The Art of Making Laws and the Folly of Passing Bad Laws when in Power

For some reason whose explanation no one can give, everything else has a beginning and an end, and it’s only in politics where there is a beginning but never an end; at least, that’s what a person in power, any person in power, believes in. Bombard them with reality of history, they will still shut their ears, or worse still, declare you an enemy for reminding them times do change.

Malawi is full of history about people who initiated very bad laws, laws which eventually turned on them, biting them hard. There are stories of enthusiasts who, during the one party era, went outside Malawi, looking for a model for that worst prison infrastructure, but ended up spending time therein, and in some cases, even becoming the person to open that hell-on-earth facility, not as an official, but as a convict.

Syned Mthatiwa, in his article “The ‘Rhetoric of Animality’, Animal Imagery, and Dr Kamuzu Banda’s Dictatorship in the Poetry of Jack Mapanje” alludes to this when discussing Mapanje’s title poem ‘The Chattering Wagtails of Mikuyu Prison’ (in Mapanje’s collection of poems, The Chattering Wagtails of Mikuyu Prison). Mikuyu Prison was a maximum prison specially run to contain and punish dissent during the reign of Dr Hastings Kamuzu Banda, the country’s first Head of State, the man who presided over the scariest chapter of our history as far as human rights issues are concerned. Mthatiwa who says of Mapanje a man who considers criticism of a society’s institutions and structures a very healthy thing to do since it helps a people in that society move forward, says the new prison wing described in the poem as the New Building, the place to which the persona in the poem is welcoming another fella is, in fact, the innovation of Muwalo Nqumayo, then Malawi Congress Party Secretary General, a very high post in Dr Hastings Banda’s regime. On page 101, Mthatiwa observes: “It is (also) Albert Muwalo who is credited with planning the ‘New Building,’ an additional wing to Mikuyu Prison which he allegedly intended to house Banda and his henchpersons . . . ”

In short, Muwalo, perhaps the most powerful man after Dr Banda in the 1970s, found his co-conspirator, Focus Martin Gwede, being housed in the same facility he, Muwalo, had planned against those deemed anti-MCP including Dr Banda whom he was alleged to have conspired with Gwede to assassinate during a visit to the North of the country. And “in 1978, after a trial presided over by traditional chiefs, Albert Muwalo Nqumayo . . .  was hanged by former President, Dr Banda, for treason” (Mufunanji Magalasi, 2012, Stage Drama in Independent Malawi: 1980 to 2002, p 2).

Thus, Muwalo, a man who was at the heart of the MCP and all it was known for in the 1970s and this includes plans to extend the notorious Mikuyu Maximum Prison, eventually found himself punished by the very system and facilities he had helped put in place.

It should also be pointed out that the traditional leaders who presided over his case were, again, an architect of another Minister who was to be expelled before being abducted years later for treason trial. He too was to face ‘justice’ the one-party way before the very same system he had helped set up years back.

The Muwalo-Gwede trial exposes a lot of weakness too on this system of traditional chiefs presiding over treason trials. In fact, apart from the alleged tape recording of the so-called two telephone conversations for a secret meeting wherein they were also alleged to have discussed firearms; the possession of unauthorized firearms itself; photographs of three ‘rebels’ in exile and a newspaper cutting on which was Masauko Chipembere; a number of books on communism and George Orwell’s Animal Farm, evidence against the two hinged on three anonymous letters said to have been written by some other people warning that the two were wolves in sheep’s clothing colluding with ‘rebels’ in exile to assassinate Dr Banda and overthrow the government. Even the Judges confessed there was a weakness in that nobody owned those letters but they still relied on custom, arguing “there’s no smoke without fire and thus the letter could be admitted in evidence” (Richard Carver’s Where Silence Rules: The Suppression of Dissent in Malawi, p 33).

Sometimes history sounds brutal but history is important because it helps us measure our folly in order to perfect our future.

Well, I’m discussing the danger of derelict of duty to pass good laws when in power and how such lack of patriotism comes to haunt us later in life.

I have read a number of scholars arguing that the 1968 Malawi Congress Party Convention was the beginning of a systematic attempt to annihilate other ethnic languages in the country at the expense of one language—chiChewa (see for example, Gregory Kamwendo’s “Ethnic Revival and Language Associations in the New Malawi: The Case of chiTumbuka” in Harri Englund’s, A Democracy of Chameleons: Politics and Culture in the New Malawi, pp 140 – 150). Kamwendo argues that all this started at the MCP Convention where chiNyanja was officially made the country’s national language and changed the name to chiChewa. Kamwendo praised the Livingstonia Synod (and of course, the Catholic Church) for defying the ban by keep using chiTumbuka in its churches in the North. He says the Livingstonia Synod did this because it was them, who, in the first place, had fought that schools in the North should be using chiTumbuka.

History, however, says otherwise on chiChewa being made a national language. In fact, history points to the North as being the very initiators of the idea to make chiNyanja (christened chiChewa) the national language at the 1968 MCP Convention. According to Joey Power in Political Culture and Nationalism: Building Kwacha, p 287, “It was Qabaniso Chibambo who had first suggested that chiNyanja be made an official language in 1963. Later, in 1966, Felix Musopole, another Northerner suggested the same. Both times, Dr Banda rejected the suggestion since it would first be necessary to establish the proper version of the language.”

This does not come to me as a surprise. Remember, it was Kanyama Chiume who turned the wedding song ‘Zonse zimene zamatikitiki’ (everything here should be measured in terms of money) into ‘Zonse zimene zaKamuzu Banda’ (everything on this land belongs to Dr Hastings Kamuzu Banda). If you still don’t believe what I am saying here, read the following lamentation by CILIC, written when it was known a politician from the North, Khwauli Msiska, would present the Open Term Bill to allow President Muluzi extend his term of office after the expiry of his two five-year Constitutional tenure:

Lastly Honourable Khwauli Msiska, MP, we cannot believe that you have accepted to do what even the most low in the UDF does not want to do. We cannot believe that you have decided to enlist in the cause of political ‘mercenarism’ to reverse all the gains that we made from 1992 to 1994. . . . Honourable Msiska, Sir, look back at out history. The Life Presidency was created by individuals like you who believed that the leadership then needed more power and time to do its work more better (sic) (emphasis mine).

And Lwanda in “Changes in Malawi’s Political Landscape between 1999 and 2004: Nkhope ya Agalatiya” in The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections expresses his shock in a more perplexed fashion when he observes: “Khwauli Msiska, a highly educated MP, and a former deputy minister, was, after all, the one who introduced the Third Term Bill and not some poor peasant” (p 56).

In 2001, the nation watched helplessly as the Members unilaterally mutilated the Constitution of sections 68 to 70 which had provided for the Senate, and this they did without any referendum whatsoever. The Senate had been given powers to further balance power and check against abuse of the same. But as it was, Parliament thought it too expensive to maintain it. Perhaps they had some better explanation.

Currently, Jappie Mhango, a DPP Minister from the North is going places, preaching to crowds the North will never ever produce a President in this country. Not long ago, another DPP Minister from the North, Grace Chiumia, suggested the current President should be there forever. It was only after a storm of criticism that she sensed sense in offering the people an apology for that slip of the tongue. Honestly speaking, no one from the South or Centre can make such weird declarations or float such reckless suggestions.

Surely, the South and the East have failed this country big time as far as respect for the rule of law and constitutionality is concerned, but we have always been aided by willing enthusiasts from the North, and there seems no lacking of them at all.

If Malawi can set up a system of transparency and accountability in the way we choose our leaders, there is no question the North will give this country a President. If we cannot do it, then GOD will find HIS own way of doing it; don’t ask me how.

Well, I am discussing the folly of not utilizing one’s time to make good laws when one is in power and how this later comes back to haunt the makers.

In 1994, the United Democratic Front (UDF), and the UDF has its dominance in the South, came to power, entrusted by Malawians that they could do the nation justice. Right in the first meeting of the National Assembly, the Members there straight away removed a provision that would enable the people to see to it that their MPs were serving them and them only—the recall provision under section 64 which was repealed by Act No 6 of 1995). Today, MPs can join any party in the so-called crossing the floor as though they would return, and the law seems to be clueless on how to solve that problem. In the end, it only works where the crosser moves to the opposition rather than otherwise.

One facet where political parties in power have failed to give the country good laws is on communication, for example, on the Communications Act, and Access to Information legislation.

When the UDF was in power, it did ‘sense an obligation’ (following heavy pressure) to give the people a Communications Act that would ensure a truly independent Malawi Communications Regulatory Authority and therefore independence of the national broadcaster. The job started and soon things began to show there was no way a party in power could give a public communication platform to those in the opposition. Even before local and international pressure to create the best communication legislation for the land, the UDF refused to budge. In fact, at one time its Minister of Information presented the weirdest of defences when he said, “Even in America, Germany, France and Britain, the state controls the radio station and these are advanced democratic countries, and Malawi cannot be an exception. We will give other politicians a chance during election time” (Nandini Patel in Malawi’s Second Democratic Elections: Process, Problems and Prospects, p 172, quoting Daily Times dated November 19, 1998.)

Seven years later, the UDF was to become a party in the opposition when the candidate they had sponsored, Bingu wa Mutharika, ditched them soon after ascending to power. From then on, the UDF whose leader had opened a private radio station and television, began to experience similar problems as the rest of the media houses in the country save the national broadcaster. Soon, MACRA, the Frankenstein machine created by the UDF began to prey on its creator. For example, in October 2008, the radio station was shut down, and the management had to seek the intervention of the courts to resume its activities. In 2009 it was shut again. Maybe today that can never happen since Atupele Muluzi is part of the DPP-UDF ‘coalition’ government.

If the UDF had created an independent facility in 1998 when they were in power and had the opportunity before them to create an independent Malawi Communications Regulatory Authority, when the MBC Act, Radio Communications Act and the Malawi Posts and Telecommunications Corporation Act were being emended into one (the Communications Act 1998), the UDF would have the moral strength to rebuke anyone who would try to deprive the facility of the independence. The UDF had not done that when in power; it had made it a party Authority. Unfortunately, power being what it is, for it never lasts forever, it left the UDF alone in the wilderness.

I maintain that most of the problems in our democracy today came in because the UDF had refused to follow a system when handing over power. This is another example of a bad precedent. The UDF as the party in power had all the opportunity to entrench a system that would see people assume leadership positions following most transparent and trusted election system in the party. Everything system was thrown to the wind, and those who expressed a desire to stand through a system were labelled anti-party. The President unilaterally picked someone, and there the first signs of the end of what was once a mighty party began to show. I do not know how much of the blame and failure of democracy in this country the UDF carries because, honestly speaking, it got from the people a clean plate of democracy but left it tainted beyond recognition.

The scandal of our democracy has always been that we have refused to make good laws to make our democracy follow a system. If these political parties had a better system for election, there would come a moment when emphasis on regions and tribes would take the back seat. But lo, everything seems to hinge on regions and tribes.

Currently, the DPP is in power. I am not sure how committed they are in ensuring the country finally begins to work on systems rather than on what bigotry has always given us.

When a party in power allows a weak legislation to pass, the danger becomes that when they want to use it years later and find it wanting, they have no one to blame. Moreover, their cries receive little or no sympathy all, or how can the people weep with those who had created that punishment in the first place?

At law, when you create a scenario without taking regard to its sting and it comes back to sting you, you are never allowed to seek the solace of law to hide from the heat.

In Abdulla v Steel Works Limited, 12 MLR, 419, a man who went to the High Court for damages for wrongful dismissal from his employment was told he had no right to seek the same after the Court established that the idea to terminate the employees’ contracts there had, in fact, come from him. This man (plaintiff) was employed as an accountant by the defendant company. His contract of employment stipulated, inter alia, that either party could terminate the contract by giving three months’ notice in writing and that certain terminal benefits would then be paid. The defendant experienced financial difficulties and the plaintiff was asked to suggest solutions. He proposed that certain senior employees, of which he was one, should have their contracts terminated on payment of terminal benefits. This was put to those employees who agreed to the terms. The defendant’ Managing Director subsequently informed the plaintiff that his contract would be terminated, according to the proposal. The plaintiff alleged that he had been shocked at this, having thought that because of his position in the company, he would be spared. . . . The defendant submitted in reply that the plaintiff himself had recommended the course of action taken to relieve the company’s financial pressures and, having also accepted his terminal benefits, he could not now complain about the circumstances of the termination of his employment. The court held that the defendant (the company) had relied upon the recommendation (by this very man) that the employees be dismissed and had paid them all, including the plaintiff, the benefits to which they were entitled and the plaintiff could accordingly not now complain that he had been wrongfully treated.

Currently, the Malawi Congress Party are going places, trying to convince us that they will give us what everyone else has failed to. However, when I ask them to prove to me they will be different, no one comes forth. When you look at their structure, it is Central Region in appearance and spirit yet they have the audacity to point fingers at those who use power based on regions.

Many people think I take a hard stand against the MCP. But the truth is, I do not. In fact, despite its terrible legacy in history, the MCP has played a crucial role in restraining ruling parties in the country from going awry. Currently, the MCP seems to command huge respect and it seems to be the only true carrier of a people’s hope but I still maintain they have not yet ensured us they can never go back to underhand tactics against dissent. When I read carefully into the way they handle dissent within themselves, I wonder if all our books will still be on the shelves once these people come back to power. Can they handle criticism? Can they let students read the atrocities of the MCP and still allow those books to be on the syllabus? Can they allow Jack Mapanje’s works on our syllabus? For me, they have no clue how to seriously tackle their history to assure us of a safe future. But they have an opportunity to do that now because there is a generation that is beginning to believe that politics based on regions is taking us nowhere.

Many people who had the opportunity in their times to give us good laws botched it with that reckless abandon; and time being a good judge, waited for them to perch on the opposition benches where they now wonder whether they should have given the country something better. How I admire the DPP in that they now have that opportunity and are blessed with all the knowledge of history that any bad law you make, takes you a step closer to some self-inflicting punishment. If we love this country, let us give it the best of laws not only for us today, but also for others today; not only for us tomorrow, but also for others tomorrow. Let us give good laws to our country, to the generation now, and to the generations unborn. This is what it means to be a law-maker.

Case

Abdulla v Steel Works Limited, 12 MLR, 419.

References

Carver, Richard (1990) Where Silence Rules: The Suppression of Dissent in Malawi. Human Rights Watch.

Magalasi, Mufunanji (2012) Stage Drama in Independent Malawi: 1980 to 2002, Zomba: CCP.

Muula, S Adamson and Chanika, Emmie T (undated) Malawi’s Lost Decade: 1994 – 2004.

Patel, Nandini (2000) “Media in Malawi’s Democratic Transition” in Ott, M; Phiri, K & Patel, N (Eds): Malawi’s Second Democratic Elections: Process, Problems and Prospects. Zomba: Kachere Series.

Power, Joey (2010) Power in Political Culture and Nationalism: Building Kwacha. Rochester: University of Rochester.

Mthatiwa, Syned (2012) “The ‘Rhetoric of Animality’, Animal Imagery, and Dr Kamuzu Banda’s Dictatorship in the Poetry of Jack Mapanje”. Nordic Journal of African Studies, 21(2).