President Peter Mutharika has come under fire for threatening to invoke Section 4 of the Protected Flag, Emblems and Names Act against his critics, including Vice-President Saulos Chilima, with lawyers and a political commentator describing the law as archaic.
But the Attorney General and State House have defended the President, saying the said law was still part of the country’s statutes and that democracy does not entail a licence to insult leaders.
In separate interviews yesterday, Malawi Law Society (MLS), some constitutional lawyers and political analysts observed that while the President is free to unleash what they described as “the draconian law” to silence his critics, chances are that the courts may not uphold it.
They were reacting to Mutharika’s outbursts in Mzuzu last Saturday where the President warned Chilima and other members of his United Transformation Movement (UTM) against insulting him.
But MLS president Alfred Majamanda, while observing that the law was archaic compared to the country’s Constitution which provides for free speech and freedom of expression, said it was yet to be fully tested whether it can stand in the light of the new constitutional dispensation.
He said: “Since the law is still valid, he can threaten to use it but whether ultimately the courts would uphold such kind of piece of legislation at the moment I really doubt. The chances are high the courts may not uphold it.”
On the other hand, Attorney General Charles Mhango said the President was justified to issue the threats. He said he does not agree with any lawyer or analyst challenging a law that is still valid in the statute book.
He said over 20 years after the Law Commission was mandated to review all laws deemed inconsistent with the 1994 Constitution, the law in question had not been touched.
Said Mhango: “All laws deemed to be inconsistent with the new Constitution have been reviewed and I am not aware, as of today, of any attempt either to go to Parliament to repeal this particular law or review it. So, this is one of the laws still valid.”
Previously, a number of politicians and other individuals, including one-time newsmaker Jim Jumani Johnson—who claimed to be son to founding president the late Hastings Kamuzu Banda—were arrested for allegedly insulting president Bingu wa Mutharika.
But commenting on why the law in question has taken long without being reviewed or repealed to conform with the prevailing democratic dispensation, senior lawyer Modecai Msisha said the problem lies with politicians who, he said, when in power, do not want to move to repeal laws.
He said: “But when they get out of power, that is when the laws become an issue of concern. That is why there are a lot of laws in our books that should not be there.”
Msisha also observed that violation of the criminal law is not supposed to be enforced by the President, but by employed enforcement agencies such as the police who can make a determination on whether a crime was indeed committed.
Majamanda, on the other hand, said they were hoping government would urgently consider reviewing the law under discussion to be in sync with the current democratic principles.
The section of the law in question reads: “Any person who does any act or utters any words or publishes or utters any writing calculated to or liable to insult and ridicule or to show disrespect to or with reference to the President, the National Flag, the Armorial Ensigns, the Public Seal, or any protected emblem or protected likeness, shall be liable to a fine of £1 000 and to imprisonment for two years.”
While acknowledging that calling Mutharika ‘mtchona’—a term that describes someone who has stayed out of the country for a long period of time—could be deemed disparaging, depending on the context it is applied, lawyer Justin Dzonzi, who is also one of the commissioners of the taxpayer-funded Malawi Human Rights Commission (MHRC), argued that the purported section the President may use in wanting to deal with his opponents is not only outdated but also unconstitutional.
He said: “As things currently stand, that section can be used now. In the current state of that section, the President would gag everybody from making such remarks and because Malawi has adopted multiparty politics, then that section referred to is unconstitutional.
“Should the President use it, I can foresee that the courts are going to invalidate it on account that the section belongs to the past era where its origins are the kings and queens of Europe who were preventing their subjects from pointing fingers at the monarch. It has no space and place in the democratic set-up.”
Mwiza Nkhata, an associate professor of law at the University of Malawi’s Chancellor College, argued that Mutharika would be misusing power by trying to censor his opponents through such laws in a democratic setup.
He said: “My own view is that it will be a misuse of powers under the Act to censure UTM leaders, or anyone else, for such kind of remarks. However, there is a need to strike a balance: we must give due respect to the office of the President.”
Nkhata said it would be regrettable if the President wished to invoke his powers to use the section for silencing his opponents in a country that subscribes to democratic values.
Chancellor College-based political scientist Ernest Thindwa noted that the language Mutharika used is not befitting the office he holds.
He said: “Using a political podium to issue threats is dangerous, especially as we are going towards elections, because party zealots may take that as a licence to attacking Mutharika’s critics.”
Presidential press secretary and spokesperson Mgeme Kalilani said the statute still exists, as it was previouly used in the Hophmally Makande and Gwanda Chakwamba cases.
He said: “That is enough proof that the law is alive. The different outcomes came about simply because each case is decided on its own facts as they were. The law only stops to be applied if it is repealed. This law has never been repealed”
On Saturday, a visibly charged Mutharika took exception to the reference to him as ‘mtchona’ by former first lady and Bingu’s widow, Callista Mutharika whom he continuosly referred to by her maiden name, Chapola.
During Bingu’s term of office, his administration used the same law in trying to punish Rumphi East legislator Kamlepo Kalua when he called him ‘aka ka Ngwazi’ a local phrase that seemed to demean the then president as a minor in the fight for democracy.