Political Index Feature

Lying under oath: Any dangers?

Politician Humphrey Mvula was not required to testify before the Robert Chasowa Commission of Inquiry.

But because he felt he had something of value for the commission, as a citizen of Malawi, he—just like Malawi Democratic Party (MDP) president Kamlepo Kalua—volunteered to testify. His decision was not wrong.

So Mvula appeared before the commission and testified that officers from Malawi Police Service (MPS) helped in the murder of Chasowa.

He even gave specifics in his testimony. According to the report, Mvula mentioned Sub-Inspector Harry John Yuda as one of the police officers that assisted civilians in carrying out the murder of Chasowa.

But months after the release of the report, the family of Yuda—through Fales, his daughter—has come out to say they are distressed with Mvula’s testimony.

False testimony

They wonder how their kin, who died in 2006, can be implicated in the Chasowa saga which only started with his killing on 24 September, 2011.

In fact, even Southern Region Police Headquarters spokesperson Nicholas Gondwa who confirmed Yuda’s death, was baffled.

“I have made inquiries; there is no other Yuda in the Southern Region serving in the Malawi Police Service. We don’t know how his name came up at the inquiry. It’s unfortunate,” Gondwa told The Nation in December 2012.

When The Nation contacted Mvula on the development, he said he got the information about Yuda’s involvement from a third party source, a former police officer.

Mvula’s story raises questions not just about the integrity of the information gathering process used by different commissions of inquiry. Rather, the precedence bequeathed to posterity if the integrity of such a process is violated.

In the first place, every inquiry relies on one critical factor to reach a fair conclusion: truth. Truth is the engine that drives inquiries to reasonable decisions. As such, when someone falsely testifies before an inquiry or a court, it makes it difficult or even impossible for judges and juries to arrive at a fair conclusion.

Not only can that lead into wrongful convictions or acquittal of people in a court trial. It can also, if it was in a commission of inquiry, lead into wrongful arrests and misplaced implications of innocent people.

Caution

To avoid such instances, the process of information gathering in a commission of inquiry need to be cautious.

That is why before any witness makes his or her testimony, as an initial and crucial part of the process; they are supposed to make a strong promise and commitment to tell the truth.

The strong promise comes in form of either taking an oath and swearing upon God, for the very religious; or making an affirmation, for those that do not believe in God.

According to Dr Mwiza Nkhata, dean of law at Chancellor College, taking an oath or making an affirmation is a quest of searching sincerity and also trying to assure honesty in the testimonies.

“The essence, principally, is to achieve honesty, integrity and truthfulness in everything that is being testified. It’s a quest for those taking an oath to be truthful to the testimony and for those affirming to be honest,” he says.

But taking an oath and making an affirmation is not just a moral requirement. It is also a legal one. To mean, there is a punishment attached to it, if violated.

“Lying under oath is a serious crime, it must be underlined. You are charged with perjury,” rectifies Dr Nkhata.

What Nkhata argues is in line with a press statement issued in October last year by the Malawi Law Society (MLS). The statement—which was issued after the commission found that some of the witnesses who appeared before the commission were deliberately untruthful—called for prosecution of such witnesses.

‘It’s a crime’

“It should be put on record that knowingly giving false testimony…is a criminal offence under the Penal Code known as Perjury and Subordination of Perjury,” reads the statement signed by MLS president John-Gift Mwakhwawa.

Section 104 of the Penal Code provides that: “Any person who commits perjury or suborns perjury shall be liable to imprisonment for seven years.”

Nkhata, like MLS, recommends to the Director of Public Prosecution (DPP) to prosecute anyone involved in perjury.

“If it is in court, it’s either the judge is required to stop the trial to prosecute the perjury case first or he or she is supposed to institute a separate proceeding,” says Nkhata.

Asked what precedence the country is setting to the future of commission of inquiries, if people who commit perjury are left scot-free, Mwakhwawa says: “The problem with that question is that it will force me to go into nitty-gritty of the cases of accused people. That is going beyond territory. But what should be underlined is that lying under oath is a crime and those that wilfully provided false testimonies should be prosecuted.”

Surely, the onus here is with the DPP. His office need not just to probe the alleged perjury in Robert Chasowa’s commission. Most importantly, those found to have committed perjury need to face justice.

With several commissions of inquiry around, and more likely to come up, Malawi needs to set a solid precedence for the future. People need to be aware of the implications of appearing before commission of inquiries and testifying before it.

Otherwise, if these cases continue without a restraining hand, the credibility of the results of commissions of inquiry will seriously be questioned.

 

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