Analysis of 2019 on governance and human rights

Negatives

1. Operationalisation of Access to Information Law: 2019 will be remembered as a year when government of Malawi continued to dilly-dally on the operationalisation of Access to Information Law.

2. Continued delays to release the public inquiry report on the killings of persons with albinism; extra-judicial killings: While the year 2019 witnessed reduced cases of the killings of persons with albinism as compared to the previous year, the extra-judicial killing of Buleya- murder suspect in albino killings- at the hands of police was regrettable and possibly an attempt to destroy evidence which would have unearthed the claimed markets of body parts of persons with albinism. Despite the medical report and Malawi Human Rights Commission (MHRC) commission of inquiry report implicating the Police on the same, government and the Police continued to pay a blind eye to the issue and until to-date no police officer has faced justice on the matter. Furthermore, President Mutharika’s constituted Commission of Inquiry into Albino killings is yet to release a report to-date a scenario that gives credence to those fears that these Commissions of Inquiries are merely created as an appeasement policy in order to buy time and diffuse tension.

3. The Nsundwe rape saga by allegedly the Police: As I have said recently, the Nsundwe saga is one of the gravest tragedy of our time, and one wonders why the Police till to-date have neither released their investigations report nor arrested the culprits within their ranks. There is no way the police can take this long to conclude the investigations and arrest the perpetrators especially when one considers the fact that this is a clear and straightforward issue in as far as bringing to book the perpetrators mindful of the fact that these perpetrators ware within the Police ranks. Worse still, has been lack of sensitivity and concern by the government (including the Police) on the matter who have either decided to hide under the pending Police investigations into the matter or challenge the Malawi Human Rights Commission (MHRC) report implicating police officers on the same based on trivia reasoning. Government has certainly abandoned it’s duty to protect, respect and fulfil human rights.

4. President Mutharika’s breaking of the Law in the appointment of the 7th Cohort of Commissioners of Malawi Human Rights Commission (MHRC): Another negative highlight of 2019 is when President Arthur Peter Mutharika violated the Law in the appointment of 2 Commissioners-to be part of the 7th Cohort of Malawi Human Rights Commission- who were neither nominated by any eligible organisation nor appearing on the list submitted to the President by the Ombudsman and Law Commission.  Despite the letter from the Ombudsman addressed to the Chief Secretary and the president to correct the anomaly, government remained defiant to the extent of planning to proceed the swearing-in ceremony. However, due to a bold decision by the 2 Civil Society organisations Cedep and CHRR who obtained an injunction stopping the President from proceeding with the swearing-in ceremony until he replaces the 2 people with the rightful ones who were on the list of the Ombudsman and Law Commission. Unfortunately, until to-date the President has not replaced the 2 a situation that poses a serious threat on the functions of the MHRC who relies on the Commissioners for policy direction and guidance.

5. Violent scenes characterising the demonstrations leading to property destroyed/stolen, some injured and in some cases even cases of death. This undermined the full enjoyment of right to peaceful and unarmed demonstration as prescribed by Law. The failure of close collaboration between the Police (and the Chief executive officers/District Commissioners and the organisers of the demonstrations in terms of ensuring peace is one of the problems that led to the situation. It seemed that instead of sitting down with organisers to find the best way of collaborating to ensure peaceful demos the Police, Chief Executive Officers (CEO) and in some cases the Attorney General were so engrossed in stopping the citizens from exercising the right to demonstration. Now with highly patronised demos it was apparent that this negligence or politicisation of public institutions and officers would lead to violence.

6. President Mutharika’s Cabinet selection a missed opportunity to unify the country and set it up for progressive development: The year 2019 will also be remembered as a year when President Mutharika failed to come up with an inclusive, equitable and developmental  Cabinet

7. The stoning to death of Police officer at Nsundwe and Billy Mayaya’s saga all marred the year.

8. Economic stability continues but yet it’s gains did not trickle down to the common person in the villages who is lavishing in poverty. In 2019 we saw Malawians getting poor and poor.

9. Electricity blackouts remained the order of the day in 2019 despite some improvements during the election period.

 

b). Some Positives in the year 2019 

1. The decision by the High Court sitting as a Constitutional Court and the Supreme Court of Appeal to continue with the hearing of the election case –after being petitioned by MEC not to proceed- was one of the land mark decisions in the year 2019. The decision-in my view- was important for both parties involved in the election case as it would either validate or invalidate the disputed May 2019 elections. Besides, the Court hearing and subsequent verdict would partly help in answering the long-time question: whether elections in Malawi are rigged or not. The Court hearing would also help us to check if there are any noticeable gaps with our electoral management systems, and that if so how can we as a country push for necessary electoral reforms to address such gaps. Equally important in as far as judicial accountability is concerned was the decision by the Court to allow the public follow the case on radio (using the interpretators in the Court. While the verdict of the Court shall not be based on public opinion but rather evidence and relevant laws and instruments, it is important to note that by opening up to the public to follow the case closely the Courts were indirectly communicating that were open to be held accountable by the public, and that the public should be able to appreciate the decisions they would be making on the case from the very onset. In fact, such a decision by the Courts to allow the public to appreciate the case is also part and parcel of preparing the public on the outcome of the verdict.

2. The bold decision by the Ombudsman Martha Chizuma to challenge “executive impunity and arrogance” in the appointment of MHRC Commissioners would go in history as one of the remarkable steps in defending Constitutionalism and Rule of Law. Civil Society organisations such as Cedep and CHRR must also be hailed for intervening at the right time – in solidarity with the Ombudsman and in defence of Constitutionalism- by obtaining an injunction stopping President Mutharika from proceeding with the swearing-in ceremony of the new Commissioners amongst which were 2 who were illegally appointed by the President. However, on the way forward it would be crucial that President Mutharika immediately acts on Ombudsman letter to ensure that MHRC has a fully-fledged team of Commissioners to enable it fulfil it’s Constitutionally guaranteed mandate.

3. Right to peaceful demonstration and freedom of Assembly triumphed in the context of “executive” attempts to stand in it’s way. The largest part of the year 2019 was characterised by post-election Anti-Jane Ansah demonstrations organised by Human Rights Defenders. Notwithstanding the violence that characterised these demonstrations as highlighted earlier, these were undoubtedly the largest patronised and most sustained demonstrations in the history of Malawi as it provided the platform for the majority of voters who felt duped by the election results to render their frustrations against the Malawi Electoral Commission (MEC) Chairperson and Commissioners. Regrettably, the executive arm of the government including the Minister, the Police, the Councils CEOs and the Attorney General (AG) attempted to block the citizen’s exercise of this right using the Courts, unnecessarily firing teargas, denying permission for citizens to hold demonstrations or in some cases withdrawing their services to provide security during the demonstrations. However, the land mark Supreme Court of Appeal ruling after being petitioned by the Attorney General on the matter will remain a historic step in as far as protecting the Constitutionally guaranteed right to demonstration and freedom of Assembly. In this regard, 2019 will be remembered as a year when the Supreme Court of Appeal came to the rescue of right to peaceful and unarmed demonstrations which was under serious threat by the State. At the end of the day, right to peaceful and unarmed demonstrations triumphed.

4. Towards the end of the year we saw some Court convictions in the killings of persons with albinism with some being given death penalty sentences. While the issue of death penalty remain sensitive and contested, the very fact that the Courts’ moved in to pass stern verdicts on the matter was crucial in as far as acting as a warning to potential murders. These court rulings were a land mark in as far as protection of persons with albinism is concerned. All this coupled by reduced reported cases of murderers of persons with albinism in the middle and towards the end of the year were positive developments. However, there is need for the Presidential Commission of Inquiry to release it’s findings as a matter of urgency. There is also need for government to fully fund the National Action Plan for combatting killings of person with albinism. Equally important is the need for authorities to investigate those politicians who have continuously been mentioned by witnesses and suspects in the various Court proceedings on the matter as having a hand in the killings.

5. The economy of Malawi continued to remain stable. However, despite such stability the inequality gaps between the rich and the poor continued to widen, and that the economic stability did not hence translate into improved livelihoods amongst Malawians.

6. The Presidential debates and improved quality of political parties manifestos: While the Presidential debates and political parties manifestos may not necessarily have had a direct impact in influencing the voters choices in the election, it is undeniable fact that these provided a much needed platform for the country to debate the current policy, legislative or institutional practices and the possible solutions and recommendations as proposed by the various Presidential candidates. This is important in as far as public policy making and change is concerned towards the aspired transformative democratic developmental state. It is regrettable though that the incumbent President missed these debates in the process denying Malawians an opportunity to engage with his ideas in an open debate platform. Whatever the outcome of the “Concourt” next year, the President of Malawi will need to be humble enough by borrowing some of the brilliant ideas in the opponents’ manifestos in order to fix the nation. At the end of the day, what really matters is not “who owns?” the manifesto but rather public interest – i.e. these manifestos were drafted to provide solutions to our country, and as such they need to be reviewed and implemented by the government in the best interest of the country irrespective of whether one lost the election or not. Takin such a path would ably complement the already existing medium-term development strategies such Malawi Growth and Development Strategy III.

 

d). Conclusion

While there have been some positives in 2019, the overall picture on governance remains mostly negative. The situation has been worsened by the failure of the current regime and some state agents such as Police to learn from the past by continue repeating the same mistakes committed in the past. Executive arrogance and impunity have characterised the majority of the year, and if it were not for the Courts, a strong Civil Society and some resilient public institutions such as Malawi Human Rights Commission (MHRC) and Office of the Ombudsman, the Constitution of Malawi and our hard-earned democracy would have been under serious threat. The selective justice applied by the Ministry of Gender and the Police in handling gender based violence and President’s Mutharika’s failure to unify the country through taking advantage of the opening of “critical junctures” will remain missed opportunities in 2019. Nevertheless, the performance of such public institutions like Ombudsman provided some array of hope that the quest for good governance is possible as we go into 2019. Happy new year.

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