By Paul Nguluwe | Monday, 4th June, 2014 | Malawi

Following the wailing that Mutharika made on Monday, 2nd June at Kamuzu stadium during his inauguration ceremony, the Director of Public Prosecution (DPP) has dropped the treason case he was charged with. In his inaugural speech, he expressed that the just ended regime led by his predecessor Dr. Joyce Banda made him face severe persecution.

When DPP Bruno Kalemba was reached yesterday on the issue, he confirmed his office was reviewing the treason case against the DPP heavyweights. He even conceded technically that withdrawing the case was among the options.

According to AG Anthony Kamanga, the sitting President is immune to prosecution as stated in Section 91(2) of the Constitution which says: “No person holding the office of President shall be charged with any criminal offence in any court during his term of office.”
 “I can only confirm that a sitting President has immunity. I am yet to consult with the DPP, but if he is saying he is reviewing the whole case, then that is a better approach as it was a conspiracy case,” said Kamanga in an interview.

The DPP is currently in consultations with the Attorney General (AG) on the prospect of dropping similar charges which former Democratic Progressive Party colossuses are facing. The colusses charged alongside Mutharika forming the infamous Mid-Night Six include Jean Kalirani, Kondwani Nankhumwa and Patricia Kaliati who have since been re-elected as Members of Parliament (MPs), Goodall Gondwe, Nicholas Dausi, Simon Vuwa Kaunda and Msaka.

On the other hand, dilemma is looming pertaining to the dropping of the treason case against Mutharika. Although he enjoys immunity as enshrined in the constitution, some lawyers have argued that the word “charged” has brought an enigma to the matter because Mutharika started facing prosecution before he assumed the office of president last Saturday.

Renowned lawyer Justin Dzonzi stated that the term “charged” as used in Section 91 (2) that the DPP has quoted assumed that the person would already be holding office. He argued that the section put aside the possibility that a new president already facing criminal charges would assume office.

Dzonzi also said that the controversial word ‘charged’ in the Constitution was used to point out to the process used to start criminal prosecution of which in the case of Mutharika and others, prosecution had already started.

“The Constitution did not anticipate the election of someone into office who was already facing criminal charges. As it stands, both would enjoy immunity the difference being that in the case of the person already being prosecuted, the Director of Public Prosecution could stay the criminal proceedings for the duration of the term but resume upon the person leaving office,” said Dzonzi.

An objection that the counts were too vague on the treason charges ended up having the State being ordered to file fresh charges.