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
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