Introduction
I
know you are shocked, and I understand you—you believe, like the rest of the
international community, that there is only one sure way to fight corruption,
and that is going it the Winston Churchill way—fighting on the beaches, on the
landing grounds, in the fields, in the streets and in the hills, and never to surrender.
I understand why you are disappointed—it’s because you believe in the sanctity
of the Republican Constitution and the rule of law. In this essay, I will
perplex you by presenting before you the whole truth that, as far as fighting
corruption in Malawi is concerned, our setting and history do not favour that
orthodox ‘going it the Winston Churchill way’. Our context also detests putting
too much faith in our Constitution and in the rule of law, for these are
instruments those in power use to trample under feet those squatting. I will
bewilder you by taking you back where things went wrong, and challenge you the
only option we have is to start afresh. I shall also show you starting afresh
means going against the tide for the good of the people. I won’t do this from
the air; I shall show how South Africa followed this unorthodox approach and how
that it worked there, and elsewhere, I shall point to Colombia where they have
just realized this unconservative approach can, in fact, work. In short, I will
take you to the river of reality; it will be up to you to drink therefrom.
What we have done so
far
As
far as the fight against corruption is concerned it will be no exaggeration to
state that we have seen our faith in the Constitution and the law wearing thin.
We have tried publishing powerful journal articles on the subject, at the end
of which we have provided a wish-list of suggestions on the way to fight it; we
have made public declarations on the podium, promising to live by our promises
never to share a bed with stinking corrupt public officials; we have conducted
conferences—donors believe the more we conduct seminars and conferences on
this, the more we shall develop the mettle and resolve to root out the evil
once and for all, yet corruption, in all forms and at every level, keeps
soaring high. Today there is corruption at the heart of government—at Capitol
Hill, and they call it bureaucratic corruption; today there is corruption in
our political system, and they term it political corruption; sad to say, today,
even at that lowest level of society, yes, among lower level servants, market
fee collectors, nurses, chiefs, name them, the filth slithers, and they call it
quiet corruption. Our beautiful nation stinks, for things have now hit that
shocking point where the investigator you send to investigate is himself in
need of someone to investigate him. We have reached that crisis point where the
prosecutor himself requires someone to prosecute him. We keep preaching, and in
long sermons, that we are getting the better of it, yet facts on the ground
show all and sundry we are sliding further and further into the abyss of this
evil.
In
the seminars and conferences we have had, we have diagnosed the problems,
presented the suggestions made, but we have lacked that spirit which would brave
it all and face the cat to tie the bell around his neck so every rat would read
by the ear his position. That our Anti-Corruption Bureau, ACB, is as weak as a
kitten is no new story, because as far back as 1999, scholars in the country had
bemoaned the direction the ACB was taking, stating: “Corruption has become a
way of life and the Anti-Corruption Bureau, the machinery put in place to check
corruption, is not fully empowered or equipped to carry out its mammoth
task. The issue warrants being tackled through drastic measures, and
this is a far cry from what is currently in place.” (See Martin Ott, Kings M
Phiri & Nandini Patel (Eds) ‘Introduction’ in Malawi’s Second Democratic Elections: Process, Problems and Prospects,
p 17). (Emphasis mine.)
You
would think the treatment to follow this diagnosis would be so comprehensive
until you read the manner in which the suggestions are presented. Read the
passage again and tell me what you think these scholars wanted to mean by
‘mammoth task’ and ‘drastic measures’? Did by ‘mammoth task’ mean the main
culprit was government (then led by the United Democratic Front, UDF), and by ‘drastic
measures’ that what was required was kind of a completely revolutionary way to
pin down the UDF to loosen its grips on the ACB? This is our language everywhere;
we do know our problems, but we clothe them in abstract three piece suits. The
measures we suggest too, are, at best, abstract.
Do
you think the level of corruption would have been this worse today had these
men and women put in place these so-called ‘drastic measures’ to deal with this
so-called ‘mammoth task’ right at the time they had diagnosed this danger? They
procrastinated; they allowed trouble to brood, hoping that we of today were to
grapple with that which they who had seen it had refused to.
Fighting Corruption is
a battle against two vices—corruption and authoritarianism
I
am not sure, but I feel like corruption and authoritarianism are a marriage, of
course, forged in hell, for where you find one, you often find the other. In
the same ‘drastic measures’ article, at page 13, the editors observe:
“Political scientists predict that the majority of Sub-Saharan Africa nations
will, in the next decade, relapse into authoritarian regimes.” Mind you this
was in 1999, and these men and women did not take to the streets to ensure we
would never be part of those ‘Sub-Saharan Africa nations to relapse into
authoritarian regimes’.
As
you can see, in Africa, the fight against corruption is never the fight against
a single vice; it is a fight against two inseparable vices of corruption and
authoritarianism. This is why fighting corruption in Africa entails a high form
of sacrifice. Unfortunately, no mechanism to protect those who risk their lives
and those of their families to expose this evil is available. In Malawi, on
July 4, 2015, Issa Njauju, Director of Corporate Services for the country’s
corruption-fighting body, the ACB, was found dead and dumped behind the
Presidential Villas in the country’s capital city, Lilongwe. Njauju had been
missing for two days. Many believed that Njauju’s death was a way of instilling
fear in those with a passion to fight corruption in the country. To-date
nothing tangible has come out of the investigation. Thus, in Africa fighting
corruption is more than what it is elsewhere; here you must prepare to fight
authoritarian minds beside the corruption itself. Worse still, you must wait
for years and years for the investigation to complete, and you can bet how it
will end—a case of mistaken identity, nothing to do with his job, and therefore
do not suspect ‘innocent people’.
Many
people think that when we talk of authoritarian regimes we only talk of that
form of government before the multiparty era. That missing the point; authoritarian
regimes do exist even under ‘democracies’.
By
the way, I love the distinction of authoritarian regimes as presents Geddes:
personalist regimes, military regimes and one-party regimes. By 1999, Malawi
was no longer a one-party regime (for that had ended at the Referendum in
1993). Again, Malawi has never been a military regime, and so discussion of
anything military would be misplacing things. Malawi was at the time said to be
a nascent or young democracy, though when one analyses carefully, one would see
it exhibiting characteristics typical of the personalist regime:
Personalist
regimes, quite naturally, display a greater cohesion, and so
do not break up as easily. They also tend to root themselves in society through
more
developed networks. These networks are typically structured on a clientelistic
basis. The result is to ensure loyalty among important groups in
society. Such loyalty is rather pragmatic, however, based as it is on a far-reaching
distribution (and consumption) of economic resources. . . As a rule, those who have made their way to
the top within the regime are completely dependent for their position on
the ruling leader. They lose everything when the leader falls. They have
a strong incentive, therefore, to resist change as long as possible. .
. This gives personalist regimes greater
staying power (Axel Hadenius and Jan Teorell, “Authoritarian Regimes:
Stability, Change, and Pathways to Democracy, 1972-2003”, Working Paper No 331,
November, 2006, p 3). (Throughout, emphasis mine.)
Slow evolution of
Personalist Regime in Malawi
The
birth of the Second Republic in 1993, witnessed the departure of the one-party
form of authoritarian regime. Oblivious to the fact that authoritarian regime
does appear is another form—personalist—the population relaxed. Those who
attempted to stand up against this ‘relapsing’, found themselves unsupported,
or even rejected, rejected even by the courts working to conform to the personalist
structure.
In
1994, Rene Kachere and eight others (Kachere
and 8 Others v The President and the Speaker, Civil Cause No 2187 of 1994, before
Mkandawire J, in Chambers; The President
and the Speaker of National Assembly v RB Kachere and Others, MSCA Civil
Appeal No 20 of 1995, Supreme Court) took the President of Malawi and Speaker
of National Assembly to task on a number of crucial constitutional issues. After
hearing the two sides, Mkandawire J, ruled in favour of Kachere and Others,
i.e. that he (the Judge) would go ahead to hear the details of the case against
the President and the Speaker of the National Assembly. The President and the
Speaker of National Assembly rushed to the Supreme Court to halt the Judge from
going ahead with the hearing of the meat of this case.
The
Supreme Court said Kachere and Others did not have that strong representative
petitioner’s position because this was the duty of the Attorney General. In
short, Kachere and Others did not have private standing on the matter because
they were not the only people affected, some others could also be affected and
those had not come forth to complain, and so the fact that others who would
equally feel affected did not come forth, disqualified Kachere and others from
representing them (after all, Kachere and others were, in the first place, not
sent by those that did not come). So Kachere and Others did not have locus standi, i.e. that interest in the
matter above the millions of Malawians they thought they had rushed to court to
represent.
What
pains me about the Supreme Court’s dismissing Kachere and others on this is the
fact that at that time personalist regime was just beginning to grow; it would
have been a great thing to nib it right in infancy; the MSCA could not foresee
this. The MSCA should have seriously taken into account the time in which we
were then, that we were still perfecting our Constitution; they should have
taken advantage of the case to grill those bringing in elements that would soon
prove them above the law. As it were, Kachere and Others were dismissed for
taking the responsibility of Malawians when individual Malawians should have done
that privately if they felt their rights under threat. I like the opinion of
Fidelis Edge Kanyongolo on this when he said:
This
application of this narrow administrative law rule regarding standing has the
effect of prohibiting the majority of people from using the judicial process to
enforce accountability. It should have been possible for the court to interpret
the Constitution more liberally by holding that, at least for purposes of
obtaining declaratory orders, every citizen has a sufficient interest in
constitutionality to entitle them to have locus
standi whenever there is unconstitutional conduct by a public official
(“The Limits of Liberal Democratic Constitutionalism in Malawi” Democratisation in Malawi: A Stocktaking,
p 367).
Law
is supposed to solve problems; if it is there to create some, then the people
are in trouble, double trouble. I personally consider the Kachere case, bearing in mind the time it was brought before
court, to be one of the opportune occasions our courts had to proffer a sense
of constitutional direction upon us. As it were, the Court, the Supreme Court,
that is, opened the sluice for constitutional trouble, constitutional double
trouble. It was a moment to breathe into the Constitution that air of sting; as
it were, we removed even the little there was in it; we missed an opportunity.
This
was by no means the first time the courts had demonstrated a lack of foresight
on the path our young democracy was taking, for on September 2, 1994, M.P.
Mkandawire, J had ruled in favour of MacWilliam Lunguzi after Muluzi (on May
24, 1994, only days after becoming first President of the Second Republic) had told
Lunguzi, verbally and with no reasons whatsoever, he was sacked as Inspector
General of Police. One of the requests Lunguzi had made to the court was a
declaration that he be reinstated as IG. Measure below how the Judge had ducked
that part:
At
paragraph (c) I am being called upon to declare that the first plaintiff be
reinstated. In the case of Chief
Constable of the North Wales Police v. Evans the court refused to grant an
order of mandamus to reinstate the appellant because in practice such an order
would border on usurpation of the powers of the Chief Constable, which was to
be avoided. It is for that very reason that I refuse to order reinstatement.
I
say again law is supposed to solve problems, problems in our contexts; it must
not say Evans was not reinstated, then MacWilliam Lunguzi must not be
reinstated. Law must offer a solution, at least that’s what the people expect,
and I believe it’s an expectation legitimate.
The
executive at the time should have been halted dead in the tracks, and the court
had the opportunity to do that; the court did not. Some five years later, in
August 1999, the Attorney General himself (Peter Fatchi) was to test the
waters: “Muluzi will remain President of this country until another candidate
is sworn in after holding fresh elections. Muluzi may even become life president
regardless of what the courts may rule.” (“Challenges and Reforms” by
Nandini Patel (quoting Daily Times) in
Malawi’s Second Democratic Elections: Processes,
Problems and Prospects, p 44). Barely two months later, another Minister in
Muluzi Government, Dumbo Lemani, was to declare the UDF was going for a third
term, two-thirds majority or no two-thirds majority (ibid).
In
short, by 1999 Malawi had already relapsed into an authoritarian regime of
personalist form, and events in 2002 (Third Term Bids) were to prove this true.
From then on, the country has continued in that path, and things are worse
today because, like water they are flowing, following the channel of evil in a
personalist arrangement. These things have been brewing over time; those who
should have stopped them on behalf of the illiterate 70% had watched,
benefiting. They started under the UDF, and in 2004, when Bingu wa Mutharika
took over, nothing changed at all, all we had done was simply shift persons at
the helm of this drama of power, main actors.
The
current regime of APM is not spared either, and it is naïve of us to things can
just suddenly change. Even journalists are part of this train. You might have a
name or two of those firebrand journalists who lambasted government in a manner
reflective of pure objectivity and intelligence. Today, they do the same
service for the regime, of course, using a different code of ethics.
Some
talk of the Malawi Congress Party being the game-changer; people like to
believe in lies, and they believe it. Not me. What the MCP will do is simply
shift the man at the head; the base and spirit will be the same; it will be the
same team, same old boots, same jerseys, same philosophy.
If
MCP had come out to show a willingness to change the system, I would be behind
them 100%; they have not shown me they are there to change things. Even within
themselves, they have miserably failed to accommodate dissent. If you can do
that before being made the sovereign, what face shall ye show then in the
mantle itself? The problem is too complex; it requires something bigger, almost
a miracle in a leader to do proper diagnosis and therefore administer that
right tricky treatment.
Where lies the answer
in the fight against corruption in Malawi today
Malawi’s
answer lies not in the court, unless we lack that power and property of reasoning
and sight. Malawi’s answer lies not in forging more and more pieces of
legislation, because we are very rich as far as that is concerned. We love pieces
of legislation but never their spirit. Malawi’s answer lies not in
demonstrations, demonstrations only lead to more misery. After all, haven’t we
learned enough that during demonstrations our leaders get arrested where we are
shot, and they get compensated in millions for being slapped by some
unfortunate police officer where we turn a million times in our graves, waiting
for justice? This is why I come with this proposal, for us to start afresh.
Even
the leader of opposition, Lazarous Chakwera, seems to realize our problem is
not necessarily the leadership; it is the system we have allowed to go
uncorrected. In his New Year’s message, the man observed: “Our nation is crisis
because the mistakes that different ruling parties made while in power have
largely remained uncorrected, and there is no leader in Government
today with the Gravitas or will to correct them.”
Of
course, this speech intends to convince us that the so-called leader with
gravitas or will to correct them lies in him and his Malawi Congress Party.
First of all, he never revealed those mistakes, or if he did, then he mistook
them for something else. Second, he did not explain how they can be corrected,
because MCP going into power will not mean correcting the mistakes; the
mistakes will be corrected when we trace where we went wrong and together
decide, as a nation, not as a party, to correct those mistakes. A willing party
at the time will only be there to facilitate or create a conducive environment
for us to attain that system, a system that will address the ill at all levels
and in all forms—bureaucratic corruption, political corruption and of course,
quiet corruption.
As
far as the fight against corruption is concerned, Malawi has hit that bifurcate.
We have reached that point where we have to make a revolutionary choice—either
to keep claiming we are fighting when we know we are losing through and through
or to accept that we must adopt a method, a kind of bitter pill, that can work in
our context with our history in order for us to reverse the situation. Put differently,
is it high time Malawi and Africa as a whole employed a certain tactical approach
to start afresh, just as South Africa did when confronting the demons of her
past.
It
sounds senseless, I know. But where have you ever seen the path to peace straight?
What is happening in Colombia as we speak testifies the fact that though the
path to peace is often long and winding and senseless in many an eye, it is
worth the people’s efforts in the end.
The
story of Colombia is the tale of a country that has seen a civil war kill over
260,000 people (half of whom civilians), an internecine war that has displaced over
7 million people. This civil war started way back in 1964, the very year the
British Government reluctantly gave back our freedom when our Independence
heroes and heroines forced down the Union Jack, and instead, hoisted our
three-band—black, red, and-green—flag carrying the rising sun, that symbol of birth
of a black nation, Malawi. By the way, why did the Independence fighters decide
to restrict the rising sun to the black band only? Wouldn’t it be more
meaningful to see it rising in the green band too, to symbolise a green
revolution, or even in the red band too, to symbolise some new DNA of hard work
and sacrifice? Well, this is not the subject of this discussion.
The
main warring sides in this civil war have been the Colombian Government itself
and the Communist-Leninist rebel group, the Revolutionary Forces of Colombia,
Farc. It was in November 2012 that the two sides started peace talks.
Understandably, not many Colombians had given these talks a chance, but in
September this year, the two sides signed a peace agreement, one that was to be
rejected by the Colombians a week later on October 2, following a number of
concerns the Colombians had raised. Despite such setbacks, the Colombian
President, Juan Manuel Santos, vowed to keep seeking peace the dialogue way,
and on November 24, the two sides signed a revised agreement, four years after
they had started in Havana, Cuba.
And
for his relentless pursuit of peace for his country, Mr Santos, has been
awarded the 2016 Nobel Peace Prize, a crown he dedicated to the people he
loves, the Colombian people. Today, many are saying the crisis in Syria ought
to take the Colombia peace model.
Three
lessons are to be learned from this Colombia sweet tale of peace. First, it is
that it is possible for a people and their leader to change the course of their
history. Mr Santos had been Defence Minister in the regime of a hardliner
President Alvaro Uribe, who believed in gunnery to push the rebels to
surrender. When he became President he took a different path, doing things
differently for the sake of peace for his people. In other words, leaders can
decide to change the destiny of their countries the right way and the positive
direction; this is possible.
Second,
peace efforts are never that straight-forward; they can be protracted, energy-supping
but are worth pursuing. Lastly, even in the face of doubts and opposition from
one’s people, engaging the Thomases in dialogue eventually pays dividends. In
short, consensus comes when a leadership reaches out even those it deems
irritating.
The
spirit of debate entails that a people must engage in issues that can bring
lasting peace for the good of their good. Some methods may look unworkable in
entirety but it is worth scrutinizing them for elements therein which can be
applied to the immediate environment in order to accelerate progress.
Put away the language
of prosecution for a while
The
greatest sacrifice Africa can make in the fight against corruption is to accept
that we must draw a boundary and allow the clock of fate begin count on us from
that line going the future. Put simply, let us allow former Heads of State to
go away with it so we can start afresh.
I
know you’re saying, “What, are you crazy?” No, not at all, but I’m being both
brave and pragmatic. So, listen to my reasoning before you dismiss me outright
with your wave of the hand.
First,
when I preach the gospel advocating for putting away for a while the language
of prosecuting former Heads of State, I am not talking about African leaders
who preside over atrocities as rebel leaders or those leaders who deliberately
convince a section of society to annihilate another in form of genocide. These
forms are extreme and those who do them have to face the consequences of their
planning and the execution. But even in this, there should be a higher level of
sensitivity, balance and understanding of the best way to bring healing that
works among the people, i.e. among both the victims and the perpetrators. The
post-Genocide setting in Rwanda is a great model on this.
Like
it or not, former Heads of State, much as they are part of the problem, are
part of the solution or can be part of the solution. I think I should
illustrate how much we stand to lose when we are reckless with our language on
intention to prosecute former Heads of State. The situation in The Gambia serve
the purpose well, I think.
Recently,
there were elections in this West African country, where Adama Barrow, leader
for an opposition coalition, beat the incumbent, Yahya Jammeh. At first, Yahya
Jammeh conceded defeat and promised to help in smooth transfer of power. The
commitment was short-lived, for soon he came out, rejecting the whole process. Mr
Jammeh pointed to some inconsistencies in the way the votes or marbles were
counted or added, and also that on the polling day, his supporters had been turned
away from polling centres on the pretext that the elections had already been
won by Mr Barrow and so no need for further voting. However, some analysts
attribute Mr Jammeh’s U-turn to remarks by a senior member of the opposition
coalition, Fatoumata Jallow-Tambajang, who openly said Mr Jammeh would soon be
taken to court to answer various charges on alleged crimes committed during his
22-year reign. Of course, Ms Jallow-Tambajang later said her remarks were not
representative of the coalition’s position but that she was merely expressing
her (personal) opinion.
First,
one should not just dismiss Mr Jammeh’s claims as tears of a bad loser. It’s
important to note that after the country’s Independent Electoral Commission had
revised its figures, the margin did indeed narrow in favour of Mr Jammeh though
this never affected the final vote.
In
“Gambia election crisis: What next for Jammeh,” a BBC article by Umaru Fofana
(available at www.bbc.com
dated December 14, 2016), the reporter talks of his conversation with the
President-elect on the question of prosecuting Mr Jammeh, and of Mr Barrow’s
likening the situation there to that faced by Nelson Mandela regarding dealing
with a country’s past. In short, though Mr Barrow was not forthright, he was
hinting on a fact that people ought to be cautious on language of prosecuting
former Heads of State.
Like
it or not, former Heads of State do have some capacity to influence violence,
and history has shown us that in the face of humiliation, they like dying
standing. In the end, the greatest question becomes, was it worth the
bloodshed? I personally feel no.
The
atrocities the West committed in Africa right from the era of slave trade
through colonialism to the time of the fight for freedom and even after that are
immense. When you look at the history of coups in Africa, you will often see
the West lurking behind the scene. Most disasters in Africa have arisen
following some coups supported by some Western country. Yet every time people
talk of taking the West to book for all these, the West cunningly rushes to
bulwarks of law and jurisdiction to run away from taking responsibility.
It
is common knowledge the West plundered Africa of resources, and the West is
rich today thanks to the resources it plundered from Africa. Today, African
countries go to Europe to borrow money at ridiculously high interest rate, and it’s
intriguing that on no time has there been some unsettling in their conscience to
remember and accept that it is moral cowardice to refuse to take the greater
part of responsibility for Africa’s ills today. The definition of corruption
fits perfectly the acts of the West on the Continent. But who talks of bringing
the West to book?
Peace
is the first condition for Africa to liberate itself from the tight grip of
hunger, poverty and diseases. The reason is simple—peace will enable the people
to work in their gardens, to get good education and to live together to foster
further peace. In short, any choice Africa makes must first, have the objective
to build lasting peace. This peace should be forged by consensus of the people
themselves. But people have to realize that to achieve peace sometimes you have
to take a path that won’t make sense to many who think democracy is the end in
itself.
In
Malawi, the former Head of State, Bakili Muluzi has been answering corruption
charges since 2006 or thereabout. We have witnessed the Government spending at
an unprecedented scale on a single case yet no one knows whether the Government
will eventually secure conviction on this because every time there seems to be
some palpable progress suddenly some hiatus follows.
To
be honest with ourselves, we must remind ourselves that Late President Bingu wa
Mutharika did not intend to see Muluzi in jail; he could never do that. Even if
it were you, (unless it were in a dictatorship) you would never send someone
who made you what you are to rot in jail, especially when it is someone
carrying the tag ‘Former Head of State’. The fact is Bingu had only wanted to
contain Muluzi and nothing more. Those who didn’t understand this tactic and
went in head first ended burning their own fingers. In fact, when Muluzi was
arrested by Bingu’s government back then, a ‘delegation’ went to Bingu to
request him never to touch that man. These words were said to Bingu then,
“Whatever the case, do not touch that man.”
There
are two faces to politics: that one everyone sees and knows, and the hidden one
known only to those privileged with thinking and access. It becomes a problem
to balance the two because it takes both wisdom and intelligence to meet it. Most
Malawians, especially the overzealous youths who do not understand the core of
issues politics, tend to peddle the latter. Such people get confused when they
eventually see two ‘enemies’ sharing a table. This is why I keep warning these
overzealous youths to beware when they jump on the so-called critics, because
Malawi’s political scenery can never afford to forge permanent enmity.
If
I may ask, if the Government was serious with prosecuting Muluzi, would Atupele,
and Atupele is Muluzi’s son, be working with Peter Mutharika? There must be
something more than meets the eye here. To understand that you have to isolate
issues in order to weigh the reality and demands of peace against the dictates
of democracy on paper.
Ever
wondered why SADC and the AU keep sending Bakili Muluzi, a man answering
corruption charges, on errands? Isn’t this a sign that the true picture of
things isn’t the one we hold on to? And now, why don’t we use our faculty of
thinking to annul the meaning and come to some concrete conclusion that
prosecuting former Heads of States is officially not encouraged at the highest
level on the Continent?
There
is no DPP meeting where Joyce Banda’s name is never dragged through mire, yet
everywhere she goes she receives a hero’s welcome as though still Head of
State. Does this not tell us prosecuting Heads of State is not officially
sanctioned? I am not saying this because I am someone from the Eastern Region where,
‘naturally’ people would expect me to be pro-Muluzi or pro-JB; I will say the
same of Peter when he retires and even of Heads of State elsewhere in Africa.
This is why I do not support the proposal to investigate Bingu’s wealth at this
time. That will not bring us what we want. There is a better way of seeing
Bingu’s wealth in Malawi, a better way of making Bingu’s wealth reach the needy
in Malawi. That is the channel to pursue.
There
are people who strongly believe the Government is prosecuting Muluzi’s case.
Are you really serious? Where is the faculty of interpretation in you? Did you
not see with your own eyes Government coming in close to dropping the charges
only to make ‘some’ U-turn following some noise from some quarters? As far as I
am concerned, Muluzi’s case is there on paper only. In fact, it’s there because
the Government has not arrived yet at a nice exit strategy that will not
unruffle feathers. Otherwise that case is dead and buried; it is not a cold
case either, it’s dead and buried. You take interest in it at your own peril,
for it is not worth wasting time on anymore. Even if MCP comes into power
today, there is no way they can prosecute Muluzi. We tried it with Dr Banda,
and there was a terrible backlash—the UDF lost even the small support it had gleaned
in the Centre.
If
today Peter Mutharika directed that the case should now be pursued with all the
vigour and energy, Government being a colossal machinery it is, that case can
end within months. We all know it is not our interest to do that, and the
President knows we don’t want things go that direction yet we still pretend we
will eventually reach some verdict.
The
former People’s Party Spokesman, Ken Nsonda, when asked whether abandoning the
PP to the governing DPP wasn’t betrayal of trust, responded tersely: “There is
no syllabus in politics.”
I
think by this, this Nsonda-man meant that the art of politics does not really
require some defined pattern, after all, that Chancellor of the new German
Empire, Otto von Bismarck (1815-1898) accurately commented on politics for us
as “not being an exact science.” You have to be at your best to understand it.
In short, even political science is not the best instrument for measuring, understanding
and forecasting the weather of politics.
To
some Muluzi’s case has become a means of making money, to some a means of buying
some reputation, but certainly it is not a thing we are serious with at all
levels, not a thing that is serving public interest. A thing serving public
interest has the elements of efficiency (achieving maximum results with fewer
resources) and effectiveness (meeting the set objectives with the set inputs or
resources given). Everybody knows this case has neither of these elements yet we
all pretend; we look away. I pity our Government in it all, for our Government
is in a dilemma of sorts. They know what wisdom teaches us on such things, but
their fear to take this bold step hinges on their fear of what the world,
especially those who use knowledge to judge things, will say. Malawi needs a calibre
of people who mix experience, knowledge and wisdom to pass judgment on things
of national importance.
Anywhere
a former Head of State is a man or woman who was at the peak of everything
power. He or she was the hub of every respect you can talk of in the world, and
when you carelessly speak of prosecuting a former Head of State, you present to
him or her a picture of not only a process of justice but a means of humiliation;
they can never take such lying down. Didn’t we see Muluzi fighting to come
again in 2009? I believe the motivation at that point was to execute revenge
for everything he had been through. We must, as a nation, avoid reaching such
dangerous levels of perceiving things.
What
the West tells us to do when dealing with our past or our situations is
something they themselves can never do. There must be a very good reason they
do not do this. We must learn from this and come to a realisation that there
must be a way Africa can deal with its past or present demons, a way that will
guarantee both democracy and peace. I should call this point the moment of
truth or the starting point, a point where we must start afresh.
Malawi’s
major problem has been that we have failed to arrive at some consensus on that starting
point. Unless we create this point, we shall remain a nation that moves one step
forward and two backwards.
The
greatest opportunity we had as a country to create this point was when
multiparty came in again in 1993/4. Unfortunately, at that time, we lacked great
minds that would combine experience, knowledge and wisdom—three things—to build
a foundation of a system that would defy any attempt arising from greed and
appetite for power. Call me a rude boy, but at that time, we lacked characters
who would resemble Nelson Mandela and Desmond Tutu in our context. We made some
attempts to reconcile but reconciliation requires the medium of experience,
knowledge and wisdom, miss one, you miss it all. Our scandal was that people
thought the Constitution (a body of knowledge) would solve it all. Today many
years later, we learn the truth, the bitter truth, that the Constitution was
merely a document and those making it had their eyes set on what they thought
mattered most at the time, killing the Malawi Congress Party. You can never gather
to forge a supreme document on a theme of punishing history. One weakness with
our Constitution is that it was looking at the past, correcting history rather
than striving to make the future. Nothing wrong, but there must be a limit to
which you can dwell on history.
Our
Constitution, for example, limits the Presidential tenure to ten years (two
consecutive terms of five years each). This was solely built with the objective
to frustrate anyone who would bring in the spirit of one party regime—life
presidency. It was a great intention but on a very wrong motive. The motive and
emphasis should have been to build belief in a system. When making law, you
must, as much as possible, apply the virtue of anticipation, i.e. looking ahead
to consider a number of scenarios and how the law would still work in those
scenarios. For example, that law should have looked at whether a father using
crooked means to see his son in power would constitute Third Term or a brother
using a brother, or sister a sister would constitute Third Term.
There
are “three different modes of political power maintenance (probably the three
most widely used throughout history): (1) hereditary succession, or lineage;
(2) the actual or threatened use of military force; and (3) popular election.”(Hadenius
and Teorell, 2006, p 5).
Our
Constitution confused the three, striving hard to defend the first yet oblivious
to the fact that there could be occasions where the first could marry and assume
the third. Our Constitution is powerless as far as dealing with this complex
mix is concerned.
We
all know how and why Muluzi failed in that Third Term bid, but just for
thinking suppose his son, Atupele had been of age to become President, would
putting Atupele to run constitute Third Term? Our law has one weakness, it is also
a weakness elsewhere in our public policies—we love to deal with issues as they
appear.
If
we were truly running away from the spirit of one party as far as power
perpetuity was concerned then it should as well have addressed how that power
from the same family would be checked. As it is, I can be President and my son
can be one after me, et cetera. When one argues against this, they say, “In the
US two Bushes had served as Presidents.” Correct, but they do not have a past
like ours. Moreover, they use a system rather than a selection mechanism to
arrive at a candidate. We are two different settings with two different
histories—ours was built on blood and fear, theirs on a system.
Just
for interest, if you spend K3 billion to prosecute in a case where someone is
alleged (I emphasise ‘alleged’) to have embezzled K1 billion, what is the wisdom
pursuing it? What sense is there pursuing it especially when it has already
taken you ten years just to cross-examine the accused?
“Corruption
in Africa violates human rights. Why do we tolerate it?” available at www.theguardian.com
(dated Friday September, 2016) makes this interesting observation, which we
would do well to think through seriously:
Human
rights are enforced by international treaties, backed by judicial bodies with
teeth such as the International Criminal Court, the International Court of
Justice, and regional bodies such as the African Court on Human and People’s Rights.
The UN Security Council and the African Union Peace and Security Council can
impose sanctions in response to violations of political, economic, social or
cultural rights, or to deal with torture, genocide and war crimes. On top of
that countries and international bodies have an obligation to act when human
rights are breached. Yet there is no such obligation to act
against endemic corruption. (Emphasis mine.)
Do
you think it was by accident that the question of endemic corruption was left
this hanging by the international community? I do not think so. I believe it’s
because they know that fighting corruption is context-determined. The way you
fight corruption in Zambia cannot be same way we do it here. We are neighbours,
yes, but our contexts, though have much in common, are different. If a
particular method can work well for us and address the problem better, why not
adopt it?
Our
problem is that we know what we can do to solve our problems but we allow
ourselves to be told what to do by someone who does not understand our setting
and our problems. At the same time, we fear it might appear we are rewarding
impunity. Don’t worry, this was said of South Africa when the leadership which
had every opportunity to take all the power and punish the white allowed
themselves to take little power for the good of South Africa. What Thabo Mbeki
says in Mahube: The Dawning of Dawn,
p 27, inspires: “Our own view as the leadership of the ANC was that, in the
interests of peace and stability and a common ownership of the democratic settlement
by all racial groups, we were prepared to sacrifice any advantage that would
derive from not being forced to govern as part of a coalition government.”
The New Path to take
Now,
how can Malawi create a starting point? Honestly, this is a tough question.
Fortunately, if we can get rid of pretense, we can provide answers to the same.
First,
we must accept the fact that the MCP stole our money, the UDF repeated it, the
DPP continued it, and likewise the PP and the ‘new’ DPP. I know someone will jump
with a start and say but not the ‘new’ DPP. Well, that means you don’t listen
to what your President says, because many times he acknowledges we are still
facing the problem but that we must exercise high sense of integrity,
sacrifice, et cetera, to rid ourselves of this evil.
In
short, we must first accept that there is none among these who has that moral
strength to point a finger at the other. To demand account from one means
demanding account from all, after all they all bifurcated and bifurcated further
from the same mother party, MCP. It is a great dilemma and it comes in because
those we entrusted with the job to forge us the Constitution, did not do a
thorough job, especially in that they refused to stand bold against attempts to
dilute it early in the days. By the way, the current Constitution was adopted provisionally on May 18, 1994 and came into force
the same day a year later, yet between 1994 and 2005 Parliament had passed nine
Constitution Amendment Acts, amending well over 90 sections. Incredibly, two
of these Acts, which amended 24 sections, were passed within the one-year
period the Constitution was in force provisionally. (See Malawi Law
(Commission) Review, 2006, p 1.)
Malawi
as a country has a choice to make, whether to continue on this path, a path
that is creating more and more divisions, splitting our beautiful country
bottom-top, east-west, or accept that we must reach a point from where things
should have to change. To do that we have to be prepared to forget the past
through a mechanism in which we shall all vow to start afresh and forgive each
other from the bottom of the country’s heart. By ‘change’ I am not talking
about going to the streets; change comes through talking and consensus. I
believe that words can be as sharp and as effective as all the weaponry of war
together.
Currently
we are talking about investigating Bingu’s riches. The West will only be happy
with this because we will involve them in the ‘tracing’ in which course, they
will make money for their countries. But of what benefit will that be to us as
Malawians? It will divide us even further; it will harden more those feeling
persecuted to use any desperate means to remain in power, and the situation
will get worse and worse. Malawi must accept that we made a mistake at some
point in our history and we must be prepared to open a new chapter. Anything
less than that, I can bet the vicious cycle will continue and we shall keep
groping in this dark forever.
I
believe that this is the approach the religious leaders in this country should
have taken to bring true healing. I know that this is what they want to see happen,
but I know they fear that people who believe in knowledge can vehemently jump on
them as traitors. There is nothing ‘traitor’ in working to see your country
work.
I
will write again on how that this country still needs a truth and reconciliation
commission. It is never late to address the past though a people must be
willing to divorce prejudice and anger and finger-pointing in a spirit of
give-and-take to allow true healing to prevail on this land.
Parliament
recently passed the Access to Information Bill. The President is yet to assent
to it. Throughout I have argued that ATI should be taken as a starting point,
where we should mark a boundary to do away with the past and start a new
chapter. Many people argue that we should adopt a hard line on this.
Personally, I want to see Malawi use a lot of wisdom in arriving at what will
make us start afresh, otherwise, we will keep churning pieces of legislation
that will have no impact on the ground apart from bringing us further and further
apart.
We
must understand that we are coming from a history from which we never allowed
ourselves to heal. Today, we still point fingers at each other and we cannot
forget our past, and the reason is simple: we are persuading ourselves to move
forward before settling and reconciling ourselves with our past. Starting
afresh will be the starting point for us to bond again and move forward as one
people.
In
their manifesto, the DPP made passing of ATI Bill into law a priority. When
they came to power, things changed. I know that the change came as soon as the
people had started using the language of ATI as an instrument to punish
failures, especially past failures. Even if it were me, I would fear.
If
I were made President today, this is what I would tell the nation, and I would
never palter regardless of what you would say because my country must come
first:
We
must forget the past in order for us to build the future. Forgetting the past
does not mean forgetting lessons from history, but that we must use the
knowledge for unity rather than disunity. We must heal old wounds by truly acknowledging
we each went wrong, and extend our hands to those we offended, dead or living.
As soon as we have crossed that bridge, from that point on, then we can agree
that anyone breaking the law whether it be omission or commission must face the
full wrath of that law now that we’ve agreed to start afresh.
I
know that many people will laugh at this, but this is the only way we can save
our country from ruin. I appreciate the pessimism and this is why I describe
this as living in a dream world because I know there are many who believe in
knowledge alone at the expense of reality or experience and wisdom.
But
Malawi must start afresh. The Church and all religious leaders in this country
must help us start afresh. In 1994 we thought we were starting afresh; we did
not; we did not because we were seeking reconciliation while taunting others
and while defending those on our side. We selected wrongs to punish—in those we
had been players, we glossed over; in those we had been spectators, we
punished. This made it impossible for the taunted to come out and rid
themselves of their guilt.
If
we promise to start afresh, even MCP will come out and tell us the truth
without shame (but of course, with regret) of what happened, and so seek
reconciliation and promise those it wronged what good it can do to them to heal
their wounds. If the MCP can genuinely approach things this way, I can never
see how they can never be voted in again, but anything less than this, I doubt.
How
about those the killed and still waiting for justice?
First
of all, we must accept that there comes a time when we have to make a choice
and accept that there are situations where the so-called justice fails to
achieve its objective. At that point we must accept that for lives lost, those
mourning must be remembered in such a way that they will feel their loved ones
never lost their lives in vain. They can never get back those lives, but we can
do something, it cannot be all at once, which can make them feel like we
remember their loved ones. These are things a nation can debate on if provided
with an honest platform. Our religious leaders can lead us in this and I
believe these men of GOD can genuinely guide us in making the sort of
compensation that can reach the lowest depth of the heart. Honestly, I am tired
of hearing elders exchanging vitriol whether in public or away from it. I
believe in none of them because none of them comes to change the system; they
come to replace the sovereign.
The
formula is talking, talking and nothing but talking, talking in the presence of
respectable men and women of the land, talking in the catalyst of peace and
honesty. We must talk and talk and talk until we reach that point of consensus for
the good of our nation. At the same time, I think a people can negotiate on
whether leaderships which had acquired in a fashion counter to good conscience
can think of using a greater portion to help alleviate some need, e.g. by
making atonement donations of sorts. I find this approach better than resorting
to shouting and looting.
Conclusion
I
know you will laugh at all this. I will also laugh at you for living in a far
worse dreamland. But there is a point at which a nation must take a painful
decision, almost a thinking revolution in nature, in order to build a future.
This is a point at which a people turn together to face the future, while agreeing
to heal their past through a mechanism that compensates those affected without
pointing a finger at ‘the perpetrators’ where the perpetrators have willfully
come forth in a contrite spirit. After all, even GOD HIMSELF never despises a
contrite spirit. The South Africans guided by great minds of experience,
knowledge and wisdom reached that point and used it to change the course of
their history. We have tried everything the past 20 years; it has failed us.
This means the formula we have been pursuing hasn’t paid dividends. Perhaps it’s
time we tried something different, some feasible way of creating modus
vivendi—that arrangement between people of different opinions or habits that
allows them to live or work together without quarreling. I think this is
healthy for Malawi as well as all fellow beautiful African countries elsewhere.
Let’s enter the New Year with this new dream, the dream of peace, the dream of
GOD.
Cases
Kachere and 8 Others v
The President and the Speaker, Civil Cause No 2187
of 1994; The President and the Speaker of
National Assembly v RB Kachere and Others, MSCA Civil Appeal No 20 of 1995
The
Attorney General v MacWilliam Lunguzi, Foundation Integrity of Creation Justice
and Peace, MSCA Civil Appeal No 23 of 1994 being Civil Cause No 55 of 1995
References
“Colombia approves
amnesty agreed in Farc peace deal” available at www.bbc.com
(dated December 28, 2016)
“Corruption
in Africa violates human rights. Why do we tolerate it?” available at www.theguardian.com
(dated Friday September, 2016)
“Gambia election
crisis: What next for Jammeh,” article by Umaru Fofana. Available at www.bbc.com
(dated December 14, 2016)
Kanyongolo, Fidelis
Edge (1998). “The Limits of Liberal Democratic Constitutionalism in Malawi”. In
Phiri, Kings M & Ross, Kenneth R (Eds) Democratisation
in Malawi: A Stocktaking. Zomba: Kachere Series
Mbeki, Thabo (2001) Mahube: The Dawning of Dawn: Speeches,
Lectures and Tributes. Braamfontein: Skotaville Media
Ott,
Martin; Phiri, Kings M. & Patel, Nandini (Eds) (2000) “Introduction” in Malawi’s Second Democratic Elections:
Process, Problems and Prospects. Zomba: Kachere Series
The Malawi Law
Commission (2006) “Amendment to the Constitution and Preservation of its
Sanctity”. Constitutional Review Programme”: Discussion Paper No 7. Available
at: www.lawcom.mw/docs/discussions_paper7_constitution_amendments.pdf
(accessed 19th April, 2015)
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