Wednesday, 25 January 2017

On calls to deport Dr Chaponda from Germany and have him arrested at KIA

By Mfundisi
I do not recall any Cabinet Minister to have become so well knows as one Dr Chaponda. No matter how the 'Maizegate' inquiry ends, there will not be a household that does not know the name Chaponda. Well, maybe I exaggerate. But whichever this ends, Dr Chaponda will remain a known entity. If one were to conduct a search among Malawian internet and social media users, I bet the name Chaponda would come katops.  Politically it may have ramifications, depending on how it all ends. He may come out of this bigger than a bulldozer (what else is there?) or he may become a submarine and go under. For now, love or loathe him, Chaponda is man-of-the-moment. 
Now we all know there is an injunction against him in Court restraining him from performing the duties of Cabinet Minister, at least I till 31 January 2017. It has also been reported that he has travelled to Germany, allegedly in official duties. I have taken note of the media reports that place him in Germany as well as the reported acknowledgement of the German Government. However, as I am conscious that this matter is likely to go to Court for Contempt proceedings, allow me to give him the benefit of doubt and use the word allegedly.
So of late, there have been at least two notable calls that can be discerned on social media regarding this alleged trip. One is to the German Government to 'deport' him, and the second that the moment he sets foot on mother Malawi, he must be arrested on touchdown at KIA or whatever other port of entry he may choose. Now let us pause and consider these calls on their merits. I will start with the second issue.
For a start, there is no order barring Dr Chaponda from travelling anywhere. There is an Injunction Order restraining him from discharging the functions of Cabinet Minister. If it is true that he has travelled to Germany; then whether he has done so officially as a Cabinet Minister will be a question of fact. It has been reported that the Applicants who obtained the Restraining Order will apply to Court for Contempt of Court Proceedings. Until and unless the Court rules in agreement with their application; there is no contempt. There may be an allegation of contempt but it has to be proved in Court. It is only after the Court has found a person guilty of contempt and sentenced that person to time in prison that the question of arrest would arise. A charge of contempt is not an arrestable one. In fact it has been previously held that a guilty verdict on contempt does not disqualify a person from standing for office. I have problems with that position but it is there (remember the JZU contempt case?). Therefore calls to have Dr Chaponda arrested, should it be true that he has travelled on official duties, lack the sanction of law. Such an arrest would be illegal. Dr Chaponda could successfully sue for false imprisonment. Now that would be rich.
On the second issue of the German Government deporting him, the question would be on what basis would he be deported? What wrong would he have committed against German Law to warrant such a deportation? Also note that if he has gone as a Cabinet Minister, as alleged, then he is in effect representing the Malawi Government. Any deportation without due process would be an affront to International Law. Without an arrest warrant or some other barring Order, the German Government’s hands are tied on this matter. They may disapprove, but they are helpless. Once again, it is important to reiterate that there is no order barring Dr Chaponda from travelling anywhere. An Injunction Order cannot stop someone from travelling. Of course if proved that he has disobeyed it; the result may be the commencement of contempt proceedings. But it is a personal choice. As the Attorney General said; contempt of court proceedings are personal in nature. The person alleged to be in contempt is the one called before the Court to answer to the charge. It will be up to the Applicants to prove in Court that there has been contempt. That burden does not lie on Dr Chaponda. If the Applicants were to stay put, there is nothing the Court would do in the meantime. The Court may, of course, at its next hearing on its motion commence such proceedings, having taken judicial notice of the fact that it has been widely reported that Dr Chaponda may have allegedly travelled to Germany in defiance of its Order. After all, it is Contempt of Court, and Courts normally do not like that at all. These proceedings are a trial within a trial. But it is only after a successful prosecution of contempt proceedings that ramifications can result. 
But I would doubt that even a guilty verdict following a charge of contempt would prevent someone from being issued with a VISA. It may be a serious charge but in the great scheme of things, it is simply a misdemeanour. A fine usually results in such guilty findings. But maybe it is time Courts started realising that fines are not working and started sending Contemnors to jail.
In conclusion, therefore, if indeed Dr Chaponda has travelled to Germany as a Cabinet Minister; he will neither be deported nor arrested at KIA. However, that does not mark the end of the story. As pointed out, there will now be the small matter of contempt that may follow. Now that is something worth paying attention to.

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