Introduction
Nearly thirty years after countries in Africa began to embrace democracy in its liberal form, almost all countries on the Continent are still grappling with the basics as far as consolidating that democracy is concerned. A number of scholars have proffered reasons for this failure. One explanation have it thus: change in Africa was largely cosmetic, targeting only the political facet, replacing only names and figures in the driving seat, leaving old punishing systems intact. New leaders have come, riding on the same wave of ethnicity and neo-patrimonialism, and have used capture in all forms and at every level―the executive, the judiciary, the legislative―to perfect it into some robust machinery for siphoning resources meant for the poor, and for punishing dissent and diversity. In this discussion, I wish to demonstrate that the whole reason Africa has failed to overhaul her systems is that she has deliberately worked to solve her woes by stressing political accountability at the expense of social accountability, a mechanism that would have helped her promote inclusiveness and consensus. My argument is that unless African leadership begins to value the power of balancing political accountability and social accountability, all attempts at consolidating democracy will remain a distant dream, sustainable development a pure chimera. One way to strengthen inclusiveness as a form of social accountability in Malawi would lie in the reconstitution of the Senate.
This discussion proceeds as follows. Following this introduction, I define the two notions: social accountability and political accountability. Then I present a justification for this discussion. The fourth section analyses literature on the demerits and the merits of the institution of the Senate, thereby justifying why Malawi would need this institution at this stage of development. How the Senate met its fate is presented next simply to buttress arguments that the People of Malawi needed this institution yesterday.
Defining social accountability and political accountability
This discussion adopts the definition of social accountability as offers Fox (2014), namely:
an evolving umbrella category that includes citizen monitoring and oversight of public and/or private sector performance, user-centered public information access/dissemination systems, public complaint and grievance redress mechanisms, as well as citizen participation in actual resource allocation decision-making, such as participatory budgeting (p. 9).
Social accountability therefore is synonymous with inclusiveness, an antonym of what Rosema, Aarts and Denters (2011) refer to as “the elitist view of limited citizen participation” (p. 10). This discussion therefore considers the institution of the Senate a realisation of social accountability in its pristine form.
In political accountability, the focus is specifically on elected officials, where citizen voice is often delegated to representatives in between elections. The notion of social contract better explains this relationship.
Following the Referendum in 1993, Malawi became what is now referred to as the Second Republic. The first was from 1966 to the Referendum, 1993. A republic is a form of government where sovereignty resides in the people of that country, rather than with the rulers (Magstadt, 2013, p. 6). In other words, rulers in Malawi are the Malawians themselves. However, democracy, “a form of government in which the rulers are fully responsible to the ruled” (Manin, Przeworski & Stokes, 1999, p. 4), requires that there should be a single ruler (President) or a group of representatives (Members of Parliament) so they will run the government on behalf of the people, allowing them, the people to engage in other equally productive engagements, enterprises or assignments.
In this, we (the people or the principal) entered into a contract, allowing one person to lead us, or a group of persons to represent us in Parliament (as governors or agents). This is what is referred to as the contract theory. The idea is that the people give the governors green light to rule them in exchange for accountability (red light). In this case, where there is no accountability there is no governance. Perhaps this is the reason accountability is described as “a hallmark of democratic government” (Taylor-Robinson, 2010, p. 3).
In Malawi the Constitution in section 12 sets out the boundary for this accountability. Of course, it is not conclusive whether this section creates a legal public trust, but as a student of public administration, my position is that section 12 creates a legal public trust, hence, “as elected representatives of the people, parliamentarians are the ‘trustees’ of public mandate, given periodically through elections” (Economic Commission for Africa, 2013, p. 20, citing Marshall 2003).
A legal public trust is an arrangement based on the principal of delegation and accountability. By this arrangement, section 12 of the Constitution entreats all persons exercising powers of the state to do so to the extent of their lawful authority and in accordance with their duties and responsibilities to the people of Malawi. In other words, they have to be accountable politically.
But, everywhere, politicians are never truly accountable to the people and this is for a number of reasons. First, politicians, for example, MPs, serve competing principals, that is, they have to please the party leader as well as the constituents. Second, politicians operate away from the ruled or constituents; we don’t see what they do over there. This can give them a motivation to misbehave. Lastly, it is in humans that we serve our interests first.
However, democracy has put in place mechanisms to address these shortfalls. For example, if a leader misbehaves, you have an opportunity to send him packing after five years. But this means we have to wait for five years to send such leaders home. The Senate proffers an innovative solution in all this, first, by allowing a second Chamber, the Upper House so more representatives take part in decision-making over issues that concern them. In this way, these Senators can check the elected MPs and the President through this formal institution, the Senate. The Senate therefore solves two problems long neglected in our democracy, namely abuse of power and subdued citizen engagement or weak citizen participation. This mechanism achieves this through the promotion of social accountability or simply diagonal representation for the democratic value of inclusiveness or consensus.
Section 13 of the Constitution (on the Principles of National Policy) entreats the State to actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving such goals of socio-economic rights as gender equality, nutrition, health, the environment, rural life, education, persons with disability, children and family. Generally, and this is according to Palmer (2007), “socio-economic rights—whether enshrined in international, regional or domestic instruments—are ideological aspirations or programmatic (directive) goals, dependent on resources for their satisfaction, and therefore inherently unsuited to the mechanisms and techniques developed by courts for the protection of fundamental human rights” (p. 1). Since these rarely constitute justiciable cases, creating a social accountability mechanism that would see these categories of people in the decision-making architecture of Parliament itself could go a long way. The reason is that “equality of participation [is considered] a core dimension of democracy because it is a requisite of self-government as the expression of the sovereignty of the people” (Kriesi, 2015, p. 30).
Justification for the discussion
Currently, the Malawi Electoral Commission is knee-deep in an exercise that will eventually see the country’s existing 193 Constituencies give birth to over 30 new daughter constituencies. The Electoral Commission has been meeting political parties, explaining to them the importance of the exercise in serving the Malawi Constituency. Its importance, so claims the Malawi Electoral Commission, is such that economic justification for postponement won’t make sense, as democracy is expensive.
When sections 68 to 72 of the Constitution of the Republic of Malawi were chopped from this Supreme Institution, the Constitution, that is, the greater part of the argument by our Members of Parliament (in January 2001) pointed to the country’s weak economic ability to sustain two Houses. The fact that we can embark on an exercise to increase constituencies proves to me our purse is fat enough today to absorb costs as far as representation and inclusiveness are concerned. Perhaps at this stage of development, we can now discuss the issue of the Senate without having to watch over our shoulders on the question of funding this important institution.
Parliaments the world over keep inviting for themselves ridicule for their failure to execute with distinction their constitutional legislative duties. In this way, trust to Parliaments is waning fast.
Trust in government is defined as “the expectation that policy will correspond to public wishes” (Prebble, 2012, p. 4, citing Bouckaert & Van der Walle, 2003). In other words, trust refers to that feeling in constituents that whatever their representatives do in Parliament gives priority to their needs as citizens.
Literature on conduct of MPs has demonstrated that during the past decade, national parliaments, as main bodies representative of the interests of citizens in democratic societies, have suffered from a growing decline in trust (Leone, 2017, p. 3). Leone cites the 2016 Eurobarometer survey by the European Commission, which shows that the majority of EU citizens continue to distrust their respective national parliaments, with a level of trust on average at a mere 32 per cent.
Leone also points out that this eroding trust in national parliaments has gone alongside a rising perception of their level of corruption, affecting negatively public accountability and political credibility. On this, Leone cites the 2016 Transparency International Global Corruption Barometer which concluded that the MPs in Europe and Central Asia are perceived as the most corrupted group, before government, business, police and judges, with 31 per cent considering most or all MPs (as) being involved in corruption.
A recent report on public trust on Parliament in the UK shows that, at 30%, the overall satisfaction with the way Parliament works is now six points lower than when the first Audit was published in 2004 (Hansard Society, 2017, p. 7). This comes against a backdrop of the 2009 scandal in the country involving misuse of allowances. In fact, following the 2009 scandal, 60% of the British public said they almost never trusted politicians to tell the truth (Lee & Young, 2013, p. 70).
Before that, a survey conducted by the Center for Congressional Studies in the United States, in 2010, established that the general perception in the country is that Congress simply does not work for the public good (Thurber, 2011, p. 2).
The same has been said of most African countries, including Malawi. The Afrobarometer round 6 survey in Ghana has found that 61% of Ghanaians have little or no trust in their parliament. Another beacon of democracy in Africa, Botswana, has seen its Parliament suffer a similar lapse. Seabo et al (2018), analysing findings from three rounds of the Afrobarometer surveys in Botswana in 2008, 2012 and 2014, conclude that political trust has been on decline in institutions of parliament, presidency and the ruling party in the country (p. 86).
South Africa has suffered a similar fate. Chingwete (2016) showed, through the Afrobarometer survey conducted in the country in August-September 2015, that, public trust of the institution of Parliament had plunged dramatically since 2011. As much as 58% of the respondents there indicated not at all trusting Parliament, or trusting it just a little.
In 2016/17, the University of Malawi in conjunction with the Institute for Justice and Reconciliation conducted Round 7 Afrobarometer survey in Malawi. The results show that the people’s trust in Parliament had declined; only 40% of the respondents trusted Parliament, down from 50% in 2014 (State of the nation: Malawians’ reflection on political governance, 2017, p. 11). Besides, “only about one-third of Malawians approve of the way their MPs (30%) have performed their jobs” (p. 18). Perhaps this is the reason, Kameme, a former MP himself, has described our Parliament as a rubberstamp institution (Kameme, 2015). In fact, in Malawi, some have described it, Parliament, as “childish”, “waste of time”, and “drain of resources” (Patel, 2008, p. 34).
We must never divorce ourselves from the fact that there is a strong link between trust in such institutions as Parliament, and democracy. Gyimesi (2018) submits that “people who are more satisfied with democracy are also those who trust their assembly of elected representatives more” (para 2). Gyimesi gives the example of Switzerland and the Nordic countries—Denmark, Norway and Sweden—as countries with greatest satisfaction with democracy and highest level of trust in their parliaments. Gyimesi contrasts this with the situation in southern and eastern European countries, citing Italy, Portugal and Slovenia, who trust their elected representatives less and are less satisfied with democracy overall.
Public trust in Parliament in decline, claims of democracy being a superior form of governance are becoming insipid by the day. Perhaps it would be a different story if the people were given the opportunity to participate direct in their affairs through the institution of the Senate. The Constitution had purposed it to be that inclusive. According to Patel, Tambulasi, Molande and Mpesi (2007, p. 31),
The Senate was conceived as an indirectly elected chamber whose primary purpose was to be deliberative, with the power to scrutinise, amend, confirm or remit bills from the National Assembly, to debate any issue on its own, and to vote on motions in respect of any matter, including motions to indict or convict the president or vice-president by impeachment. It was proposed to be a body of 80 members representing: each district and elected by the district councils; a chief from every district being elected by a caucus of chiefs; and 32 senators to be elected by a two-thirds majority of sitting members of the Senate based on nominations from interest groups, including representatives from women’s organisations, the disabled, the trade unions and the business, education and farming sectors. Persons elected would have been recognised for their outstanding services to the public or making a major contribution to the social, cultural or technological development of the nation, and representative of the major faith communities in Malawi.
Would it not make a great difference having all these important representations of our society in an institution discussing issues that directly concern them? Is now not time for Malawians to reconsider our stand on the institution of the Senate and the many benefits it can bring to restore the dignity of our Parliament that is fast running low of the fuel of trust? Well, if our fears were money, whatever is happening now―re-demarcation of constituencies―is proving to us democracy is expensive but we pursue it all the same.
Democratic leadership brings others into the decision-making process and encourages sharing of ideas and opinion (Phillips, 2016). Phillips therefore argues that, for these reasons, this style of leadership results in more balanced ideas and an environment in which creative solutions are found where the people get more involved and therefore become their own masters, invested in the future as well. The sweet Senate promises this country this sweet innovation.
Prominent scholars on governance have bemoaned widening representational gap, that is, the gap between the rulers and the ruled, on the decision to abolish the Senate. Kachale (2012), for example, has argued that the abolition of the Senate represents “a departure from the terms of the original contract (set out in the Constitution)” (p. 32). Kachale has also argued that, since the Senate was largely under the aegis of Local Government, the reason the local government elections were postponed from 2005 can directly be attributed to this repeal (p. 33). These sentiments have been corroborated by Africa Institute of Corporate Citizenship, Malawi Economic Justice Network, & Transparency International, (2013, p. 21) which bemoans the move for exacerbating the representational gap between Parliament and the people. In short, social accountability suffered a heavy setback. Re-demarcation of constituencies is further exacerbating this representational gap.
Besides, according to the Malawi Law Commission (2006, p. 39), by abolishing the Senate, the MPs had breached section 45(8) of the Constitution which provides that “[u]nder no circumstance shall it be possible to suspend this Constitution or any part thereof or dissolve any of its organs, save as is consistent with the provisions of this Constitution.” Re-establishing the Senate would prove a brilliant and timely innovation to heal this breach.
That Malawi has embarked on re-demarcation exercise (more political accountability) and not re-establishing the Senate (for more social accountability) does have some explanation. I do not have that explanation, but there must be some explanation. In politics, remember, nothing happens for no motive. This is one important lesson political-economy teaches us for our own health. In politics, the first thing any party that goes into power does is to work on ways that will help it maintain power today and retain it tomorrow. This is consistent with one explanation neo-institutionalists advance, namely that even where laws are entrenched, whenever politicians find some chance, they quickly revise and redefine them, using existing rules, thereby selecting a system more to their liking (Mainwaring, 1990, p. 3). This form of policy capture is referred to as regulatory capture or simply a state in which those groups that ought to be regulated gain control over the regulatory process (Veltrop & de Haan, 2014, citing Stigler, 1971). That is how the Senate met its fate; full discussion to follow but first, a presentation on the demerits and merits of the Senate
The Senate and social accountability: Demerits and merits
The first reason the institution of the Senate is coming under intense criticism today is that its relevancy is being widely questioned even in mature democracies themselves. In the US, for example, the longest serving Member in the history of the Congress, John Dingell, has called for the abolition of the Senate in the country. Dingell says the US Senate was no longer serving the purpose for which it was adopted by the Framers of the country’s Constitution, namely, to act as a Great Compromise (Matthews, 2018).
Some critics of the institution of the Senate point to a weakness among its membership as a reason why it must never exist side by side with a lower House. For them, the element of vulnerability in such members exposes senators to abuse by veteran MPs or the executive. A common trend in the Caribbean, for example, is that those MPs who fail at elections for the lower House often find themselves slotted into Senates. According to Donahoe (2002), the practice becomes more questionable when such appointed members are then named to the cabinet (p. 49).
Some critics argue that the Senate is a white elephant which incurs unnecessary expense upon a nation. In September 2012, Senegalese lawmakers from both the lower House and the upper House of Parliament dissolved the Senate in a joint session of Parliament in order to save money. According to the BBC, the move is said to have saved the nation a cool $15 million, an amount which the country’s President at the time said would be transferred towards resolving problems of floods. In some way, the reason the Senegalese lawmakers gave for the abolition of their Senate reflects the one Malawian MPs had peddled for a similar move in January, 2001. Our Parliamentarians had argued that the Senate was going to be too expensive to maintain (Patel & Tostensen, 2007, p. 86). Brown (2000), however, has argued that the Senate in Malawi had suffered this fate because the then ruling United Democratic Front feared that “it would not command a majority in that Senate, thereby reducing the ruling party’s power” (p. 22). Brown’s arguments make sense considering the fact that the Senate had been given the powers to initiate impeachment against a President. In the words of Chigawa (2008), “the Senate had power to propose and pass legislation; to amend existing laws; and to indict or convict the President on impeachment” (p. 2).
According to the Malawi Law Commission 2007), one oft-cited reason for the criticism of the Senate in Malawi is fear of duplication of duties. The MLC conveys that some researchers have expressed dissatisfaction with the Senate because its functions can duplicate those of the lower house.
Some scholars have argued that the Senate can very easily play the free podium for some interested groups, for example, traditional chiefs whose authority revolves around hereditary succession (Chirwa, Patel, & Kanyongolo, 2000). In this case, fears are that a particular family can find itself perpetually forming the membership at the expense of administratively and academically able citizens. In this way, there can be unintended consequences which might serve interests beyond those believed to enhance accountability and wide participation or inclusiveness.
Senate is also criticised for being inefficient. However, McNeil and Baker (2013), writing of the US Senate cite Robert C. Byrd as arguing that this should never be a cause for concern. In 1996, Robert C. Byrd, was the Senate’s most senior Democratic member. According to McNeil and Baker, Senator Byrd was 79 at the time and had represented West Virginia in the chamber for nearly four decades. In Byrd’s own words:
Senate is often soundly castigated for its inefficiency, but in fact, it was never intended to be efficient. Its purpose was and is to examine, consider, protect, and to be a totally independent source of wisdom and judgment on the actions of the lower house and on the executive. As such, the Senate is the central pillar of our Constitutional system (McNeil & Baker, 2013, p. 4).
One can never discuss the merits of the institution of the Senate without understanding the motive the delegates to the 1787 Constitutional Convention specifically had certain attributes for a senator. According to McNeil and Baker, “the delegates wanted as senators men of judgment and integrity, and they designed the election processes to that purpose” (McNeil & Baker, 2013, p. 15). The Senate therefore is perceived as the centre of a country’s conscience, the heart of wisdom and judgement.
Why does the history of the US show the Senate as an institution of wisdom? Well, democracy subsists in balancing contested interests. By nature, democracy performs better when in such a medium. However, this should not be interpreted to mean democracy loves chaos. As much as possible, such interests must be expressed in a spirit of give-and-take, not violence, for violence only begets violence. It therefore takes wisdom to balance such interests, to pit modernity against conservatism, restraint against hyper-activism, and youth against age―a balance, a compromise, all for consensus.
Malawi at the moment is
in great need of some castle of wisdom. By this I am not suggesting at all that
the current leadership greatly suffers this, no. Modern or simply contemporary leadership is a shared
responsibility, a contribution from many hands. If we want to build a great
Malawi, each one of us must submit to a culture that should strive to drive
progress. Of course, one way to create such a civil and patriotic workforce
lies in assembling a gathering of elders, conciliators and mediators, kind of great
compromise, a bastion of wisdom rather than of knowledge alone.
So what is the difference between this wisdom and knowledge? Well, Midgley (1991) makes a statement I find wise to use on this, namely: “Merely holding information as an inert piece of property, or handing it on like dead fish to students, cannot be enough” (p. 2). For her, knowledge ought to be used as a whole for it to lead to deep understanding. This entails using knowledge to link with reality about life, life as a whole, and what really matters in it. When active knowledge is used to make judgement about life as a whole, we operate in wisdom, defined by Barbara Tuchman in her work An inquiry into the persistence of unwisdom in government as “judgement acting on experience, commonsense available knowledge, and a decent appreciation of probability.” Thus, knowledge differs from wisdom in that the former enables one to assemble facts or ingredients of reasoning (merely the raw material for wisdom) while the latter combines intelligence and moral virtues to solve complex problems.
According to Fengyan and Hong (2012), wisdom enables an individual to act with great prudence when faced with complex situations or dilemmas. Wisdom ensures a healthy judgement that keeps our actions with the moral standards for the greater good rather than merely to fulfill one’s appetite to advance oneself through transient fame, awards or passing badges.
A wonderful example of how one man had used wisdom to save the newly born nation of Malawi is that Colin Baker (2012) presents about Frank Barrington Chevallier, OBE, QPM, CPM. Frank Barrington Chevallier, a white man, was a police superintendent in the early years of our (Malawi’s) Independence. He did something that occupies a place of importance in our history.
According to Baker, following the Cabinet Crisis in September 1964, all but two original ministers either resigned or were dismissed. Baker writes that the following few months all the former ministers (except Masauko Chipembere) fled the country. Baker reveals that three of them were from the Northern Region and had therefore escaped through the North where they were assisted in their escape by the police officer in charge of the Northern Region, Superintendent Frank Barrington Chevallier.
How exactly Superintendent Frank Barrington Chevallier achieved this feat, Baker (2012, p. 56) explains:
Aware that Dr. Banda preferred to have the rebels outside the country―where they could do less harm than inside the country even if in custody―he was instrumental in ensuring that the lake ship, in the engine room of which Orton Chirwa, former Minister of Justice, was concealed, was not searched. He also made sure that Kanyama Chiume, former Minister of Information was not detained at the border with Tanzania but crossed unharmed by the League of Malawi Youth who were pursuing him. The officer also befriended Yatuta Chisiza, former Minister for Home Affairs, who was being hotly pursued by Malawi Youth bands. He escorted Chisiza to the border where the former minister said goodbye and asked the officer if he could let him have a pipeful of tobacco. The officer obliged and told Chisiza that he could keep the rest of the tin of tobacco. Chisiza thanked him and disappeared over the border.
In what way does this pass for wisdom? Well, Baker (2012, p. 57) tosses the answer:
Had he not succeeded in ensuring the escape of the three former ministers they would undoubtedly have been brutally handled, most likely killed, by the Youth bands hunting them. Had that happened there almost certainly would have been a massive reaction from the Northern population, well known for its robust political activism, which, given that Banda already had a difficult security situation on his hands in the South in hunting down Masauko Chipembere, former Minister of Education, Banda would have found difficult if not impossible to control.
Superintendent Chevallier must have used wisdom or foresight—weighing between following orders and the need for greater good or peace—to do what he did. I believe nation building requires such acts at times. Even Dr Banda himself, on the issue of Chipembere, had to use wisdom, deliberately letting Chipembere out of the country unharmed. Sometimes when I see youth jumping, scales of knowledge in their hands, I fear for the future of this country.
Another example of wisdom at work is what happened in the country in early April 2012 when Malawi’s President Professor Bingu wa Mutharika died suddenly of heart failure. Rumour has it that those wielding power at the time had suggested the Army Commander at the time take over power to which General Odillo is said to have declined.
Discussing why General Henry Odillo had resisted the temptation to take over power at the time, Dionne and Dulani (2012) offer that the gentleman had refused to heed to these calls by the widowed governing party at the time, the Democratic Progressive Party (DPP), because he wanted to immortalise himself as “a champion of the Constitution” (p. 119). Odillo could have chosen to yield to the pressure, but he chose good over evil, and this action saved Malawi from some impending chaos. Of course, he never received any award for that great show of wisdom but whether one likes it or not General Odillo’s wisdom immortalised him in Malawi’s history of constitutionalism.
In Malawi, the quasi-religious body Public Affairs Committee was created with the whole purpose of facilitating our co-existence through peaceful means. It is by nature a body fitted with eyes of wisdom for strategic reasoning and leadership. Their job became even more prominent after the demise of the Senate but whether this remains the matter with them now, I do not know.
In Malawi, chiefs, and they would be part of the Senate, have not represented their subjects better. During the Third Term Bid, for example, chiefs were often paraded on the national radio, claiming they had been sent by their subjects to tell the world every Malawian supported the Open Term Bid (Mwalubunju, 2007). Despite this, this experience should not blur the commendable service senates elsewhere have rendered to their people. In Nigeria, for example, it was the Senate that block President Olusegun Obasanjo’s attempt to run for a third term in 2007 (Tripp, 2009). Thus, after the Senate had blocked a constitutional amendment bill that would have allowed him another term, the House of Representatives followed suit (p. 148).
Arend Lijphart in the Foreword to Gallagher and Mitchell (2005), cites Diamond (1999) as arguing that the majoritarian systems are not suitable for countries where ethnic, regional, religious, or other emotional and polarizing divisions are high (p. viii). This suggests that inclusiveness through the institution of the senate could promise better democracy to most African countries where ethnic tension is high. In 1999, Lijphart himself as cited in Roller (2005) had demonstrated that, when social, environmental, and foreign aid policies and some aspects of domestic security policy are considered, consensus democracies are superior to and outperform majoritarian democracies. Roller writes that Lijphart had given a number of reasons for this, for example, that there is a stronger orientation toward community and a greater social consciousness in the consensus view, leading to kinder and gentle politics.
The benefits Lijphart shares seem more attractive when one considers what Chigawa (2008) presents as what would have been major functions of the Senate in Malawi had our MPs established it. According to Chigawa (2008), the functions of the Senate could be summarised into three broad categories. First, the second chamber could enhance parliamentary efficiency in the sense that the business left undone or unfinished in the lower chamber would be attended to in the Senate. Chigawa gives broadening of representation as the second reason. For him, the second chamber would proffer a forum of opportunity for the representation of special interest groups such as people with disability and women. This position is in line with one of the basic requirements of a democratic Senate as touted by the Inter-Parliamentary Union and UNESCO, namely that it should be “representative of all sectors of society in its diversity: political trends, sexes, races, ethnic groups, minorities, etc” (p. 7). Such a representation would, for example, help defuse ethnic tension. This should be understood in the context of what Etefa (2019), citing Kahl (2006), observes, namely that, “since the end of the Second World War, seventy-five percent of the world’s armed conflicts have been internal rather than interstate wars, and many of them took place in developing countries” (p. 1).
South Africa presents a perfect example of how increased social accountability through widening of citizen participation has enhanced their democracy. According to International IDEA (2013), citing Baldwin, Chapman and Gray (2007), provision of spaces for participation to South Africa’s multiple ethnic, social and linguistic groups has given them an opportunity to enjoy a more representative level of participation in democratic politics. For them, the benefits of this inclusion to democracy in that country have been immense. This demonstrates that the Senate would have played an important role in making Malawi meet a number of good governance indicators, for example, peace and stability.
One problem often cited to explain low quality of debate in the MNA today is the House’s insistence to conduct its deliberations in English. Since the Senate was going to use vernacular languages, it could have been expected that the delegates or Members therein could be so free as to express themselves fully in a matter. This is not to say that this would not have some disadvantage as legislation comes in the English Language.
By abolishing the Senate the country lost an opportunity on a mechanism that would have been helping the government to enhance efficiency and legitimacy of outcomes or decisions. According to Pruitt and Thomas (2007), “the more inclusive and participatory the process is, the more efficient and legitimate the outcomes will be” (p. 14). This would have also enhanced citizens’ trust in their public institutions.
How the Senate met its fate
Here I should first of all go history full throttle or one wouldn’t appreciate the motivation behind the move to repeal sections 68-72 to kill the Senate in Malawi. I have to do this because, in power games, there is a tendency by those wielding it, power, to reduce huge pieces of history to silence, to invisibility (Meneses, 2017, p. 154). Everywhere history must matter. Even constitutional law itself will be a jungle without a thorough recourse to history. When Professor Ian Loveland said, “British constitutional law is a subject as much concerned with history and politics as with legal rules” (Loveland, 2012, p. 4), he meant that our decisions, especially those with far-reaching consequences upon the lives of many, ought to take a serious consideration of a country’s historical context. In Malawi, for example, the fact that “the 1994 Constitution was drafted against the background of the Country’s political and Constitutional history” (Hara, 2007, p. 3) should nudge us to regard seriously the importance of context, whether political or historical, to justice and when discussing our institutions. In the words of Meneses, “justice cannot be achieved without taking into consideration the specific political, economic and social context of each country and region” (p. 158). So, what has this to do with the Senate?
Our Parliament was being drafted (constituted) against a backdrop of fear, that perhaps the Malawi Congress Party (MCP) would come back to power (in 1994) and perpetuate it again. The initial conception therefore was that Malawi should have a very strong Parliament, one that would present a bulwark should the MCP retain power. The Senate was conceived along the same philosophy, namely that the country should have another House (Senate) that would still ensure the opposition and the people in general a reach in case the MCP should retain both the presidency and majority in Lower House (the Parliament we have today).
The following legislative history of the US as presents Orentlicher (2013, p. 6) reflects this position:
… the framers saw Congress as the potentially dominant institution. To ensure balance between the executive and legislative branches, the framers did two important things. They weakened the legislative power by dividing it between a House and a Senate, and they rested an undivided executive power with a single president. But presidential power has expanded over time to a degree unanticipated by the framers and has become much more susceptible to the kind of abuse that the framers feared and tried to guard against. (Emphasis mine)
The other time some people told court that Parliament is supreme in Malawi. They had in mind this legislative history. Of course, I am not asserting they were correct because whether legislative history should constitute part of statutory interpretation remains a disputed institution (Greenawalt, 2013, p. 120).
When the UDF took over power, the threat was over, a strong legislature was no longer needed, the Senate was no longer needed, for it would afford the MCP an opportunity to pester the governing UDF. The Senate had to be abolished, purging our single House of power in the course. Even the donor community had come in support of letting Dr Muluzi assume more powers or else he would not be able to rule with that more powerful legislature. In fact, Dr Muluzi had to rely on coalitions out of this necessity. What does all this mean? That our Parliament was originally the most powerful institution because it was conceived with the idea to contain supposed anti-democratic elements from returning to threaten the country’s newly won democracy.
As soon as the UDF assumed power, it began to flirt with the idea to retain it. So, the inner circle of the UDF began to consider avenues that would help them remain in power even after Muluzi’s two terms were over. There was one barrier however, the Senate. The idea could very easily pass in the Lower House (the Parliament we have today), but it could be spurned in the Upper House (the Senate). The answer: use every excuse to kill the Senate. But killing it there and then could never be easy because Parliament was still a strong institution at the time. So the answer lay in deferring it to after the 1999 General Elections. However, before that, the Recall Provision had to go.
That it is Atupele Muluzi (son to former President) proposing proportional representation in the country is in itself a puzzle. First, it was during his father’s tenure (in Dr Muluzi’s second term) that the Senate suffered its fate, that assassination that January day, 2001. For the reason, some would interpret it to mean nothing but an attempt to erase bad history or a ploy by the UDF to find itself among the rulers again, for PR would inevitably make the UDF a very strong entity in the Eastern Region of the country. These issues do not constitute the currency of my arguments, for my position is that the merits of the Senate today can far outweigh the personal and strategic interests one may read in young Muluzi’s proposal.
When the United Democratic Front Government deferred establishment of the Senate to 1999, scholars pointed out the intention was to mute dissent. However, no scholar successfully linked it to the ultimate goal of the exercise―perpetuation of power through the Open Term Bid.
Ruling parties are always strategic. In fact, all “bad” bills―by “’bad’ bills Beyleveld and Brownsword (1985) refer to laws of objectionable kind, or laws of a government without moral authority―are introduced for some mother strategic purpose. Carefully analysis of literature on the Open Term Bid in Malawi, for example, reveals the idea to change the Constitution to remove the term limit provision, section 83(3) of the Constitution, was mooted way back in 1994 when the UDF just ascended to power. To achieve this, the UDF went strategic, knocking out one barrier after another. The greatest threat was the Senate, an institution I feel Malawians should have been crying for to enhance more equality and consensus among the people.
Brown (2000) argues that the establishment of the Senate meant the UDF “not command[ing] a majority in that Senate, thereby reducing the ruling party’s power” (p. 22). Brown’s arguments make sense considering the fact that the Senate had been given the powers to initiate impeachment against a President. In the words of Chigawa (2008), “The Senate had power to propose and pass legislation; to amend existing laws; and to indict or convict the President on impeachment” (p. 2). The answer was to kill it, but the killing had to be such one as would not be for all to read. The answer was to defer it to 1999, using flimsy yet sensible excuses. But first, the MPs had to shield themselves against the anger of the constituents in case they wanted to recall them. So, Act I, Scene 1, the MPs ganged up to remove section 64 of the Constitution―the Recall Provision:
(2) A member of the National Assembly shall be subject to recall by his or her constituency where a petition has been upheld by the Electoral Commission, where the petitioner―
(a) is a registered voter in the constituency that member being recalled has been elected to represent;
(b) has proved, on a balance of probabilities, that there is a sufficient proportion of the electorate within the constituency, being not less than half the total of registered voters, who desire that seat representing that constituency should be contested in a by-election. (double emphasis mine).
The MPs took advantage of the many loopholes in this provision especially in that it promised to take away one’s first-generation rights, ones the Western world, including European states, puts most emphasis on as fundamental rights of a special nature—capable of being truly universal (Nyman-Metcalf, 2014, p. 27). The manner in which the provision had been framed exposed the MPs; even frivolous excuses could pass in to trigger a by-election and what with the 50 + 1 yardstick for ascertaining evidence. The MPs had a good motive to strike it down.
Come 1999, one minister hinted on the idea to extend the term limit; and in December 2000, a Bill was introduced to kill it, the Senate, even before it was hatched. The opposition MPs defeated the proposal.
In January 2001, the Senate Bill was introduced again. This time, it passed, major impediment obliterated. And for your information, some of the language some MPs had used to discredit the Senate during the debate had bordered on sheer aspersion. For example, one UDF MP had described it as “a toothless organization … Wherever it comes from, whoever is proposing this, should stop and think whether we are promoting democracy or not” (Hansard for the debate on the Abolition of the Senate Bill, p. 1550). Another UDF MP called it “a big joke” (p. 1553). Yet another added, “Some Senators will be elected by fellow Senators … Now, we don’t want people to come to Parliament through the backdoor” (p. 1557).
As soon as the Senate was finished with, some immediate threats―civil society organisations, party “rebels” and courts―had to be dealt with immediately. So, same January (2001) saw the introduction in the House of the Non-Governmental Organisation (NGO) Bill.
The NGO Bill bore all the elements of an attempt to control and monitor non-governmental organisations in this country. The Bill required all such organisations in the country to register with a special Board. This Board, the Non-governmental Organisations Board, was given the watchdog powers upon all non-governmental activities in the country as it prohibited NGOs from engaging in partisan politics, electioneering and politicking. It was also compulsory that every NGO register with both the Council for Non-governmental Organisations or CONGOMA, and the NGO Board. Composition of the membership to this NGO Board was the preserve of the Government. In an attempt to stop Parliament from passing the Bill, civil society organisations sought a high court injunction, but before the injunction could be granted, the bill was rushed through parliament and was passed on January 12, 2001. On his part, the President assented to it before the court delivered its ruling.
The NGOs dealt with, it was time the threat UDF “party rebels” posed were nipped. The answer lied in amending section 65(1). The original section 65(1) empowered the Speaker to declare vacant a seat of any Member of Parliament who was elected on a party ticket of a political party represented in the National Assembly but then once in the National Assembly he or she voluntarily ceases to be a member of his or her original party and joins another political party represented in the National Assembly. This provision is also known as “Crossing the floor”.
Through Constitution (Amendment) (No. 2) of 2001 also called Act No. 8 of 2001 (after it had been passed), the MPs extended its application to MPs who join any other political party (not represented in the National Assembly or even an association or an organisation whose objectives are political in nature) (Kamanga, 2006, p. 4). The Bill targeted UDF MPs who had joined the National Democratic Alliance (NDA), a break-away pressure group from the governing UDF. The amended section 65(1) would therefore trap UDF MPs who had joined NDA, an organisation whose objectives were political in nature.
On June 13, 2001, Constitution (Amendment) (No. 2) of 2001 was introduced in Parliament by Honourable John Tembo. The House voted on it on June 19, 2001. According to Dulani and van Donge (2005), “from 192 MPs that were entitled to vote, 131 MPs—all UDF legislators, plus MPs that were loyal to John Tembo faction―voted yes. Thirty-nine MPs—AFORD and MCP Chakuamba faction―voted against the bill, while a further four abstained” (p. 214).
Using this new legislation, the UDF wrote the Speaker, requesting him to declare vacant seats of seven MPs who had joined the NDA. Two others―Honourables Jan Jaap Sonke and Joe Manduwa―were also expelled from Parliament. When the Public Affairs Committee, a quasi-religious organisation, took the matter to the High Court, the extended part of the Bill was declared unconstitutional and therefore invalid.
The last threat was perhaps the courts. So, in November 2001, more than 113 of the 193 members of the National Assembly passed motions petitioning the President to remove from office three judges of the High Court for what Parliament had described as incompetence or misbehaviour. According to Ellett (2015), it were the MPs from the then ruling United Democratic Front who had engineered the whole plot. She describes it as “a shallow attempt by the UDF to set up the vote on the Third Term for Muluzi, by allowing the installation of pro-Muluzi judges” (p. 60). Following both local and international pressure, Muluzi dropped the ‘charges’ against the three judges in May 2002.
The terrain somehow clear, the UDF was now set to introduce the Open Term Bill through a Member of the Opposition AFORD Party, Honourable Khwauli Msiska. The Bill was defeated that July 4, 2002, largely following the last-ditch effort by a Catholic Church agent (a powerful veto player) who directly approached some MPs, pleading with them never to support it.
Today, we have nothing to fear; we are not re-introducing the Open Term Bid. Perhaps we can now agree as a nation to bring the Senate back from the old ruins, to enhance this important democratic value: inclusiveness, call it social accountability if you want.
Conclusion
As we pursue efforts to strengthen the political accountability wing, I feel we can also look back at our history to consider whether the Senate could do our democracy some fine social accountability service today. I am in no way against the re-demarcation, but I urge that we must remember as well that democracy works better in a catalyst of balance, that is, balance of political accountability and social accountability. The Senate could see experts in Parliament; the Senate could see representatives of our ethnic diversity in Parliament; the Senate could see chiefs in Parliament; the Senate could see representatives of the CSOs in Parliament; the Senate could see young people in Parliament; the Senate could see more women (descriptive and substantive/policy representation) in Parliament; the Senate could see more persons with disability in Parliament; the Senate could see a people discuss freely using a language of their liking; the Senate could play the conciliator, the conscience and wisdom of the Nation; the list is endless. Already, the main player in the governing Tonse Alliance, the Malawi Congress Party is crying foul over the formula used for the re-demarcation. In fact, other parties have expressed their own reservations too, mostly on some criteria. Above all, sentiments from some civil society organisations have demonstrated the exercise is not being done with the general consensus needed for an exercise that promises to affect many a future policy direction in the country. Perhaps my perception is jaundiced but I felt re-establishing the Senate at this moment would represent a better innovation.
May the Great GOD keep blessing this Great Home, Malawi.
I love my Country.
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