, it would be unconstitutional and unlawful. Others however, wrongly construed this a backing of the persons who were being sought by the Police. The counter-argument being offered was that Kabwila and Chakhwantha were being sought for treason. Now this would contradict the information that Msungama was charged with sedition. However it is not inconceivable that several persons may be charged with different offences depending on their role in an alleged criminal enterprise. At this time however, the so-called treason discussion on WhatsApp had gone viral and was all over social media. People made their own interpretation of the discussions. Most laughed them off. However, even if treason was what the MPs were being sought for, this still presented a problem. While the immunity of MPs could be lifted over a charge of treason, the charge must be a real and bona fide charge. It must be arrived at when the State has prima facie evidence that treason or attempts to commit treason have been made. I would differentiate a charge of treason being made in order to facilitate an arrest and a situation where the facts point to treason. In my view the arrest would only be legal in the latter scenario. Therefore it does not lie with the Police to arrest the two MPs on a treason charge unless the charge is backed up with credible evidence on their part. As will be seen later, the Police did not have such evidence. In my view, having read the leaked WhatsApp thread, from my understanding of the law, I would think this would require more than the chit chat that I read to charge a person with treason. Yes the discussion did show that certain person had been having private discussion over the political situation in Malawi with some of them proposing rather radical ideas. Did I form an opinion regarding the discussion? Of course I did. But largely I dismissed it as the usual talk of people not happy with a certain state of affairs. In other words I was dismissive of the thread, especially considering that they all belong to one political party and are all politically active. I however did question the illogical flow of posts. I had a lot of questions I must admit. But I am no prosecutor and my lens may be biased. It also possible that the State had and has other evidence apart from the leaked WhatsApp messages.
Anyway Kabwila was eventually released on bail but after being charged with treason by the Police. Now this raised another set of contradictions and controversies. For starters, the Police in Malawi prosecute criminal suspects as proxies of the Director of Public Prosecution (DPP). Only the DPP is empowered to prosecute criminal offences in Malawi. Any prosecution by the Police are therefore on behalf of the DPP through delegated powers. Now only the DPP can proffer treason charges. The Police have no jurisdiction to proffer a charge of treason. Treason offences are triable only in the High Court. The penalty for a conviction of treason is death. As such only the High Court can release a person charged with treason on bail. Police bail for treason suspects is therefore a contradiction in itself.
Chakhwantha who had meanwhile sought refuge at the German Embassy decided to hand himself over to the Police where he was arrested and also charged with treason and also later released. In other words, all three were arrested, ‘charged’ with treason and released on Police bail. Since I have not been privy to the contents of the bail conditions of Kabwila and Chakhwantha, I cannot comment on these but I can comment on Msungama. It transpired that Msungama had not been charged with sedition as reported but rather with treason. This was evident in a copy of the bail bond that also went viral and indicated that the he had been released on his own surety. Now I recall when I raised the oddity of first the Police charging a person with treason and then releasing that on own surety, a colleague simply remarked: ‘just shows you the whole thing is a masquerade. Keep watching, I am sure the charade will get more exciting before it meets its death.’ And how right he was.
Now it is not uncommon for a person to be released on their own surety. It is however, virtually impossible where treason is concerned. The State would want to be assured that the person would attend trial. But then that leads to the original contradiction. But first things first. The Police has no jurisdiction to charge a person with treason. The term charge is a legal term. Person maybe informed what he is suspected of having committed but the charge is only proffered against the suspect in a court of law. Of course sometimes a person maybe charged with what is termed a ‘holding charge’ which is essentially a charge that the evidence so far reveals but where the State actually thinks investigations may lead to a more serious charge. Therefore for the avoidance of doubt, the charges that the Police make to suspects who have been arrested are not real charges. The real charges are the ones that are made in court. But indeed there is nothing wrong in informing a person of the charge they are likely to face or the charge they are suspected of having committed. Therefore the real charge that matters is the formal charge as this is the one which a person has to answer to before a court of law. In terms of procedure, a person charged with treason would be taken to a Magistrate court where they would thereafter be committed to the High Court. This is because a Magistrate Court has no jurisdiction in Malawi over treason cases.
Now remember I remarked how colleague was in saying the charade was not over yet? The Inspector General (IG) of Police decided to address a press conference, bringing the whole charade to a full circle. For starters, in Malawi the IG is not in the habit of addressing press conferences. He leaves this to his communications officers. So when he does, it means he has something serious to convey, especially if in doing so he seemingly contradicts the official Police spokesperson. The IG stated that the Police ‘has no evidence for treason charges levelled against [the] three MCP officials.’ He indicated that the Police have not formally charged the three because there is no evidence of treason but insisted that the Police are still investigating to establish if the suspects have a case to answer’. Well in the first place it is once again a case of misuse of terms. In the first place, the Police cannot formally charge anyone with treason and secondly the determination of whether a person has a case to answer is made by the Court after the prosecution has finished parading its witnesses and evidence. But other than that, the Police IG was spot on.
Now according to Nyasatimes, the official Police Spokesperson had earlier said the three were given sedition as ‘holding charges’ and then pressed with treason after recording their statements as formal charges. Now if this is true, the arrest of the MCP officials was premised on sedition and the issues of treason only arose after recording their statement. This then contradictory to what we were told at first, which is that the three were being sought for treason. It once again it rekindles the debate of whether the arrest of Kabwila and Chakhwantha were lawful. If the Spokesperson is right, I would argue that the arrest were unconstitutional and unlawful. It violated Parliament’s sanctity. Another statement attributed to the Police Spokesperson is interesting if not outright contradictory: that sedition and treason are ‘interrelated’. This is the first time I have heard this. In fact I should be forthright and say that this is not correct. Sedition and treason are not interrelated. Related offences are called akin offences. Sedition is not an akin offence to treason and neither is the vice versa true.
The Police Chief is further quoted to have said three were not formally charged and only caution statements were taken. In this the Police IG is right and setting the record right. I may just add that the task of formally charging them is outside the jurisdiction of the Police anyway. It is at the court that this would be done. The Police chief also said investigations are ongoing. Indeed for such a serious offence such as treason, it is only fair and just that thorough investigation be done by the Police.
Now while the drama of the arrests was being played out, Speaker of the National Assembly on Tuesday decided to adjourn the house early amid security concerns and sought assurances from the government The government quickly reacted through Leader of Government in Parliament, assuring the Parliament that the government would assure immunity of MPs from arrests at Parliament, conceding that there was violation of the parliamentary immunity.  It therefore begs the question, are the arrests valid in view of this? Only time will tell.
But maybe the last word goes to Presidential spokesperson Gerald Viola whose view on this I would opine is reflective of the majority of Malawians. Asked if President Mutharika takes the WhatsApp conversations serious he replied: “No no no no, the President is not moved because he knows that in Malawi the person is given the position of the president through a vote, so he is not intimidated. He is just probably laughing at the matters that were discussed,”
Considering the way the issue has been discussed over social media I would say the President is not the only one laughing over the whole episode. Even Fingo and Puludzu have had field days over it. I have also heard of an audio recording which left me in stitches, referring to a ‘reason’ offence and that it was just a ‘warning arrest’. Would that maybe also explain why MBC-TV decide to ‘parade’ the WhatsApp evidence on national television? I mean ordinarily in a serious case of treason, this would be unheard of. It would not only prove a hurdle for the prosecution but any court seized with the matter would not kindly look at such conduct. But maybe it is all part of the ‘not taking it seriously’. What an exciting charade, what a week. Never a dull moment in the country of ours.
But maybe the last word is to the Police. Do not forget that the IG is always confirmed by the whole parliament. Please do not make the conformation hard for subsequent IGs. Take this under advisement.
 Alfred Chauwa, ‘Kabwila faces arrest for ‘treason’ over Whatsapp discussion: Malawi opposition aide accused of inciting ‘regime change’’ Nyasatimes, 21 February, 2016 available at http://www.nyasatimes.com/2016/02/21/kabwila-faces-arrest-for-treason-over-whatsapp-discussion-malawi-opposition-aide-accused-of-inciting-regime-change/
 A famous line from the movie Sound of Music.
 Thom Chiumia, ‘Uladi storms Malawi Police station in ‘solidarity’” Msungama charged with sedition’ Nyasatimes, 22 February, 2016. http://www.nyasatimes.com/2016/02/22/uladi-storms-malawi-police-station-in-solidarity-msungama-charged-with-sedition/ also see Suzgo Khunga ‘Msungama charged, out on bail’ The Nation, 23 February, 2016 available at http://mwnation.com/nsungama-charged-out-on-bail/
 Thom Chiumia , ‘Malawi sedition law ‘declared invalid’: Law scholars discuss inconsistencies’ Nyasatimes 23 February 2016 available at http://www.nyasatimes.com/2016/02/23/malawi-sedition-laws-declared-invalid-law-scholars-discuss-inconsistencies/
 Criminal cause No. 5 of 2010, High Court, Mzuzu Registry.
 Section 5, ), Constitution of the republic of Malawi, available at https://www.icrc.org/ihl-nat.nsf/0/4953f2286ef1f7c2c1257129003696f4/$FILE/Constitution%20Malawi%20-%20EN.pdf
 Jacob Nankhonya, ‘Watch the drama at Parliament as Kabwila got arrested’ The Nation 23 February 2016 available at http://mwnation.com/watch-the-drama-at-parliament-as-kabwila-got-arrested/
 Section 60(1), Constitution of the Republic of Malawi
 Vienna Convention on Diplomatic Relations (1961) available at http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf
 Article 22(1), Vienna Convention on Diplomatic Relations (1961)
 Macdonald Thom ‘Drama over Jessie Kabwila’s arrest’ Daily Times 23 February 2016 available at http://www.times.mw/drama-over-jessie-kabwilas-arrest/
 ‘Jessie Kabwila charged with treason’ Daily Times 23 February 2016 available at http://www.times.mw/jessie-kabwila-charged-with-treason/
 Section 100 (1) Constitution of the Republic of Malawi.
 Richard Jimu ‘Chakhwantha out on bail’ Malawi24 24 February 2016 available at http://malawi24.com/2016/02/24/chakhwantha-out-on-bail/
 See Section 83 of the Criminal Procedure and Evidence Code (CP&EC), Cap 8:01 of the Laws of Malawi available at https://www.imolin.org/doc/amlid/Malawi/Malawi_Criminal_Procedure_and_Evidence_Code.pdf
 Section 13(1) of the Criminal Procedure and Evidence Code (CP&EC), Cap 8:01 of the Laws of Malawi.
 ‘Breaking: Police have no evidence of treason by MCP Parliamentarians – IG Kachama’ The Daily Times, 24 February 2016 available at http://www.times.mw/breaking-police-have-no-evidence-of-treason-by-mcp-parliamentarians-ig-kachama/
 Wanga Gwede ‘No charges of treason for MCP gurus, says Malawi Police IG Kachama’ Nyasatimes, 24 February 2016 available at http://www.nyasatimes.com/2016/02/24/no-charges-of-treason-for-mcp-gurus-says-malawi-police-ig-kachama/
 Paida Kadzakumanja ‘Parliament adjourn the house amid security concerns’ The Nation, 24 January 2016 available at http://mwnation.com/parliament-adjourns-amid-security-concerns/
 Mphatso Nkhoma, ‘Govt assures immunity of MPs from arrests at Malawi Parliament’ Nyasatimes, 25 February 2016 available at http://www.nyasatimes.com/2016/02/25/govt-assures-immunity-of-mps-from-arrests-at-malawi-parliament/
 Lameck Masina, 'Malawi Government faulted over Arrest of Coup Suspects' Voice of America, 26 February 2016 available at http://www.voanews.com/content/malawi-government-faulted-over-arrests-of-coup-suspects/3209056.html
 Lameck Masina, 'Malawi Government faulted over Arrest of Coup Suspects' Voice of America, 26 February 2016 available at http://www.voanews.com/content/malawi-government-faulted-over-arrests-of-coup-suspects/3209056.html