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.
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