TO RESIGN OR NOT TO RESIGN? THAT IS THE QUESTION

By Mfundisi

14 March 2016

Recently there have been media reports of several personalities and organisations asking President Peter Mutharika to resign. In response to this, Adamson Muula wrote an article in the Nation in which he validly, in my view, asks; “So the President resigns, what next?”[1]He goes on to ask how a purported government of national unity would be formed. This blog is a rejoinder to Muula’s article. It however, departs in that it discusses what the law says in response to these calls. Let me however, lest I be misunderstood, at the outset say what this post is about and what it is not. It is not about expressing a view on the presidency of Peter Mutharika from a political economy viewpoint. It is about looking at the legal propriety of calling for the resignation of a sitting President under our Constitutional dispensation.

The first think to distinguish between facts and law. Sometimes there is a morphing of the two; but sometimes there is a diversion. The terms de jure and de facto loosely mean according to law and as a matter of fact respectively. So let us take elections for example. When the statistics come out; everyone can see in fact who has won. This is the de facto winner. However it is the Electoral Commission that has to declare the winner according to law. This is the de jure winner. Most often than not the two are the same. Sometimes however, the de jure winner is not the person who appeared as the de facto winner in the first place. This happens where the EC is satisfied that the de facto winner did not validly win the election. Sometimes; this declaration has to be made ivy the court. In relation to a president, the person who is the de jure winner is the de facto President but not the de jure President. He only becomes the de jure President after the Chief Justice conducts the oath of office. At that time, the de facto morphs into the de jure. Now it is possible sometimes for the de facto to determine the de jure even against what would be considered the prevailing norms of a de jure society. A discussion of this is outside the scope of this post but the avid reader may be interested in the famous Southern Rhodesia case of Madzimbamuto v Lardner-Burke.[2]

Why I am I raising things that may seem obvious to most? It is to underscore the importance of always taking a moment to find out the position of the law regarding things. It may sometime require that we separate what we feel are the facts from the law. So let us come back to the issue of calls for the President to resign. What does the law say? Under our Constitution[3], once a President or Vice takes the oath of office, they hold office for a period of 5 years and continue to do so until a successor is sworn in[4]. In other words, the law provides for continuity in the presidency at all times. But this does not mean a President may not be removed from or leave office.  Under our Constitution, a vacancy in the office of president can only arise through the following means[5]

(a) Impeachment

(b) Incapacitation

Now interestingly the law does not provide for the death or resignation of the President. It does provide for the death and resignation of the Vice though.[6] Why this is not provided for is anyone guess. But one may have to revisit the time in which the Constitution was being negotiated to understand the dynamics. Does this mean that a sitting President cannot die or resign? Of course they can. Any mortal person will die sooner or later and as we saw with Bingu wa Mutharika, a sitting President can die. Death creates an automatic vacancy. So does resignation. However it would require that a President resigns on his own volition. However, this cannot be obtained by fraud, corruption or unlawful coercion. The same applies to the process of impeachment or incapacitation. The processes must be bona fide.

Therefore we can say a vacancy in the office of the President, or Vice President for that matter, arises due to:

(a)   Impeachment

(b) Incapacitation

(c)    Resignation 

(d) Death

Now suppose there is a vacancy in the office of the President, what happens? The law is also very clear, the Vice President shall assume that office for the remainder of the term and shall appoint another person to serve as Vice President.[7] However if both the office of the President and that of the Vice were to become vacant at the same time, then Cabinet shall elect among its members an Acting President and Acting Vice President who will hold office for 60 days or the remainder of the term if 4 years have elapsed.[8] If you recall at the death of Bingu wa Mutharika, there was an abortive motion by to declare that there was a simultaneous vacancy of both the President the Vice on the grounds that Joyce Banda had by forming her own party resigned. Suffice to say reason soon prevailed among all parties. But it was premised on this provision.

So let as apply the law to our facts. What would happen if Peter Mutharika for whatever decided to resign? Saulos Chilima would become President by operation of the law and would then appoint a Vice President. Can Peter Mutharika compel Saulos Chilima to resign as a ‘joint-package’? No, legally he cannot. Resignation at law is a personal thing. Put simply then, calls for Peter Mutharika to resign in our Constitutional order demonstrate a series lack of appreciation of the operation of the de jure government. Now some quarters, and Muula also cautions against this, have floated the idea of a government of national unity (GNU). Well it sounds a good term but the reality is our law does not provide for a GNU. It would require either a suspension or serious amendment of the Constitution. The first is a nonstarter and the latter is almost impossible to achieve in our polarised political setup. In fact it begs the question whether Parliament even has the power to make such a momentous change or whether it would require a referendum.

But this is not the first time we have heard of such calls. These calls were made when Bakili Muluzi became President. They were made when Bingu wa Mutharika became President. They were made when Joyce Banda became President. Reminiscent of the way Republicans hate Obama, some could not even stomach Joyce Banda’s tenure and called her Acting President.  Now we have some calls for Peter Mutharika to resign. But should anyone take these calls seriously? Politically, yes they should. Any politician worth his salt should take such calls seriously and evaluate their merits. But legally such calls are really amount to nothing with no consequences whatsoever. Therefore alleged deadlines given to the President to resign or step down are legally a nonstarter; a joke really.

Does this mean that people are not entitled to express their opinion on a sitting President including calling for him to resign or step down? They are surely so entitled. But it is important to realise that currently there is no constitutional crisis. Resignation by the President would not create a constitutional crisis because the Vice President would simply fill in. A vacancy in both the President and Vice would not create a Constitutional crisis either as Cabinet would simply appoint an Acting President and the Vice. Why anyone even bothers therefore to call for the President to resign is itself mind-boggling. But I guess it boils down to the golden phrase ‘freedom of expression.’

But why are we having these incessant calls to resign. To me it boils down to our bad political settlement in 1993. In my view, we should have adopted the 50%+1 majority then. Looking at the demographic spread of our country; this would force our polarised parties which truthfully speaking are mostly based on regional or ethnic lines to work together and garner enough support to carry the day. The winner-takes-all scenario we have now of first-past-the-post electoral system may seem good for any winner but immediately subjects such a winner to continuous pressure. Let me give an example to illustrate my point. Suppose you have 4 strong candidates in an election and they get the following votes:
·         Candidate A – 28%
·         Candidate B – 26%
·         Candidate C  - 24%
·         Candidate D – 22%

According to our first-past-the-post system, candidate A would be declared the de facto winner and upon being sworn the President de jure. In Gwanda Chakuamba v The Electoral Commission,[9] the Malawi Supreme Court ruled that majority simply means “greater than” for electoral purposes. Therefore the one who has a greater number of votes wins. Since we do not have proportional representation, it is a winner-takes-all scenario. It means technically a person can with the presidency in Malawi by 1 vote margin. They surely can win a parliamentary or ward counsellor seat by the same margin too. But look at the percentages again. This would mean the winner, candidate A has 70% of the population who did not vote for him. If these percentages are reflected in Parliament and if candidates B, C and D decide to form a coalition against candidate A, then clearly candidate A will have a torrid time. Now look at what happened in the last election[10].
·         Peter Mutharika (DPP) – 36.4%
·         Lazarus Chakwera (MCP) – 27.8%
·         Joyce Banda (PP) – 20.2%
·         Atupele Muluzi (UDF) –13.7%

You do not need to be a political scientist to realise that unless we change the political settlement; these problems will continue. It is a no brainer really. Now whatever maybe said about the DPP-UDF coalition, what it has done is to increase the numbers for Peter Mutharika to 50%. Unfortunately though; this seems not reflected in Parliament where the combined numbers of MCP and PP seem to be greater than the combined forces of DPP and UDF.  It is therefore the least surprising that the country is struggling in terms of a national agenda. The only solace is that Malawi is not a parliamentary system but rather one with an executive presidency. Were it not; the country would have been virtually at a standstill already. Until and unless we resolve the bad political settlement, I am afraid that we are pretty much stuck with what we have. Others may however argue that we have a de facto standstill or crisis. But do we have a de jure crisis?

In conclusion therefore, this post argues that calls for President Peter Mutharika to resign have no basis in law and the President can validly ignore them without breaching any of his lawful duties. So what is the point one may ask? I guess the answer lies in the phrase “it’s all politics”. In that vein, and that vein alone, the President maybe be right in saying ‘nilibe pulobulemu’.

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[1] Adamson Muula ‘So the President resigns, what next?’ The Nation 28 February 2016 available at http://mwnation.com/so-the-president-resigns-what-next/

[2] [1968] 3 All ER 561 (PC). See also Herman  R Hahlo ‘The Pricy Council and the Gentle Revolution’ McGill Law Journal Vo. 16 92 available at http://lawjournal.mcgill.ca/userfiles/other/8409831-hahlo.pdf and Donald Molteno ‘The Rhodesian crisis and the Courts’ available at http://reference.sabinet.co.za/webx/access/journal_archive/00104051/1332.pdf

[3] Constitution of the Republic of Malawi (1994) available at https://www.icrc.org/ihl-nat.nsf/0/4953f2286ef1f7c2c1257129003696f4/$FILE/Constitution%20Malawi%20-%20EN.pdf

[4] Section 83(1)

[5] Section 86

[6] Section 84

[7] Section 83(4)

[8] Section 85

[9] Civil Appeal No. 20 of 2000 (MSCA) available at http://www.sdnp.org.mw/judiciary/civil/Chakuamba%20and%20Others%20v%20Attorney%20General%20and%20Others%20SC.htm

[10] ‘2014 Tripartite Election’ Malawi Electoral Commission available at http://www.mec.org.mw/pages/2014_Tripartite_Elections.html

WARNING TO ALL THOSE TRADING AS ESTATE AGENTS AND THE PUBLIC

By Mfundisi

8th March 2016

In the case of Austin Banda trading as Land Sales & Property Transfers V Stephen Leonard Aipila (Commercial Case No 28 of 2015, Lilongwe), Justice Mtalimanja has delivered a well reason judgement that ought to be taken as a warning to Malawians, especially those who are involved in land transactions, either as estate agents or lawyers or as sellers or buyers of land or fixed properties. This post provides a commentary of the case and draws out excerpts which contain what I view to be the key findings and statements that the court makes. In terms of style, I have extracted paragraphs from the judgement and below each paragraph provided a commentary. The commentary is in Italic and has Com: at the beginning. I have deliberately used different fonts to distinguish my commentary with the words of the judge. The excerpts from the judgement are preceded by a paragraph number.

BRIEF SUMMARY OF THE FACTS OF THE CASE

The plaintiff, an estate agent sued the defendant for the sum of K2.8 million being 10% commission of a sale of property transaction, damages for breach of contract and costs of the action. The defendant, who was the owner of the property sold denied liability for the plaintiff’s claim in its entirety and prayed that the claim be dismissed with costs.

The court then went on to consider the evidence in detail as well as the applicable law. The court found that the evidence disclosed that there was an agency agreement between the Plaintiff and the Defendant and that the Plaintiff would have otherwise been entitled to his 10% commission [paragraph 56]. We start off after the court has analysed the evidence and start making its findings:

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55. The defendant conceded that the plaintiff advised him right at the outset that he will charge an estate agency commission of 10% of the sale price of the property. The plaintiff contends that the defendant accepted this condition. PW 2 testified that he informed the defendant that the plaintiff charges a commission of 10% of the purchase price for his services of identifying buyers for clients. PW4 also testified that he informed the defendant that the plaintiff will charge a commission of 10% of the purchase price and the defendant accepted this.

56. I am persuaded by and do believe these pieces of testimony and find that the defendant was duly informed prior to the transactions that the plaintiff will charge him a commission of 10% of the purchase price for his services of identifying a buyer on his behalf. As I have already found, there was an agency relationship between the plaintiff and the defendant. But for the observations below, the plaintiff would have been entitled to receive 10% commission of the K28 million, as consideration for the estate agent services he rendered to the defendant in the agency relationship.

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Com: The defendant was disputing that there was an agency agreement between the parties. Here in paragraph the Court is making a finding that there was. The Court then says that it would have awarded the Plaintiff his claim were it not for the findings of illegality that follow. In other words, were the Plaintiff a properly registered agent, he would have won the case hands down.

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64. The law (Section 3 of the Land Economy Surveyors, Valuers, Estate Agents and Auctioneers Act, Act No. 5 of 1989) provides that:

“(1) ... no person shall practise under any name, title or style containing the words land economy surveyor, valuer, estate agent or auctioneer, for the purpose of gain, make any other use of such name, title or style, unless he is registered under the Act as a land economy surveyor, valuer, estate agent or auctioneer,

(2) any person who contravenes this section commits an offence and is liable upon conviction, to a fine of K2000 and to imprisonment for 1 year.”.

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Com: This means that unless a person is registered under the Act cited above as an estate agent, that person is committing an offence if he purports to act as an agent without registration. He can be charged with a criminal offence.

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65. Section 8 of the Land Economy Act outlines the qualifications for registration in any of the specified capacities. In terms of this section no person is eligible for registration as an estate agent unless he either has attained the age of 22 years, has passed a qualifying examination approved by the Board of Registration and has not less than 2 years post qualification practical experience or articled pupillage in the work of an estate agent. If not, the person shall satisfy the Board that he possesses a qualification which in the opinion of the Board furnishes a sufficient guarantee of the possession of the requisite knowledge and skill for the efficient practice of the work of an estate agent.

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Com: The above provides qualifications for one to be registered as an estate agent. As can be seen, not every Dokiso and Mangaliso can qualify. They need to sit and pass for a qualifying examination and must have 2 years of post-qualification practical experience or be under pupillage of a registered estate agent. However the law allows those who have not sat for an examination but do possess a qualification which in the opinion of the Board of Registration is sufficient for that person to practice.

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66. In my understanding, the requirement for registration under the Act is not merely for purposes of revenue collection by the State. As the long title of the Land Economy Act shows, the object of this legislation is to provide for the registration, regulation and control of land economy surveyors, valuers, estate agents and auctioneers. The provision of qualification requirements shows that the intention of the legislature was to regulate and control the practice of the work of an estate agent (as well as the other categories) so that not every other person should practice as such without the Board ascertaining that that person is suitably qualified. Section 8 ensures that only those persons deemed qualified by the Board after satisfying the conditions get to be registered.

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Com: Here the court is saying the purposes of registration is not for revenue collection only but to also ensure that only qualified and registered agents are allowed to transact in land transactions. In other words, the reason for registration are:

1.    To ensure that the registered estate agents pay the requisite fees as well as tax

2.    Protection of all people dealing in land transactions

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68. The testimony of all the witnesses herein establishes that the defendant instructed the plaintiff, in the capacity of an estate agent, to find potential buyers for the property. The evidence further shows that the plaintiff accepted and performed the instructions and is now claiming payment for the work so performed as an estate agent. Clearly the plaintiff held himself out and operated as an estate agent for gain, notwithstanding the fact that he is not duly registered under the Land Economy Act. I therefore find that the plaintiff was practicing as an estate agent in contravention of the Act. Further, I find that the plaintiff entered into the agency agreement here in issue with the defendant in the capacity of an estate agent without being registered as such.

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Com: The evidence has shown that the Plaintiff was not a registered estate agent according to law and had no power to act as an agent for the plaintiff in this matter. Put simply he was doing so illegally.

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Conclusion

76. From the foregoing, I find that the agency agreement between the plaintiff and the defendant was illegal for contravening statute and was therefore void ab initio. The plaintiff cannot enforce it. I therefore dismiss the plaintiff’s action in its entirety.

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Com: This means that this is an illegal contract. The Court cannot enforce an illegal act. In other words, the Plaintiff has lost the case.

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77. The outcome of this matter has greatly exercised my mind. I am mindful of the sense of moral injustice that the plaintiff is likely to feel about being precluded by the law from recovering fees for services duly rendered to the defendant. However, as per the words of Lord Mansfield in the case of Holman v Johnson(1775) 1 Cowp 341 at 343, where he said that:

“The objection, that the contract is immoral or illegal as between the plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is found in general principles of policy, which the defendant has advantage of, contrary to the real justice, as between him and the plaintiff, by accident if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault potior est conditio defendentis”.

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Com: Here the court is lamenting that there is in a sense moral injustice to the Plaintiff in that he did indeed do his part and ordinarily should be paid for his labour. However, the law is clear that no action can arise from an illegal action or an illegality. The Court quotes from an old case [the older the better in law as it shows it has withstood the test of time] in which the judge in that case encountered a similar moral dilemma. But as the Court puts it: “No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act.” In other words, once the Court finds that the Plaintiff acted illegality, the Court will throw away the claim even if it would have otherwise succeeded on the facts. The reason of doing this is not to reward illegality.

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78. Further, I must for the record state that I take notice of the fact that the real property industry in Malawi has witnessed an observable boom in recent years, and this has in turn led to the mushrooming of many Land Economy Surveyors, Valuers, Estate Agents and Auctioneers especially in the major cities here in Malawi. This Court hopes that, unlike the plaintiff herein, all these are duly registered under the Land Economy Act and are operating lawfully in the country, principally for two reasons. Firstly, for the protection of the public from persons practicing in the specified categories without the requisite qualifications. Secondly, that they will not have to one day undergo the rather unfortunate experience of the plaintiff in the instant matter in being barred from enforcing a claim for payment of services duly rendered.

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Com: Here the court is sounding a warning and putting it on record for posterity. The warning is to other estate agents practising as well as the general population, having taken judicial notice of their boom. The Court expresses the hope that the other estate agents practising their trade are duly registered because if they are not they are operating illegally.

The Court says that the law is firstly protecting the public from person who are not qualified to practice (some of them may be unscrupulous and may not have an idea of what they are doing). Secondly it is advice to estate agents that they should avoid zimene awona anzawo mu case imeneyi.

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In conclusion then, the Plaintiff lost his case because he was acting illegally. From an illegal action, no right at law can accrue, that is the law. The court’s warning is therefore timely to all of us. How many adverts do we see of estate agents advertising for properties? These adverts are in the papers, on Facebook, almost on every media that is accessible to the public. For the avoidance of doubt, the warning is to:

1.    The general public to be generally aware

2.    Those who are selling property. Make sure you are dealing with registered agents. Demand proof of registration and the registration must be current

3.    Those buying property. As above, demand proof.

4.    Lawyers engaged in transfer of title. As above, demand proof.

5.    Those transacting as estate agents - if you are not registered you are acting illegally and breaking the law. At best you cannot enforce any claim for a commission as was the case here. At worst you may be arrested and charged with an offence. Remember ignorance of the law is no defence. If you hold yourself out as an agent, you will be deemed to know the requirements of an agent. Forewarned is forearmed.

The Court is doing this to ensure it protects everyone; the buyers, the sellers as well as the estate agents themselves. As it is said, the law may appear to be slow in its action. However the long arm of the law will eventually catch up with you. Never be fooled; the wheels of justice may grind slowly, but the surely do grind. And when you are in the path of the grinding law; there can only be one winner; the law.

THE WEEK OF CONTRADICTIONS

By Mfundisi

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.[1] 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.[2] Msungama was the first to be arrested. The media reported that he had been charged by the Police with sedition and released.[3] 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.[4] 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.’[5] 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.[6] 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.[7] 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.[8] 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.[9] Under law, MPs are immune from arrest while going to, returning from or while within the precincts of Parliament unless on a treason charge.[10] 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.[11] 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.’[12] 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.’[13] 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.[14] 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.[15] 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.[16] 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.[17] 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.[18]

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.’[19] 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’.[20] 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.[21] 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’.[22] 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.[23] 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[24] 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. [25] 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,”[26]

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.

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[1] 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/

[2] A famous line from the movie Sound of Music.

[3][3] 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/

[4] 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/

[5] ‘Criminal libel and sedition offences abolished’ Pressgazette 13 January 2010 available at http://www.pressgazette.co.uk/node/44884

[6] Criminal cause No. 5 of 2010, High Court, Mzuzu Registry.

[7] 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

[8] 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/

[9] John Bad Elk v. United States, 177 U.S. 529 (1900)

[10] Section 60(1), Constitution of the Republic of Malawi

[11] Vienna Convention on Diplomatic Relations (1961) available at http://legal.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

[12] Article 22(1), Vienna Convention on Diplomatic Relations (1961)

[13] Macdonald Thom ‘Drama over Jessie Kabwila’s arrest’ Daily Times 23 February 2016 available at http://www.times.mw/drama-over-jessie-kabwilas-arrest/

[14] ‘Jessie Kabwila charged with treason’ Daily Times 23 February 2016 available at http://www.times.mw/jessie-kabwila-charged-with-treason/

[15] Section 100 (1) Constitution of the Republic of Malawi.

[16] Richard Jimu ‘Chakhwantha out on bail’ Malawi24 24 February 2016 available at http://malawi24.com/2016/02/24/chakhwantha-out-on-bail/

[17] 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

[18] Section 13(1) of the Criminal Procedure and Evidence Code (CP&EC), Cap 8:01 of the Laws of Malawi.

[19] ‘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/

[20] Ibid

[21] 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/

[22] ibid

[23] Ibid

[24] Paida Kadzakumanja ‘Parliament adjourn the house amid security concerns’ The Nation, 24 January 2016 available at http://mwnation.com/parliament-adjourns-amid-security-concerns/

[25] 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/
[26] 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