Now we all know there is an injunction against him in Court restraining him from performing the duties of minister (at least I till 31 January 2017). It has also been reported that he has travelled to Germany, allegedly in official duties
I have seen calls that the German Government must ‘deport’ him, and further that he must be arrested on touchdown at KIA.
Now let us pause and consider these calls on their merits. I will start with the second issue.
For a start, there is no order barring Dr Chaponda from travelling anywhere. There is an Order restraining him from discharging the functions of minister. If it is true that he has travelled to Germany; then whether he has done so officially as a minister will be a question of fact. It has been reported that the Applicants who obtained the Restraining Order will apply to Court for Contempt Proceedings.
Until and unless the Court rules in agreement; there is no contempt. There maybe an allegation of contempt but it has to be proved in Court. It is only after the Court has found a person guilty of contempt and sentenced that person to time in prison that the question of arrest would arise. A charge of contempt is not an arrestable one.
In fact it has been previously held that a guilty verdict on contempt does not disqualify a person from standing for office. I have problems with that position but it is there (remember the JZU contempt case?).
Therefore calls to have Dr Chaponda arrested, should it be true that he has travelled on official duties, lack the sanction of law. Such an arrest would be illegal. Dr Chaponda could successfully sue for false imprisonment
On the second issue of the German Government deporting him, the question would be on what basis would he be deported?What wrong would he have committed against German Law to warrant such a deportation?
Also note that if he has gone as a Minister, as alleged, then he is in effect representing the Malawi Government. Any deportation without due process would be an affront to International Law.
Once again, it’s important to reiterate that there is no order barring Dr Chaponda from travelling anywhere. An Injunction Order cannot stop someone from travelling. Of course if proved; it can result in contempt proceedings. But it is a personal choice.
As the Attorney General said; contempt of court proceedings are personal in nature. It will be upto the Applicants to prove in Court that there has been contempt. That burden does not lie on Dr Chaponda. It is only after a successful prosecution of contempt proceedings that ramifications can result.
But I would doubt that even a guilty verdict following a charge of contempt would prevent someone from being issued with a VISA. It may be a serious charge but in the great scheme of things, it is simply a misdemeanour.
So if indeed Dr Chaponda has travelled to Germany as a Minister; he will neither be deported nor arrested at KIA.
However, that does not mark the end of the story. As pointed out, there will now be the small matter of contempt. (Source-Sundu Madise’s FB Page)