What I think it means to be a modern-day civil servant in Malawi

On January 24, 2017, Goodall Gondwe, Malawi’s Minister of Finance, posed a question that pressed a happy button in me when he entreated every civil servant to ask themselves whether their presence in the civil service does add any value, and if not, to do justice to themselves, accepting they are not worth the sanctity that is working in the public sector. He said, like did Late Chinua Achebe, that those serving in the civil service should consider it a calling, a sort of commitment that requires a form of dedication not available anywhere else. Of course, I did not share the other part of his sentiments when he said those who want more money should consider leaving the public sector altogether. I found this last bit rather misplaced because the whole concept of managing by results also called performance management or quality-based management, et cetera is that those implementing various projects in the civil service should produce first rate results, to make the public sector tick as much as the private sector so those managers and all those serving under them, I mean all those behind such results or innovation are rewarded for the job well done.

There are, thus, two sides to performance-based or results-based management—giving those in the public sector incentives, amidst a robust reporting mechanism, to meet set targets; and rewarding them if they meet the targets or even rewarding them doubly if they produce results par excellence. This also means punishing them if they fail to meet those targets unless the reason is not of their own making. The importance of the component ‘robust reporting mechanism’ is to prevent those managers entrusted with these projects from running away with it, for without enabling oversight officials to monitor arms-length, diversion and abuse of power can go undetected, and arresting the situation can be too late. For me, what Gondwe said is précis of everything public sector reform and innovation. In short, the concept of public sector reforms means ‘work to your best, work with the principles of a public officer, and if you think you cannot, excuse yourself out of the civil service’.

Goodall attracted a lot of negative comments for telling the people this truth, and I know why—they think working in the civil service means money and employment first. It, in fact, means serve to the best of your ability so you should be justified to claim for that which is due you. The principle is, if you have nothing to show for what you do in the civil service, you have no room there at all, and so have no reason asking Government to raise your salary; we must deserve these things. Our refusal to abide by rules, to deserve what we get is what is breeding corruption in this country, because people want to earn where they did not work, to harvest where they did not sow. The definition of corruption is misuse of public authority for private gain. If Government entrusts you with serving it (and therefore indirectly serving the people or public interest) with all dedication and faithfulness and you abuse this trust, you are, in a way, abusing that public authority (that power the Government entrusted in your hands on behalf of the people) for your own gain, i.e. to please your (own personal) wishes or objectives. If you view corruption from this broad perspective, no one will ever fault you, and surely, even GOD HIMSELF will find some great room and favour for you right there in the civil service.

My life has always benefited from working with people of unparalleled dedication to duty. When I was a secondary school teacher, I worked under the headship of Mrs Deliah Thawe. Everywhere she has been too, she has been labelled a difficult person. I confess that if I hadn’t worked under such great personalities, I would be a man half-prepared for the civil service. Mrs Thawe wanted everyone to stick to rules, to be in class at the time the time-table said you should be there. She wanted you to be personally responsible, to take care of Government and mission assets as though they were yours personally. Mrs Thawe would work with the students, literally taking part in planting flowers with the kids, leading by example. To many, the whole Headteacher doing this was cheap publicity stunt. The people hated this approach to work, but I always thank GOD I once worked under Mrs Thawe, and GOD should remember such people for us.

And at the Malawi Broadcasting Corporation, I worked with many people but Samson Nkhono, Joe Mlenga and Late Davis Mussa left such a mark on me; I always value the power of perfection and sober judgment before issues, all thanks to these great men.

And where I work now, I found a great hard-working and honest woman, Mrs Linda Saka. Mrs Linda Saka was lucky to work with the white men and women who coordinated Chancellor College Publications way before my arrival, and these people laid a powerful yardstick for working in that office. Mrs Saka always made sure every transaction was recorded and was kept where we would all get it when needed. She stuck to time, and above all, she never accepted that anything on design elude her. We would be designing a document (book or journal), and I would get stuck, but she would come in and tell me, “It will work.” She would struggle but later I would see her coming back, her face glowing in smile, it’s done. My office went unlucky when the Office of the University of Malawi itself noticed her greatness and stole her from my office, giving her a better post and better wages. Today she deservedly works as Assistant Registrar for the same College where I work, Chancellor College of the University of Malawi.

Let me also confess that the white people who coordinated my office then had left a habit that taught even the messengers the power of honesty. When I arrived there in 2004, one messenger told me: “You know our former boss (the white man) would never take a vehicle for personal errand. If he did, he would record everything and pay for it.” It was the same for telephones, he made sure everyone including he recorded the time and minutes they were there so they would pay for the same in the end.

I always say that the best way to fight corruption isn’t relying on the courts, et cetera; it is by encouraging leaders to live by example. To encourage them the power of showing everyone what they receive, how they receive it; to allow the people to see what they do as far as government business is done and how they do it; to allow the people to see what they have, how they acquired the same, et cetera. It cannot work overnight, but if we can achieve part of it, people might begin to take notice. The greatest form of change comes when a person makes a decision to be part of that forward movement for change.

Chinua Achebe said becoming a leader is a calling and an opportunity to contribute to those in need:

“When I have talked about the need for a servant leader, I have emphasized an individual that is well prepared—educationally, morally and otherwise – who wants to serve (in the deepest definition of the word); someone who sees the ascendancy to leadership as an anointment by the people and holds the work to be highly important, if not sacred. I know that is asking for a lot, but that really should be our goal. If we aim for that, what we get may not be so bad after all” Chinua Achebe quoted in Scott Baldauf’s “Chinua Achebe on Corruption and Hope in Nigeria” dated March 22, 2013, available at www.scmonitor.com)

A leader is not only that person who inspires others; it is also that person whose decisions will likely affect others. In other words, if your decision will affect someone, you assume a leadership role upon that one because his or her destiny will change either positively or negatively as a result of that decision. In my understanding, if a messenger works in some office in the public office, he or she assumes some leadership role because he or she becomes part of those entrusted with change. If he or she steals something, say a machine, there, suppose it’s a hospital, that act or decision will have some telling repercussions upon lives of thousands poor villagers whose plight would have been different if that machine was around.

In the same way, if a messenger in a public office accepts to use his or her bank account to transfer money illegally obtained, he or she becomes part of the leadership preying upon innocent men and women who entrusted them with their lives.

Corruption does not only occur among the rich, even messengers, secretaries, clerks, nurses, chiefs, et cetera can indulge in corruption. Many times people think that corruption at this lower level—quiet corruption—is not as dangerous. This is where we miss it. Corruption at every level, especially in the health sector, is as dangerous. If five thousand nurses or pharmacists, each steals a tin of drugs every day, how much does the Government (and therefore the people) lose in a that single day? If they do this every time they are on duty, how much damage do they inflict on the innocent, vulnerable ignorant poor out there, and what would it all amount to in a year?

Goodall said serving in the public sector is a calling. He wasn’t really far from the truth, because it is GOD, taking into account how you respond to opportunities HE gives you, who decides where you should be. In this way, GOD entrusts you with this job, kind of calling you to the same, as illustrates the parable of the good steward in Matthew 25: 14 – 30.

In the parable, a man going on a long trip gave five bags of silver to one servant, to another two bags of silver, and to a third one, one bag. He used an interesting criterion in dividing the silver bags—their abilities. If it were today and this was the civil service, I would say, he looked at their qualifications and how much each would contribute to the civil service. I would, for example, say, one given five bags has MA, one with two bags, BA, and the last one, MSCE certificate. The first two used innovation and entrepreneurship, and made profit. The last one, acting on fear and lack of prudence, thought the best way was to bury it, waiting for the man’s arrival so he should unbury it and give it back as he had gotten it. And you know what happened later—the sole bag he had had was taken away from him and given to that highest profit-maker, the one with ten. And what impresses me most is what verse 29 says: “To those who use well what they are given, even more will be given, and they will have an abundance. But from those who do nothing, even what little they have will be taken away.”

Serving in the civil service proffers you an opportunity to exercise your appreciation through prudence and hard-work. If you do not work as though you are sent by GOD to do it, then you are an accident waiting to happen. Sometimes people should not get surprised when they register no progress in life—they refuse to serve with dedication in the roles given them by Government, and Government is a representative of GOD on earth.

Goodall was so brave to say these things, but people who don’t believe in hard-work, people who think good comes out of nothing, fruits out of laziness thought the man was taking it too far. Such people ought to be told the truth at times, and truth pains sometimes. There is almost no dedication to calling among most civil servants. I have seen people who do things half-measure yet receiving full salary. If that is not theft, if that is not corruption, then tell me what theft or corruption is.

If the civil service we have today were made up of those great men and women who saw Malawi move from colonialism to Independence back then, it would be a different story. John Tembo is known for his exploits in the political world under the Malawi Congress Party but I have heard stories of him working with that efficiency of a military unit, and even Goodall Gondwe himself does testify to this. We need people who, individually, should set target for their service in government, people who should work as though they are being supervised by GOD HIMSELF.

At the end of every year, as we enter the New Year, people make what they call New Year Resolutions. I wonder how many of them take time to ask GOD to give them the strength to help build their nation as civil servants. Most such requests to GOD are merely selfishness disguised as praise. A person is a totality of everything that surrounds him or her—other people, the environment (trees, water, et cetera), and our duty is to reconcile with ourselves first, then with these forces. Anything less than that, we are cheating ourselves, and truth should be told; we can never build a nation from such tools of straw.

For whatever reason, Malawians today are used to soft treatment, and they go on the defensive every time someone reminds them they have a role to make Malawi tick again. They are in the forefront accusing Government of failing them when their contribution to that Government is minimal and nobody would miss them even if they left the civil service. A person should turn himself or herself into a brand of hard-work and humility so his or her absence can be felt. People cannot be open to you to tell you how much they can miss you, but you must make them feel deep inside them that you make a difference and that without you, everybody would tell something is missing.

In the same vein, when we talk of going to the streets, we must ask ourselves whether there is honesty in us. I am not in the habit of criticizing Government just for the sake of it. I can only criticize the Government upon three conditions: whether I am better than them in that front; whether my criticism is not coming out of malice or attempt to make myself a name the cheap way; and whether my criticism has taken into account all factors—whether the Government is receiving enough external support, whether every fault is of Government’s own making or by some act of nature, whether it is realistic to demand such an action within the period the Government has served. I am not saying we must never criticize the Government; it is our job to, and the Government must give an ear to it when we do, but we must exercise some caution as we criticize, and our criticism should carry with it a large amount of alternative presented in a manner friendly and mild.

I love my Government so much, and this is because GOD tells me to, and whenever I see it going astray I voice my concern. Similarly, when it does well, I equally express my pride. However, as I do this, I always remember I am an artist, and artists always side with the people or those who side with the people. To quote Achebe, “An artist in my understanding of the word, should side with the people against the Emperor that oppresses his or her people.”

I should mention one area where I think Government deserves some credit. Lately, our Government has led the nation in a massive tree-planting exercise. I have never seen in my life such a rally for replenishing green in our nation. In the next five years this land will regain its beauty again. This is a great legacy, and I wish our leaders would emphasise such things, things that build a nation, things everyone needs.

I think I detoured.

Well, today we have people working in the civil service who do not value the power of waiting, perseverance and innovation or entrepreneurship. People build houses using stolen money and resources. I just wonder how such people fight their conscience sleeping in a house built from stolen money. In essence those houses are not theirs, perhaps this explains why things acquired through folly never last and perhaps why such people never know the power of happiness.

These are the very people who love chaos. A nation in crisis has no room to flood to the streets, but to sit down and talk and collectively find answers. I am reluctant to take part in demonstrations and strike—you abandon your work, leaving it piling while causing collateral damage to the poor in the course, only to return to find the situation worse. Like in war, there is never a winner in demonstrations and strikes. The answer lies not in walking in the streets as though you have nothing to do; the answer lies in talking. I am not saying people should not take to the streets; they must, as a last, last resort. But they should know that one danger with demonstrations is that people take to the streets with an accumulation of frustrations, and so you find a man who has been frustrated (or who has frustrated himself) for twenty years trying hard to release all the anger in one hour. The result is that such a person ceases to use his brain and instead, uses his hands and legs, and the result is chaos and damage of untold character. The second problem comes when replacing damaged property and in worse cases, dealing with situations after bloodshed.

To quote Achebe again, “Popular non-violent uprisings as an expression of the feelings of the people should be allowed and protected. . . The problem with leaderless uprisings taking over is that you don’t always know what you get at the other end. If you are not careful, you could replace a bad government with one much worse!”

Achebe is talking of non-violent protests, but how many protests go on without some violence? This is why he warns us to exercise caution when talking about taking to the streets because we might end up replacing one regime with a much worse one.

I personally believe that a person who does not work hard at his or her workplace has no right to ask Government to raise his or her pay. We must demonstrate we do the best of our ability first so our demand for better wages is justified. How do you demand better wages when you are in office only three hours and only two days in a week? Isn’t that daylight robbery or corruption?

For a long time, I have wondered what it is that has kept Oliver Mtukudzi going as far as dishing out the best in the music circle is concerned. Many people I asked on this tended to say the man puts out good music and that is the reason he has made it great. But you know that this offers no explanation. Lately, fortunately, I came across some of his old songs, and one song in that collection gave me the answer—‘Mean what you say’. This song says something like whenever I’m singing, I mean what I sing and I sing it loud. Put simply, Mtukudzi says he puts everything in him in his music; he leaves nothing to chance; he works to the best of his ability.

Mtukudzi seems to suggest that success is not just a matter of chance; we must work on or for it with everything in us. Above that, success does take time. I know Mtukudzi from the early 1980s when I was a young man and when he visited Zomba at the Community Centre with dancing women donning black. He has travelled long and his success has a journey you can trace. Most musicians today want everything work today, no working on it, no effort. So to ensure their songs enjoy airplay they connive with DJs in a form of ‘quiet’ corruption. Shame.

Civil servants must understand that there is always a reward for those who work with an extra heart in the civil service. Even those serving in the lower level of the rung have an opportunity to make it great if they dedicate themselves and work on improving on their lives. After all, didn’t Ovid teach us that “dripping water hollows out stone, not through force but through persistence.”? On the same, Lucretius says, “The drops of rain make a hole in the stone, not by violence, but by oft falling.”

However, Government has a role to negotiate with the civil servants to guide them on how best they can utilize their potentials. The Government can try introducing some incentives for those neglected sectors, e.g. education. If a teacher would be assured of a monthly subsidized bag of maize and beans, I bet things would not be the same in the teaching profession. I would say the same of the traffic controlling officer on the road or all police officers. I know the question will be to whom we can look for such provision. Well, the Government has some sectors, for example, the police themselves, which can produce enough to keep this nation going, making money for themselves in the course. Why our police service does not do such good business when they have a health pool of human resource is beyond me. The army and the police could have huge farms, feeding themselves and the other sectors, and Government could use such resources to subsidise in other sectors, in the course, bringing pride to these great services.

Great ideas are stupid in appearance. Imagine the person who first thought that some day a vehicle as huge as a ship would fly in the sky, carrying people and cargo. How stupid and naïve did that idea appear then? I am an Intellectual Property expert; our belief is that the mind is the greatest asset GOD gave humans, perhaps it explains why 20% to 25% of the oxygen the body takes in is used by the brain alone.

Let us bring thinking and innovation in the civil service; let us bring the culture of hard-work, entrepreneurship and principles of public office in our civil service so we shall not lack in anything. And above all, let us demonstrate hard-work first before we begin to demand.

Please, gates are open for your arrows now. But I say, Goodall, please, say it again.

Reference

Scott Baldauf’s “Chinua Achebe on Corruption and Hope in Nigeria” dated March 22, 2013, available at www.scmonitor.com)

The ‘Maizegate’ Scandal—Clash between an old Law curriculum and new mode of running the public sector or vendetta of some kind?

Introduction

In this discussion, I will seem to side with Dr George Chaponda, the man for whose blood many are baying. This man is senior Minister in the ruling Democratic Progressive Party, DPP, a party, I should be honest to confess, I do not support though I come from the Southern Region of the country, its support base. However, I should be quick to say I find it an opportunity to contribute to any debate concerning any issue that has some bearing on the affairs of this nation, a land I love with everything that is in me. In my approach to issues I always refuse to follow the flow of opinion unless I have thought through it and I’m convinced the same is the right way to take. Here I am discussing the issue surrounding the so-called Maizegate issue, and the call for Dr Chaponda to resign from his post as Minister of Agriculture, the line ministry offering oversight to the parastatal body at the centre of this so-called scandal, the Agricultural Development and Marketing Corporation, ADMARC. In this way, I shall also discuss whether the Chief Executive Officer for ADMARC, Foster Mulumbe, was in any wrong in the way he had handled the maize contract issue. My stand is that none of the two was wrong, and none of them is supposed to resign, that calls for them to resign has nothing to do with public interest, that it is purely a struggle for power, and that those who are offering their opinion on this are missing a point on the requirements and meaning of the new mode of running the public sector—New Public Management, and its modified form—Networked Governance also known as New Public Governance.

Whether there is a clash between Public Administration and Law

In public policy or public administration, law is an instrument which one uses to solve a particular problem dogging the people or public. In public administration, law does not come first; a policy does. In Law, law comes first—at least this is my understanding. I will give an example.

To a public administrator, when the country adopted multiparty in 1993, first people or representatives of the people sat down to chart how they wanted their democracy run to solve a particular problem—dictatorship. In a public policy language, this could be equated to policy making, i.e. looking at the problem, defining it, finding answers or options to solve them, and go on to implement those options. In this case, the Constitution was put in place as a broad policy instrument to solve this need. Now here is a contradiction—the Constitution is the supreme law of this land, and any law that purports to oust it, is invalid as far as that inconsistency is concerned. Yet, the Constitution was not born first; policy making was done first (people meeting to agree on a new order for the Second Republic, where they also agreed to use an instrument to guide this new direction—the Constitution). If Law does not understand policy direction and policy intention, it will apply wrong dosage to heal particular public policy problems, and the result can be chaos.

Effect of Divorcing Law from Public Administration

One reason the fight against corruption is making no sense today is that there is a divorce between public administration or public policy and the Law. In Malawi, the tendency is ‘Justice according to Law’, i.e. our law pays little regard to circumstances or contexts yet public policy emphasises the power of context in arriving at policy decisions. In public policy, no matter how viable or workable an option is in one setting, you can never adopt that option wholesale for a different setting without taking into consideration that new setting. This stands true even in same context. An option that works in Karonga will never necessarily work the same way in Nsanje yet both cases are within the borders of Malawi. In Law, there is what is known as precedent, i.e. applying similar principles to cases if they tend to have similar or near-similar material facts so as to help in arriving at verdicts that go towards the same direction.

During the 2014 Elections, many questioned the way in which the elections were conducted. A large section of the population believed that something fishy had happened, and Chakwera had been robbed in broad daylight. Although there is no empirical evidence on this, the margin with which Peter Mutharika had won (36%), speaks volume; at times, I get tempted to believe the man was indeed robbed. Our electoral laws prescribe time within which elections results must be announced, and this regardless of context. Thus, the results must be announced within 8 days of the closing of polling. At 10:30 pm on May 30, 2014, Justice Kenyatta Nyirenda announced that the 8-day requirement could not be varied. The elections lasted from May 20 to May 22 and so the eighth day fell that Friday, May 30, counting from the last day, i.e. May 22. The decision gave the Electoral Commission the liberty to announce the results, and somewhere about midnight, 30th May, MEC Chairman, Late Maxon Mbendera (burst into tears while he) announced the Presidential results. The Judge, Justice Kenyatta Nyirenda, had applied what is called the literal rule of interpretation of statute to arrive at his decision.

Literal or constructionist approach to meaning of statutes stands rigid on what the word or words say without taking into account the mischief (offence) or purpose for which that statute was enacted in the first place. A Judge going the literal way would, for example, say a man who took on board a bus a live cow was in no wrong if the poster at the bus depot said ‘No live goats aboard our buses’ because he did not take on board a goat. On the other hand, a Judge going it the purposive (who looks at the purpose for which the law was enacted) or mischief-rule (the problem which the statute was meant to address) or unified or integrated way would say if a rule forbids a live goat on board a bus, it is common sense that it also forbids a cow on board it, because those who enacted that law wanted to avoid (the problem of) mixing people with animals as well as (the purpose) to maintain hygiene.

Judges who use the literal approach hide under the guise that Judges are not supposed to make law yet it is common knowledge that there is judge-made law, and that is the whole reason there is precedent in law.

A public administrator would consider an arrangement where a decision is made the literal way anti-people, because law is supposed to serve the people, to give the people the best especially in a context where you are giving a particular party the mandate and legitimacy to rule. If there are issues that must come out without uncertainty, elections are, and this is because elections give a particular party the mandate to control the resources and to lead on policy formulation and implementation, and such an arrangement must be based on absolute honesty, transparency, accountability and openness, otherwise people are given a raw deal, are kind of duped into entering such a social contract.

A public administrator focuses on whether the interest of the people is being served the right way; often Law focuses on whether whatever is happening is in line with the Constitution, is in line with what the words in a statute says. You might disagree with me on this, but this is my understanding. I often say that the larger part of our problem in Malawi hasn’t come because the people have failed democracy, but because those entrusted with steering it, and this includes lawyers, have tended to apply a wrong dose of solution to Malawi’s problems. In one discussion I went to some length explaining that courts in this country have tended to throw out important court cases which would have redefined direction of Malawi’s constitution on the pretext that those who took the matter before such courts were said to have shown no so-called locus standi or interest over and above those of others in the matter. To a public administrator, an opportunity to redefine a constitutional direction for the better of the people would take precedence, not in law, where mere technical issues would be an enough reason to allow a country stop taking a road to sanity.

In my diploma class, I did Constitutional and Administrative Law, a nice course on how laws are made, and how the public sector is run. I found it resembling public administration in many fronts except on its emphasis on ‘Justice according to Law’. I believe justice must be according to Law and Context.

Law in the Context of New Public Management and New Public Governance

During my research presentation at the diploma course, I received lots of questions, mostly bordering on disapproval, and I noted that the concepts of New Public Management (NPM) and New Public Service (NPS) or New Public Governance (NPG) were new to most of those who professed to know law better. As far as I am concerned, a law curriculum that teaches Constitutional and Administrative Law without the elements of New Public Management or New Public Governance, etc. ceases to serve its purpose.

Currently, Malawi is undergoing the most ambitious of public sector reforms ever, and no one can profess to understand reforms if they are not conversant with NPM or NPG. I believe that corruption in Malawi has come in because all of a sudden, the people ‘landed’ themselves before some opportunity where suddenly the civil service and the private sector met, that thin line. Unless people take time to understand this, and our Law understands the intricacies of this arrangement, we must forget about fighting corruption altogether, because it simply can’t work. Put simply, Law can never work without understanding of this blurred line between the private sector and the public sector.

I should start with a brief discussion of NPM and how it led to the formalisation of corruption in Malawi. Then I will discuss NPG and how it finished the job, entrenching corruption at every level in society.

New Public Management is a mode of running the civil service whereby Government ceases to be the sole provider of public goods and services or at least minimises its role in the provision of public goods and services. What it means is that because the private sector does it better, there should be a kind of borrowing of means the private sector uses to make itself tick that much. When NPM came (first in the West) in the mid-1970s, the belief was that the civil service would attain efficiency (getting more results than expected from the resources or inputs given), effectiveness (meeting the results with the inputs given), etc. In Malawi, NPM came through the structural adjustment programmes (SAPs) and the law that was used to entrench it was mostly the Privatisation Act of 1996, and of course the Local Government Act of 1998, the Decentralisation Policy of 2000, et cetera. Again, look here, these Acts were made to serve a large policy goal—New Public Management that came through SAPs; it wasn’t law first. I know the lawyer will take none of these, but this is reality.

Privatisation allowed Government to devolve or to give up some of the enterprises it had been running to the private hands. The procedure was normal since it was using the Law (Act of Parliament—Privatisation Act). What the nation wasn’t aware of was that one can also use the law to formalise crookedness. In the end, there was a lot of corruption when these enterprises were changing hands. Sad to say, most such enterprises ended up on oxygen and eventually, death. The problem was not just that the country had lost some of the enterprises the people had always looked to, the people, perhaps for the first time, had realised that they were never counted in important decisions affecting them. To them, World Bank, IMF (and these two had little knowledge of our local context) and the Government were the sole deciders of their fate. This frustration robbed Malawians of their spirit to take care of things, to value their property, and to respect other people’s property. It was as if Government had suddenly abandoned its children, forcing them to fend for themselves. Never before had anyone seen these things—loss of employment, paying for goods and services previously heavily subsidized, etc.

I am not saying privatisation was wrong; what I’m saying is that it was an experiment done by a stranger who had little knowledge of our context, a stranger who had not taken time to anticipate the consequences (called unintended consequences in public administration) of his action. This stranger thought what had worked in OECD countries (if at all it had worked there) could also work in the Malawi context; it never.

When NPM and its concepts of privatisation and decentralisation ‘failed’, the West decided to perfect NPM by making it focus on not only improving the public sector, but also on building or creating relations between the public sector and outside organisations. The new form also added a component of human rights in this new mode of managing the public sector. This new form takes many names including New Public Service (NPS) or Networked Governance (NG) or New Public Governance (NPG).

The difference between New Public Management and New Public Governance is mainly that unlike NPM which emphasised improving the civil service by borrowing some private customs into the public sector, New Public Service wanted to improve the civil service in relation to how it relates with outside organisations, e.g. the civil society, contractors, agents, et cetera. Put differently, NPM was preoccupied with improving the civil service vertically (within itself by applying in the civil service those principles that brought profit to the private sector) while NPS or NG is preoccupied with improving the civil service horizontally (bringing a new form of relationship with NGOs as partners, using contractors to build or support government in the delivery of public goods and services to the people, ensuring elements of human rights are always present in any dealings between government and the people or agents, et cetera).

One would thus notice that the Laws guiding the two are slightly different; for NPM the main guiding statute was the Privatisation Act of 1996 (we were borrowing practices from the private sector) and the Local Government Act of 1998 (together with the Decentralisation Policy 2000). On the other hand, the statute guiding the New Public Service or Networked Governance is the Public-Private Partnership Act of 2010. As the name suggests, it creates a new relationship between the public sector (Government) and the Private sector where a private institution or agent can work on behalf of Government or to support Government. In a PPP arrangement, for example, a private entity can build a hostel using its own money and then at some time begin to charge Government to pay for it or similar such arrangements. In this, a contractor can build for Government, or supply goods on behalf of Government and be paid in an arrangement that is convenient to both. Such an arrangement entails entering into a special type of contract. What mechanisms has Malawi put in place to guide such contracts? How do we monitor the independent contractor, mind you some of these people are using their own moneys to build these things? We need to be bold and address a cocktail of issues to reach that point where we can begin to boast of a robust monitoring mechanism.

When dealing with the current mode of running the public sector under NPG whose one mode of execution is PPP, one should always take into account the fact that “PPP arrangements are shaped by contextual elements in which they are constructed and that the capacity of the government to manage PPPs will affect their final configuration and hence their performance” (Kit Van Gestel, Joris Voets and Koen Verhoest, PAQ SUMMER, 2012, “How Governance of Complex PPPs Affect Performance”, p 140). In other words, application of the rigid law can never work unless elements of the context are understood. In other words, one must first understand the complexities of this modern mode of running the public sector in order to appreciate why people carry certain decisions.

The same paper argues that in order for a PPP to achieve good performance three things must be taken into account: first, understand the complexity of the environment or situation; second, understand the capacity of government to manage the PPP projects; and finally, understand particular governance strategy to manage that PPP project (Kit Van Gestel et al, 2012, p 142). What is important to notice here is that you can never just jump on a PPP arrangement with preconceived ideas without taking into account the complexity of the environment because the likelihood of mistake on your part will be high. Second, we must remind each other that our country still has no defined strategies on PPPs—as usual we wait for the fire to break out in order to fight it. Lastly, governance strategies for various PPP projects are never similar. Put simply, if you think a particular governance measure that worked in some PPP project should be applied wholesale in a PPP project at hand, you must think twice.

You would thus see that the PPP arrangement has created a forest of confusion; unfortunately, our laws haven’t been scrutinised to reconcile many statutes e.g. Procurement Act with PPP Act et cetera. The result is that those believing in the Procurement Act, think the best way to do things is to go it the rigid Procurement Act way and this regardless of context. Law is supposed to serve the people, i.e. public interest, and where it punishes people (unless those people have offended it), that law is as good as dead. I have heard stories of entities failing to procure drugs because of some technical procurement issues. I laugh because that is not the reason the Procurement Act was created; it was created to ascertain quality, openness and transparency under the new mode of running the public sector—Networked Governance. Today, Procurement Units buy very bad material for their institutions and they go away with it simply because they followed so-called procurement procedures. A public administrator will find all this a joke. Unfortunately, universities, which are supposed to be places for debate are dead to all these—anyone found asking such questions is mistaken for attempting to create apertures through which they should siphon public resources. But universities must question weaknesses in systems and force positive changes in order to address emerging complexities in the global village, and on local context in modern mode of running the public sector that defy logic of set rigid rules of procurement and justice according to law. To quote Jooste et al. (2010) cited in Kit Van Gestel (2012: 143), “We need academic work that recognises the way that PPP programs are implemented differently in different regions in order to progress beyond the ‘one size fits all view’ present in the PPP literature and stemming from a normative approach to the subject.”

One problem the PPP has created is that the distinction between pure public goods and services and pure private goods and services is now almost non-existent. Unfortunately, we do not have a well-reconciled statute to address this grey area, and this grey area is where obscene corruption is taking place yet the people are busy fighting symptoms rather than the disease itself. Most of the corruption that has taken place in Malawi in the so-called Cashgate Issue was to do with this grey area between public sector and the private sector. Put simply, issues were about contractors, business persons, lawyers and banks (private sector) supplying goods and services to Government (public sector) to serve the people (public interest) yet there were no sharp rules and monitoring instruments (or if there were, then they were not enforced religiously to ensure adherence).

The PPP allows (as does Law of Contract) use of agents so long as the law is followed. I’ve heard people query use of agents in Government businesses. Honestly, such people do not understand the whole concept of NPG, PPP and small-scale entrepreneurship.

The scandal with Malawi is that we initiate things without putting in place instruments and mechanisms to monitor and enforce them to achieve ‘complimentarity’. Yet we tend to jump on people who are bold to apply principles that serve the people better. Government business entails a risk; it does not necessarily mean that every time you have ended in a failure you were in for some corruption. If you took all precautionary measures any prudent or reasonable person in your state would, and things don’t work, the law sides with you. In (a court case), Speight v Gaunt, [(1883) 22 Ch D 727 at 739)], it was stated that a person (trustee) entrusted with resources on behalf of some other (beneficiaries) must run the trust or project with such high principles and prudence as though he was running his own business. In this case, the trustee invested money but the person (broker) through which he had gone to do the investment was a crook who ended up embezzling all the 15,000 pounds this trustee had invested. The court held that the trustee had conducted himself in as prudent a manner as anyone in his position would, and therefore was in no wrong.

In contract or business, people can be duped. This is why in Law of Contract people talk of misrepresentation where one enters a contract after believing some statement to be true when in fact it was not, or of fraud and undue influence, where one party uses means that force one to enter a contract one would not, under normal, free, independent circumstance, enter.

In other words, it does not necessarily mean that if X was told A and found out the truth is Y, then X was engaging in corruption, or if X buys at a higher price then X is a thief; things do not work like that.

The PPP works better with sharp monitoring and evaluation mechanism. For example, there should be all openness when a Government entity (public sector) and a mining firm (private sector) are negotiating a contract. Everyone should follow everything. Even the people negotiating such a contract should be open, for example, the public should know how much they own before they go into the negotiation room so when they receive something there, we should be able to invoke section 32 of the Corrupt Practices Act which gives powers to ACB to question anyone suspected of living a life beyond his means. I always say that section 32 of the Corrupt Practices Act is the hub of all laws corruption in Malawi. Why it is never used or why it is only used on the poor is beyond me.

New Public Governance and Controlling mechanism—ex ante versus ex post

One area where public administration seems to clash with the Law proper is on the principles of ex ante and ex-post approaches to management. Malawi is using a management mode (NPS-PPP) that emphasizes the use of ex-post monitoring mechanism yet on the ground it is using ex ante mechanism to measure results. Lawyers go for ex ante when the mode of running government today demands the use of ex post control mechanism.

How much control the Minister has under ex post control mechanism

“One of the core elements of NPM is that these agencies should have a great deal of autonomy and should be able to act more or less independently from their core governmental departments.” (p 26) In other words, agencies, for example, ADMARC, should be allowed to operate with a great deal of autonomy and should act more or less independently, otherwise we must forget about achieving efficiency and effectiveness, et cetera as we tout in our public sector reforms.

Now, is the Minister in direct control of an agency under his ministry? If it is the old traditional system of running the public sector, the answer will be yes, he is. But under the new mode of running the public sector, this is a tricky question. I am not talking about Law; I am talking about actual practice on the ground, i.e. how things work when you come into contact with the people, not from some law bench and from some case law.

So what is the difference between ex ante control and ex post control of managing government entities?

Before I define the two, let me give the two broad parts of the civil service according to the World Bank. This is important because it will show the relationship between the Ministry and the Agency, and therefore between Chaponda and Mulumbe.

According to the World Bank, the two broad parts of the civil service are “the upstream core ministries and central agencies including the Ministry of Finance and the offices that support the head of government in the centre of government; and downstream sector agencies such as education, agriculture, transport or health providers which deliver, fund and regulate services” (World Bank Approach to Public Sector Management 2011-2020: Better Results from Public Sector Institutions, p 1). The Agricultural Development and Marketing Corporation (ADMARC) is thus an example of a downstream sector.

Well, in ex ante control, the Ministry or department controls the activities and decisions of an agency, e.g. ADMARC, “through rules that require the agency to obtain approval for actions prior to taking those actions.” For example, such “subordinate organisations would need prior approval to engage in many basic managerial tasks, such as hiring personnel, letting contracts, or purchasing equipment. There would have been even more stringent controls over actions that were directly concerned with policy.” In ex post (new mode of control) on the other hand, “the supervising organisation (Ministry) allows the agency to take most of its own decisions about personnel, procurement, and the use of its budget. It may be even given some latitude to make real policy choices. The agency is then judged on how well it reached targets that had been set–whether by imposition or negotiation–beforehand. This ex post form of control allows public managers a great deal more discretion and capacity to use their skills on the job, but it can still be pervasive control over what the organisation does, if not necessarily how it does it” (ibid).

Put simply, the new mode of control of the public sector emphasises autonomy and discretion so long as there are open and transparent reporting mechanism so the manager cannot run away with it. The concern is transparency and accountability and results. The concern is not how much you adhere to dictates of the controlling organisation. To put this clearer, Verhoest 2002 observed that the oversight Ministry or body must ensure that all this is based on clear targets, that there is a robust mechanism of monitoring those results, and that the manager is provided with internal incentives (and rewards) and sanctions (penalties for failure).

If Malawi is not working today, it is because our fear of corruption has driven us to forget that there are honest people who serve their nations and institutions with a heart so pure and free and have their eyes set on results. In the end, you have these people punished by procurement bureaucracies that take six months to make a business decision yet public entities are being entreated to perform business-like. The private entities make a business decision within hours, and it takes Government enterprises six months to make a similar decision, how on earth could you then admonish public institutions of failing to engage in business to sustain themselves?

In results-based mode of running the public sector, what is most important is to put in place a transparent mechanism that would never allow anyone to run away with it. In the words of Kit et al, (2012: 27), results-based control (ex post control, that is) may attempt to control the actions of the organizations and their managers only after some damage has been done, and some opportunities may have been lost.” Such a situation can be worse in Malawi where we tend to cherish a culture of secrecy, where people refuse to record things or to do public things in public. This is where we have to work tirelessly to ensure our results-oriented approach is cushioned with instruments that would be difficult to cheat or beat. The Declaration of Assets legislation and Access to Public Information legislation are two of the many pieces of legislation meant to address this problem. All these must work together to achieve the best public sector reforms in the country, and it is the responsibility of individual citizens to ensure all these work for the greater good of us all.

In short, to demand that Chaponda should resign for being the head of a line Ministry is pushing things too far. The new mode of running the public sector will buy none of that. At the same time, to claim that Foster was going away with it without taking into account the exigency or urgency of the problem he was trying to solve is misunderstanding the whole concept of New Public Service where all you do must address public interest, and an undertaking should be measured by results rather than mere procedures. Everyone else was asking for timely arrival of maize in the country, it would make sense to go the efficient way or else a crisis would beset us.

Perhaps I should also mention that New Public Management and New Public Governance demand utmost adherence to principles of public life. I have never seen these principles in our offices yet these are virtues that safeguard public institutions and assets against misuse and abuse. Here is a summary of the seven principles of public life in the United Kingdom, and I draw a lot of inspiration from them, often admiring how our friends could colonise us and then went on to lead in setting principles and work ethics. I expected African countries to fair better as far as openness, accountability and transparency are concerned.

First, is selflessness, where holders of public office are entreated to act solely in terms of the public interest, and not to gain financial or other benefits for themselves, their family or their friends. Second, is integrity, where those holding public office should avoid placing themselves under any obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties. The third principle is objectivity where every decision made should be based on merit. Then there is accountability where those holding public office must answer for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office. Fifth is openness where a person holding a public office should be as open as possible about all decisions and actions that they take and restrict information only when the wider public interest clearly demands. Honesty is another principle, and this entails that those holding public office do have a duty to declare any private interests relating to their public duties. Lastly, there is leadership. Leadership means that a person holding a public office must ensure he or she promotes and supports all the above six principles by leadership and example. (For a detailed display of these seven principles, see Nolan Principles, “The Seven Standards of Public Life” available at www.haringeyccg.nhs.uk)

Malawi has adopted the new mode of running the public sector that requires us setting a system that respects the power of transparency, openness, accountability, citizen participation, incorporation of human rights and adherence to principles of public life while doing away with tedious bureaucracy so as to achieve efficiency, effectiveness, et cetera. Issues of corruption must never divert our endeavour to achieving the same. Individually, we must strive to inculcate this culture in our lives as public servants, of course without jeopardasing efforts to defeat corruption. Those who apply these principles must be understood and judged according to the principles that apply in ex post control mechanism rather than based on ex ante control mechanism.

As a country, we must set up a system that responds to demands of the Networked Governance together with principles of public life. Every office should contain these values as a creed, and people, including journalists should be introduced to this new concept of running the public sector so that people should not mistake ex post approach to management for corruption. I am not saying one cannot indulge in corruption in ex post approach to management, no, what I am saying is that people should know the point at which they can demand results, of course, using instruments that will derive best information on the same.

We must take time to learn these things lest we should copy from elsewhere and find ourselves retrogressing. I laughed today when I read a story that in Kenya, it came to a point where, in 2014, public documents showed a ballpoint pen costing $85, (i.e. over MK60,000) and a wheel barrow $1,000 (i.e. over MK750,000) (see “The Scale of Corruption in Africa: Gloomy News from Transparency International” available at www.economist.com dated 3rd December, 2015). And the funny part of it all is that Kenya is one of those countries where we went to, to learn public sector reforms. Isn't it worrisome such is the setting from where we got our public sector reform curriculum?

The civil society too must be part of this learning process, and this is because NPG or NPS does value the horizontal interaction between the public sector and NGOs. Thus, NGOs too ought to form part of the transparency agenda because although corruption in the public sector is what is widely reported in the press, the problem is as rampart in all the three sectors of society—Government (State); Private Sector (Business, Market or Capital); and the Civil Society. And according to articles on www.globalpolicy.org, although NGOs are considered the conscience of society, they are also described as a guise of innocence or someone who cashes in while the earth burns. Stories of NGOs scandals include being used by Western governments to channel funds to support opposition parties against regimes the West considers an irritant; serving interests of the donor at the expense of the suffering locals; marketing humanitarian crises, i.e. forcing the poor to plead for mercy of NGOs so they will be remembered; use of donation for personal gratification; lack of formal audit; inflating the number of deaths, e.g. in Darfur, in order to attract huge funding; and misappropriation of funds, e.g. Global Funds for Aids.

Inclusion of NGOs in the system to fight corruption does not mean placing them under direct control of Government, because that will finish even the last that we have to enhance transparency, openness, accountability and citizen participation. Non-governmental organisations should initiate their own sharp transparency mechanisms to lead by example. After all, we look to them for this.

Why we must defend an ‘enemy’

A man who chops his wife’s hands is represented in court even where everybody knows this man is ‘guilty’, and this is on the principle that a person should be presumed innocent until proven guilty by a competent tribunal. It goes beyond that, for it is a way of showing the accused that although he chose to violate the law, the law has, to the contrary, allowed him to realise even in those circumstances that the people and the justice system around him do value the power of humanness. In this way, the accused accepts from the bottom of his heart that he did go wrong, that he should have exercised restraint. This is the very reason burning a suspected thief makes us worse devils, because we deprive that person of the opportunity to accept the goodness of humanity, and above all, the opportunity for him to accept his folly and therefore to learn to do better next time.

In the same way, I defend my political enemies whenever I see that accusations levelled against them are not arising from understanding of issues, but from mere struggle for power. Even if I could not like Chaponda and the DPP, I can never allow my emotions to overtake the principles we must apply to people when we are placing facts on the scales of justice. To accuse a man of wrong-doing, to pass a judgment on the same outside the courts and expect the court to do justice on such a person is subjecting the courts to a huge amount of ridicule. The danger with this is that objectivity and independence cease to exist. Wasn’t such the case with the OJ Simpson Case when the media had bungled it all and justice seemed taking the circus course, and who knows whether it was indeed served or not in the end?

Justice should not aim to humiliate people; justice must strike a balance between those offended and those who have offended. I have read articles which have openly read: "How to Remove Chaponda". Can one be sure of justice in a setting already programmed towards some end? I am not sure.

Lastly, anyone expressing his or her opinion on the Maizegate saga would do better to read on what the new mode of running the public sector says and whether sticking to the old mode of running the public sector will work in a context where our reforms are taking place under principles of the new mode of running the public sector. To be honest with you all, I do not see Chaponda in the wrong; I do not see Mulumbe in the wrong either. All I see is a clash between those sticking to the old mode of running the public sector and those applying the new mode where results are the issue, not the rigid rules, to attain those results, and of course, those benefiting from this tussle for power. In short, our struggle here has nothing to do with the mode of running public sector affairs; it is a struggle for power, and power, to quote Alpha Blondy, is more intoxicating that cocaine or heroin. There are better ways of clipping Chaponda’s wings than forcing him to take responsibility on an issue new mode of running the public sector tells us he has nothing to do with.

I am never impressed with the DPP, but I am always cautious when judging them, because a Government in power can only perform to the extent of the resources at their disposal. I maintain that if the DPP has failed us, it is because some of them have chosen to live the life of a tourist when the rest of Malawians are crying. You do not run a government that way. However, I am prepared to defend any Malawian where I see struggle for power taking on personalities. At the same time, I must say that it is never wisdom to use public apparatus to square with opponents when they seem to oppose.

We can make a better Malawi if we learn to learn and understand many things before we rush to make judgment. Public sector reforms entail a huge change, almost overhaul, of the public sector, and this change “can affect the formal arrangements, the laws, regulations and codified practices, but it is also about changing informal behaviours which, for good or ill, determine daily practice” (World Bank Approach to Public Sector, p 1). Thus, there are many things even lawyers have to learn about the new mode of running the public sector, otherwise we will be applying the old dose to a new complex problem.

Conclusion

So, it depends on where you stand. If you believe in the law (literal or constructionist approach) as the rigid instrument that takes no account of context, or in following of procedures rather than fulfillment of the mission, the Commission of Inquiry will find Mulumbe and Chaponda in the 'wrong'. If, you take into account the mode of running the public sector as we are following now with our reforms, then doing something that should serve the suffering mass timely is no crime, no crime at all. And if this was the approach and understanding, there was no need for judicial review at all, no need for us to waste all the money we are. And this I must make clear: whether one is our enemy or not, we must never give in to the temptation to punish them because we believe they disagree with us. At the same time, we must never allow our systems to be influenced by emotions and bias. I particularly felt shocked when ADMARC took some injunction against some newspaper; that was damaging, and it made the issue begin to look genuine. To quote Mark Twain (1835-1910), “Never pick a quarrel with people who buy ink by the barrel,” literally meaning, do not quarrel with those who believe in the power of the ink, those who would buy ink in such abundance because, for them, ink is all they eat and live for, I mean the press.

Finally, finally, to quote Evelyn Beatrice Hall (1868-1956), “I do not agree with what you have to say, but I’ll defend to the death your right to say it.” And that’s what I have just done, defending my ‘enemy’ because democracy entreats me to exercise independence, and this even before mine own enemy.

References

Speight v Gaunt, [1883] 22 Ch D 727 at 739

Kit Van Gestel, Joris Voets and Koen Verhoest, PAQ SUMMER, 2012, “How Governance of Complex PPPs Affect Performance”

Nolan Principles, “The Seven Standards of Public Life” available at www.haringeyccg.nhs.uk accessed 22 January, 2017

“The Scale of Corruption in Africa: Gloomy News from Transparency International” available at www.economist.com dated 3rd December, 2015. Accessed 22 January, 2017

World Bank Approach to Public Sector Management 2011-2020: Better Results from Public Sector Institutions

www.globalpolicy.org