Parliament cannot force President Joyce Banda to declare her assets, who last week reiterated that she will not declare her assets after she took over as president in April 2012.
In face of this defiance, political party spokespersons on legal matters in parliament as well as lawyers have said the law on declaration of assets does not empower parliament to summon the president and force her to comply.
Opposition Malawi Congress Party (MCP) has maintained that its understanding is that upon her ascendancy to power as president, Banda was supposed to declare her assets.
“Despite the fact that she already declared her assets when she was the Vice President but considering that these are two different offices, she was supposed to declare her assets again,” said MCP spokesperson on legal affairs Alekeni Menyani.
In an interview on Zodiak Broadcasting Station (ZBS) on the New Year’s Eve, Banda said she cannot declare her assets because after consultations with her legal advisors she is convinced that it is not necessary as she already did that when she was vice president. She said she felt ‘victimized’ by the numerous calls for her to declare her assets anew.
“The constitution demands that I declare my assets when coming in and when going out of government. I did this when I was vice president and there is no need for me to do that again.
“If anything I will do this when getting out of government in 2014 or 2019 [if elected in May 2014], otherwise there is no need,” Banda said.
Justin Dzonzi, a lawyer in private practice, laughed off the president’s assertions:
“It is like saying you cannot declare your assets as a minister because you already did when you were a Principal Secretary.”
Dzonzi said according to him, as things stand right now, ‘the President has not declared her assets’.
He said there was nothing that parliament could do because the provision simply says the president shall declare assets and deliver the declaration to the Speaker of the National Assembly who shall deposit the document with the Clerk of parliament.
Leader of the former ruling Democratic Progressive Party (DPP) in parliament, George Chaponda, says although parliament might look at the issue in its next meeting, this matter can best be settled by reverting to the Constitution.
“The issue is, what does the constitution say?” argued Chaponda.
MCP’s Menyani says Malawi does not have an enabling legislation that can push beyond declaration of assets.
“The buck stops right where one declares her or his assets. The law is inadequate thereafter,” he said.
Menyani says Malawi has to move towards enacting an enabling legislation to do away with a discrepancy that was exposed upon the death of President Mutharika and subsequent assumption of power by Banda.
“In order to avoid a feeling that the required change is targeting an individual, there is need to let the Law Commission take up the matter,” declared Menyani.
He said although parliamentarians can take up a role to move a private members motion to ensure that the law looks beyond what should happen to those that have declared their assets or not, there was need to reform the act.
Dzonzi concurs with the Dedza Northwest parliamentarian, saying there is need to give this piece of legislation a lot of teeth.
He says already Sections 88 (3) and 213 of Constitution provides for disclosure of assets by holders of certain offices including the president and his vice as well as senior government officers and CEO for parastatals.
Dzonzi who is also the executive director of a civil society body,
Justice Link, says a mechanism should be put in place to determine if indeed the president has not declared twice as much as he or she actually has.
He said the other aspect the law needs to include should be the penalties upon failure to comply.
He suggested that perhaps this could be regarded as an impeachable offence if a president fails to declare his or her assets, while for ministers or members of parliament they might just lose their positions upon expiry of the period within which they were supposed to declare their assets.
Dzonzi also said the law must also include mechanism on the exit clause.
He said there is need to do a head count of what the out-going president had, against what they have now accumulated calculated by weighing what their salaries and benefits would have managed to accu¬mulate in realistic terms.
“If they fail to render plausible explanation on the extra accumulation of wealth then this should be regarded as unjust enrichment which should call for criminal prosecution that could lead to forfeiture of such unexplained assets,” he said.
Banda was elected alongside the late President Bingu wa Mutharika in 2009.
Althugh she was booted out of the DPP, she remained the country’s veep and assumed the presidency by constitutional order on April 7 2012, following the death of Mutharika.