The Accidental Presidency of Bingu Muthalika - Part 6
May 15th, 2009PART 6: The Accidental Presidency of Bingu Mutharika
2.00 Parliament hits back – the attempted impeachment of President Mutharika
As things developed, the combined opposition still controlled Parliament although individual parties, particularly the UDF, were much weakened by the Mutharika-induced defections.
However, with his bullying tactics against Parliament appearing to have no end, the combined opposition attempted to impeach the president. There was one problem, though: although impeachment was provided for in the Constitution, there were no Parliamentary Standing Orders for the procedure.
Member of Parliament Lucius Banda tabled the standing orders; and this was quickly followed by the impeachment motion itself, which was tabled by Maxwell Milanzi, MP. Quickly thereafter, both Milanzi and Banda were arrested and the president found ways to stall the impeachment motion in Parliament by closing the House prematurely.
The motion that was tabled for the impeachment of the president is instructive, however. Its allegations against the president sum up widespread sentiment in the opposition benches. For this reason, the motion itself is reproduced in full hereunder.
REPUBLIC OF MALAWI
IN THE NATIONAL ASSEMBLY OF MALAWI
SITTING AT LILONGWE
INDICTMENT NUMBER 1 OF 2005
IN THE MATTER OF INDICTMENT
OF
HIS EXCELLENCY DR BINGU WA MUTHARIKA
PRESIDENT OF THE REPUBLIC OF MALAWI
UNDER SECTION 86 OF THE CONSTITUTION OF THE REPUBLIC OF MALAWI
NOTICE OF MOTION FOR INDICTMENT (STANDING ORDER 84)
TAKE NOTICE that the National Assembly, sitting at Lilongwe will be moved at the expiration of 7 days from the service of this notice or Thursday the …….day of ………………2005, or soon thereafter as Hon. Maxwell Milanzi MP can be heard for resolution of the House for an indictment of the State President of Malawi.
AND FURTHER TAKE NOTICE that the grounds of this indictment are as follows:
GROUND I
Using the powers of the Office of the President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath to well and truly perform the functions of high office of State President, and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear or favour, affection or ill-will, and in disregard to his duty to observe the provisions of the Constitution as the supreme law of the Republic, and not to use his Office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his Office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi and has willfully prevented, obstructed and impeded the maintenance of such trust and repeatedly engaged personally or through his agents and subordinates in a course of conduct or scheme designed to conspire or to corruptly use his public office or corruptly use his official powers or pronounce the use of his official powers for the advantage of his DPP led government or DPP party contrary to sections 404 of the Penal Code and section 88(g) of the Public Finance Management Act as read with sections 24 (1) and 25 (1) and 25 B(1) of the Corrupt Practices Act and sections 12 (iii), 81 (1), 88 (1), 88 A(3), and 193 (4) of the Constitution of the Republic of Malawi.
Particulars of Offence
The means used to violate the Constitution and offend the laws include one or more of the following:
1. DR. BINGU WA MUTHARIKA as President of the Republic of Malawi on or about the month of February 2005, in the district of Lilongwe conspired with some members of the Cabinet to corruptly use his public office or procured his official powers by directing, Hon Goodall Gondwe (Minister of Finance), Hon Mr. Yusuf Mwawa (then Minister of Education), Dr Milton Kutengule (then Secretary to Treasury), Mr. Ntonga (then Personal Assistant to the then Minister of Education, Hon Mr. Yusuf Mwawa) and others unknown, to unlawfully draw public funds from the consolidated fund and unlawfully deposited the money into the Ministry of Education’s Special Client Account amounting to about K5 Million for purposes of the promotion of or the interest or affairs of the so called Democratic Progressive Party (DPP) which political party did not even have the blessing of the electorate to run the government.
2. Using public funds in the sum of K5.6 Million or thereabouts to garner support for the so called DPP led government when it was discovered that the said government had weak support in Parliament following DR. BINGU WA MUTHARIKA’S deceitful dumping of the United Democratic Front party.
1. Conspiring with other members of the Cabinet to appoint a Cabinet Committee comprising Hon Yusuf Mwawa, Finance Minister Goodall Gondwe, Hon Dr. Ken Lipenga, Hon Davis Katsonga, Hon Uladi Mussa, Hon Dr. Hetherwick Ntaba, Hon Henry Phoya, Attorney General Ralph Kasambara, Hon Elizabeth Aipira, Hon Anna Kachikho, Hon Frank Mwenefumbo, Hon Henry Mumba and other people unknown, for purposes of clandestine planning, aiding and assisting such subjects in their attempts to disturb Members of Parliament in their Parliamentary proceedings, and pay from public coffers for their roles in such disturbances and protests against Members of Parliament.
4. Procuring the use of his official powers by directing his Ministers and some civil servants to corruptly draw money from the Ministry of Education’s Special Client Account amounting to K300, 000.00 for purposes of the promotion of interests or affairs of the Democratic Progressive Party (DPP) on or about the 21st day of February 2005.
(a) Procuring the use of his powers by directing his Ministers and civil servants to corruptly draw money from the Ministry of Education’s special client account amounting to K330, 000.00 for purposes of the promotion of interests or affairs of the Democratic Progressive Party (DPP), on or about 22nd February of 2005.
6. Corrupt use of his public office by directing his Ministers and civil servants to corruptly draw money from the Ministry of Education’s special client account amounting to K375, 000.00 for the advantage or benefit or promotion of the interests or affairs of the Democratic Progressive Party (DPP) on the 14th day of March, 2005.
In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of Malawi.
Wherefore DR BINGU WA MUTHARIKA by such conduct, warrant impeachment and trial and removal from office.
GROUND II
In his conduct while President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath well and truly to perform the functions of the High Office of President, and to preserve and defend the Constitution and to do right to all manner of people according to law without fear or favour, affection or ill-will and in disregard to his duty to observe the provision of the Constitution as the supreme law of the Republic , and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi and has willfully prevented, obstructed or impeded the maintenance of such trust through willful or reckless disregard for open accountable and transparent government and informed democratic choice, has conspired with others, and willfully corruptly used his public office or corruptly procured use of official powers for his personal gain and advantage contrary to sections 12 (iii), 81 (1), 88(1), 88A (3) and 193 (4) of the Constitution of the Republic of Malawi; and Section 404 of the Penal Code and Sections 24 (1) and 25 (1) and 25 B(1) of the Corrupt Practices Act and section 88(g) of the Public Finance Management Act No. 7 of 2003.
Particulars of Offence
The means used to violate the Constitution and offend the law, include one or more of the following:
1 Between the months of March and June, 2005 in the district of Lilongwe or other divers places within Malawi, DR BINGU WA MUTHARIKA in his capacity as President of the Republic of Malawi, conspired with others in the Cabinet or procured the use of his official powers by directing Dr. Goodall Gondwe the Minister of Finance, Dr Milton Kutengule the Secretary to Treasury to corruptly open a special account at Finance Bank of Malawi in Blantyre in the sum of K20, 000, 000.00 dividend money paid by Malawi Telecommunications Limited, a parasitical body to the Malawi Government and corruptly used part of that money for personal advantage on purposes of promotion of the Democratic Progressive Party (DPP), which party did not exist or feature or participate in 2004 Presidential Elections.
2 DR BINGU WA MUTHARIKA as State President has failed to well and truly perform the functions of High Office of President when knew or had reason to know that his close subordinates had received the K20 Million dividend from Malawi Telecommunications Limited to Government but corruptly banked it in Finance Bank, Blantyre Branch, for corrupt use of the said money for the advantage of the DPP.
2.6.8.1.1.1.1 Favouring the DPP which is his personal political party by using dividend money for activities of DPP and that money was meant for Malawi Government.
4. DR BINGU WA MUTHARIKA as State President failed to preserve and defend the Constitution when he personally and through his subordinates and agents, in violation and disregard of the Constitution, authorized and permitted to be maintained a secret special account at the Finance Bank, Blantyre Branch, for purposes of clandestinely or secretly disbursing such funds for the DPP operations, promotion of the interests or affairs of the DPP.
1. Financing DPP in part with money derived from MTL dividends, which political party corruptly utilized the resources of MTL engaged in covert and secret activities and attempted to prejudice the Constitutional rights of citizens as if the DPP was duly represented in Parliament and in Government.
2. Conducting in a discriminatory manner in favour or to the advantage of DPP against all other political parties duly registered in Malawi by financing the DPP with money corruptly derived from Government coffers.
In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the Republic of Malawi.
Wherefore DR BINGU WA MUTHARIKA by such conduct warrant impeachment and trial, and removal from office.
GROUND III
In his conduct, while President of the Republic of Malawi DR BINGU WA MUTHARIKA in violation of his Constitutional oath, well and truly to perform the functions of High Office of President and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear, affection or ill-will, and in disregard of his duty to observe the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities and principles of sustained trust of the people of Malawi, and willfully prevented, obstructed or impeded the maintenance of such trust through willful or reckless disregard for open, accountable and transparent government, has willfully corrupted and abused his public office contrary to Sections 12(iii), 81(1), 88 (1), 88A(3), 173(3), 193(4) of the Constitution of the Republic of Malawi, as read with Section 95 of Penal Code, and Sections 24(1), 25(1) and 25 B(1) of the Corrupt Practices Act and Section 88(g) of the Public Finance Management Act no.7 of 2003.
Particulars of Offence
The means used to violate the Constitution and offend the law, include one or more of the following:
1. DR BINGU WA MUTHARIKA in his capacity as President of the Republic of Malawi during the month of February and August, 2005 in the City of Lilongwe, Lilongwe District misused his official powers or arbitrarily directed the disbursement of public funds drawn from the consolidated fund in the sum of K33, 000, 000.00 or styled under the Malawi Rural Development Fund (MARDEF) for personal gain, namely for purposes of promoting or interest of his Democratic Progressive Party (DPP), contrary to resolution of the National Assembly that MARDEF would be implemented in the manner prescribed by or approved procedures sanctioned by the National Assembly.
2. He corruptly directed to start disbursing such Mardef funds to Democratic Progressive Party (DPP) supporters and the funds were actually disbursed by his agents or subordinates to DPP supporters without any procedures in place.
3. Disbursing such Mardef funds to DPP supporters without making such disbursement accountable or keeping financial records thereof.
4. Touting to or misleading the nation that the Mardef fund were his own.
5. He decreed that he would and indeed proceeded to disburse the said Mardef fund without due regard to Parliament procedures and that Members of Democratic Progressive Party (DPP) maximized the benefits from the said fund, and indeed DPP Members corruptly benefited from the said fund.
6. He abused his office for favouring members of his party in the disbursement of the Mardef funds.
In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional government, to the prejudice of the cause of law and justice and to the manifest injury of the people of the Republic of Malawi.
Wherefore DR BINGU WA MUTHARIKA by such conduct warrant impeachment and trial and removal from office.
GROUND IV
In his conduct, while President of the Republic of Malawi, DR BINGU WA MUTHARIKA in violation of his Constitutional oath well and truly to perform the functions of High Office of President, and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear or favour, affection or ill-will, and in disregard of his duties to observe the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic and not to use his office for personal gain or place himself in a situation when his material interest conflict with the responsibilities and duties of his office, he willfully abused his office by directing his subordinates or agents to fraudulently and corruptly manipulates the Constitution and the laws of Malawi for his personal gain or advantage contrary to Section 95 of the Penal Code and Section 24(1) and 25 B(1) of the Corrupt Practices Act, and Sections 81 (1), 88A(3), 173(3) and 181(1) of the Constitution of Malawi.
Particulars of Offence
The means used to violate the Constitution and offend the law, include one or more of the following:
1. DR. BINGU WA MUTHARIKA, as State President of the Republic of Malawi during the months of January-March 2005, corruptly directed is subordinates and agents to appropriate public funds from consolidated funds and used the same as ORT funds at the State House Account and disbursed part of the funds for his personal gain or advantage, namely to pay school fees for his grand children at Mount Sinai School in Lilongwe in the sum of K156, 000.00, and such payment was made in total conflict with the responsibilities and duties of his office as State President, and contrary to the manner prescribed by the National Assembly and Financial Regulations.
2. There is no provision for such payments in the conditions and terms of service of the President.
3. The said funds were not properly accounted for in that payment of School fees for his grandchildren is in conflict with the Constitution and abuse of office under the Penal Code and under the Corrupt Practices Act.
In all this, DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as President and subversive of Constitutional government to the great prejudice of the cause of law and Justice and to the manifest injury of the people of the Republic of Malawi.
Wherefore, DR BINGU WA MUTHARIKA by such conduct warrants impeachment and trial, and removal from office.
GROUND V
In his conduct, while President of the Republic of Malawi, DR. BINGU WA MUTHARIKA, in violation of his Constitutional oath well and truly to perform the functions of High Office of President, and to preserve and defend the Constitution, and to do right to all manner of people according to law without fear or favour, affection or ill-will and in disregard of his duty to observe the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi, and has willfully prevented, obstructed or impeded the maintenance of such trust through willfully or reckless disregard for open, accountable and transparent Government and informed Democratic choice, has willfully corrupted and manipulated the democratic and legal process of the Republic of Malawi contrary to Sections 12(iii), 81(1), 88(1), 88A (3) of the Constitution of the Republic of Malawi; and Section 95 of the Penal Code and Section 24(1) of Corrupt Practices Act.
Particulars of Offence
4 DR BINGU WA MUTHARIKA being President of the Republic of Malawi and using executive decree unlawfully and corruptly reversed Parliamentary approval on universal fertilizer subsidy to his advantage or gain contrary to approval as laid down in the resolution of the National Assembly.
5 Using a decree without proper or any consultation acceptable in an open transparent and accountable democratic process.
6 Disrespecting resolutions of the National Assembly.
In all this, DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as President and subversive of Constitutional government to the great prejudice of the cause of law and Justice and to the manifest injury of the people of the Republic of Malawi.
Wherefore, DR BINGU WA MUTHARIKA by such conduct warrants impeachment and trial, and removal from office.
GROUND VI
In his conduct while President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath of office to ‘well and truly perform’ the function of the High Office of President, and to preserve and defend the Constitution, and do right to all manner of people according to law without fear or favour, affection or ill will, and in disregard of his duty not to disregard the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, and not to use his office for personal gain or place himself in a situation where his material interest conflict with the responsibilities and duties of his office, has willfully disregarded Constitutional responsibilities of sustained trust of the people of Malawi, and has willfully prevented, obstructed or impeded the maintenance of such trust through willful or reckless disregard for open, accountable and transparent Government and informed democratic choice , has willfully corrupted and manipulated the democratic process of the republic of Malawi, for his personal gain and exoneration contrary to sections 12(iii), 81(1) and 88(1), 88A (3) of the Constitution of the Republic of Malawi as read with Section 25A(1) and 25B(1) of the Corrupt Practices Act.
Particulars of Offence
The means used to violate the Constitution and offend the Law include one or more of the following;
i) Having been duly elected on 20th May 2004 as President of the Republic of Malawi on the ticket of the United Democratic Front (UDF) party, in accordance with Presidential and Parliamentary Elections Act, he later on or about February 2005 fraudulently and corruptly dumped the said UDF only to form or join his own political party known as the Democratic Progressive Party (DPP) for personal gain and place himself in a situation where his material interest conflicted with responsibilities and duties of his Office.
ii) Making and causing to be made false or misleading statements to the nation of Malawi that his Government was a DPP party led Government, and yet it is a well known fact that the DPP did not participate or win in Presidential elections of 2004 or any other acceptable electoral norms, in open, accountable, transparent Government and informed democratic choice.
iii) Failing to seek fresh mandate from people of Malawi on the DPP party ticket in the spirit of the Constitution after leaving the UDF party upon which enabled him to be elected as State President.
iv) Failing to do right to the people that voted him on UDF ticket by betraying their trust in him not to use his office for personal gain and placing himself in a situation where his material interest conflicted with responsibilities and duties of his office by spending more time on his DPP activities than on Government and state functions.
v) Corruptly and manipulating the democratic process and values for personal gain and exoneration by the DPP party placing his DPP party as the ruling party in Government by deceit.
vi) Endeavoring to prevent or obstruct or impede the maintenance of the trust of the people of Malawi on him when they elected him as State President on the UDF ticket by his conduct in forming and remaining DPP party President, and making the DPP party, as party in government through the back door.
vii) Performing the function of his office corruptly or misuse of his public office for his personal advantage by favoring individuals that join his DPP party with favored treatment and consideration in return for their joining his DPP party or rewarding individuals for their support for his DPP party.
In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of Malawi.
Wherefore DR BINGU WA MUTHARIKA by such conduct, warrant impeachment and trial, and removal from office.
GROUND VII
In his conduct while President of the Republic of Malawi, DR BINGU WA MUTHARIKA, in violation of his Constitutional oath of office to ‘well and truly perform’ the function of the High Office of President, and to preserve and defend the Constitution, and do right to all manner of people according to law without fear or favour, affection or ill will, and in disregard of his duty not to disregard the provisions of the Constitution and defend and uphold the Constitution as the supreme law of the Republic, unlawfully incited threats of intimidation against public tranquility and acted in a manner that amounted to deliberate omission of government responsibility to promote peace and reconciliation contrary to section 88(1) and (3) of the Penal code as read with Sections 13 (l) and 81 (1) and 88 (1) and (2) of the Constitution of the Republic of Malawi.
Particulars of Offence
The means used to violate the Constitution and offend the law, include one or more of the following:
(a) DR BINGU WA MUTHARIKA, as President of the Republic of Malawi, on 3rd October, 2005 in Thyolo district, unlawfully incited threats of intimidation at a political rally and did ask the people throughout the country to rise up and get angry with members of parliament when they would introduce impeachment process in the national assembly during sitting of Parliament in Lilongwe.
(b) These threats were intentionally published and broadcast live on radio MBC and repeated later in the evening and also broadcast on Television Malawi on a programmed known as Presidential diary after 8 o’clock evening news, on the direction of DR BINGU WA MUTHARIKA.
(c) DR BINGU WA MUTHARIKA as President of the Republic of Malawi deliberately failed to promote peace and reconciliation as required by the Constitutional principles and the National policy of the Republic of Malawi so that he would cause or incite fear, hatred and suspicion among Malawians in order to bring tyrannical tendencies into democratic Malawi.
In all this DR BINGU WA MUTHARIKA has acted in a manner contrary to his trust as State President and subversive of Constitutional Government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of Malawi.
Wherefore DR BINGU WA MUTHARIKA by such conduct, warrant impeachment and trial, and removal from office.
Dated this ………….day of ………………………2005
Hon. Maxwell Milanzi MP
Mangochi Malombe
To: The Speaker
National Assembly
