The Malawi genus

Last week, Thoko from Bangwe shared with us his views about the on-going national identity registration exercise. He highlights the benefits of a national ID scheme; at the top of the benefits being the possibility of an efficient public service delivery system. By and large, Thoko also highlights the challenges that a national ID scheme may bring; disenfranchisement and the excesses of a nanny State among others.

 

The national identity registration exercise has also revealed a rather unfortunate scenario. Those who consider themselves Malawians – born, bred and walk the soil – and yet they are not ‘black’ or indeed speak ChiChewa/ChiNyanja with an ‘accent’ have had their claims to what I call the Malawi genus questioned or outright thrown into the trash can. These sad stories are awash in both social and print media.

 

The revelations point to a deep-seated narrative of what constitutes the Malawi genus – species – of us the human beings who for one reason or the other call this potato-shaped territory of this Earth home. This deep-seated narrative relates to the conception of ‘identity’. The conception of ‘identity’ has exercised academics, legal and policy makers over the years. The limitations of space here are such that I cannot fully espouse the conception of ‘identity’ in the Cultural Identity school in the academy or its configuration at law and policy. Suffice it say, for present purposes I will seek to share some thoughts on ‘identity’ based on a ‘Belonging’ / ‘Othering’ dichotomy.

 

There are aspects of ‘identity’ that are based on categories such as ethnicity, race, language, religion, a (national) culture, gender, orientation or citizenship. The way we identify ourselves depends, in large measure, on how we feel about, or value, that which we consider as the dominant influence of our being. The feeling (the psyche) or the value-system we attribute to ourselves will inform the dominant weight on that which defines our sense of belonging. In this way, there are some of us who place more weight on one category more than the other in the process of identifying ourselves. In this way, a person may place weight on ethnicity, race, language, religion, a (national) culture or citizenship to differing degrees in order to identify themselves.

 

Othering in relation to ‘identity’ is oppositional. Othering involves a process where oneself conjures an ‘identity’ of difference; of denying. The ‘self’ that is othered is often denigrated as lacking the state of ‘same-ness’. So, we learn that Greeks called – othered – all non-Greeks as barbarians. Barbarians did not have the same-ness of Greeks. Barbarians were different. Barbarians were denied the characteristics of reason, dignity or nobility that defined human-being-ness according to the Greeks. In modern society, the Other may be a race, a religion, gender or nation-state. In other words, the process of othering is almost always underwritten by a sense of superiority.

 

Indeed, othering has been a result of clash of civilizations. This is pervasive in history: The voyages of discovery and the scramble of Africa are some examples. Othering has also been a result of the Freudian ‘narcissism of minor differences’ whereby group A others group B because group B is seen as a threat to the identity and pride of group A. This Freudian dimension has led to the Holocaust, the Rwandan Genocide and the Bosnian Genocide.

 

[A rider: the categories of ‘identity’ may at once be empowering and subjugating. History and context will matter.]

 

So; what is the Malawi genus? Who is in the Malawi genus? The Malawi genus is primarily defined by citizenship. Who becomes a Malawian citizen is down to, generally, the circumstances of one’s birth, the process of naturalization or even as a result of marital relations. Broadly described, our citizenship law allows a child born in the country to acquire Malawian citizenship; a person acquires Malawian citizenship through naturalization on account of long-term residence; and a person acquires Malawian citizenship on account of marriage.

 

The episodes, therefore, of those Malawians who are ‘not-black’ or speak ChiChewa/ChiNyanja with an ‘accent’ and had their claim to u-Nzika questioned or denied are most unfortunate and deplorable. We need some robust reflection in this country. We must realize that the Malawi genus is not composed of a unified and (easily) determined ‘identity’. The Malawi genus is a mosaic of ‘sub-identities’ which – to use the language of Cultural Identity scholarship – is often contradictory or unresolved identities. Hence, in the exercise of State authority, a public officer – at whatever level – must not be clouded by the lenses of skin colour or lingua. We must move from m’Tumbuka, m’Chewa, m’Chawa, Nguru, m’Mwenye, m’Kaladi yada-yada. There are robust ways of verifying one’s Malawi-ness. And one of those ways is not the colour of the skin or (purity of) accent. The othering must end.

13 billion ways to whine

Our local government authorities are governed, at law, by the Local Government Act. Under the Act, a local government authority has the following functions: to make policy and decisions on local governance and development for the local government area; to consolidate and promote local democratic institutions and democratic participation; to promote infrastructural and economic development through the formulation, approval and  execution of district development plans within its jurisdiction; to mobilize resources within the local government area for governance and development; to maintain peace and security in the local government area in conjunction with the Malawi Police Service; to make by-laws for the good governance of the local government area; to appoint, develop, promote and discipline its staff; to cooperate with other Councils in order to learn from their experiences and exchange ideas; and to perform other functions including the registration of births and deaths and participate in the delivery of essential local services.

The essential services that a local government authority must discharge include the provision of environment and health services, physical planning, parks and recreation, works services, education services, development, and finance services to mention a few. So; as residents of local government areas, our expectation – a legitimate one for that matter – is that our council shall be responsible for the administration and management of good access roads that are well lit at night; the administration and management of well-resourced health centres; the administration and management of local education authority (‘LEA’) primary schools with well-ventilated classrooms to boot (no learning under some tree please); the administration and management of commodities markets; and indeed, the administration and management of kuntaya for our zinyalala.

The Local Government Act states that the Minister may declare a local government area as a ‘township’ or ‘municipality’. The Act goes on state that it is the prerogative of the President of the Republic to confer the title and dignity of ‘City’ on a municipality. Hence, the designation of ‘City’ on a local government area is no small matter. It is such a big deal. In 2017, we have four cities in Malawi: Blantyre and Zomba in southern Malawi, Lilongwe in central Malawi, and Mzuzu in northern Malawi.

Local government authorities – and these include our cities – have the power to raise money, whether by means of rates or borrowing. The generation of revenue ensures that a local government authority is capable of discharging to its residents the essential services that we have pointed out above: environment and health services, physical planning, parks and recreation, works services, education services, development, and finance services.

In relation to our cities, the average resident does not hesitate to bash the apparently poor services that our city fathers and mothers provide. The resident will moan about the potholed roads in our neighbourhoods; he will whinge about the long in disuse sewage system; and what about the no-show waste collection truck or indeed the pitch dark nights because the street lights are not working.

You – the resident – must hold your peace and listen to this: If we restrict our story to the four cities in the country, the city councils are owed a little over 13 billion Kwacha in unpaid city rates. Lilongwe residents are the worst with some 8 billion Kwacha due and owing to the city authorities; Blantyre residents owe some 2.8 billion Kwacha; and Mzuzu and Zomba residents are some 1.2 billion Kwacha respectively in the red.

City rates – as a form of revenue generation by a local government authority – are a tax that a resident must pay to the council for the services that the council renders. The non-payment of city rates that is pervasive in our cities is most unfortunate. As residents, we cannot have our cake and eat it. If we are of the view that we deserve five star provision of essential services from our councils, let us pay our city rates.

It is our civic duty to pay city rates when they are due. I am reliably informed that some city rates’ accounts have been due and owing as far back as 1999. This is simply deplorable. A kid born in 1999 will be eligible to vote in the general elections of 2019. It shouldn’t be this bad. The Malawian Constitution also states that every individual has a duty towards the State with due regard, among others, the common interest. Therefore, this is the message: Before you grumble about that potholed road, the pitch dark night in your downtown and what not; do me a favour and pay your city rates. Once you will have paid your city rates, you will have earned your right to whine about the perceived misconduct of a local government authority.

How noble is the noble profession

Lawyers have a manner of speaking. They are counsel. They are learned friends. And they are in a noble profession. On 27 May, 2017, the Malawi Law Society published in the media the disciplinary matters that came before its Disciplinary Committee and the recommendations the Committee has made in those matters.

For the longest time, one had to go back to1994 to find a case where a lawyer had been disbarred for professional misconduct. [Of course, there has been a disbarment in 2016.] In the intervening years since 1994, the general public formed the view that lawyers in Malawi ‘protect’ each other even in the face of alleged misconduct by a lawyer.

The Malawi Law Society (and its membership) is regulated by an Act of Parliament. The Society also has a Code of Ethics – nineteen chapters of it – on the dos and donts of lawyers. The Code has benefitted from codes of ethics from other jurisdictions; including the International Bar Association’s International Principles on the Conduct of the Legal Profession. There are some ten principles or so that buttress the principles for the regulation of the legal profession. First, the Society’s Code states – in the very first chapter – that a lawyer must not act in a manner that weakens the public respect for law or the justice system or interfere with its fair administration. This is a central obligation to the conduct of lawyers. The other principles state that a lawyer must exercise independent and unbiased professional judgement. The task has never been about what the lawyer or the client thinks; it has always been about what is the law. Second, a lawyer must demonstrate the highest standards of honesty, integrity and fairness with clients, the courts, colleagues and all those the lawyer is in professional contact. Third, at all times, a lawyer must avoid conflict of interest. Fourth, a lawyer must practice confidentiality or professional secrecy. Information a lawyer receives from a client is acquired on trust. Such information cannot suddenly be open folder at a bar or hair salon. Fifth, a lawyer must account, promptly and faithfully, the property of a client and third parties. A client’s property is the client’s property. Mere possession of such property does not entitle a lawyer to use the property for his personal benefit. That would be kuba.

Sixth, a lawyer must also honour the undertakings he makes to clients. Another principle is that a lawyer must respect a client’s freedom to be represented by a lawyer of their choice. A lawyer cannot force themselves on a client. If a client forms the view that they must be represented by a different lawyer, the lawyer must take it on the chin and move on.

More critically, a lawyer must exercise utmost competence. He must carry out his work competently and in a timely manner. There’s no one hundred per cent in the legal profession. There’s one thousand per cent. It is great to look dapper in a designer suit, shirt, tie and shoes. But at the end of the day, the client does not pay the lawyer’s fees for merely looking sharp. Finally, and talking of fees, a lawyer must earn reasonable fees. A lawyer shall not charge unreasonable fees. Clients are not an auto teller machine in order to support a flamboyant lifestyle. No. In fact, it is good practice that a lawyer and a client discuss and agree on the billable hourly rate at their very first meeting to ensure that everybody is on the same page.

The principles that I have shared here underpin the regulation of the legal profession in a bigger galaxy of the rule of law and good governance. The Society’s Disciplinary Committee’s public announcement of the cases it has handled and the possible way forward is a welcome development.  For what it’s worth, the announcement dissuades the fears of the general public that lawyers in Malawi somehow operate in chipwi’kiti world; that they are untouchable and above the law. The last thing a country would want is a situation where the general public does not have the trust for the whole or part of its justice system. The disciplinary process must, however, go the whole hog. The Disciplinary Committee must, ideally, continue to work hand in hand with the Honourable the Attorney General to ensure that those that have been adjudged with cases to answer have their day before the Honourable the Chief Justice. Anything less shall mean a very unfortunate scenario of naming and shaming.

Besides the disciplinary process that the Law Society oversees, there are instances where the conduct of a lawyer forms a reasonable basis that a crime has been committed. Surely, those cases have to be acted upon by the relevant law enforcement agencies in the usual manner they would act if the person involved were a non-lawyer.

It aint all doom and gloom. The legal profession – just like any family – has its share of naughty kids. The father figure – like the Law Society’s Disciplinary Committee – does pull out the whip. And there are also well behaved kids in the legal profession. In fact, plenty of them. Yours truly, I dare say, is one of those good mannered kids!

Can you speak and read the English language

One of the new land laws enacted by Parliament last year is the Customary Land Act, 2016. Among other things, the Act states that there shall be a traditional land management area under each traditional authority in this country. Under each traditional land management area, there shall be a customary land committee which shall oversee the administration and management of customary land in the traditional land management area. A customary land committee shall be served by a land clerk as its secretary. The Act states as follows about the land clerk: The clerk shall, among other things, possess a Malawi School Leaving Certificate or its equivalent.

This got me thinking about who is eligible to become a councillor, a Member of Parliament or the President under Malawi’s political system. For our discussion today, we note that in relation to eligibility of councillors, the Local Government (Elections) Act state that a person must be able to speak and to read the English language well enough to take an active part in the proceedings of the Council; in the case of eligibility of Members of Parliament, the Constitution states that a person must be able to speak and to read the English language well enough to take an active part in the proceedings of Parliament; and for the eligibility of President, neither the Constitution nor any law of this country state anything about the presidential candidate’s capability to speak and read the English or other language in the discharge of his duty as a President.  While the English language test is an eligibility factor for a potential councillor or a Member of Parliament, it is not a requirement for a potential President.

The language test is a relic of Malawi’s colonial past under British rule. English was the language for conducting Government business. The norm has remained post-1964. The Constitutions of 1964 and 1966 respectively provided for the language test. And English remains the language of conducting Government business in this country. The matter of the language test, certainly for parliamentarians, exercised the minds of the special Law Commission on the review of the Constitution in its report of 2007. The Commission conceded that the available statistics indicated that very few people have formal educational qualifications in Malawi. [The figures were as low as 16 per cent for men and 8 per cent for women.] However, the Commission still recommended that formal educational qualification of a Malawi School Leaving Certificate or its equivalent must be introduced to the relevant constitutional provision on eligibility of a person to stand as a Member of Parliament in an election. The Commission also recommended the formal educational qualification of a first degree from a recognised institution in the case of the eligibility of a candidate to stand as a presidential candidate. As it happens, the Commission’s recommendations have not been passed into law. 10 years and counting.

A minimum level of formal educational qualification is important for entry into our political system. A formal educational qualification, in my view, gives others a sneak peek – an assumption – of one’s level of competence and comprehension of issues. And indeed, whether they will be fit to fill an available position. It has been stated here before that the discharge of (political) public office must bear in mind the interests of the people of Malawi; their trust; and the requirement to uphold an open, accountable and transparent government. In recent years, a practice has emerged where parliamentary committees have been tasked with vetting ambassadorial appointments; inquiring into possible infractions by the Executive; conducting interviews to fill vacancies in such important offices as the Clerk of Parliament. Indeed, the full House of our Parliament vets such positions as the Chief Justice and the Inspector General of Police.

It makes a mockery of the system that an interviewer should be demanding the production a formal educational qualification from an interviewee when it is possible that the interviewer has no formal educational qualification whatsoever. It is unfathomable that the serious business of Parliament must be left with folks who I cannot confidently assume their competence or comprehension of matters before them.

We now live in a highly technical global village. The reports and memoranda that flow from the offices of our technocrats in Government are highly specialised and technical. A Member of Parliament who merely speaks and reads the English language well is not – surely – good enough. And when it comes to the Presidency: Well; all our four Presidents have had formal educational qualifications. Woe the day when a President shall be elected who does not have a formal educational qualification and cannot speak and read the English language well enough. Remember, chingerezi is not a requirement to become a presidential candidate. In the 21^st century, as a country, we must be demanding formal educational qualifications for assumption of political public office to – at the very least – possibly enhance the quality of our political system. If we demand formal educational qualifications for our land clerks, what more with our politicians seeking public office.

Active citizenship

 

The making of the Constitution of 1994 was preceded by the drama of citizenship. Between 1991 and 1993, Malawi was awash with citizen action through street protests, demonstrations and dissident religious sermons and texts. This display of active citizenship led to the referendum of 14 June, 1993 which ushered in a new multiparty constitutional order and the subsequent general elections of May, 1994. Since then, the citizen in this country – I dare say – has gone into a very deep slumber. The citizen has now deferred the legitimacy of the State – the business of governing – to those in political, public office.

Between 1991 and 1993, the citizen set the agenda on how Malawi must be governed. All that has changed. The citizen seems contented – to borrow the words of Achille Mbembe – with “rhetorical devices” such as “repetition and lists, contrasts between words and things, frequent antitheses, a tendency to exaggerate and preference for imprecise propositions and vague generalizations” that those we put into political, public office use. This is the sad reality. But the citizen can do better.

Yes; we have instances of protestations against serious failings in State governance: the public outcry over the Fieldyork scandal of years gone by, the angry murmurings over the Open Term Bill, the vigil for the enactment of the National Budget during President Bingu wa Mutharika’s first term, the bitter-sweet July 20, 2011 protests, and the recent inquiry into purchase of Maize in Zambia are some of the notable examples. What has been missing is that an issue, once raised, has not always reached its logical conclusion.

We can do more. Active citizenship suggests that the citizen is obsessed with holding those in public office to account for their actions, decisions or omissions at all times. This is not merely a matter of principle. It is a constitutional obligation placed on the citizenry. For example, we all witnessed the revelation of the massive plunder of public funds in 2013. The now infamous ‘Cashgate’ scandal. One can only imagine what those funds could do in the provision of public services. The Director of Public Prosecutions and the Anti-Corruption Bureau have so far done a commendable job of bringing the culprits to book. Indeed, a number of convictions have been secured. We say kudos to them. However, in the case of the Cashgate scandal, securing convictions is half the story. The follow through must be that the property of those convicted for offences under the scandal must be traced and legal processes are set in motion to ensure that such property reverts to the State. The citizen in this country must not wallow in the good news of a conviction and sentencing of a cashgater. The citizen must demand and insist on the legal process of tracing.

The Cashgate scandal is one example of the lack of follow through on issues of national importance by the citizen in this country. The drama of citizenship presupposes an active and engaged citizenry. This drama of citizenship assumes an ever agitated citizen. Why, for example, can’t we resolve the challenges in our electricity sector once and for all? Why are we not demanding answers when a person amasses unbelievable wealth the moment they enter political, public office? Anything less shall mean that we risk elite capture where selfish, personal agenda are pursued at the expense of national, democratic governance.

 

 

Into the Coffers: Kutapa Kutaya

 

The Executive, through the Minister of Local Government and Rural Development, Honourable Kondwani Nankhumwa, announced in Parliament that each of the 193 constituencies in Malawi will receive MWK20.7 million for chitukuko. The total disbursement is MWK4 billion. The announcement followed calls – previously – made by mostly Members of Parliament of the opposition that the Minister of Finance, Honourable Goodall Gondwe, must explain to the august House the criteria that was used in selecting (purportedly) 86 constituencies (out of 193) as the beneficiaries of the MWK4 billion designated for the chitukuko.

 

The script has had to change so fast between 27 and 28 February, 2018 it is hard to believe anything or stay focused and interested. If I may remind us about what the Constitution says about governing: The people of Malawi are the root of legal and political authority of the State. The other point I must make is that a public officer exercises the legal and political authority of the State for protection of the interests of the people of Malawi. And finally, the maintenance of the trust for the exercise of the powers of the State depends on an open, accountable and transparent Government, and informed democratic choice. When a person is appointed or elected into a public office, our constitutional set up does not expect that person to evolve into a tukumu-tukumu know–it–all who tells us – the people of Malawi – tikagwere.

The Constitution has an elaborate Chapter on public finance. A withdrawal from the Consolidated Fund can be made in the following instances: charged expenditure on the authority of the Constitution or an Act of Parliament; authorized expenditure under an Appropriation Act;  authorized expenditure under a Supplementary Appropriation Act;  authorized expenditure under an Act of Parliament made under section 173(5) of the Constitution (on repayable payments for allowances for persons or authorities other than Government); authorized payment under sections 178 of the Constitution (on expenditure pending an Appropriation Act); authorized expenditure made under section 179 of the Constitution (on the Contingency Fund); authorized expenditure made under section 180 of the Constitution (on Government borrowing through loans); authorized expenditure made under section 181 of the Constitution (on special funds and trusts) or section 182 of the Constitution (on the Development Fund); and authorized payments under a resolution of the National Assembly made under section 177 of the Constitution (on supplementary appropriation). The Minister of Finance is the public officer authorizing the withdrawal from the Consolidated Fund. In short, ladies and gentlemen, if anyone is to spend public money, the spending must be constitutional, it must be legal. It is important therefore that there must be an Appropriation Act, a Supplementary Appropriation Act or a specially prepared Act of Parliament authorizing a particular spending of public finance.

For as long as the MWK20.7 million that is to be made available to each of the 193 constituencies will come from public coffers, it must be constitutional, it must legal. It matters less that the cause is noble. Procedure is procedure. It must be followed to the last full stop. It is in fact vexing that our public officers – especially the political public officers – act as if they owe the people of Malawi no explanation at all when queries relating to governing generally, and more specifically, public finance management arise. We cannot have official statements changing in 24 hours. It smacks of something fishy!

Similarly, the infrastructure projects that Government undertakes proceed on the back of either a loan authorization law (where the loan is repayable by the people of Malawi) or a grant made at State to State level. The tendency to announce infrastructure projects as some pet personal projects of a benevolent ‘leader’ must stop. The praise-singing is unfounded. And those dancing perhaps have too much time on their hands.

And let me also say this: We cannot have a whole finance minister telling the nation that some financier of a government project does not want to be named. Really? The Constitution prescribes an open, accountable and transparent Government. We cannot be handling public money in some Kutapa Kutaya mode. Let us leave Kutapa Kutaya mentality to some drunken fool swigging away his salary (it’s usually a ‘He’) at Ndamwera Zandiwo Booze Den.

Zikomo.

Resignation as a constitutional value

In the era before May, 1994, bar the Cabinet crisis of September, 1964, there has been one other prominent resignation of a senior public officer. In April, 1993, the then Minister of Justice and Attorney General, Friday Makuta, SC resigned from his Cabinet post after being accused of “sitting idle” – sitting phwii – by a MCP functionary amidst taunts from pro-democracy activists. In the post-May, 1994 era, there has also been one prominent resignation of a senior public officer. In August, 2000, the then Deputy Minister of Agriculture, Joe Manduwa, resigned from his Cabinet post after being charged with the offence of murder.

Since August, 2000, resignation has been an elusive concept in Malawi’s public service. This has been particularly the case in public offices that are political in nature. All Presidents we have had in office since May, 1994, at one point or the other have been asked to resign. And they did not. Cabinet Ministers have been asked to resign. And they have not. Indeed, at the moment, we are in the middle of calls for the resignation of the incumbent Minister of Agriculture, George Chaponda, following investigations into the purchase of maize by ADMARC Limited from Zambia.

The cavalier attitude that any call for the resignation from office of a public officer – particularly political offices such as that of a Cabinet Minister – is ill-informed. I will demonstrate in this piece that resignation is a constitutional value under the Constitution of 1994. Therefore, any call for the resignation of a public officer must be treated with the importance and reverence such a call deserves.

The Constitution is founded on nine principles: The people are the root of legal and political authority of the State; second, the exercise of the legal and political authority of the State flows from the Constitution itself; third, the exercise of the legal and political authority of the State shall be for the protection of the interests of the people; fourth, persons exercising the powers of the State do so on trust; fifth, persons exercising powers of the State are under a duty to do so lawfully and in line with their responsibilities to the people; sixth, the maintenance of the trust for the exercise of the powers of the State depends on an open, accountable and transparent government, and informed democratic choice; seventh, the recognition and protection of human rights of persons in the country is derived from the inherent dignity and worth of every person; eighth, all persons are equal before the law; and finally, the Constitution has universal application to all persons and institutions and every person and institution shall comply with it.

The discharge of the mandate of a public office is not self-serving in order to caress the ego of an incumbent. The discharge of such mandate has constitutional underpinnings. The interests of the people of Malawi; their trust; and the requirement to uphold an open, accountable and transparent government – all these – are paramount under Malawi’s constitutional order. A state of resignation under our Constitution shall arise when, in the discharge of the mandate of a public office, a public officer fails to meet the expectations of the people of Malawi at all levels: their interests; their trust; and open governing. Hence, in the event that there is this failure resignation must be triggered. No ifs. No buts. A call for resignation is based on an ‘indictment’ of a public officer that the officer is no longer serving the interests of the people; that the people have lost their trust in the officer; and that the officer has not been open, accountable and transparent in the discharge of the mandate of his office. In this regard, resignation is no longer mere semantics. It is technical and a constitutional value.

The view that resignation of a public officer must arise only where there is a ‘finding of guilty’ after a quasi-judicial or judicial process is not only deluded but also unconstitutional. The sovereignty of the people relies on a composite rationality. A call for resignation when made as an invocation of a constitutional value cannot be ignored. It is a call for resignation based on the composite rationality of the people of Malawi. It is also a call that seeks to preserve the respect and dignity of a public office.

                                                           

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