A REMINDER OF THE BASICS: THE FOUNDATIONS OF OUR DEMOCRATIC STATE
We find it important to begin by reminding the nation of the foundations on which our democratic State is built as outlined in the Constitution of the Republic of Malawi, 1995. The Constitution, as our supreme law, demands total adherence to it. This includes adherence to the very foundations that the Constitution decrees must underpin the State.
We wish to remind Malawians that the State in Malawi is founded on the understanding that all legal and political authority is derived from the people to be exercised in accordance with the Constitution solely to serve and protect the interests of the people of Malawi. Further, all those who exercise powers of State do so on trust and exercise such powers only to the extent of their lawful authority in accordance with their responsibilities to the people of Malawi. The Constitution also stipulates that the authority to exercise the power of the State is conditional upon the governors sustaining the trust of the people of Malawi, who are the very originators of the powers vested in the governors. Such trust can only be maintained through open, accountable and transparent government and informed democratic choice. The Constitution also proclaims the sacredness of the rule of law in Malawi
By categorising the above-described principles as ‘fundamental’, the Constitution has, deliberately, set aside the principles for further emphasis within our system of governance. These principles undergird the very foundations of our State and must always be reflected in the manner in which the State is managed.
Government, therefore, remains under a total obligation to govern in line with the fundamental principles listed in the Constitution.
By way of illustration, the exercise of powers of government must always be cognisant of the fact that the origin of such powers lies within the people of Malawi such that the powers cannot be exercised to the detriment of the very people who ceded the power to the governors. Anything less than this amounts to a breach of the sacred trust that the Constitution creates. Additionally, because the trust created by the Constitution can only be maintained through open, accountable and transparent government and informed democratic choice, the Constitution has, right at the outset, already decreed the participation of citizens in the running of government. The Constitution requires citizens to determine whether their governors still have their trust or not.
The Society wishes to remind Malawians that the euphoria that accompanied the adoption of our Constitution was emblematic of the hopes and aspirations that Malawians had in the Constitution as a transformational instrument. While the government bears the primary responsibility to ensure that the Constitution’s promises are transformed into reality, the citizens must also be willing to do their part especially in demanding that the principles in the Constitution are implemented in full.
THE STATE OF THE THREE ARMS OF GOVERNMENT
As formulated under our Constitution, the government is made up of three branches and these are the Executive, the Legislature and the Judiciary. Each of the branches of government has been given a specific mandate by the Constitution. The Executive has the responsibility of initiating policies and legislation and overseeing the implementation of laws that embody the express wishes of the people of Malawi. The legislature is responsible for the enactment of laws and must ensure that its deliberations reflect the interests of the people of Malawi and also that the laws it enacts further the values on which the Constitution is founded. The Judiciary has the responsibility of interpreting, protecting and enforcing the Constitution and all laws in an independent and impartial manner.
We wish to observe the following about the Executive, by way of illustration only, and not in an exhaustive manner: the recommendations of the Special Law Commission on the review of all electoral laws have been given short shrift by the Executive. The manner in which the Executive handled the report of the Special Law Commission was suggestive of a latent reluctance to support the proposed reforms. As we all may be aware, it took threats of national demonstrations before the Executive could move to table some of the proposed reforms albeit in a significantly diluted form. The failure to implement meaningful electoral law reform, to date, is sad and deplorable especially considering the many weaknesses and shortfalls that the current framework possesses.
Although the National Assembly finally passed the Access to Information Act, we are informed that the full operationalization of the law is yet to be achieved largely because the Malawi Human Rights Commission is yet to be capacitated to carry out its oversight roles. We do not believe this law was adopted as a token gesture and for this reason we urge the government to allocate adequate resources to the MHRC to enable it fully conduct its oversight functions and allow the law to enter into full operation.
We also wish to highlight the fact that the management of the public purse in this country is subject to a strict fiduciary regulation. The Constitution has established very elaborate mechanisms for managing public finances. It is the duty of all our governors to follow these mechanisms to the letter. In this regard, it is rather disheartening that the Executive’s explanation(s) on the allocation of MK4billion continues to beg more questions than provide answers. Clarity is required about how this allocation was processed and if any misdealing be identified, it is incumbent on the various law enforcement agencies to deal with the culprits.
We also wish to note the following about the Legislature, again only by way of illustration: Parliamentarians seem to forget rather too easily that the source of their authority lies with the people of Malawi. Although the Constitution urges them to prioritise the interests of the people of Malawi in their deliberations, their conduct within the House sometimes leaves a lot to be desired. The Society has, in the past, by way of example, condemned the absenteeism of members of parliament during sittings of the House. The Society reiterates its view that members of parliament cannot ably represent their constituents if they are routinely absent from the chamber. The Society also wishes to highlight that members of parliament have a solemn duty in scrutinising legislative proposals before they are enacted into law. In doing this, their constant guiding principle should be the furtherance of the values in the Constitution. The Society urges members of parliament to remain true to this constitutional biding. Importantly, the National Assembly must constantly check the exercise of authority by the Executive. As a chamber made up of the peoples’ representatives, the National Assembly is uniquely positioned to exercise leverage on the Executive to ensure compliance with the Constitution.
Finally, we wish to note the following about the Judiciary, yet again, only by way of illustration and not as an exhaustive statement: The Judiciary remains the ultimate bulwark of our democratic values. The judiciary, therefore, has a very special place in our democratic dispensation. The Society remains very concerned about allegations of corruption at all levels of the judiciary in the country. While corruption anywhere is always an evil, judicial corruption is an even bigger evil since it undermines the last refuge that any citizen can have in a democratic State. The Society will continue working with the judicial authorities, and other stakeholders in this country, to eliminate space for corrupt practices within the judiciary.
The perennial problem of delayed judgments also taints the image of the judiciary. Many a complaint have been raised by citizens against judicial officers for failing to timeously deliver their judgments/rulings. This compromises the litigants’ rights of access to justice and to an effective remedy. Having regard to recent engagement on the matter, the Society remains optimistic that the relevant judicial officers will take steps to remedy this very deplorable situation.
For the judiciary to adequately perform its duties under the Constitution it must be both independent and accountable. Our judiciary, over the years, has demonstrated a remarkable streak of independence, by and large, as manifested in its many judgments. Some of the problems that the judiciary faces, however, are due to a failure to institutionalise accountability as part of the established ethos of the judiciary. The problem of delayed judgments, for example, can begin to be addressed if there was greater transparency and accountability in relation to the actual judicial officers that are responsible for some of the delays. Judicial independence and accountability, it must be recalled, are two sides of the same coin and the Judiciary is urged to expedite processes for setting up mechanisms for implementing judicial accountability.
Overall, and perhaps sadly, the fact that the three arms of government must work together for the betterment of the people of Malawi seems to be lost more often than not. We urge all our governors to remain committed to the foundational principles of our democratic State.
THE FOURTH ESTATE: CIVIL SOCIETY AND THE MEDIA
Engagement for purposes of ensuring good governance goes beyond the intercourse among the three branches of government. Many a democracy have recognised that civil society, and the media especially, have a crucial role to play in ensuring good governance. Our Constitution generously provides for, among other things, the freedom of expression and opinion, the freedom of assembly and demonstration and the freedom of association. These rights are fundamental to sustaining the lifeblood on which the Fourth Estate thrives. The duty on the State is to ensure that these rights are fully enjoyed by the Fourth Estate as a matter of practical reality.
The Society notes with sadness that engagement between the Fourth Estate and the government is often mired in animosity. Members of civil society have, sometimes, been targeted for harassment and intimidation simply for exercising their constitutionally guaranteed rights. It has also not been an infrequent occurrence to find civil society leaders labelled with unsavoury tags/names simply for holding views that are not favourably perceived by the powers that be.
The Society wishes to remind everyone that the Constitution guarantees numerous rights to all of us including those that lead the various civil society organisations. The net effect of observing the rights in the Constitution, in so far as the Fourth Estate is concerned, is that space must be accorded to civil society and the media to carry out their functions. It behoves government, and all its agencies, to ensure that civil society space is not unduly tampered with. We also feel bound to remind everyone that the recent history of this country amply demonstrates that the Fourth Estate can be a critical component in Malawi’s democratisation.
LOOKING TO THE FUTURE
The Society feels compelled to remind all Malawians that citizenship entails obligations. The obligations are owed to this country that many of us call home. It is the duty of all of us, as Malawians, to participate in the governance of our country. This may include commending the government as and when it achieves milestones in the development of the country but this duty also includes alertness on the part of each and everyone of us to censure our government whenever it strays. The demands of democracy require the creation and nurturing of a broad democratic space in which we can safely hold different views and engage fruitfully in a bid to develop this country. The Society believes that an engaged citizenry remains crucial to the fulfilment of the promises that the Constitution makes to all Malawians. To this end, the Society shall continue prodding the consciences of all Malawians so that they remain engaged in the governance of this country.
The Malawi Law Society is keeping a close eye on the state of governance in Malawi and shall take any appropriate and necessary action within its statutory mandate. Warm Easter regards to our cherished Nation.
Dated this 28th day of March 2018
Mwiza Jo Nkhata, Assoc. Prof.
Michael Goba Chipeta Esq.