Penal Code Amendment Bill of 2016, Courts Amendment Bill Passed

Tembenu

The Malawi National Assembly on Friday passed the Penal Code Amendment bill with an aim of addressing the ongoing attacks and killings of persons with albinism as well as protecting persons with any type of disability.

The legislation is proposing life sentences for those found guilty of unlawful exhumation of human corpses particularly remains of persons with disability with intention of having the body tissues to sell or use them in any witchcraft practices.

Penal Code Amendment Bill Proposing Life Sentences, Minimum 21 Years

The Penal Code Amendment Bill of 2016 is proposing life sentences with a minimum of 21 years imprisonment for convicts found in possession, selling, extracting or exhuming tissues of living or dead person.

The bill has just been presented by Minister of Justice and Constitution Affairs, Hon. Samuel Tembenu and is now being debated by the National Assembly.

The principle objective of the bill is to amend the Penal Code, in the wake of attacks on persons with albinism.

Independence Celebrations Fever Force House Shot Down Time Extension

              Its Time Up Honorables!

The Legislators on Tuesday evening left Bill No. 17 of 2016: Courts (Amendment) unfinished as members were rushing home to begin the two day holiday after sitting time was over.

Malawians are celebrating Independence Day Holiday this Wednesday while on Thursday, Muslims will be celebrating the Eid Ul-fitri and both days have been declared holiday.

Government Ready With Penal Code Amendment That Covers A lot On Albino Attacks

Samuel Tembenu

The Malawi Government says the reviewed penal code bill that broadly tackles the issues of ritual abductions and killings of persons with albinism will be brought to the National Assembly very soon before the ongoing meeting of the House comes to an end.

Minister of Justice and Constitution Affairs, Samuel Tembenu said in an interview that the review process of the penal code has come to an end and this bill will bring the real change in terms of the prosecution of the cases relating to the abductions and killings of persons with albinism unlike the Anatomy Amendment Act which has been passed solely for strengthen sentences.

Parliament Pass Anatomy Act Amendment: Impose Life Sentences, No Fines

Malawians took to the streets demanding death
Penalty 

Anatomy Act Amendment bill seeking Life Imprisonment has been passed by the National Assembly almost 5 hours after Mulanje South legislator, Bon Kalindo led hundreds to present petition to the National Assembly demanding activation of Death Penalty to convicts on offences related to albino killings.

There was cheers and clapping of hands in the House, showing excitement that finally Malawi will stop ritual killings of persons with albinism through life sentences.

Dowa East legislator, Richard Chimwendo Banda presented the Bill under Private Members Bill to amend Anatomy Act (Cap 34:03) so as to make the commission of offences therein punitive and deterrent.

National Assembly Resolution Stoping Secondary, University Fees Hike Ends In Legal Dilema

The National Assembly on Thursday moved a motion stopping the new fees regime in Secondary Schools and Universities.

However, it remains uncertain if the decision is likely to take effect due to legality of the action and its acceptance by the Government Executive.

Salima Central legislature, Felix Jumbe made proposal that the House resolves postponement of recently announced fees hike in Secondary schools and Universities since the majority in rural areas cannot afford them due to current economic problems. 

"Considering that the majority, especially those in the rural areas are facing economic hardships responding to the poor macro-economic situation, the House resolves that school fees hike for both Secondary and Universities be postponed until Government endeavors to improve the income per capita of the people”  said Jumbe when moving the motion.

Several members who contributed on the floor from opposition side including Jessie Kabwila said the hiking of fees is likely to undermine girls education. She said it was wrong to introduce such fees in the year people are facing hunger. She therefore maintained that this will encourage prostitution among girls from poor families and early pregnancies, increase in school dropouts.

Kabwila further said this fruastrates government efforts of promoting girl child education and empowerment because most of the rural households cannot afford current exorbitant of fees.

Machinga East legislature Esther Jolobala described the hiking of fees at this time as “most horrible Christmas package” and that government was blind when making the decision.

Jolobala "blind government" remarks were withdrawn when the Speaker considered them as unparliamentary even if she used them figuratively. Her remarks also stunned government bench where the independent legislature is seats. However, in her introductory remarks had indicated that she was going to speak what is good for Malawians and not because of which side in the House she belongs to.

Later the house made a resolution that there be postponement of the hiking of fees but with much opposition by Government bench.

In an interview, Salima Central legislature, Felix Jumbe said the decision means Government will have to postpone the hiking of fees at this time being a year the country is facing numerous problems.

“We are not saying that the Government should not increase but for this year they need to postpone until the economic situation of the people has improved." He said 

"Poverty is ruling this country, there is dire poverty which is visible everywhere you go. Majority of household have no means to make money, it is difficult even to get K5 thousand. People are struggling even to get maize from ADMARC depots.

In my constituency for example at Mtonga Market, I found a queue of people with small plates in their hands waiting to buy maize and this maize they are waiting to buy is only a 2kg. and these are people buying 2kg they are six in their family but they don’t have money. And now can we say pay school fees? That would be like we are bringing second colonialism to these people and this colonialism by fellow African. And that is why we are saying please postpone the hike of school fees.” Said Jumbe

However, this is different from how Government views the decision. 

Leader of House, Francis Kasaila maintains the debate was unlawful as the House in its resolution has decided to override laws that are outside it mandate.


He said to say that the House has postponed the fees regime will "depends" on ones interpretations on that. "The question are that, does the House have mandate to decide how much for example the Catholic University supposed to be charging? Do they have their own mandate which guides that? Similarly we have a lot of private schools in the country, Kamuzu Academy for example. Can the Assembly decide how much Kamuzu Academy should be charging? These are questions that have to be answered.

Probably lawyers will do their work to   and decide whether this is enforceable or not” said Kasaila

Although Kasaila said the resolution will be considered by the President and its cabinet after thorough consultation but said could not determine what would be a likely decision.


He even questioned legality of brining the motion in the House

“All the standing orders were violated. It is very clear that a motion according to standing orders, was supposed to be debated by the Business Committee first before it is presented in the House. That was not done.

I don’t believe the speaker has powers to vary any of our standing orders own his own. That was supposed to be done in the Chamber. A motion should have been put to say we want to vary this because it did not meet this requirement that was not done but they decided to proceed. 

What was done was all irregular” Said Kasaila

“Unfortunately we know, because of politics people want to be seen that they stand for the poor " He added

This matter faced rejection by Government MP’s and several attempts to bar the motion already appearing on the Order Paper from being discussed were made by the Leader of House, Francis Kasaila who insisted that the matter was brought illegally and was never authorized by the Business Committee of the House.

To the contrary, the matter was well received by two major opposition parties in the House PP and MCP who insisted to debate although it was brought with immediate notice since it was a matter of urgency.

Ealier to end the matter, Second Deputy Speaker Clement Chiwaya resolved that Business Committee of the House should meet and suspended proceedings.

Back from the emergency meeting, Kasaila insisted before Speaker Richard Msowoya that Government was against the debate on the motion citing that apart from irregularities over how the issue was brought, the Houses was also not mandated to decide on school fees for private institutions as the motion did not specific that the matter was for only Public schools.

Although the speaker to ruled that the matter be discussed but Justice and Constitution Affairs Minister Samuel Tembenu did indicate and insisted that the matter was outside constitutional mandate of the House to debate on the issue which was clear that the authority to decide on school fees vests in the bodies of the schools as stipulated in the Act and regulations that govern the Schools.

National Assembly Muted From Commenting On Arrests Of Late Msiska’s Children

A lot of parliamentarians from opposition benches on Wednesday evening were taken by surprise when Minister of Justice and Constitution Affairs told the House that no more debate on arrests of Children of former legislature for Rumphi North, late Tasoka Msiska as the matter is now in the hands of Court.

Minister of Justice, Samuel Tembenu said two children of Msiska were indeed in custody and appeared before court on Wednesday but one child is still at large.

Then Tembenu said since the case is in court, therefore standing order 14 of the House prevents the legislatures from debating on the matter.

On matters before a Court of Law, Parliamentary Standing Order 192 states that “Subject to the right of the Assembly to legislate on any matter, a matters awaiting or under adjudication in any court of record shall not be referred to in motion, debate or question from the time the case has been set down for trial or otherwise before the court, if there is a real danger of prejudice to the trial of the case.

This rule shall cease to have effect in any case when the verdict and sentence have been announced or judgment given or, in any case where notice or appeal is given, the appeal has been decided.”

But most of the opposition members looked to be annoyed that they do not have power to question the Minister of Information over the issue which is regarded political.

Malawi To Continue With Rome Statutes Implementation

Tembenu

Malawi Government says Malawi is making positive steps in domesticating the Rome Statutes of the International Criminal Court (ICC).

“We are implementing the Statutes by incorporating some of the provisions in our laws and that’s implementation. We will continue to do that until such a time that we know that look, we have done most of what we wanted to do.” said Samuel Tembenu Minister of Justice and Constitutional Affairs,

Tembenu was responding amid concerns from Malawi Law Society and Centre for Human Rights and Rehabilitation (CHRR) that although Malawi ratified and signed the Rome Statutes of the ICC in 1999, little implementation has been made to domesticate some provisions.

Secretary General for Malawi Law Society Khumbo Bonzoe Soko said in an interview that due to delays in domestication, Malawi has no Procedural Law that helps local courts to execute prosecution or make arrests of those that are wanted by the ICC.

On procedural laws Tembenu said “That’s not true, because it is not just a procedure it’s just an obligation where every member is obligated to do what they have undertaken to do.”

Asked about readiness of the country to arrest anyone wanted by ICC he said “That’s a thing that will happen at a right time”

Government Not Shielding Anyone From Cashgate Prosecution - Tembenu

Government has quashed ‘cashgate suspects shielding’ assertions by some  Civil Society Organisation leaders.

On Wednesday last week, some of the renowned CSO leaders issued a press statement which claims that President Peter Mutharika’s administration is giving immunity to some public officers who were involved in plunder of public coffers dubbed cashgate. The letter also called for Mutharika resignation for poor democratic and economic governance.

“We have also seen a country fast receding into an old-age political and economic malaise: A country where pursuit of corrupt cases alias cash-gate is highly skewed towards offering immunity to those in power while coming the hardest on the weak.” Reads part of the statement by the CSO’s

They asked Government to do better on dealing with cash-gate, by among others, “commencing investigations on all those linked to the plunder of public resources from 2005 to 2012.  Politically motivated pursuit of cash-gate cases will not offer justice on the matter. We need a legal process on the public resource plunder that does not side with senior public servants and the administration’s cronies.”

Tembenu

However, responding to the claims on Tuesday, at an interface meeting between Ministers and CSO’s, Minister of Justice and Constitution Affairs, Samuel Tembenu described the statement “Devoid of substance”

“They haven’t come out clearly to indicate that government has given immunity to Mr. So, so so” said Tembenu

“On interest of Justice, we should make statement that is based on facts and evidence” urged the Justice Minister who further reminded CSO’s that public officers were arrested in connection to Cashgate where some have been already been convicted of the crime.

Also reacting to claims that government is failing to swiftly carryout an investigation and arrest culprits involved in plundering of the alleged K92 billion audit query for the period between 2005 to 2012 (now famously known K577 billion audit query), the Minister said Government in the mean time has no sufficient evidence that it can arrest individuals and companies involved in K92 billion scam because the audit query by Waterhouse Coopers is not a full audit report and contains no evidence against anybody.

However, Tembenu said once a full forensic audit is done just like was the case with Baker Tilly then government will have all the necessary evidence to begin arresting and prosecuting anybody linked to the theft.

“We cannot take someone to court without any sufficient evidence.” He said

Tembenu highlighted that at the moment Malawi Government is making headway in the prosecution of cases of Cashgate currently in court because there is a forensic Audit report by Baker Tilly which has all the evidence against suspects. He therefore said suspects are pleading guilty just because government is able to bring to court sufficient evidence against suspects.

CSOs Misleading On Reforms Legality-Govt

Government says Civil Society Organisations are misleading Malawians to claim that the reforms in the public sector are being done without legal backing and that therefore all reform recommendations made by Public Service Reform Commission must be implemented after approval by the National Assembly.

The Justice and Constitution Affairs Minister, Samuel Tembenu said the Constitution of Malawi particularly on the Public Service Act, vests in the presidency powers to run civil service and he is authorized to take measures that are befitting at that particular time and that laws allow him to institute reforms within civil service.

"It’s not true that these reforms are being done without any legal authority because the president has that power and in the event when there is need for legislation will certainly push that to parliament.” said Tembenu.

He said people should not be confused of the use of the term “Commission” because it means team that is doing the reforms “The mere use of the word Commission should not really alarm us to make us conclude that this is illegal because under the constitution the president is empowered to do that.”

“When these reforms have been proposed, they result into things; either out of that reform, recommendations they will have to add administrative action taken or legislative action taken. Where there is need for the legislation to be passed it will obviously be referred to parliament." he said

He continued “There is so much made in this paper about parliament supervising the reforms that are taking place in the government. That is not the role of parliament. Under the constitution, the parliament law is clear, that is to make laws. Nothing else. Under the constitution it is also given power to conduct oversight activities over certain acts which are activities taking place in government. Now we have to make difference between oversight and supervisory activities.”

“Parliament is not a supervisor of executive arm of government.” He added

In a letter released last week by CSOs, claims that the reforms by President Peter Mutharika administration are illegal and lacks wishes of Malawians.

“The DPP administration’s commitment to public reforms is equally questionable. The gains being made are only on paper and nothing substantive is being achieved on the ground. There is no mention, for instance, about how the Government will tackle the spectre of corruption including cashgate in these reforms. The mere fact that the establishment and functions of the Public Reform Program Commission by-passed Parliamentary approval calls the legality and legitimacy of the body itself into serious question. We, in the civil society, thus, find the program itself a mere window-dressing exercise aimed at gaining cheap political mileage.” reads the CSOs letter 

They recommended; “Government should ensure that the Public Service Reforms are periodically scrutinized by Parliament to improve the program delivery and ensure that reforms reflect the views and wishes of Malawians. Most importantly, the Public Service Reform should be depoliticized by supporting it with a necessary legal regime in order to ensure continuity. This will also allow our national Parliament to play its rightful oversight role to the reform."

Access To Information Act Ready To Parliament- Tembenu

Malawi Government has confirmed that the much anticipated legislation 'Acess to Information Act' will be tabled during this sitting of National Assembly.

Minister of Justice and Constitution Affairs, Samuel Tembenu told members of the press and Civil Society Organisation at Bingu International Conference Centre on Tuesday that the legislation is now ready.

Tembenu made the disclosure as he was responding to recent CSO statement which is calling for President Peter Mutharika resignation over failure to address democratic and economic governance problems rocking the country.

"We have so far finished processing the Acess to Information Act, it should have been discussed yesterday (Monday) but for other things we haven't been able to do that. But within the course of the week and next week we should be able to complete the processing of this Act" said Tembenu with an indication that the Act will be ready for parliament this sitting.

"The beauty with that Act is that it is on the basis that every public official has an obligation to disclose public information." Said the Minister

"I am myself looking forward to that Act being passed one of these days" He added saying he hopes that when that is done there will be a lot of information given to the public and that will minimize incidences of misinformation to the public.

Malawi Govt Challenge CSOs "Educate Malawians On Death Penalty, Homosexuality Before Calls On Changing Laws

Samuel Tembenu 

Malawi Government calls civil society to promote debate and conduct civic education on death penalty and homosexuality issues as it reveals her rejection of 41 recommendations that broadly concern such issues during 2nd Cycle Universal Periodic Review by United Nations on Human rights Council.

Justice and Constitution Affairs Minister, Samuel Tembenu was speaking at a Media briefing on Wednesday in Lilongwe following his return from two Sessions in Banjul and Geneva on the status of human rights in Malawi.

He said 199 recommendations were received from State Parties out of which 145 have enjoyed the support of Malawi government and 13 recommendations will need further consultations.

But said 41 recommendations on same sex relationships and death penalty were rejected because Government position is that people should be allowed to debate freely.

He said Government is therefore challenging civil society to carryout extensive civic education to enable the general populace to contribute to the ultimate decision concerning these issues.

He added that people with opposing views and those in support be given necessary tools to freely articulate their respective view points.

Currently in Malawi same sex marriages are criminal offense, however, the justice minister has assured that though there is no intention of changing the law by removing the sections that make homosexual a criminal offense, no one shall be arrested or discriminated against for being a homosexual.

In Banjul, Gambia, Malawi presented her initial and combined report on the African Charter on Human Rights and Peoples Rights to the African Commission. While in Geneva, Malawi underwent a 2nd Cycle Universal Periodic Review (UPR) by United Nations (UN), Human Rights Council.

“In responding to some of the issues raised by states and in providing clarification, Government stated that it has not received official reports with respect to the issue of Homophobia and that the constitutional guarantees of equality and non-discrimination apply to all people in Malawi without distinction on any grounds.” He said

“Government has done it by setting up a Law Commission to look at these issues like constitutional conferences that were done before where issues of same sex relationships and death penalty were discussed and Malawians said no.”

He then challenged “The current proponents of same sex relationships are the civil society organizations so the challenge we are giving to them is that go out into the village, let the ordinary man understand what you are talking about if you win him over then we should start talking about changing the law but before Malawians understand this thing we cannot change the law.”

“It will not help anybody shouting at government that you haven’t done this” he said, “Let’s take it back to the people because any law that has to be made in this country should be an expression of aspiration of the people Malawi.”

Among others, the minister mentioned that Malawi also informed UN of the various measures being implemented to address the emerging issues of attacks against persons with albinism.

He also indicated that government denied reports made to the UN on the threats to Human rights Defenders and on the issue of curtailment of the right to assembly and holding peaceful demonstrations. He said government has invited UN Special Rapporteur on Human Rights and Rapporteur on Freedom of Assembly to Malawi to assess the situation.

Hon. Tembenu said UPR process will lead to government adopting a number of commitments through acceptance of recommendations that state parties have advanced to Malawi on continued improvement of the human rights situation.

He expressed Malawi Government commitment that, relevant laws will be enacted, continued implementation of relevant programmes and policies, ratification of relevant international human rights instruments, continued strengthening of the capacity of human rights and governance institutions and continued cooperation with United Nations mechanisms.

The Minister said Malawi has been commended in all the two sessions for making strides in the promotion of human rights in areas of gender and women rights, children rights, human rights of vulnerable categories, civil and political rights as well as economic, social and cultural rights.

Full Cashgate Report With Names Released To The Public: Now In Hands of Malawi Media

Malawi Ministry of Justice and Constitution Affairs has finally presented to the Media through Ministry of Information the Baker Tilly audit report which contains full names of the suspected cashgate looters.

Minister of Justice and Constitution Affairs Samuel Tembenu has finally submitted the Baker Tilly Cashgate report containing names of suspected individuals and companies who looted public coffers on Thursday evening in Lilongwe through the Minister of Information Kondwani Nankhumwa.

The Justice Minister said, this report has full names of companies and individuals involved in cashgate and is "still intact in a PDF file format" as it was received, therefore nobody has manipulated any information from it.