In February this year, Malawi Congress Party (MCP) officials Jessie Kabwila, Peter Chakhwantha and Ulemu Msungama were arrested on issues surrounding conversations on social networks which the State argued that bordered on sedition and treason. The arrest raised a lot of debate on the constitutionality of sedition and treason laws in a democracy. MCP president and leader of opposition Lazarus Chakwera alluded to the same in his response to President Peter Mutharika’s State of Nation Address (Sona)—delivered on Friday last week—on Monday. Our Staff Writer EPHRAIM NYONDO sought views of Khumbo Soko, honorary secretary of the Malawi Law Society (MLS), on the compatibility of sedition laws in a democratic dispensation.
How should the public understand the sedition laws in terms of what they intend to protect and their relevance in a republic?
Sedition laws in their current formulation are certainly a hangover of the one party autocracy. What appears to have informed the content of these provisions in the Penal Code [Sections 50 and 51] was the existence of an imperial government, the actions and policies of which were beyond the reach of sharp public scrutiny and inquiry. These laws are couched in very broad terms that potentially unlawfully limit the rights that our citizens have to freely express themselves, to organise politically and to hold their government to account. Their utility in a liberal democracy is rather dubious and questionable.
How do these laws find themselves in Malawi statutes?
Sedition laws are provided for under sections 50 and 51 of the Penal Code. They are provisions that we inherited from the colonial administration. Somehow, we have chosen to keep them on our statute books without much alteration since then. Curiously, even the Special Law Commission that reviewed the Penal Code between 1998 and 2000 did not even have any substantive discussion on these provisions and whether we needed to maintain them as they currently are.
Since the dawn of multiparty democracy through a June 14 1993 National Referendum, how have you assessed the use and relevance of these laws in a democratic dispensation?
They have mostly been used to deal with those suspected of holding views at odds with those in power and
to eliminate political opposition. The reality of the matter is that our sedition laws are an anachronism in our current constitutional order. Our Constitution sets out to create a limited government, one that accounts to the people for the manner in which it exercises stewardship over affairs of the state. It is contrary to this arrangement, therefore, to attempt to insulate the government from harsh and sharp scrutiny of its policies as our seditious laws largely attempt to.
Further, pluralistic political competition is what Malawians chose in 1993. It should not be criminal; therefore, for folks to aspire for political power or to mobilise politically with a view to seeing their own preferred policies adopted by the government.
There was a big debate regarding the constitutionality of these laws when the MCP officials were arrested. In fact, that debate added to Supreme Court Judge Lovemore Chikopa’s ruling in the case between the State and Harry Mkandawire and Yeremiah Chihana in 2010. The judge, then in the High Court, raised debate regarding constitutionality of these laws. How important are such debates? How have you been assessing them and which direction do you think these debates should go?
We certainly need to take a fresh look at these laws. First is for the reason that their constitutionality is rather doubtful. These laws potentially limit a host of rights guaranteed to our citizens under Chapter IV of the Constitution including the rights to freely express themselves and to campaign for a political party or cause, to participate in peaceful political activity intended to influence the composition and policies of the Government and freely to make political choices. A statute cannot take away what the Constitution gives.
Second is that we need to review them because their application does not always appear to be in good faith. There appears to be an inescapable appearance of abuse of both police as well as prosecutorial powers and this is not acceptable. We need to have this debate not primarily because others have repealed their laws, but because the continued presence of these laws on our statute books appears to be at odds with the values of our constitution. n