Introduction
Following the declaration (by the Malawi Electoral
Commission) of the results of the May 21 Tripartite Elections in the country,
Malawi, a small nation in Southern Africa known for her smile and peace, has
found herself floundering in a mess of impasse, the work of politics. The
results saw Professor Peter Mutharika, the incumbent, win a second and final
five-year term of office, beating Dr Lazarus Chakwera who is the leader of the
Opposition Malawi Congress Party (MCP), and Dr Saulosi Chilima of the UTM Party
in the race. Dr Chakwera came second and UTM’s Chilima, perhaps Mutharika’s
number one chest-pounding nemesis, came third. Dissatisfied by the manner of
the electoral process, Dr Chakwera and Dr Chilima sought the intervention of
the High Court through its special arrangement of Constitutional Court. While
the matter is in court, these two opposition leaders have joined hands with the
Human Rights Defenders Coalition (HRDC), demanding resignation of the Chair of
the Electoral Commission, Justice Dr Jane Ansah. They claim that Justice Dr
Jane Ansah had mismanaged the elections. Recently, she appeared before one
local radio station, defending herself, insisting she was going nowhere. She
said she had done her job well and that, as far as that was concerned, her
conscience was clear. The grouping baying for her blood has since vowed to
continue with its demand, warning they will next hold the vigil at her
residences. Today, July 5, 2019, Saulosi Chilima warned that once the MEC Chair
is gone, they shall demand another resignation. In other words, her going won’t
be the end of the story at all, as there seems to be a long list of names of
those earmarked for going. Guessing is free; you can do some mathematics and
arrive at who this next candidate would most likely be.
The trail of destruction left by the demonstrations on
Thursday has been one of the worst for this country in recent memory. Shops
were looted, property running in millions of not billions destroyed. In any
case, things are going out of hands, and the general mood has changed.
This discussion argues whether the demand by this grouping,
that is, the two opposition parties (or perhaps three since the People’s Party
of Joyce Banda, former Head of State, is in a coalition with the Malawi Congress
Party) and the coalition of civil societies―HRDC―is justified, and whether it
will be wisdom for Justice Dr Jane Ansah to resign from her position as Chair
of the Malawi Electoral Commission. My answer to this (and this is my opinion
as a lay Malawian) is that Justice Dr Jane Ansah will do the Malawi population
great injustice if she resigns. At the same time, I request people with a voice
in this country to begin to speak in no ambiguous terms that the course of
justice, sanity, peace and dialogue should be allowed to take their course in
all this.
Structure of this
Discussion
I structure my discussion as follows: First, I expose the
present position of the impasse and the demonstrations, showing how that this
impasse is now turning itself into a kind of crisis. Second, I show that it is
almost impossible to repose our hope in the type of (Malawi) public we have to preserve
peace, law and order during demonstrations, and that the more we indulge
ourselves in this, the more the damage we shall cause to the people and spirit
of capitalism of which democracy is part. After this, I discuss the civil
society. This is important to demonstrate that there should be a limit to which
the civil society can play in a democracy or else they will begin to purloin
the principle of separation of powers. In the fourth section, I discuss
political parties and the role they should play in resolving an issue of the
magnitude at hand. After this, I come to the hub of this discussion, arguing why
Justice Dr Jane Ansah must never contemplate resigning, as it will set a very
bad precedent succumbing to the ‘judgement’ of the Court of Public Revolt.
Lastly, I request those whose voice can matter on this issue, to remind us all
that this matter is in the Constitutional Court, and that, it will therefore be
not in the interest of our nation to create another constitutional problem
while we are trying resolve one.
The Stalemate and
exponential increase in Damage to relations and property
Following the declaration of the results, the Malawi Congress
Party supporters went berserk, claiming widespread vote irregularities. They
vowed never to accept Peter Mutharika and President of the Republic of Malawi,
describing him as “illegitimate President”. On some occasions, they touched on
issues bordering on ethnicity. During the President’s Speech of the National
Address in first Parliament session after the Elections, MPs from the
opposition MCP booed him, walking out enmasse, openly saying they can never
listen to a President not voted by the people, an “Illegitimate President”.
In the course, Justice Dr Jane Ansah has earned herself many
names and insults, some so shocking you wouldn’t expect any person in their
right frame of mind to go that far in their anger. Dr Chilima himself has
described her as ‘Miss Madando’―she had used this term, a vernacular corruption
of mandandaulo, literally meaning complaints
(from members of the opposition especially). But anger be what it is, the
people are saying all they can and we are all watching.
What is interesting is that during the 2014 Elections when Dr
Chilima was voted into power together with the incumbent, the Chair at the
time, Justice Mbendera, had been blamed for messing up the elections. But, he
never earned insults of this magnitude. More strangely, fellow women who should
have seen sense in distinguishing office from person have kept a distance, and
some, have been in the forefront in the administration of such insults.
As I write this (Friday, July 5, 2019), the Opposition-HRDC
Coalition are on the streets again, for a second-day running, demanding
resignation of Justice Dr Jane Ansah as MEC Chairperson. A lot of property has
been damaged despite promises to the contrary (by those behind the demonstrations)
that the demonstrations were going to be peaceful. Property belonging to
innocent Malawians and their businesses (and even some foreign businesses),
government offices and infrastructure going in millions if not billions have
been razed to the ground in this single concentration of anger and demand for
Justice Dr Jane Ansah to resign. The police, inherently limited in capacity and
overstretched, are no match to all this.
Yesterday, July 4, sympathisers of President Mutharika and
his ruling Progressive Democratic Party followed the MCP-UTM-HRDC Coalition to
the streets, wielding knives, threatening hell. Personnel of the Malawi Defence
Force had to restrain them. When I heard that people wearing DPP regalia had
decided to follow the MCP-UTM-HRDC Coalition to the streets, I was beside
myself with shock, shock that someone could this much misguide these fellas. My
thinking is that, at the current level of anger the MCP-UTM-HRDC Coalition are
exuding, it is futile, pure tomfoolery, to exchange with them either words or blows.
In matters like this, it pays that some side should feign foolishness.
Strategically such a calculation can pay dividends.
I have also read that MACRA, a body mandated with
overseer-ship of broadcasting matters in the country, is on the necks of one
local radio station, Zodiak Broadcasting Station, for covering the
demonstrations live. MACRA would better let sleeping dogs lie on this matter,
and it is for the same strategic reason―play the fool to buy positive general
opinion.
Throughout, men and women of GOD have given their blessings
to the demonstrations, after all, one of the leaders in these demonstrations,
Dr Chakwera, is a full Reverend of GOD. The men of cloth have argued that it is
the people’s constitutional right to demonstrate peacefully. They have been
quick however to warn that such demonstrations should be held in total regard
to other people’s rights. In this spirit, the organisers have requested their
followers not to use the demonstrations as a springboard or smokescreen to
indulge in criminal activities. Facts on the ground have however proved
otherwise―it has been free for all, destroying property with impunity.
As I speak, the organisers have warned that the next phase
shall involve holding vigils on the personal property, namely residences, of
Justice Dr Jane Ansah. Considering the amount of invective and insults flying
to Justice Dr Jane Ansah, I cannot imagine what it all shall look like when
these men and women carry out that threat, when finally they shall descend upon
the property of this poor woman as they threaten. But in Malawi, we follow the
law, and I am more than hopeful, law and not physical confrontation, shall
protect her and her property.
Are Peaceful
demonstrations attainable in Malawi?
In Malawi, history shows that demonstrations are often captured
by some drunken buffoons who take advantage of the chaos to indulge in criminal
activities. It hasn’t been different this time around. Although politicians run
away from taking responsibility for this, it is often the populism and agitprop
they use that inflame these people into all this.
The greatest problem we have in Malawi today is that the
majority of the people are not educated in the true sense of the word. One
measure of education is that a person becomes collected in the midst of
adversity, including in debates. You hardly find people reasonably debating in
Malawi. Go to any social communication square around and analyse the arguments
and counter-arguments on various issues there. Nine out of ten arguments will
end in people undressing each other, attacking personalities rather than their
ideas. In some instances, people even give themselves names of human private
parts. Would you expect anything sense from that form of social capital? I
doubt.
Dr Hasting Kamuzu Banda used to say that a person can never
be said to be educated if he or she doesn’t know Latin or Greek or Classics.
People have mocked this reasoning. They have laughed at it because they do not
understand what Dr Banda exactly meant by this. I do not think Dr Banda
necessarily meant that we should all take a course in Literature or Latin or
Greek or Classics or Philosophy or Psychology. I think what he meant was that
if you are to understand matters of thinking, reasoning and living, you had better,
beside your other courses, read some of these issues. For example, if you haven’t
read the origins of the social contract in Philosophy, how can you appreciate
democracy and the principle of separation of powers or political
representation. In the same vein, how would you clearly put into perspective
the folly of putting trust in the mob if you have never read Julius Caesar, of you’ve never met
Marcus Antonius?
Albert Einstein, a physicist icon, had found pleasure in
debating with a Psychologist, Sigmund Freud on matters of world peace. Why? You
never can understand true matters if you are a leader who just dwells in the
rut of your school outside Literature, Greek, Latin, Philosophy, Psychology, et
cetera. It is this culture that can help Malawi rise above petty prejudices to
reason at the higher level for true imagination, innovation and creativity.
What do we have instead? People who, for lack of a culture of
debate and reasoning, use invectives, blows and destruction to put forth their arguments
or ‘ideology’.
How populism and agitprop is influencing public opinion on
demonstrations
Populism is the
opposite of constructive approach (debate or dialogue) to issues. Populism is a
situation where, for lack of principles and ideology, a candidate or aspirant
resorts to denouncing others by pretending his stance represents the people
whereas his or her opponent’s live to destroy them and what they stand for.
Populism subsists on blame and agitating people on such matters as ethnicity, race,
and issues that can incense the public.
According to Otjes and
Louwerse (2015), “main feature of populist parties is that they separate
society into two antagonistic groups, the ‘pure people’ and the ‘corrupt
elite’” (p. 60). The two add that “populists claim that, contrary to the ruling
elites, they (the populists) will make good on their promises” (p. 60). Often
populism makes use of subjects which appeal to the people more easily, for
example, corruption.
Populists often make
use of agitprop (from agitation and propaganda). In other words, their
speeches are insinuating with the purpose to agitate people to cause havoc.
Besides, they use the media for their end―propaganda.
Unfortunately, it
becomes difficult for people without the skill of debate and analysis to tell
things apart. When they are told the problem facing their country is corruption
they swallow it hook, line and sinker. Those who discern know pretty well that
anyone who is serious about corruption starts by living a corrupt-free life
himself or herself. In other words, you can never be part of the corruption for
years and only turn round after internal squabbles in your party and begin to
spread the gospel of anti-corruption. I personally refuse to patronise such a
shop of reasoning.
People should
understand that fighting corruption and agitating the people on corruption are
two different things. After all, don’t we all know that “the first military
coup d’état in Africa, in Egypt in 1952, used corruption as the main
justification; or that) subsequent coups and other interventions have used the
same excuse”? (The African Capacity Building Foundation, 2007, p. 3). Did Foday
Sankoh not use the same crusade to cause damage in Sierra Leone? In fact, In
Zambia, Frederick Chiluba had gone into power on the promise of a clean
government, and ‘true’ to his words, his government reenacted the
Anti-Corruption Commission Act of 1996, replacing the country’s Corruption
Practices Act of 1980 yet “Chiluba’s ten-year reign, from November 1991 to
2001, is ‘best remembered’ for the worst corruption Zambia had ever
experienced” (The African Capacity Building Foundation, 2007, p. 109).
Even the Arab Spring
used corruption as one of the reasons to dismantle establishments. But what has
been the outcome so far? Is it not there for all to read and see and make
judgement on?
In 2014, the current
ruling Democratic Progressive Party came to power on the podium of fighting
corruption after the shameful explosion of corruption in the high places in the
Administration of Dr Joyce Banda. You and I know that the DPP never lived to
that billing at all. To make matters worse, Dr Saulosi Chilima, now fighting
the ‘corrupt regime of Peter Mutharika’, was part of that ‘corrupt government’ for
a good four years.
If anyone come to me and claims they are fighting for good
governance, the first question I will pose to them is this: Since when?
Chilima, was the Vice-President in the 2014-2019
administration of Peter Mutharika. The DPP had behaved treacherously against Dr
Joyce Banda as Vice President, creating conditions that forced her to flee
their party afterwards. In my opinion, if Chilima was a man of political
principles, he would turn down a position in a party that had failed to respect
the principles of natural justice on Dr Joyce Banda. He took it, served for
four good years, and only came out when Mutharika came guns blazing, blaming a
clique of ‘Judases’ after rumour had gone round he was dead.
Malawi is looking for a leader, certainly, but let us not
feel cheated that someone has some magic wands to our problems. Our problems
can only be resolved if we sit down and work out the best political system that
should ensure near-equal distribution of resources in this country and
fool-proof systems of governance.
Why do I say ‘near-equal distribution’ of resources? Well,
total equal distribution means the end of capitalism and therefore death of democracy.
We must be careful with the message we give these people.
I have heard people arguing that the Reserve Bank of Malawi
has lots of money which goes to individual pockets and that we should do
something that this money should come to us all. If you have people with this
type of reasoning and you think you must keep quiet, you better think again. In
short, as long as we invite these people to our demonstrations, as long as we
keep pumping in them agitprop and populist ideology, we must never get
surprised when they jump on anything they find along the way.
I personally learnt a bitter lesson one time when the school
where I taught as a secondary school teacher in the mid-1990s rose up against a
helpless Headmistress, and I was dragged in albeit unwillingly. That event
taught me that individuals in any group have contested hidden interests.
This is what had happened then:
The teachers went on strike, arguing the Headmistress wasn’t
treating them well. I didn’t share those sentiments at all. If anything, for
me, she was the best person you could learn from. I therefore told them in the
face there’s no way I was going to abandon the students GOD gave me to teach
because ‘someone wasn’t treating me well’. After all, I did not have proof she
was treating others unbecomingly. If the Head of the institution is asking you
to observe etiquette on matters, or to be in class at the right time, or to
ensure you have your scheme of work on time, that is, in no way, a bad thing,
is it?
These teachers desperately wanted me to join them, and they
used a very funny ruse. One day I happened to pass by the Home Economics room
on my way to my house. They were strategising there, and when they saw me, they
invited me in and sweet-talked me to join them.
“It is because you do not know our side of the story that you
think we are in the wrong,” one of them said.
I asked him to give me that side of their story.
“We are here to mend fences. We want good relations with the
Head. It’s not that we hate her.”
It sounded Jesus-like and it bought me in. I felt it a good
cause, and I volunteered to be the person to invite the Head to a meeting where
the members of staff wanted to iron out ‘our differences’.
The day came, and I went straight to my Head (her office),
politely asking her the members of staff wanted to talk to her.
“They want to talk to me?” she asked, a little surprised. And
I’m sure she was surprised it was me inviting her to the meeting. She so much
trusted me.
I introduced the meeting, politely: “Madam, we’ve invited
you. The intention is entirely peace with you as your children.”
She listened, composed but constantly cooling herself with a cup
of water.
“So, I invite one member to express our problems and see how
we should address them as a family.”
At that point stood one member, my GOD! The man went straight
attacking the Head, citing ‘occasions when she had treated him unfairly’,
shouting like hell. He challenged to resign his job with immediate effect,
which, surprisingly, he did.
As though that was not enough, someone confronted the Deputy
Head, male, inviting him to a duel outside. It was chaos. My peace-mission
failed miserably. I felt fooled and vowed never ever to take part in demonstrations.
The lesson I took from all that was that people do have their personal
problems, grudges and interests, and only use ‘legitimate’ gatherings as a
springboard to attain what they want.
Today when people ask why I don’t take part in demonstrations
my answer is funnily simple: “I fear JESUS might come and find me, placards and
tree boughs in my hands, demanding someone’s blood when HE tells me there’s
only one way to resolve a people’s difference, namely dialogue and
forgiveness.”
Am I saying people should not take part in demonstrations;
no, not at all. It is their right, but even in that, they should ensure
personal interests do not override public good and the need to preserve peace
and unity for both ourselves and those yet unborn. They must also ensure they
respect other people’s sweat by keeping out of people’s property and
businesses.
The Role of the civil
society in Malawi: Should there be some limit to their demand?
This section attempts to demonstrate why there should be a
limit to what the SCOs can demand from state organs or public officers
entrusted with those offices.
State differs from Government. Basically, state refers to three
things together (1) permanent territory of a particular nation on the map of
the world, (2) the people therein or simply defined population, and (3) the
contract they made to preserve that state. A State is made by a Highest Law in
which all people participate (not literally of course). It is unlike other laws
which are made by a select of people in the National Assembly or MPs. A Law
which institutes a state is a Higher One, the Constitution. In other words, all
laws are made by our 193 MPs in Lilongwe, National Assembly. But the Law for
the State is made by all the 18 million Malawians through national
representations involving all categories and interests of these people. This is
why section 5 of the Constitution of the Republic of Malawi describes it as the
most powerful law of this land or simply the Supreme Law of the Land. In short,
the Constitution is the Contract Document for this State.
Main organs of the State are the Executive (President,
Cabinet and bureaucracy or civil servants responsible for initiating and
implementing of policies), the Judiciary (for interpretation of law or for
making laws after deciding on a case), and the Legislature or Parliament (principally
for making and passing of laws).
Government is whatever is done within five years (between one
election and another) to ensure survival of the state. In other words,
Government is chosen every five years to serve the State in those five years. It
is created by many laws. Government is often associated with the President in
those five years, hence we say, Bakili Muluzi Government or Joyce Banda
Government or Peter Mutharika Government or the DPP Government, et cetera. Even
in Britain you will hear something like the May Government, or Blair
Government, etc. Sometimes they use the word administration to give the
connotation that it is there to fulfill national agenda in those set years.
If the people of the State are satisfied, they can give that
Government another term. In other words, the President can be re-elected for
another five-year final term. Elections give a person the people’s endorsement
and so, legitimacy. The legitimacy gives him or her power to carry out certain
functions in accordance with the Constitution and other relevant laws. As a
layman, State differs from Government in that State is permanent, while
Government is temporary. Malawi is Malawi today just as it was in 1970. It is a
state. The Government in 1980 was under Dr Banda, in 1994 (May) under Dr Bakili
Muluzi and today under Professor Peter Mutharika.
This is important: although government is not permanent, an
arrangement is made so that it should be continuous by ensuring that civil
servants continue regardless of change of politicians. In other words, though
Government is temporary, the Constitution made an arrangement that it should
continue through a permanent civil service or public sector.
President thus, becomes Head of both State and Government.
Strictly speaking, when discussing State and Government,
there is no place for the civil society organisations. This is because CSOs are
non-state actors, that is, they are not part of Government or State.
However, since people, in this case Malawians, ‘surrendered’
running of their State to state actors, democracy ensured that there should be
a mechanism to check whether this is being followed. So democracy allows the
people to participate in decision of the State or Government through their MPs,
and sometimes directly.
From the 1980s (although CSOs date back to the time of
Aristotle, that Greek philosopher and scientist―384 BCE-322 BCE), it was felt
that letting the people participate only through their MPs or Councillors would
lead to some abuse, and so CSOs were born.
Today CSOs are even more important because Government alone
cannot manage to provide goods and services to all the people at once. According
to the World Economic Forum (2013, p. 9), CSOs play at least ten roles in
society: watchdog or simply holding
institutions to account for openness and transparency; advocate, that is raising awareness on societal problems; service provider, for example, during
disasters, in health, education, etc; expert,
that is bringing knowledge on policy, law, etc; capacity builder; incubator,
that is developing solutions to some problems; representative, giving power to the voice of the poor and
marginalised; citizenship champion,
that is, encouraging citizen participation in decision making; solidarity supporter, that is promoting
international values and rights; and definer
of standards or simply creating systems that shape issues on the market or
about state activity, kind of agenda setting.
Strictly speaking, in law, CSOs are outside Government. This
is because law recognises three branches of Government: Executive, Judiciary
and Legislative. In Public Administration, however, CSOs are considered ‘part’
of Government. The reason is that public administration deals with actual
implementation of decisions made by the people and politicians, and since CSOs
are part and parcel of the people and also of the delivery of goods and
services, they are considered part of government. Their presence is not within
the branches of Government, but outside it, and therefore they are non-state
actors. Some describe the link as horizontal relationship (rather than a
vertical one where you have the executive, then the Judiciary and finally, the
Legislature with the people at the bottom). This horizontal relationship is
also called networked governance.
Get me right when I say ‘bottom’. By ‘bottom’ I do not mean
the people do not count, but that they ‘surrendered’ the job to their MPs, President
and the Judiciary. In others words, the people are still the boss or the principal
because they send politicians on an errand to serve them (the people). These
people or all the people serving the people in government are referred to as
agents, or those sent by their boss, the people (principals).
So, what are the civil society? Well, they are social actors
distinct from state and market (Smismans, 2006, p. 3). Because they are
distinct from state and business or market, CSOs are sometimes referred to as
the third sector organisations or TSOs. The definition of CSOs includes those
engaging themselves in the social media and the general media itself (Smismans,
p. 6). Lawyers tell us books are a form of authority in law though weaker than
the Constitution, Act of Parliament, and Case Law, et cetera. (By extension, if
we go by this definition, one would argue that the Coalition of the CSOs as of
now includes those engaging in the social media. Now, if you use the social
media to invite people, and this category joins you and creates chaos on the
way, it would make little sense to claim you never invited them and that they
were not part of you.) The reason is definition of CSOs include those people
(social media).
Back to my issue.
The state-business (market) distinction is significant because,
if SCOs begin to dictate issues to do with the economy (that’s the meaning of
market), then they would turn the market into a social instrument. In other
words, it would mean the end of capitalism and therefore the birth of socialism
or even communism. Capitalism does not allow CSOs to interfere on what happens
in the economy (i.e. on the market) unless it is on the facet of charity or
questioning matters such as corruption and abuse of rights of people, e.g. on
matters of consumer protection. This is because it is generally believed that,
all things equal, the market itself, often dictates its own affairs. In other
words, demand and supply are enough to dictate the affairs on the market and
that Government only comes in to protect property, freedom and to ensure others
do not take advantage of others. This is one of the reasons the West fails to
understand the Arab Spring. When the CSOs got involved in the Arab Spring, the
West thought there would be created an atmosphere that would be conducive to
capitalism. They realised too late that the agenda of the CSOs was bent on kind
of socialism.
The same argument on why CSOs should not interfere on the
market stands true for relations between CSOs and issues of the State.
So, what is it I want to imply? Well, CSOs are non-state
actors. Under rule of law, they are not part of Government, but when you
consider their role to help the people check whether their Government is
serving them well, they do have an important part to play. They are therefore
an important component of public policy or even ‘government’.
Political parties are sometimes considered non-state actors
too.
Under rule of law, only those in Government have powers to
make decision that have constitutional implications. However, they can only do
that within the perimeter of the Constitution. Put simply, the Courts can
interfere where the Legislature is going overboard, of course, not in the way
they conduct their business). The Legislature can impeach the President if he or
she is going overboard. However, the President, because he is the Head, had to
be restricted. So separation of powers ensures bodies are separate yet they
somehow encroach into each other’s territory to ensure no one carries it too
far.
I am not saying the CSOs are not an important part of
democracy. In fact, Phatharathananunth (2006), citing Boyle (1995) observes
that a democratic or civil society is one of the four main components of
democracy. In other words, apart from competitive elections, open and
accountable government, civil and political rights, there must be independent
social associations or CSOs to counter state powers. They have an important
role in shaping policy and in actual delivery of goods and services.
However, the problem comes in when they begin to assume the
role of organs of the state, and worse still when they mix with political
parties on such issues. In short, if the CSOs begin to say, “So and so, get out!”
then we have a problem. Once democracy begins to allow that, chaos naturally
slides in. What if they wake up again and say, “Reserve Bank, give us all the
money!”? Or “Chief Justice, it’s your turn, pack up and go!” Democracy does not
work like that.
This is exactly what Justice Dr Jane Ansah meant by ‘mob
justice’. It is indeed mob justice if you consider it from this angle. It is
not that she can never resign out of her own volition; she can, but once
democracy begins to allow the CSOs to take state powers, then we are bowing
down to chaos. Moreover, since when has democracy begun to allow people to
accuse a person without giving him or her the opportunity to defend himself or
herself before and independent referee? In my opinion, this person is therefore
defending a higher good.
When Justice Dr Jane Ansah appeared on Zodiak, she was not
saying she won’t resign. She said she would if proper channels are followed,
and proper channels in a democracy grow through the Courts. She laid her case
in the course laying a huge legal trap to all those who failed to see what she
was saying. She made her position clear―justice according to law. Violate it at
owner’s legal peril.
In the early years of multiparty democracy, the CSOs in this
country wanted to assume a place beyond what they were created for. The Courts
were quick to remind them they were swallowing more than they were chewing. The
Courts cautioned them against turning themselves into ‘busybodies’. The Courts
actually used the term ‘busybody’ to help them understand they could not be the
answer to everything. Such cases mostly bordered on the question of locus standi.
Political parties and
electoral impasses: What should their approach be?
On political parties,
Svåsand and Tostensen (2009) citing Schlesinger (1991) write that, although
they are private voluntary organisations relying on supporters and therefore
separate from the state, they perform a public job: “producing public goods by
means of their functions: nominating candidates and seeking office control in
order to implement policy” (p. 1).
Political parties thus are non-state actors who collect
people’s wishes or preferences, putting them together, thus aggregating them,
making them known for Parliament to consider and turn them into actions or
solutions for public good.
Political parties thus should be at the centre of peace. In
other words, in an impasse of the nature at hand, these political parties
should lead in leading the people towards the path of peace through
constitutional means. The reason is that all preferences from the people border
on peace and development in a democracy. To invite people when you are well
aware that such people won’t keep the discipline due those conducting peaceful
demonstrations is, I am afraid to say, a sign something is amiss in the way we conduct
and understand our politics.
Going about telling people Mutharika is an illegitimate
President is not serving our preferences at all. Kayuni’s argument on this is
instructive.
Professor Happy Kayuni observed on Wednesday, July 3, 2019 (see
‘MCP caught in a fix’, The Nation, p.
8) that Mutharika was declared President-elect by a legitimate body following
the elections. He is therefore a legitimate President; what is questioned,
according to the MCP and the UTM, is the manner in which he was elected. What
this means is that, as of now, Mutharika is a legitimate President or we do not
have a legitimate Government altogether, which can never be the case in our
present circumstance. The reason is simple, decisions for running this
Government are being driven by Mutharika, whether we like it or not. He was declared
President by the same MEC which declared the results for MPs and Councillors,
results we have mostly accepted.
When we say Mutharika is an illegitimate President yet we
know he is the Head of Government and State, are we suggesting that part of
Government is legitimate and another part not?
The best political parties can do in this context is to
insist that we should reform and bring ourselves the most transparent electoral
system ever in this country. Strangely, no political party is advocating for
what everyone thinks is the solution to this problem, namely the electoral
reforms. Instead, their agenda is to remove Justice Dr Jane Ansah as Chair of
the Malawi Electoral Commission.
Now after you have removed her, what will be the next course
of action, because like it or not, the same Mutharika you describe as
illegitimate will have a say in it all. Why don’t you go the electoral reform
route?
It would be wise of us to spare some words and use them
appropriately after the Court has made its position clear on the matter.
Why Ansah must never
resign
If Justice Dr Jane Ansah resigns, whether by Christian
conscience or not, she will do this nation great injustice, for I would never
know when they would next come and blurt after me, “Thou write bad poetry,
out!” Or to the Speaker of Parliament, “Surrender the mace, and out, bad Madam!”
Resigning from this would set a very bad precedent for this
country. They better beat you, trample you, but stand by justice, justice
according to law.
If Justice Dr Jane Ansah mismanaged the electoral process, is
it not the job of the Court to make a determination on this? Why we are doubting
our Courts is beyond me. Are they not the same people who defended the
defenseless Dr Cassim Chilumpha SC when the power that be sprang into action,
demanding his accepting resignation on a matter he knew nothing of? Did not
Chikopa (then Judge, see the Constructive
Resignation Case), that December 26, 2006, make it clear at the time?:
Malawi is a constitutional democracy. The Constitution is supreme.
Everybody, including the State President, is bound by the provisions of the
Constitution. Under section 43 it provides inter
alia for the right to lawful and procedurally fair administrative actions
where one’s rights, freedoms, legitimate expectations and interests are
concerned. A decision one way or the other on whether a Vice President has
constructively resigned, if it was the State President’s to make, would
invariably touch on the Vice President’s rights, freedoms, legitimate
expectations and interests. Before such a decision is made one would expect the
maker thereof to observe the rules of natural justice which include the giving
firstly of prior and adequate notice of the precise facts constituting
constructive resignation, secondly of a fair idea of the disciplinary measures
that may be taken against him as a result of the allegations against him and
thirdly of a hearing on the said allegations. Those that are religiously
inclined might be interested to read the following words of Fortesque in R v Chancellor of the University of
Cambridge (1723) 1 Str. 557 at 567:
‘Even God himself did not pass sentence upon Adam before he
was called upon to make his defence. “Adam,” says God, “where art thou? Hast
thou not eaten of the tree, whereof I commended thee that thou shouldst not eat?”
Indeed the Bible itself in John VII verse 51 says: “Doth our law judge
any man, before it hear him, and know what he doeth?”
Our faith in our Courts should be incontrovertible. That is
exactly what democracy means. Let us not rush to do things we should look upon
tomorrow and say, “But why did we not exercise some restraint at the time?”
Already, the conduct of politicians in the country has given
our youths the impression that they can demand what they can when they want it.
Even very young school children now resort to strikes and demonstrations whenever
there are some differences with the authority. Recently, a Catholic Secondary
School in the Central Region saw students running riot all because the
authority were disciplining some student.
In 2013 or thereabout, primary school pupils, some as old as
five, went to the streets, saying they were fighting for the rights of their
teachers; they wanted the Government to increase their teachers’ salaries. Some
of those boys and girls should be teens now. You can guess what type of future
this country has.
It is worrisome that this culture is growing in our society.
People no longer value the power of talking or respect for the other. To build
a nation we need patience, perseverance, tolerance and understanding. How do
you build a nation by razing infrastructure to the ground or by stealing from
businesses?
Why do I say all these things?
Well, history teaches us that when things begin to go wrong,
we must never shirk from telling the truth to avert chaos. They might not tell
you these things; they do not because they do not love you. I do because I love
you as my brothers and sisters. Continue to make mistakes after I have reasoned
with you.
The civil society organisations are an important component of
our society. In the words of Hillary Clinton, they are not a threat, as “a
genuine democracy is like a three-legged stool. One leg is responsive,
accountable government; the second leg a dynamic, job-creating private sector;
and the third leg is a robust and vibrant civil society” (World Economic Forum,
2013, p. 35).
My plea is that they should remember that the other two legs
can never function in an atmosphere of chaos. Let us be the best CSOs for our
nation; let us work to build this country. We have issues we know, but let us
wait upon the Court first.
Conclusion
On the question whether Justice Dr Jane Ansah should stand
down, my position is clear―she should not. Let us first wait upon the outcome
of the Court. When it decides that Justice Dr Jane Ansah went wrong somewhere,
and when it be determined that the magnitude of her wrong justifies this anger,
then she can honourably stand down. I have heard others say her position is
untenable. They cite integrity as the reason. Integrity is an important
component in law, but is integrity law? Since when has integrity become law in
Malawi? Strangely, some of the people saying this were seen on demonstrations,
thumbs up, supporting the CSOs. If you believe in integrity yourself, how that
thou taketh sides? Lawyers have a term for this―contradictory injunctions, and
it simply means using carefully crafted words and reasons to persuade others
not to do the very thing you are doing. We had it during the Third Term Bid
when Muluzi banned anti-Third Term demonstrations while allowing his party
supporters to chant pro-Third Term sentiments on his political rallies.
Malawi has a Constitution. Malawi believes in the rule of
law. It is not always perfect, but it is necessary to keep us going. It is up
to us to look ourselves in the mirror and ask whether there is something we can
do or change within the perimeter of peace to make this nation a better place.
Anger, bloated ego, unruly behaviour, all these have no room in a
constitutional democracy. There are two reasons for this: First, these things
can create a dangerous opening for those with evil intentions to infiltrate us.
Second, democracy by nature loves talking. Like it or not, democracy requires
that at some point you should come to some table to talk. This is why Dr
Chinsinga, Blessings, recently said democracy always finds a winning formula.
He meant that, there comes a time in democracy that its magic hand grabs each
by the hand to that negotiating table. We better go there on our own volition.
At the same time, let us avoid rushing to punishing or
threatening the CSOs. Our approach should be reasoning with them, for them to
see sense in talking and waiting upon the determination of the Court.
Lastly, sometimes it pays to read general opinion because a
good cause overdone soon begins to incense public mood. Once the general
opinion sways away from you as a politician, the job becomes near impossible.
Malawi Congress Party, you have done a commendable job, bringing yourself so
close to our hearts. Please, do not allow this impasse to reverse all that
investment. So, come back and let us reason together for the sake of this
wonderful nation and its future.
To Dr Saulosi Chilima, you gave us the best of times during
campaign. You’re still young, determined and have the skills. Please, rebuild
yourself for something legally big in future.
GOD bless.
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