On HRDC Arrests: Government has a Strong Case

Peter Mutharika is risking a lot by calling for and driving the arrest of the Human Rights Defenders Coalition (HRDC)activists. Even well-established totalitarian regimes like Russia think twice before moving in that direction, they have HUMAN RIGHTS in their title, for Christ's sake!

Could there be another angle to this story, though? Could there be an angle that might not be popular or moral…but one that needs to be considered nonetheless?

 I think there is. I hate DPP and Ansah too, but hear me out.

Mtambo and Trapence of HRDC

HRDC went and sealed MEC offices across the country, the idea was to force MEC don Jane Ansah and her embattled and discredited commissioners out of office.

The act was not sanctioned by parliament, nor the court making it illegal. Even the Malawi Law Society condemned the act albeit late and in very diplomatic language.

As if that was not enough, HRDC announced that they were now going to seal the State House, the very residence of the president.

The keyword here is ‘seal.’ Here is what the Penal Code says about these ‘sealing’ acts.

CHAPTER XIII Miscellaneous Offences Against Public Authority

124. Soliciting, etc., to break the law

125. Soliciting public officers, etc., to fail to carry out their duties

CHAPTER XXV Offences Against Liberty

266. Punishment for wrongful confinement

 CHAPTER XXIX Burglary, Housebreaking and Similar Offences

308. Definitions

309. Housebreaking and burglary

310. Entering dwelling-house with intent to commit felony

311. Breaking into building and committing a felony

312. Breaking into building with intent to commit a felony

313. Persons found armed, etc., with intent to commit felony

314. Criminal trespass

315. Forfeiture

CHAPTER VII Offences Against Public Order: Treason and Other Offences Against the Government's Authority

38. Treason

 Analysis

If the state prosecutors decide to get tough on the HRDC the arrested might be in for some very serious legal trouble.

Unconstitutional: HRDC sealing MEC offices

One would say, but they are Human Rights Defenders?! And they would be right but another thing needs to be stressed: Malawi is a country of laws. Nobody is above the law. It is why Peter Mutharika cannot stop HRDC demonstrations.

This time, however, HRDC forgot to stay within their legal bounds and took the law in their own hands, and thus soared just above the law.

They always say one’s rights to swing a blow ends where another’s nose begins. If the HRDC had said it wanted to go demonstrate by camping or being outside the State House it would be very legal. Threatening to seal up the place is not.

Holding a vigil at MEC would not be illegal, sealing MEC gates is.

In a democracy, there are established institutions. We elect our MPS to make law and Courts are there to interpret laws.

If MEC is compromised (it is), one goes to court to seek redress (as UTM and MCP did) and the court can issue its interpretation (It said we will have a rerun and asked parliament to enable it). If the process is still not enough, and there are still gaps, the court is still there to hear those grievances and parliament is there to make new laws to deal with it.

The law doesn’t leave any gaps for mobs to sweep in. Mobs can, however, sweep in when those in offices also cross the line of the law and disregard the courts’ stipulations.

So far, the courts have not said lock-up Mutharika or Ansah. The law allows them to stay in office and if is assenting to bills, the law also empowers Mutharika with veto powers.

Instead of using parliament and courts to fill constitutional and democratic gaps, HRDC sought to do it using the mob. That might be moral or popular but it is illegal and bad democracy.

HRDC is not only guilty in criminal terms to me, but also guilty of crimes against democracy. There is a big difference between demonstrating/activism and crime.

I know that DPP and UDF are outnumbered by MCP and UTM and the fact that DPP continues to abuse government with their corruption and nepotism means the majority of constituents can only watch in anger because of the flawed first-past-the-post style elections system. 

I write this because I know that the media in Malawi will not write this. They are caught in the spiral of silence. The other human rights defenders won’t raise these issues either because they are also caught in a groupthink environment.

With that said, however, I prefer to still stick to the law. One is either a democrat or not. No half-ways about it.