Malawi Law Society Press Conference Talking Points 1.

Granting or refusal of bail by courts more especially in the cashgate cases The right to bail is a fundamental right under our Constitution. Any accused person also has the right to be presumed innocent until proven guilty or until he or she pleads guilty. The right to bail is provided for in S. 42(2)(e) of the Constitution as well as S. ! of the Criminal "rocedure and #vidence Code. $n granting or refusing bail% the court ought to consider four main &uestions' . (hether the accused is li)ely to appear at his or her trial if released from detention* 2. (hether% if released% the accused will interfere with the witnesses% tamper with the evidence or obstruct the course of +ustice* ,. (hether the accused is li)ely to endanger the safety of the community or any particular person or commit another offence* 4. (hether the nature of the offence% or the circumstances in which it is alleged to have been committed% are such that release of the accused person is li)ely to induce a sense of shoc) or outrage in the community% and that such shoc) or outrage might lead to public disorder or a threat to the safety of the accused. The -ail (.uidelines) Act also has detailed provisions in this regard. /alawian courts have consistently applied these principles and insisted that the onus to prove that bail should not be granted rests on the prosecution (the State) and not the accused. The /0S is concerned with the new trends in the +urisprudence appearing in our courts. Our main concern is that the courts ha e been reser ing for relati ely longer perio!s their rulings on bail applications . 1f course% we do appreciate that our courts are usually busy and sei2ed with many matters% but issues of personal

liberty and rights of individuals should perhaps be prioriti2ed. "e are also concerne! with some of the bon!s being impose! by the courts in bail applications. Some of the bon!s are clearly e#cessi e so as to amount to !enial of the right to bail which in our iew is against prescriptions of the law especially section 11$%&' of the Criminal Proce!ure an! ( i!ence. -ail conditions are not supposed to be punitive% but rather to ensure that the accused person will be available for trial. The courts would also do well to remember that every accused person is under our Constitution presumed innocent until the contrary has been proved against him or her or until he or she pleads guilty. (e believe that when that is done% the perception that cashgate suspects are being punished before conviction will no longer be there.

). The religious moti ate! iolence in Mangochi an! the subse*uent ruling on the same by the court. S. ,, of the Constitution guarantees the right to freedom of conscience% religion% belief and thought% and to academic freedom. This right is of paramount importance in any free society because it plays a crucial role in the realisation of one3s identity% and in the development of one3s values and moral compass. 4eligion% beliefs and convictions provide a means by which people enrich themselves spiritually% mentally and psychologically. The essence of the concept of freedom of religion is the right to entertain such religion as a person chooses% the right to declare religious beliefs openly and without fear of hindrance and reprisal unless the e5ercise is interfering with other peoples3 rights or it is against the law. S. 26 of the Constitution also provides that every person has the right to freely engage in economic acti ity % to wor) an! pursue a li elihoo! anywhere in Malawi .
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(ith this constitutional bac)ground% the /0S is greatly concerned with the worrisome conduct of some of our /uslim brothers in /angochi 7istrict in stopping certain businessmen from selling por) and re&uesting farmers involved in piggery to leave the district on the grounds that there are many /uslims in that district. This is surely an infringement of other people+s right to religion an! conscience an! also economic acti ity an! pursuance of a li elihoo! anywhere in Malawi and in our view it is totally unacceptable in an open an! !emocratic society like Malawi . /alawi is not governed by religious laws. /alawi is governed by secular laws and therefore it is a secular state. Although that is the case% we )now that its citi2ens are notoriously religious. There are /uslims% Christians% 8indus% Traditionalists and also doubters and secular humanists. The beha iour !isplaye! by our Muslim brothers in Mangochi as reporte! in the me!ia has the potential to cause wi!esprea! religious intolerance, ci il strife an! possible iolence in other parts of the country an! we call upon them to !esist from such beha iour. (e also call upon our /uslim brothers in /angochi to learn and continue to co9e5ist with persons of other faiths and even those with no faith at all. They should also desist from ma)ing statements that suggest that /angochi has ceded from /alawi and that it is its own State. /angochi is not a State. $t remains a district within /alawi belonging to all /alawians and not +ust one religious group. The /0S wishes to applaud the steps ta)en by the /uslim Association of /alawi in trying to enlighten their members and guide them accordingly. 1n the other hand% the silence of our leaders on this matter is also &uite disheartening and disturbing. (e call upon all leaders% be they traditional% political% religious% in /angochi and beyond% to condemn the acts perpetrated in /angochi by some /uslim brothers against persons of other faiths or those with no faith in the strongest terms possible and ensure that all citi2ens are accorded full protection of:under the law.
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(hile the public has a right to comment on decisions of the court% they should do so fully aware that the courts have no public forum to defend themselves. #very decision of the court must be respected and obeyed until it has been set aside% reversed% or indeed stayed. $f a person is not satisfied with a particular decision% the solution lies in appealing against that decision.

&. The legality of mob -ustice an! its implications on the criminal -ustice system (e have all been affected in one way or the other by those who decide to brea) the law. 1ur property has been stolen% girl children or sisters raped% and in some cases even infected with 8$; or even )illed by thugs. (e )now and appreciate that it is a very painful e5perience. 8owever% as a nation% we decided that we will be governed by laws. $n fact% we have institutions established by law to arrest% investigate% prosecute% try and convict and sentence those that brea) the law. S. 42(2)(f)(iii) of our Constitution guarantees the right to be presumed innocent until proven guilty or until an accused person pleads guilty. The presumption of innocence occupies the core of the right to a fair trial an! forms the be!rock on which the a!ministration of criminal -ustice is foun!e!. The presumption is an indispensable mechanism for protecting the right to personal liberty for% without it% it would be impossible to protect people from arbitrary% unlawful and wrongful prosecutions. /ost of the pre9trial rights are underpinned% informed or shaped by the presumption of innocence. Accordingly% until a person has been duly charged% prosecuted and convicted by a court of law% he is not supposed to face punishment by any institution or person or persons. As such% the /0S is concerned with increasing cases of mob +ustice. Citi.ens ha e in these cases taken it upon themsel es to charge, prosecute, con ict an! mete out punishment to suspects . /ob +ustice greatly undermines the criminal +ustice system and
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reduces the public3s confidence in the law. /s has been the case in the past, with mob -ustice, there are no a!e*uate safeguar!s that the innocent cannot be punishe! for crimes they !i! not commit. 0ut e en for those caught in the ery act, we appeal to members of the public that they shoul! not be kille!. 0et them be apprehended and ta)en to the police and the wheels of criminal +ustice will be put in motion to deal with their case. The only legitimate use of force is when it is used for self9defence% not )illing suspects that have been apprehended. (e also appeal to the police to tighten up security in the country% especially now as we approach the festive season so that these incidences of mob +ustice become a thing of the past. (e also appeal to .overnment to do more in terms of +ob9creation and creation of an environment where people can prosper. 1. The application of the !octrine of tracing in cases of embe..lement of public fun!s an! other matters The starting point in studying public financial accountability is the Constitution. $t should be recogni2ed first that public finances are managed by public functionaries on behalf of the people of /alawi. As such public functionaries should be held to account to /alawians for any mismanagement of the public finances. $n that light the Constitution has a whole chapter containing general provisions relating to public funds. $t should again be ac)nowledged that by virtue of section ,(<) of the Constitution the state is obliged to adopt and implement policies and legislation aimed at guaranteeing accountability% transparency% personal integrity and financial probity which in turn will strengthen confidence in public institutions. 1ne of the underlying principles of the Constitution of the 4epublic of /alawi is accountability. This is provided for in S 2 of the Constitution. Accountability has been defined
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as the duty to e5plain or +ustify and then the duty to ma)e amends to anyone who had suffered loss or in+ustice if something has gone wrong. Considered in that light% accountability is central to public finance management% particularly considering that billions of )wachas are unwarrantedly lost in the hands of public finance managers which losses of necessity re&uire to be made good.

-eyond confiscation of stolen property when an embe22ler is convicted% at common law and e&uity% trust money may be followed into land or any other property in which it has been invested% and when the trustee has in the ma)ing of any property or investment applied trust money together with his own% the cestuis &ue trust are entitled to a charge on the property purchased for the amount of the trust money laid out in the purchase investment. Similarly% if money held by a person in a fiduciary capacity be paid into his own ban) account% it may be followed by the e&uitable owner% who as against the trustee will have a charge for what belongs to him upon the balance of the credit amount. /s MLS, we belie e that at law in Malawi, there are many a enues the go ernment can e#plore without ha ing to set up a 2orfeiture 3nit or enacting a 2orfeiture /ct to !eal with embe..le! fun!s or go ernment property. (nacting of a 2orfeiture /ct may also raise so many legal challenges such as people claiming they are being targete! an! also retrospecti ity. (e at /0S are also disturbed by allegations that some of the cashgate scandal suspects are being coerced by the authorities to implicate certain individuals in the scam. 1thers are being coerced to change lawyers. (e are also further disturbed by allegations that there is
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differentiation of treatment of the suspects in the prisons in that those involved in cashgate scandal are being given high class treatment. This is very unfair. (e believe that all remandees in similarly situated circumstances must be treated in the same manner. There is no +ustification for that differentiation and this is sending a wrong message out there. "e woul! also like to clarify that recei ing stolen property, or being foun! in possession of property suspecte! to ha e been unlawfully obtaine! is an offence. 4t !oes not matter that you were not in ol e! in the theft itself. The State Presi!ent is therefore wrong for suggesting that those that recei e! property or fun!s that was stolen or unlawfully obtaine! ha e no case to answer. They ha e an! all the property or fun!s recei e! must be trace! an! taken back by the State without fear or fa our.

5. Go ernment+s obligation to pro i!e basic me!ical care is6a6 is the continue! absence of essential !rugs an! me!ical an! surgical e*uipment in ma-or hospitals According to the (81 the right to health can be understood as the right to effective and integrated health system encompassing health care and the underlying determinants of health% which is responsive to national and local priorities and accessible to all. ?nderpinned by the right to health% an effective health system is a core social institution% no less than a court system or a political system. The right to health has been enshrined in numerous international and regional human rights instruments. #5amples of ?@ human rights treaties are $nternational Covenant on #conomic% Social and Cultural 4ights 6>>%
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Convention on the #limination of All Borms of 7iscriminations Against (omen and the Convention on the 4ights of the Child 6!6 and also the African Charter on 8uman and "eoples 4ights. The ?@ Committee on #conomic% Social and Cultural 4ights adopted a .eneral Comment on the 4ight to 8ealth in 2<<< which contains four elements' availability% accessibility% acceptability and &uality. $t is clear then that the right to health is a universally accepted right and that the government ought to invest in the health of its people. As such% the /0S is greatly concerned with the lac) of basic essential drugs and e&uipment in public hospitals in the country. Considering that many /alawians are too poor to afford private hospital% it is incumbent upon government to ensure that its citi2ens have access to good health facilities in public hospitals. (e appeal to the .overnment to remove all the bottlenec)s that are there to ensure /alawians have access to medicines. (e are also disturbed by news as reported in the media that a young /edical 7octor in 0ilongwe is being threatened for following up on why his patients were not given the medication that he had prescribed by the pharmacists. As far as we are concerned this is a serious matter and must be investigated by the /inistry of 8ealth and also /edical Council as we believe that it is unethical for a pharmacist not to give out medication duly prescribed by a doctor. /alawians% we must love our country and fellow citi2ens. (ealthy ac&uired through other peoples3 blood is dirty. "rovision of essential medicines is a minimum core obligation of the right to health which .overnment cannot be allowed to derogate from. (hat is also disheartening is that the Central /edical Stores destroys medicines worthy billions of Cwachas when people are suffering and we are told there are no medicines.

7. The 8igh Court9s in itation for submissions on anti6 so!omy laws The /0S applauds the 8igh Court of /alawi for inviting submissions from every organisation and individual on the convictions and sentences and constitutionality of section =,(a) of the "enal Code as against section 2< of the Constitution. (e view this as an opportunity to deal with the matter. (e encourage institutions and individuals to +oin the case as per the Court3s invitation in the media recently so that every person3s view is ta)en on board before the Court ma)es its determination on the matter. The submissions have to be made in court. Courts do not ad+udicate their cases in the press. All the views that people have should be made in court% if the court is to ta)e them into account.

:. Threats of closure of e!ucational institutions in the country for lack of fun!ing. S.2=( ) of the Constitution provides that all persons are entitled to education. The importance of this right is self9 evident. Those who lac) education are often trapped in poverty and destitution% fail to claim or en+oy other rights and are prone to undignified treatment% e5ploitation and abuse. #ducation can unloc) the full mental and physical abilities and talents of the individual. $t provides the raw materials for the development of one3s identity% self9 esteem and autonomy. $t can also e&uip individuals with the life s)ills% )nowledge and capacities that are necessary for a meaningful participation in the development of their country. (e appeal to the government to ensure that education institutions are ade&uately funded.
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$. (lections 4ecent media reports suggest that /#C is suffering from severe underfunding. Bor the electoral process to be free% fair and credible% one element that needs to be present is ade&uate funding. (e call upon .overnment and our development partners to live up to their commitment to ensure that /#C is funded. (e would also li)e to use this opportunity to urge /AC4A to e5ercise its statutory mandate to ensure that public broadcasters open up to all political parties to ensure a level playing field. "rivate media houses should also open up to all political parties. Than) you very much for your )ind attention.

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