Talking Blues: Do we really need Section 91?

Last Sunday’s Times Television flagship “Hot Current” programme broached the nascent debate over Section 91 of the Republic of Malawi’s 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 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.

This is not unique to Malawi. The Global Legal Research Directorate (2017) lists thirty-two jurisdictions with such provisions where presidents enjoy immunity from criminal prosecution except in cases of “high treason” or other “grave crimes”.

However, by and large, presidents do not enjoy absolute immunity. An example is the United States, where last year the U.S. Supreme Court firmly rejected former President Donald Trump’s arguments for sweeping presidential immunity.

“We hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor is he entitled to a heightened standard of need,” the USSCA said, overturning a few precedents, Nixon v. Fitzgerald being the most commonly cited.

Before we dial the discourse back to Malawi, let us examine the concept and evolution of immunity.

What is it? Or rather, what are the implications of granting a president civil and /or criminal immunity?

When granted immunity:

• Under civil law, the President does not need to defend the merits of a complaint against him. Section 91(1) will see the case dismissed early in the proceedings.

• Under criminal law, Section 91 (2) militates against one of the most highly valued principles of democratic government that “no man is above the law”. Immunity also exempts the President from Section 4; Section 12(1)(e) and Section 45(2)(g) “the right to equality and recognition before the law”; hence makes a mockery of the notion that a president is employed by the citizens, the ultimate bearers of power.

You might now be wondering: what gave rise to this phenomenon? Why did the framers of our Constitution deem this presidential immunity necessary?

Let us start with the first question.

Stein (1983) traces immunity to English common law and the maxim “the king can do no wrong”.

In those days, it probably made sense. Rooted in the now-discredited idea that a king can do wrong, not only the king but even the king’s men were equally enjoying immunity, subject and accountable only to the king.

You probably know how this invariably ended.

Anyway, this spilt over to modern times and today, government officials, for better or for worse, enjoy varying degrees of immunity.

We now move to the second question: why would a law-abiding president or government official need “immunity”?

Stein (1983) and Fombad & Nwauche (2012) suggest four reasons, viz.:

• to protect from personal liability those officials whose work requires exercising discretion;

• so that the threat of civil liability doesn’t deter such officials from making decisions;

• to save the time and effort that these officials would waste defending civil suits at the public’s expense; and

• to protect the dignity of the “office” of the President.

In a perfect world, these justifications would make sense. However, it is precisely because the world is imperfect that they are required.

Hence, they should be taken with a pinch of salt because living as we are in an imperfect world and country, we must learn to think critically.

For example, what then is the remedy for citizens when a president breaks the law or laws?

In theory, there are two options. The first is that the case can wait. Once the President is out of office, subject to Section 91(3), immunity would no longer apply.

The second option is that the President can be impeached, and once removed from office, the long arm of the law would do its work.

The reality check is: here in Africa, how many presidents have been impeached? Does this mean that African presidents are shining examples of upright law-abiding leaders?

Following this line of enquiry, Fombad & Nwauche (2012) ask some very pertinent questions.

• Why should a person under a cloud of criminal prosecution be allowed to stay in an office as important as that of the President without clearing his name first?

• Shouldn’t this cloud be sufficient to cast doubt about his credibility to run such an office?

• In a case where the issue is, say, alleged embezzlement or corruption, can such a person really be expected to run a clean government?

• Won’t the dude use his time in office to either cover up or prolong his stay in power to continue benefitting from the immunity or even change the law to escape from liability?

All these are very pertinent questions.

Fombad & Nwauche (2012) continue: what measures would need to be implemented so that such leaders do not further abuse their period in office to destroy evidence or intimidate or kill witnesses?

Consider the Mwanza Case, for example. From the time of the deaths to the time of the trial, had that case been tried, say 3 or 4 years after the murders, wouldn’t witnesses’ memories have been fresher and perhaps even more witnesses alive to testify?

Fast forward to today: take Norman Chisale’s latest line of defence for the mind boggling convoy of vehicles registered in his name: he reportedly claims they were bought by former president Peter Mutharika. Let us say some official was investigating Chisale back then, and Chisale had given this explanation. Would anyone have dared challenge Mutharika, knowing that he was shielded by Section 91?

These questions and examples show that once a president has immunity, be it absolute or qualified, he cannot be stopped.

Seen from this perspective, immunity overrides the President’s permanent and fundamental duty as a citizen to act within the law.

Worse, as evidenced by Norman Chisale and others, practically every Jim and Jack at the State House, OPC and inner circle are tempted to and are indeed encouraged to join the bandwagon.

It is for these, among other reasons, that scholars – including Malawians of goodwill – argue that granting immunity to presidents is one of “the factors making African presidents so powerful that conventional constitutional checks and balances are failing to restrain their and /or their henchmen’s excesses” at the expense of the citizens.

Does Malawi need Section 91?

References:

• Fombad, C. M., and Nwauche, E. 2012. Africa’s Imperial Presidents: Immunity, Impunity and Accountability. African Journal of Legal Studies 5, 2, 91-118, Available From: Brill https://doi.org/10.1163/17087384-12342001 [Accessed 19 March 2021]

• Freedman, E., 1992. The Law as King and the King as Law: Is a President Immune from Criminal Prosecution Before Impeachment?. Hastings Constitutional Law Quarterly, [online] 20(7). Available at: <https://scholarlycommons.law.hofstra.edu/faculty_scholarship/449> [Accessed 19 March 2021].

• Hurley, L. and Wolfe, J., 2020. U.S. Supreme Court rebuffs Trump’s immunity claim, lets prosecutor get financial records. [online] U.S. Available at: <https://www.reuters.com/article/us-usa-court-trump-idUSKBN24A1C6> [Accessed 19 March 2021].

• Stein, T., 1983. Nixon v. Fitzgerald: Presidential Immunity as a Constitutional Imperative. Catholic University Law Review, [online] 32(3 Spring 1983). Available at: <https://scholarship.law.edu/lawreview/vol32/iss3/11> [Accessed 19 March 2021].

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