The religion of nsima

Relatives from the village visit a brother or sister in town. The town dweller has ‘strange’ eating habits. Tiyi n’buredi for breakfast; rice and beef stew for lunch; and chicken salad for supper. The menu goes on like this until the relatives from the village say their farewells and are soon back at base. The curious ones ask how the folks’ stay in town was. Well the folks who had gone ku’tawuni complain that they were not being given food during their stay. There is mixed reactions all around. And you are probably wondering how the relatives from the village could say that when there was tea and bread; rice and beef stew; and chicken salad to boot. Well, there was no nsima.

Nsima in its two versions – one a grounded, white maize flour and the other a coarse, grounded, brown maize flour – is food in the banal Malawi gourmet narrative. Nsima made from white maize flour is in fact less nutritious than the one made from brown flour (locally called ‘mgaiwa’). And yet in this narrative, nsima made from white flour is for an elite – a pseudo–bourgeoisie – who ooze enlightenment and sophistication. Mgaiwa is for the less dapper; it is for the povo. The thing with nsima though is that it silently and more steadily persuades you into a slumber. I would not call the ‘state of mind’ a siesta. A siesta is more voluntary. The nsima–induced slumber is lethal in the sense that ‘things’ can happen in public which you wish happened in private. Examples of such ‘things’ abound.

The acculturation of nsima as food even influences national policy. It will not matter that there is bumper yield of rice, cassava, kachewere or mbatata; a significant drop in maize yield is equal to famine. It is that simple. It is so one–dimensional. The State will not encourage a diversified diet for the people. No. It will set in motion a disaster relief apparatus that sources maize from elsewhere in order to give people free maize so that they may have nsima. Such is the obsession with nsima that in the face of several scathing critiques of the sustainability of programs such as the Farm Input Subsidy Programme, the State merely tweaks this and that and life goes on.

So; it has been that for 53 years and counting – and in a nsima–induced slumber – Government loans have been hijacked as personal pet projects. The podium–politician announces, “Ndikumangirani nsewu apa.” And once the road is finished, the citizens fall over each other with verses of praise. An infrastructure development project loan – they are rarely grants – inviting showers of blessings.

The national water policy in Malawi is 12 years old and yet, in 2017, an MP rises in the National Assembly to request – not even demand – a borehole for his constituency. This is hyper– tragedy. Should we not be talking of water supply systems for a town, city or district? Indeed, in the same vein of water and sanitation, we have folks vigorously dancing at a ‘handover ceremony’ that they have stopped using the village thicket as their ‘toilet’. All this in 2017.

The energy crisis – nay the electricity power supply crisis – has been soundly vilified.  The State is failing to supply magetsi to 8% of its population. This is near-doomsday. Meanwhile, the same State has failed to absorb almost 70% of ‘other–people’s money’ to reinvigorate the same electricity power sector. There are more than tell–tale signs of corruption that have had a strangle–hold on the main players in the sector. The foot dragging by those who must rein in errant types only points to old boys’ club mentality.

Our internal debt is some stratospheric billions of Kwacha. No one has convincingly explained to the citizens how we got to where we are in the first place. Should we hold anybody – a public officer for example – accountable for taking us down the abyss as a country? In any event, the public officer is protected by an immunity provision in the law that precisely grants him immunity for action – even in cases of blatant neglect of duty – during the course of his duty. We have – very, very rarely – prosecuted a public officer for neglect of duty. So; we burn a grown man for the petty theft of a mobile phone handset. And we then hire an army of ‘prominent’ lawyers to defend the pot–bellied dude accused of stealing government dosh. And non–lawyers stand aside in awe of the ‘wealth’ of this pot–bellied fool.

There are calls – lately – for a citizen–driven accountability and transparency structure in the State system. I have written before about active citizenship under this column. What I did not say last time is that the State ‘expects’ each citizen as an individual to be responsible. Similarly, the exercise of the legal and political authority must be done responsibly. The ‘exerciser’ is to be responsible to the citizen as an individual and as a collective. The challenge – as I see it – has been that the strategy of holding the ‘exerciser’ of State authority to account happens at the collective and not the individual level of citizenship.

Nsima–yi tikanachepetsa. It has led to a nation–wide self–hypnosis that has not been very helpful at all. In 2018, let us get back to work. And harder.

The Stones Must Cry Out

On 30 December, 2017, this column published my piece entitled ‘The religion of nsima’. The piece was re-published on 27 January, 2018. The piece is, at once, a frustrated tirade, and, at the same time, a call to action. The frustrated tirade side of it highlights the nation–wide self–hypnosis afflicting the motherland. The call to action stressed that, in 2018, we must get back to work. And harder. I further stated that the State ‘expects’ each citizen as an individual to be responsible. Similarly, the exercise of the legal and political authority of the State must be done responsibly. The ‘exerciser’ is to be responsible to the citizen as an individual and as a collective. I further stated that the challenge in Malawi has been that the strategy of holding the ‘exerciser’ of State authority to account happens at the collective and not the individual level of citizenship.

2018 draws to a close in two days’ time. It seems to me that some of us did go to work in the year. And worked harder. But unfortunately, it was never in advancing the agenda of the country. Throughout the year, we have had one disheartening story after the other.

The electricity sector in this country continues to disappoint the citizenry. We have been reduced to ‘proudly boasting’ about an hour’s power ‘ON’. The other day, we even went to that border town, clad in specially made golf shirts and zirundu, to jump and prance about some 20 megawatts from ba-Lungu. All this has happened in the wake of the pomp surrounding the arrival of majeneleta. All this has happened in the aftermath of the story of alonda who ‘drunk’ themselves silly on 3 million litres of mafuta.

Various pieces of this column have proffered critiques, opinions and what not on a plethora of subjects: The 50+1 debate on the determination of the presidential vote rages on. All parties seem unanimous in their preference for the first-past-the-post system. We shall, therefore, one day have a President Elect with as little as 10 per cent of the national vote. (What with 50+ political parties registered under our law.)

The quality of governance can be better. True to form, the State President and the State Vice President have fallen out. (The State Vice President is now the leader of the Muv’menti.) The constant fall out of the State President and the State Vice President points to the failure of our podium–politics to recognise and embrace the constitutional conventions that must complement the text and practice contained in the Constitution of the Republic. Our podium–politics can be super–petty at the expense of the national good.

The intraparty democracy in this country remains a challenge. Our main political parties have a story or two they wish never found the light of day. ‘Primaries’ for the election of ma-shadow have not been drama-free. The 50:50 campaign for the empowerment of women politicians seems to have been sabotaged by entrenched patriarchal tendencies. Women are even at the wrong end of insults from members of Cabinet. (Sorry; it is not all women. It is two women.)

Our political public officers continue to take the citizenry for fools. The purported explanation of the K4 billion bounty in Parliament; The 145; Kaloshwe; and them. All of these leave a lot to be desired. Za-Esikomu sitinena. Not only are our political public officers taking us for granted, they have gone a notch up and are now re-writing the country’s history of the nationalist, independence struggle. Public finance mismanagement continues like nobody’s business. Sometimes, one has to ask: Where is our umunthu?

…

In this column, I have previously contended that a good education implies attainment of knowledge.  An uneducated general population lack knowledge. Knowledge is a resource of power.  A ‘knowledgeless’ society is powerless. A lack of ‘power–knowledge’ shall imply that a whole general population is incapable to critique. Critique is an integral part of governing. Political yobism, in this country, has arisen out of paucity for critique among the citizenry. Critique shall be important as the political campaigning gets fierce in the New Year.

…

My mother, like most folks of her generation, is extremely religious. This generation has passed on their fierce belief in a Supreme Being to their offspring. So; every 5.30 am, it is morning devotion; at 9 am, women’s choir meeting; at 2pm, church projects committee meeting; at 5pm, evening devotion; and at the weekend, Christian warriors meeting. Week in. Week out. I think my mother and her friends at her church have already negotiated the narrow path to Heaven.

My mother and her friends symbolise the typical Malawian. (You can substitute the reference to Christianity for any other faith.) The belief in God in this country is palpable. There is no prize for guessing that in 2019 there shall be a national day of prayers for free and fair elections.

It is okay to pray. It is actually cool if you are that inclined. But God gave us a brain. After all the praying; speaking in tongues or whatever it is, is done, let us remember to use our brains.

The stones must cry out.

Paja–nso Nsima–yi tisiye. Wawa.

The right to no oath (sin'lumbira)

An oath, in simple terms, is an invocation to the gods to bear witness that one’s statement, promise or commitment is true. It is a unique and loaded act of promising. The person taking the oath is saying that I am prepared kuwona malodza if I break my promise or commitment. Historically, oaths are the truth. Any disputation of an oath is blasphemous. Indeed, the god – the supreme being – as a witness links oaths to religion and the occult. Oaths, especially in the context of pledging loyalty to the Sovereign, are critical. The ceremony of the oath is equally important: the precise wording, the gesture and the location. Any departure from the accuracy of the oath invalidates it. [Chief Justice Lovemore Munlo, SC had to repeat certain phrases in the Oath of the Office of the President during the inauguration of Joyce Banda as President of the Republic of Malawi. The repetition was to ensure that the exact wording of the oath has been followed.]

Scholars have observed that oaths of office are oddly pervasive in largely liberal–democratic constitutional orders. Oaths commit public officers to the mandate of their office. However, the bonding is done through the invocation of divine or religious sanction in the discharge of duty. This is where the paradox of the oath of office lies. Liberalism is said to be based on purported secular modernity. In other words, government must be based on the rationality of thinking and not deferred to some amorphous power or centre of morality. An oath of office brings together the relationship of religious conviction, moral principle and political power. The oath – as a theological construct – rattles the secularity of liberal constitutionalism. Hence, oaths (or affirmations as their secular adaptations) remain endemic in our public law and administration.

The Constitution of Malawi does not declare Malawi a theological Republic. The Constitution –rooted as it is in liberalism – portrays its secular underpinnings in the Preamble by the ‘[p]eople of Malawi’ ‘[h]ereby adopting’ the Constitution. At the same time, all elected public officers (the Presidency, Members of Parliament or Councillors) are required to swear or solemnly affirm their allegiance to the Constitution. The oath of the Presidency, for example, states,

 

“I, […] do solemnly swear that I will well and truly perform the functions of the high office of President (or Vice-President) of the Republic of Malawi, and that I will preserve and defend the Constitution, and that I will do right to all manner of people according to law without fear or favour, affection or ill–will. So help me God.”

 

Technical–public officers are similarly required to take an oath or affirmation. And Judges too.  All these must equally “do right to all manner of people according to law without fear or favour, affection or ill–will.” And God must help them.

 

The oath of the Presidency, for example, commits the relevant officers to, among other things, defend the Constitution. In public finance management, it is a constitutional principle of national policy that the State “guarantee[s] accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and visibility will strengthen confidence in public institutions.” I will not even delve into the principles of constitutional supremacy, rule of law, equality before the law and others. The constitutional principle I cite states, in part, that an effective and visible [standard] of financial probity strengthens the confidence of public institutions.

 

I have lost count of the many instances of (possible) kusolola of public funds. The motion picture has been so action–packed it has been a tad dizzying. There have been petitions, threats of demonstrations, actual demonstrations, and diatribes in newspaper columns (including this column). The plunder of State resources has not relented. Those who took oath to defend the Constitution have not done any defending so far. Meanwhile ndalama za a-Malawi nzu’nka nu’pita.

 

That is why I think there should be a right to no oath (Ine sin’lumbira).  The pomp and ceremony that engulfs the taking of the oath of office must be accompanied by a flip, albeit short, lecture that explains to a would–be oath–taker the implications for ignoring the Constitution and the laws of Malawi. If a would–be oath–taker declares that he or she cannot live up to the high levels of integrity envisaged by our laws, then they should perhaps not become the elected or technical public officer they seek to become.

 

Otherwise, n’tawuni–mu akuti masikombingo achuluka.

Electoral despotism (A'mbani mwayima)

In less than six months’ time, eligible voters in Malawi will line up at various polling stations across the country to cast their votes in order to determine who shall be given the mandate to assume public offices in the Presidency, the Legislature and the Local Government Authority system. The date to cross on our 2019 calendars in this respect is 21 May, 2019; tsiku lodzasankha Pulezidenti, a-Phungu ndi ma-Khansala.

The official campaign period shall be declared in March, 2019. However, true to form, we are well and truly in campaign mode right now. (The cheeky ones amongst you are probably saying we went into campaign mode on 21 May, 2014 – a day after the 2014 tripartite elections.) APM and his team are hitting the trail holding ‘development rallies’; cutting ribbons on new Gaff’ment projects; and laying new stones to replace old stones – as promised pulojeketi continue to lay in abeyance! On the other side, the frontrunners seem to be SKC, Rev Laz and Amayi. Are there others? Who knows.

If we may locate Malawi in the wider African prism, scholarship has long arrived at a consensus that multiparty politics and elections is not the same as electoral democracy. There is acknowledgement that the African polity has witnessed an uneven electoral playing field, unashamed manipulation, violence and intimidation. Indeed, in Africa, the formal electoral process ushers in a government that (often) has no respect for the rule of law. The African electoral system – looked at this way – is a process of legitimation. In the academy, there is an army of scholars dealing with this phenomenon which they call ‘Electoral authoritarianism’ (Folks like Andreas Schedler & them out there; and Nandini Patel, Comrade Che & them locally).

I highlight here the lessons we have not learnt as a country when it comes to the electoral process. Second, I also highlight what Dick Snyder has called ‘extra-electoral factors’ as we continue on this journey to 21 May, 2019.

First, the process: We continue to treat an election in this country as an event and not a cycle. When we voted on 20 May, 2014, for example, did we put the systems in place in readiness of the next voting day, namely, 21 May, 2019? Each general elections post-1994 has witnessed knee-jerkism by those we have entrusted in managing the elections. It is as if we suddenly wake up from a deep slumber only to be told that that there is an election tomorrow. Voter registration, polling station management, ballots collation; all these leave a lot to be desired. Right now, we have ‘kits’ being found in Mpanyila and our Commissioners are only – now – claiming the found ‘kits’ when they did not declare the ‘kits’ lost in the first place.

There are also a number of legal m’kute we have not resolved in our electoral system. Two examples come to mind. The first example I may post here relates to the meaning of ‘majority’ in the context of the presidential poll. The issue came up in the Gwanda Chakuamba (Mwabera Voti) Case of 1999. The courts followed simple majority. The lawyers will tell us that nkhani yatha. I remain of the view that it is a matter that should be resolved – definitively – outside the courts.

The second example relates to the obligation placed on the Electoral Commission to announce the election results within 8 days after voting has closed. A case came up after the tripartite elections of 2014. Depending on which ‘colour’ you are, Justice Kenyatta Nyirenda is either a hero or a villain. The wider point here is this: In the intervening period between 2014 and 2019, no one in the podium–politics class has forcefully argued for the amendment of the relevant section in the electoral law relating to announcement of election results. Kwakhala kuli zii.

Now on Snyder’s extra–electoral factors: He urges us to ask four questions. First,  who rules?— party elites, a personal leader,  the military, or the clergy. Second, how do rulers rule?— by means of patron-client networks, ethnic ties, or a mass-based party. Third, why do rulers rule?— out of greed, ethnic hatred, or a commitment to a religion or ideology. And fourth, how much do rulers rule?—that is, whether anybody rules and, if so, to what degree. The military, clergy, religion or ideology have not been – to a large extent – critical factors in electoral outcomes in Malawi so far. An unfathomable trilogy of a Messiah, Patron–Client networks, and Ethnicity has been the major determinant of elections in this country. As we approach 21 May, 2019, the Malawian electorate needs to be on the lookout for tired lies, kolaposono tendencies, and ethnically–based hate masquerading as celebrations of ‘culture’.

***

A bout of perceived diarrhoea going on for some 6 months and counting may not be diarrhoea after all. As Gwaladi Joe ‘raps’: ‘Thumbocid musiyeni/Kangoyezesani’. 21 May, 2019 should be the date you seek a new diagnosis as you – the voter – sees fit.

Bioconstitutional algorithm

The French intellectual, Michel Foucault, expounded a thesis on knowledge and power; and more precisely ‘power–knowledge’.  For present purposes and at the risk of some serious reprimanding from Foucauldian purists, a severely reductionist version of the thesis is that power produces knowledge but at the same time power and knowledge imply one another. Knowledge flourishes in the presence of power. Knowledge must involve the understanding of the power dimensions involved in the production of knowledge. Knowledge is a major resource of power.

 

The Constitution obliges 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, among others, gender equality; adequate nutrition for all in order to promote good health and self-sufficiency, adequate health care, commensurate with the health needs of Malawian society and international standards of health care; enhance the quality of life in rural communities and to recognize rural standards of living as a key indicator of the success of Government policies; provide adequate resources to the education sector and devise programmes in order to eliminate illiteracy in Malawi, make primary education compulsory and free to all citizens of Malawi, offer greater access to higher learning and continuing education; The Constitution also states that the State shall promote national goals such as unity and the elimination of political, religious, racial and ethnic intolerance. Regarding economic management, the Constitution states that the State shall nurture a market economy and long–term investment in health, education, economic and social development programmes in order to achieve a sensible balance between the creation and distribution of wealth among the people of Malawi. I am quoting the Constitution liberally here. The point is that those of our public officers that are obliged to develop and implement national policies are not doing the people of Malawi any favours. It is what they are paid for.

 

I went through the State funded education system in Malawi between 1978 until 1997 when I left the college that the gods apparently love the most. The education system had its challenges but we cannot compare with the tragedy of our system today. Folks who cannot afford to pay the fees that private schools are charging are bound to get a raw deal for their child. It is a situation where if you are an office messenger in the public sector, your child will probably be an office messenger as well if not worse off.

 

Is it not treasonous that we continue to hear of theft of drugs in public hospitals (that is when the drugs were available)? Our mothers continue to needlessly die during child birth. Children dying because of lack of this or other. How much does it cost to fix an elevator? How can we have a whole poster at a referral hospital announcing: ‘Do not charge for carrying patients’?

 

The socio–economic profile of the country reveals stagnation. The economy has remained perilously agro–based. The poverty levels continue to grow. There are less than 250,000 main telephone lines in the country. There are less than 400,000 internet users in the country. There are five ports on the shores of Lake Malawi. There are less than 2,000 kilometres of rail line in the country. There are less than 10, 000 kilometres of tarmac roads in the country. I went to Robert Laws Secondary School in 1988 and left in 1992. The road from Jenda to Embangweni did not have tarmac. It does not have tarmac today. [Someone is shouting construction is underway. I will celebrate when the road is finished.]

 

There has been a pettiness; a laissez faire attitude to governing in this country. We can do better. At the moment, our main political parties are deep in throwing mud at each other. No clear explanation of what plans are afoot for governing between 2019 and 2024.

 

The Constitution presupposes a critical citizenry that demands that those who exercise the political and legal authority of the State do so following a system – an algorithm – that is founded on the values of the Constitution itself. A bio–constitutional algorithm. So far, the country has been corrupted by different shades of political malware taking the country in a meaningless merry–go–round.

 

If a good education implies attainment of knowledge, it follows that an uneducated general population lack knowledge. If knowledge is a resource of power, then a ‘knowledgeless’ society is powerless. A lack of ‘power–knowledge’ shall imply that a whole general population is incapable to critique; I dare say. Critique, I argue, is an integral part of governing under a bio–constitutional algorithm. The absence of critique in our country has led to the political yobism we witness around us. Critique is not merely pointing out that there is a problem. It is a sustained pursuit of a culprit and calling the culprit to account. We rarely do that hence our public officers – especially the political–public officers – have been getting away with murder. As the political campaigning gets fierce, the citizenry ought to see through the (most likely) empty rhetoric that will bombard them.

 

Mongokumbutsana. Nsima–yi tisachepetse. Nsima–yi tisiyiretu.

 

 

BeBe Nation

On 30 December, 2017, I pleaded here that nsima–yi tikanachepetsa. 18 weeks into the New Year, it has not only been raining, it has been pouring. Everywhere one turns, it is a disheartening story after another. The economy continues to limp (I will not clap hands when all we have gotten is more ngongole), the education sector has no signs of recovery, and the health sector – according to the print media – is in fact collapsing.

I have written here before about the lack of intra–party democracy in this country. The events of the last few weeks in the main political parties leave a lot to be desired. The folks in Red are serving each other one injunction and some; the folks in Yellow are tussling over zida za bandi; the folks in Orange have banished from their ranks those who claimed the big mpando for themselves; the folks in Blue are anti–makanda; and AforD now has two presidents.

I have seen the constitutions of the Malawi Congress Party, the United Democratic Front, the People’s Party, the Democratic Progress Party and Alliance for Democracy (AFORD). All these founding documents are robust documents and – certainly from1994 – mirror the values of the Constitution of the Republic. And these values may be paraphrased as follows: people sovereignty; public and social trust in the exercise of legal and political authority of the State; open, accountable and transparent governing; informed democratic choice; inherent dignity and worth of each human being; equality before the law; and rule of law.

What has been happening in these main political parties is as far away from the constitutional values that I have shared here as is the North Pole and South Pole. The constitutions are good for the formality of registration of the parties according to the relevant law. The text of the constitutions is never genuinely intended to be implemented on the ground. The constitutions are a liability to the gang in each of the political parties that has captured the (biopolitical) power. Hence, we are left to watch a display of smirking, irreducible dimness where the youth are useful as circus clowns painted in party colours running around in midoli-induced trance. The women continue to shake their booties while singing songs with one line lyrics. The men are in some competition about who can shower the most insults. And then finally the Big Kahuna or the Big Mayi stands and speaks. We can do better.

…

In the same context of intra–party democracy, a divisive debate has erupted in the country on age and political leadership. In the academy, age has very rarely been treated as a concept on its own. Such that studies on the relationship of age and leadership have been scarce if not outright non–existent. The Leadership Quarterly, for example, published, over a twenty year period, one study on the relationship of age and leadership.

Locally, during the constitutional debates of 1993 to 1995, it is not clear from the records that the age (whether minimum or maximum) of a candidate for political office was a sticky issue. So; among other things, if you are 21 years old, you can run for the office of Member of Parliament. If you are 35 years old, you can run for the Presidency. However, the controversy surrounding age arose during the constitutional review of 2006 to 2007 led by the Malawi Law Commission. During this process, certain of the constituents wanted the Constitution of the Republic to prescribe a maximum age limit for presidential candidates. The Law Commission disagreed and stated that “this is a political issue best left to the political process. Political parties should be given enough leverage to field a candidate who is acceptable to the electorate and if this candidate fails to convince the electorate of his or her youthful exuberance, such candidate will be naturally removed by the process.”

In the analysis of the relationship of age and leadership what one finds is that the query must revolve not so much around how old or young you are but on the extent to which you are transformational, transactional or what Hannes Zacher and Others call ‘passive-avoidant’.

Parting shot: The National Statistical Office in Zomba has informed us that 55.8 per cent of the population of Malawi is aged between 0 and 19 years. Those in secondary school, tertiary institutions or gainful work or employment – these are those between 20 and 64 years of age – are 39.9 per cent of the population. The over 65s form 4.3 per cent of the population.

Nsima–yi tisachepetse. Nsima–yi tingosiyiratu.

Into the Coffers 3.0

I intended to write about the 145. But I changed my mind and settled on writing about electoral authoritarianism. I changed my mind yet again after that press conference. That one where members of the Democratic Progressive Party politburo said that the 145 will be refunded to the “donor”, Zameer Karim trading as Pioneer Investments.

There is civil litigation that has been instituted in the High Court of Malawi on account of the 145. The court case is Registered Trustees of Youth and Society versus Greizedar Jeffrey and Charles Mhango (on their own behalf and on behalf of the Democratic Progressive Party), Zameer Karim trading as Pioneer Investments and Innocent Bottomani. Standard Bank Plc, National Bank of Malawi Plc, the Director of the Anti–Corruption Bureau and Dr. Ronald Mangani are parties cited in the case. The case is yet to be resolved by the High Court. For present purposes, I will note that the facts so far reveal that the trail of the 145 is that it is money that arose out of (possible) fraud perpetrated at the Malawi Police Service; a fraud that involves the Payaniya Bizimezi. Payaniya then deposited the 145 into a bank account whose name is ‘Democratic Progressive Party’ and whose sole signatory is the incumbent State President of the Republic, Professor Arthur P. Mutharika.

In the case that I refer to above, the bank accounts belonging to Payaniya and Democratic Progressive Party have been frozen because of court orders that the High Court has issued. The accounts that have been frozen relate to the 145 transaction trail. This means that unless the freezing orders are removed on applications by the affected bank account holders, no transactions can take place using the respective bank accounts. A–Payaniya sangatape khusa mu akawunti–mo. Kwinakonso bwana–wo cheke akalemba chibawunsa.

The press conference that the members of Democratic Progressive Party politburo held raises more questions than answers. Where will the refund of the 145 come from? It cannot come from ‘The Account’; that account is frozen. Where will the refund be made? Akawunti ya Payaniya ayamba atseka a–Khothi. Besides, should it not be the sole signatory of the Democratic Progressive Party’s account – the State President – explaining to the people of Malawi how moneys in an account he is in charge of got into the account in the first place? Why is it that overzealous ‘pseudo–proxies’ have bombarded us with zillion explanations regarding transactions in an account that they probably did not know existed before that leak? Indeed, since the 145 is proceeds of (possible) fraud at the Malawi Police Service, what are these fervent go–betweens telling Malawians? Is it some unwitting admission of participation in a criminal enterprise unfolding right in front of us? Is that what it is? Beware what you say! There is Republic versus John Chikakwiya and Republic versus Yusuf Mwawa out there!

Beyond the manic mganda of Payaniya and ‘The Account’, as a country we must re–open the debate regarding the extent to which the State President of the Republic is immune to criminal prosecution under the Constitution. I am aware that there is a Private Member’s Motion pending in Parliament on the matter. However, I think it is a matter that the wider Malawian society should reflect on. The purported immunity of the State President from criminal prosecution is covered under section 91 of the Constitution. The section reads as follows:

“(1) No person holding the office of President or performing the functions of President may be sued in any civil proceedings but the office of President shall not be immune to orders of the courts concerning rights and duties under this Constitution.

(2) No person holding the office of President shall be charged with any criminal offence in any court during his or her term of office.

(3) After a person has vacated the office of President, he or she shall not be personally liable for acts done in an official capacity  during  his  or  her  term  of  office  but  shall  not otherwise be immune.”

The prevailing view has been that because of the language under section 91 sub–section (2) of the Constitution, a sitting State President cannot face criminal charges in any circumstance. I differ from this position because of what section 91 sub–section (3) of the Constitution says. The provision says that when a State President leaves office he cannot be liable for things he or she did in an official capacity; underline ‘official capacity’. The question that arises is that what happens when a sitting State President has done things that are clearly unofficial and also reveal criminality? My position is that criminal behaviour cannot amount to the exercise of official functions of the State. It cannot be protected under section 91 of the Constitution. In any case, the exercise of legal and political authority of the State is based on the sustained trust of the people of Malawi. How will the people of Malawi trust a public officer – including the State President – if they discern criminality? How does a public officer – including the State President – discharge the constitutional obligation regarding open, accountable and transparent governing if they are involved in criminality? Perhaps, the High Court can settle the ‘Section 91 Question’ once and for all. I conclude that shenanigans like ‘The 145 Affair’ were never meant to be protected under section 91 of the Constitution. Wawa.