The Daily Times newspaper of Friday, July 26, 2013 had a screaming front-page headline: “JB defies court order”. The story is on President Joyce Banda’s decision to go ahead with elevation of Traditional Authority (TA) Chikowi, in Zomba, to a senior chief on the following Saturday, July 27 in an apparent disregard for a court order stopping the initial installment of Mariam Saiti as a TA.
There is a family dispute on the succession of the chieftaincy. One side of the three families that exchange the chieftaincy placed their faith in the justice system and sought a court injunction through lawyer, Wapona Kita, to stop Saiti’s installation; an injunction was granted, according to Kita but Zomba District Commissioner Harry Mtumbuka Phiri has denied that his officer was saved with the court order, therefore paving way for Banda to elevate the chief.
However, Kita insists that the injunction was saved and “if the court rules that the person who is being elevated is not the rightful heir to the throne then we will start all over again”, the paper quoted Kita.
According to the newspaper, Banda is not a stranger to the dispute as she has previously lived with one of the families from the grieved side in Zomba police lines.
“The President is a close friend of our family from way back when we were living together in police lines in Zomba … when we exhausted all channels to amicably settle the dispute, we requested to have an audience with the President to mediate but she ignored all our communication”, Roselyn Mankhwala from the grieved side told The daily.
Disclaimer: I am not an expert in chieftaincy issues nor I am I a legal expert but this case has an important governance issue at its heart, this is way beyond the succession dispute. A lot of public resources will be used for the elevation. The public outcry about the president’s travels is well documented and now you can add this one on the list. This could turned out to be even more wasteful should the court rule that Saiti is not the rightful heir to throne. Public resources wasted and deepening animosity for the concerned families.
President Banda’s knowledge of the issue not withstanding, why can she not wait for the court ruling first? Shouldn’t Banda as a president play a uniting figure in such matters? Here it is irrelevant whether the Zomba District Council was received the injunction or not. It is clear that Banda is aware of the dispute, through the family connection. Even if she was not, does she do these elevations without background checks?
Ignoring a court order is a disregard for basic democratic principle: separation of powers. This is designed to strengthen good governance; it guards against abuse of power, which is seemingly the case here. What if every Malawian decides to do likewise? Is it not a chaotic country we are creating? It is important to remember that might does not make it right.
At the height of the late Bingu wa Mutharika’s short-lived autocracy, the renowned Malawian academic, Thandika Mkandawire, bemoaned what he called the “shredding” of public institutions in Malawi. This looks agonisingly similar, it is now well and truly entrenched into the political system and every caring Malawian should be concerned about. In his own wards, here is what Mkandawire said:
“DR. Banda bequeathed Malawi three institutions that gave a good start towards democratic consolidation: (A) a relatively independent judiciary, since the political cases were handled by the traditional courts; (B) a depoliticized military since the political side was handled by paramilitary young pioneers and (C) and a fairly competent civil service. It is these institutions that ensured us a peaceful referendum.
“DR. Banda further gave legitimacy and credibility to these institutions by accepting both results of the referendum and the first democratic elections. Muluzi in his own way strengthened the legitimacy of these institutions by accepting, albeit reluctantly, their ruling on Dr. Banda and the Tembos. He accepted the parliament’s rejection of his third bid. To appreciate the full value of the legacy one has to consider the cases of many African countries where these were severely compromised during one-party rule.
“Such countries have had huge political problems with their democratization since they have no credible institutions to adjudicate even the simplest of squabbles. In Malawi all political actors have respected the courts and sought to redress their grievances through the court system. Malawi had more litigations going on than the entire SADC region. One can point to some of the abusive aspects of these litigations but all in all they are partly evidence of the faith in our court system.
“When Bingu came to power he promised to reverse the creeping trend towards the politicization of these institutions. He specifically promised to strengthen the meritocratic basis of the civil service. What we are witnessing now is the shredding of the legitimacy of these institutions by politicizing them and by implying their daily management of their affairs depends on “orders from above”. The institutions are now being pitted against another.
“… Those in power now should remember their own future will also depend on how well these institutions are.”Follow and Subscribe Nyasa TV :