12:33 am - Saturday 15 December 2018

Malawi – DPP concerns about current state of rule of law

By Amalawi - Sun Jul 08, 8:04 pm

By Democratic Progressive Party (DPP).

DPP concerns about current state of rule of law, governance in Malawi

As Malawi commemorates our 48th Independence Anniversary, we look back
with pride to the positive contributions that the Democratic
Progressive Party (DPP) has made to the economic, social and political
landscape in Malawi between 2005 and 2011. DPP also considers 2012 as
significant and unforgettable in many ways as it is also the year when
the nation lost its beloved leader Ngwazi Professor Bingu Wa
Mutharika.

Malawi Democratic Progressive Party

Malawi Democratic Progressive Party

Almost three months after the transition, the DPP has noted with
serious concern the recent developments in the governance and rule of
law sectors in Malawi. The DPP considers constitutionalism as a
cardinal principle to the democratisation process, and that
constitutionalism is an inseparable tenet for any people-focused
development process.

However, it is with the most profound regret that since the ascendancy
to the presidency by Her Excellency Mrs Joyce Banda and the
introduction to parliament of her newly formed party, the country has
taken a strange and frightening posture in as far as the application
of the principle of rule of law is concerned. As Malawians commemorate
the 48th Independence Anniversary, the DPP wishes to highlight this
and other related serious concerns which need urgent redress.

Stifling Rule of Law and Killing the Spirit of Constitutionalism

The DPP has observed deliberate machination towards selective
application of the provisions of our Republican Constitution. During
the transition immediately after the death of President Bingu Wa
Mutharika, the current administration strongly called for adherence to
the Constitution in as far as succession to the presidency is
concerned. Section 83 and 84 of the Republican Constitution were
applied and this allowed the then Vice President (Mrs Joyce Banda) to
be sworn in as the president. However, recently the new administration
has embarked on a scheme of selective application of the same
Constitution where the principle of rule of law is being applied only
to constitutional matters that are favourable to the new
administration. Provisions that are bound to negatively affect the
administration are being shoved to the periphery. This is how the
spirit of constitutionalism is swiftly being eroded and the rule of
law is being dealt a fatal blow.

To amplify this serious observation, we have in mind the way
implementation of Section 65 of the same Republican Constitution is
being handled, or indeed being mishandled. The Constitution is clear
on the action that needs to be taken on any parliamentarian who has
crossed the floor. “Rule of law” requires that seats for such
parliamentarians must be declared vacant. However, the new
administration of Mrs Joyce Banda has chosen to relegate Section 65 to
a secondary and almost non-essential provision. This is evident
through the court injunctions which have been obtained and served on
the Speaker of Parliament by parliamentarians that are within the
political fold of the new administration. Another piece of evidence
obtains from a recent political rally which Her Excellency Mrs Joyce
Banda conducted in Mangochi. She defends with impunity her
government’s anti-Section 65 actions by arguing that it will be costly
and expensive to hold by elections.

The DPP finds such behaviour to be anti-democratic. Constitutional
provisions are non-negotiable as they are about the rights of the
people which cannot be guaranteed in a piecemeal fashion. The DPP
wishes to remind the new administration and Her Excellency that she
vowed to protect and uphold the Constitution during her swearing in.
Therefore, Her Excellency Mrs Joyce Banda has no choice but to defend
the Constitution, and this means ensuring that Section 65 is
implemented without excuses.

The new administration should have assessed the cost implications on
Section 65 way before enticing the MPs to cross the floor to the
administration’s new party. Between costs and the constitution, it is
the constitution which is supreme. The constitution an embodiment of
the wishes of the people, and the people are supreme than any other
considerations. The DPP therefore reminds the new administration, of
the inexcusable duty and indispensable need to speedily implement
Section 65. DPP also recommends that all branches of
government(Executive, Legislature, and Judiciary) should execute their
mandates vis a vis Section 65 and rescue Malawi from sliding into
lawlessness and constitutional disorder.

Serious Conflict of Interest: Attorney General and Minister of Justice

The DPP observes with concern the doubling of roles by the Attorney
General who is also the Minister of Justice. A straight forward
instance is where the Attorney General is expected to advise
government on matters that directly concern himself or his office. For
example, Section 65 court injunctions have been served on the Speaker
through the Attorney General. The Attorney General is part of the
Executive (Cabinet) which is an interested party, and the same
Attorney General is expected to advise the President on the same
matters over which both have a direct interest. The DPP therefore sees
a huge problem with this doubling of roles as it has very high
potential for compromising rule of law and constitutionalism in
Malawi. In addition, the current office holder had court cases to
answer with the previous administration, and now it is the same person
who, as Attorney General, and some way as Minister of Justice, is
expected to make executive decisions over the future!
or conclusions of the same cases he is involved in. The DPP is
deeply worried that this is another potential area for conflict of
interest where the Attorney General is going to make decisions that
are in his favour, and decisions that advance his narrow political
interests at the expense of the broader interests of constitutionalism
and wider interests of all citizens. Therefore, the DPP strongly urges
the new administration, and especially Her Excellency Mrs Joyce Banda,
to walk the talk, protect and promote constitutionalism, in this case
by addressing the conflict of interest surrounding the Attorney
General and the Minister of Justice. She must urgently appoint
separate persons to be Attorney General and Minister of Justice.

Walk the Talk: Stop Abuse of Public Funds

The new administration is being called upon to walk the talk in as far
as management of public funds is concerned. It is just about three
months since the administration ascended to office, and it is
important to raise red flags at this early stage. Her Excellency has
so far been conducting political rallies disguised as development
meetings. However, these are political party meetings which are mostly
about advancing the agenda of the new administration’s party. All
these meetings are happening with total financing from public
resources and taxpayers money together with (indirectly) some donor
money are being abused in this fashion. The DPP raises this as a
concern because of the hypocrisy which is associated with this action.
The same administration has announced the need for expenditure
controls and tough austerity measures during the State of The Nation
address and also during the 2012/13 Budget Statement. The nation and
Malawians would therefore expect Her E!
xcellency Mrs Joyce Banda’s administration to walk the talk and stop
the trend of abusing public funds on political party events. The
Mangochi political rally is a fresh example. We wish to state that the
new administration will be held accountable over its actions which
have a bearing on public finances and on our governance.

Similarly, the DPP observes the manner with which funds for use by the
Vice President (VP) are being used at this stage, an indicator of
possible abuse of funds as the financial year progresses. The
incumbent VP is doubling roles as Minister of Health. While this
combination of roles might have been designed to serve resources,
practically we could end up with a situation where more public funds
are being siphoned down the drain under this arrangement. The DPP
therefore recommends to the new administration to provide statements
of accountability and procedural openness as to which Budget Vote the
VP is using. There is most likely going to be a thin line between
which Vote the VP is using to finance his activities. The DPP is
worried that the budget line under the VP’s office could be abused as
the incumbent VP could be enjoying double exposure to public funds.
The VP’s office budget line may be a neutralized budget line being
used to finance political activities contra!
ry to parliament’s approval. In the interest of accountability, the
new administration should declare to the people the financing
arrangements availed to the activities of the current VP if he
continues to double as Minister of Health and indeed as any minister.

A third area of concern on abuse of public funds relates to foreign
travel which Her Excellency has excessively undertaken. The DPP joins
other concerned observes in that the country risks loosing scarce
public funds through excessive foreign travel. Recently, the State
President has been to six (6) countries within a period of less than
three (3) months of her ascendancy to the seat of presidency. While
some of the countries visited are critical to the developmental future
of Malawi, the DPP is gravely concerned with the trips made to Liberia
and Nigeria. Millions of tax payers Kwacha went down the drain since
the visits to the two countries were remotely connected to promoting
the strategic interests of Malawi. If anything the visits were simply
a showy adventure, a tour to display the medal of presidency which was
still glittering new at that moment. However, the truth is that while
the President is preaching austerity and expenditure cuts, her actions
at this !
moment are hypocritical and are in sharp contrast to her rhetoric.
DPP wishes to reemphasize and recommend that the new administration
must walk the talk. Malawians are watching and are eager to hold
government to account.

Shoulder-lifting of the Minister of Finance

The conclusion surrounding the role of the Minister of Finance in the
Malawi Revenue Authority (MRA) funds borrowing issue needs further
scrutiny. The DPP feels dissatisfied with the overall verdict that the
Minister of Finance had absolutely no knowledge over the transactions
at MRA. We wonder how possible it was for the Minister not to be aware
about the instruction memos originating from his Ministry to MRA by
his very own Ministry of Finance officials. The DPP feels that the
Minister of Finance is simply being shoulder-lifted and the new
administration could be rewarding him for some unknown service the
Minister might have provided to the new administration. We wish to
strongly state and we fear that the shoulder-lifting of the Minister
of Finance is a form of corruption, an informal bribe which has been
extended to the Minister in return for some future favour. By any
standards, we in the DPP wish to think that the current Minister of
Finance has lost cred!
ibility, he cannot command sustained trust from the people, and
therefore not fit to hold such an office which demands high levels of
probity and integrity. If the Minister of Finance had no absolute
knowledge of the MRA transactions, what guarantee is there that he
will have full knowledge in the management of other functions under
his Ministry? We strongly argue that the Minister demonstrated
incompetence and negligence. The DPP recommends removal of the
incumbent Minister of Finance for the sake of installing trust in the
management of public finances.

Deliberate Steps to Weaken our Democracy

In addition to our observation made above, the DPP further observes
that the current administration of Her Excellency Mrs Joyce Banda has
swiftly taken steps that are tantamount to theweakening of our
democracy. We point to the poaching of MPs from existing political
parties to the newly established party of the new administration. We
also point to the lack of consultation with political parties on the
inclusion of some MPs who do not belong (or at least did not belong to
the party of the new administration) into cabinet. Such action is
frustrating to the entrenchment of multiparty democracy as is
inconsistent with the building of a culture of parliamentary
democracy. The lack of consultation with the political parties
confirms the desire of the new government to weaken intra-party
democratic processes. Intra-party democracy is a building block to
health inter-party and multiparty relations which culminate into
strong democratisation processes. The DPP recommends tha!
t the new administration should respect internal processes of other
political parties and should help to foster unity and not sow division
in Malawi’s governance processes.

Politics of Vengeance, Retribution and Witch-hunting

The DPP has observed the intentions and practical steps taken by the
new administration to inflict vengeance and pain on the DPP, on
persons connected to the DPP, or even those suspected to have had some
sort of relation with the DPP. Unfortunately, the spirit of vengeance
has characterised itself with sheer hatred which has the potential of
sowing seeds of discord and tension.Again we observe hypocrisy of the
highest order at play, contrary to Her Excellency’s inaugural speech
that vengeance would have no room. However, contrary to that
assertion, the Malawi politics currently is filled with acrimony,
retribution and witch-hunting. The ugly face of this witch hunting
displays itself through the incessant firing of professionals from
public offices and in some statutory corporations. Vengeance has
spread itself to some boards of directors which were simply carrying
out their professional roles. Vengeance by the new administration has
not stopped, and is curr!
ently creeping into offices created by the Constitution and Acts of
Parliament. These include Parliament secretariat and the
Anti-Corruption Bureau (ACB) whose top officers are recent victims of
witch-hunting. The DPP wishes to advise the new administration to
desist from such actions as they are creating unnecessary tensions and
discontent. This is more so among key professionals who deliver their
duties without any political interestsand their contribution to the
nation needs not be rewarded with vengeance.

Too Much Powers of OPC and Status of NICE

The DPP notes with concern recent structural changes to give
additional responsibilities to the Office of President and Cabinet
(OPC). DPP is of the strong opinion that at a time like this in our
democratisation history, Malawi needs to progressively get involved in
establishing autonomous entities with little control from the office
of the president. Recently, government announcedthat the National
Initiative for Civic Education (NICE) will also be controlled under
OPC. Given the political nature of events at OPC, and the direct hand
of the State President in OPC matters, it would not be in the interest
of neutrality to place NICE under OPC. NICE is important to the
impartial delivery of civic education and voter education during
elections and in during other periods. Neutrality and impartiality is
therefore paramount in the operations of NICE and also in terms of
decisions made by government on NICE. DPP recommends that OPC should
not be loaded with functions that woul!
d compromise democratic processes and that NICE should be taken out
of OPC. We recommend the initial arrangement where Ministry of Finance
through the National Authorising Office (NAO) had some oversight role
over NICE, while the programme implementation of NICE should be
established as an autonomous function without influence from any
politically related government ministry.

Silence of Civil Society: Death of NGOs?

The DPP has noted that immediately the new administration took office,
the civil society has to a large extent gone to sleep and have
abandoned their role. This begs the difficult question as to whether
civil society was active only to see DPP taken out of government, or
whether civil society actions were only motivated by hidden agenda
against the late President Bingu Wa Mutharika. The DPP is left to
wander as such because of the silence and almost zero activism that
has engulfed the once vibrant and active civil society sector. We
continue to wonder if this silence means the death of civil society at
a time when there are equally important governance and rule of law
shortfalls that are already being perpetrated by the new
administration. Are current shortfalls in rule of law and
recentconstitutional gaffes, of little magnitude? Was the civil
society activism designed to target DPP individuals and not the
issues? If the answer is about the issues, then we urge t!
he civil society to wake up from their slumber and continue with
their role. Any further silence will only strengthen our observation
and fear that civil society is either dead, or was merely motivated by
hatred towards certain individuals in DPP.We challenge civil society
to make their positions known on Section 65. We challenge civil
society organisations to speak against abuse of public resources, and
against the teething problems that are already a characteristic of the
new administration.

Call for a Distinct Strategy by Joyce Banda’s Administration

The DPP continues to observe that the new administration is operating
without its own known set of development philosophy. The new
administration continues to recycle and re-hatch DPP policies. In
essence, the new administration has resorted to running government
business using the DPP manifesto. This is contrary to the need for
what is called transparency of ideas where intellectual property
rights need to be respected to the uttermost. DPP operated under the
banner of creating wealth for poverty reduction where nine (9)
priorities within the MGDS priorities were central to the national
development agenda. Much as the new administration has decided to
continue with the development programs started by the DPP, it is
equally important for the new administration to come up with an
outline of its own distinct development agenda between now and the
next general elections. It does not make much sense for the new
administration and Her Excellency Mrs Joyce Banda to cond!
emn the DPP administration yet embrace its programs wholesale.

Similarly, the DPP wishes to remind Malawians of the remarkable
progress the then DPP administration made on food security where
Malawi was turned into a hunger free zone. This is a fact and it is
wrong for the current administration to start painting a wrong image
of Malawi’s achievement in food security. Similarly, the DPP
administration made strides in infrastructural development and this
too needs to be acknowledged. Under the DPP administration Malawi was
on record to be on-track four (4) key Millennium Development Goals
(MDGs). Lastly, it must be put on record that the fuel and forex
shortages Malawi experienced under the DPP were a combination of
factors which include the high demand for fuel and imports occasioned
by a growing economy. The record economic progress that Malawi
achieved between 2005 and 2009 meant that increased economic
productivity heightened demand for fuel and forex. For example, cars
were being imported at an alarming rate wh!
ile the construction industry multiplied its operations. On the other
hand, the forex and fuel shortages were occasioned by the withdrawal
of donor budgetary support. The donors faulted DPP on rule of law on
issues to do with Section 46, the injunction law, local courts law,
and same sex (minority) rights laws.

Conclusion

In conclusion, the DPP urges all players to help make Malawi a
prosperous nation economically but also politically where governance
and rule of law issues are not treated in a selective fashion. The
commemoration of our 48th Independence Anniversary should remind us
all of the need to jealously guard our Republican Constitution. All
regimes must be called upon to adhere to rule of law with equal
measure and this includes reminding the new administration of Her
Excellency Mrs Joyce Banda that the current government too is not
above the law. This is the only sustainable way of managing our
politics and economics in a way that anchors economic progress,
prioritises the interests of all Malawians, and gives hope to the
voiceless in our society

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  1. Getrude iwe, ndiye chani ichi.. hear!!! hear!!!

  2. herea, hear, hear

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