In his response to me, the Electoral Commission’s Director of Media and Public Relations, Sangwani Mwafulirwa, cites the principle of ‘presumption of innocence’ in justifying the admission of a criminal suspect, , to the presidential race in the coming general elections.
Mutharika is accused of committing one of the most serious crimes on the books in Malawi: Treason. The penalty if convicted can be life imprisonment or the death sentence.
The presumption of innocence is a court standard during criminal trial. It is a legal right of the accused that requires the burden of proof of his guilt to rest entirely with the prosecuting authority rather than on the accused. The defense attorney for the accused is there to, among other things, protect and promote his or her client’s right to the presumption of innocence, a big measure of the fairness of the trial. The presumption of innocence is therefore essentially about the conduct of a criminal trial.
MEC is no Defense Lawyer of Mutharika’s
Chaos reigns when every Jim, Jack and their dog think they are a court of law – applying the presumption of innocence in every administrative situation and damn the torpedoes. An employee accused of theft, for example, might still be suspended from his job despite not (yet) being convicted of theft by a court of law. This will be done to pave way for investigation and to prevent further theft. The presumption of innocence will come into play when trial begins, not necessarily when considering suspension. The same employee can be re-instated if trial fails to prove the accusation. But the suspension can still be a legitimate administrative necessity.
Even courts themselves can lawfully commit accused persons to custody awaiting trial and thus severely restrict their freedoms before conviction – and this while still considering them ‘innocent till proven guilty’. Accused persons can have their passports confiscated, thus severely restricting their ability to foreign travel – all the while the court still considers them ‘innocent till proven guilty’. Bailed suspects are also required to report at their nearest police stations periodically.
The presumption of innocence does not stop administrative necessities which have their own requirements and procedures outside of trial and/or conviction.
Fugitive from Prosecution
The passport confiscation and the reporting periodically to authorities examples are particularly apropos in this issue. Among other things, they are intended to discourage flight from prosecution.
I am putting it to the Electoral Commission that running for President whole answering criminal charges is akin to trying to flee from prosecution.
If such a candidate won the presidency, they would be immune from prosecution and the Electoral Commission would have provided the get-away vehicle. Surely that is not the role the Commission should be playing, is it?
Point of Agreement
Where I agree with Mr. Mwafulirwa is in two areas.
I agree with him when he states that if the Commission had rejected Mutharika’s candidacy, the DPP and the civil society groups would have come down on the MEC like a ton of bricks (my phraseology). But this should not scare the MEC into shrinking from its duty of preserving the integrity of the electoral process. The MEC’s job is not a job for the faint of heart; it is a job for those with tough livers.
Right is right and wrong is wrong. The MEC ought to have done the right thing for the integrity of the electoral process and let the chips fall where they may. The electoral business is a tough business and disputes are part and parcel of it. If you are the MEC, you must always be ready to fight the good fight for the sake of the integrity of the process. Nanga mpaka accused Treason criminal suspects being able to run for President?
I also agree with Mr. Mwafulirwa when he indicates that there is no specific law stopping the MEC from accepting the candidacy of a criminally accused person.
However, in this situation the MEC should take the path of most caution for the integrity of the process; not the path of least resistance which besmirches the process. The MEC should reject the controversial candidacy and await the results of judicial review. The MEC should not just fold into acquiescence, as it has done, and thus dilute its own mettle as a custodian of the integrity of Malawi’s electoral process.
Unfortunately, now it is too late. We have to accept the fact that a person accused of one of the most serious crimes in the land could be elected President this May. It is unlikely that his trial will be concluded by then. If he wins he will have managed to escape ever having to answer Treason accusations. At that point he will have his voters and the Electoral Commission, of all entities, to thank for his good fortune. Shame!
The author, Ambuje che Likambale, is from Balaka Township