Business group denounces ‘discriminatory’  60/40 procurement law: Unconstitutional!

A grouping that represents minority businesses in Malawi have joined the chorus of some concerned citizens who have denounced proposed regulations to award 60 percent  of all contracts  under national competitive bidding to  indigenous black Malawians and 40% to others, describing the wording as being  “distinctly discriminatory and unconstitutional.”

The regulation dubbed  Public Procurement and Disposal of Public Assets (Administration of Preferential Treatment) Regulations 2020,  were unveiled two weeks ago in Blantyre at a meeting  attended by Minister of Trade Sosten Gwengwe and is said to have the backing of Cabinet.

The Maravi Asian Development Association (Mada)  has joined some concerned citizens, who have also written a petition to the  PPDA’s director general Ellias Hausi  on Friday, September 4.

“Our members operate both large and small businesses in Malawi and are bonafide citizens of Malawi,” says the petition signed by MADA chairman, Akif Jakhura and his deputy, Karan Savjani.

“We are of the view that section 44(10) of the PPDA and the proposed regulations are simply unconstitutional.

“Section 44(10) and the draft regulations aim to accord preference to ‘black indigenous Malawians’ over what are now other categories of Malawian citizens and foreign nationals.

“First and foremost, the Constitution of the Republic of Malawi does not create nor recognise different categories of Malawian citizens. We have read and re-read the Constitution and have not come across any provision that supports the position you are intending to introduce.

“The PPDA and regulations are seeking to accord preference over other equally placed Malawian citizens.”

MADA contends that the preference is, however, based on nationality; race colour; and ethnicity and the use of preference based on colour and ethnicity cannot be supported as regard to the provisions of the Constitution.

They quote the Constitution’s Section 15 that provides that “the human rights and freedoms enshrined in this Chapter shall be respected and upheld by the executive, legislature and judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Malawi and shall be enforceable in the manner prescribed in this Chapter.

And also part 2 that says “Any person or group of persons with sufficient interest in the protection and enforcement of rights under this Chapter shall be entitled to the assistance of the courts, the Ombudsman, the Human Rights Commission and other organs of Government to ensure the promotion, protection and redress of grievances in respect of those rights.”

They also quote Section 20 that provides that: “Discrimination of persons in any form is prohibited and all persons are, under any law, guaranteed equal and effective protection against discrimination on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.”

And also part 2 that says: “Legislation may be passed addressing inequalities in society and prohibiting discriminatory practices and the propagation of such practices and may render such practices criminally punishable by the court.”

The Malawi Constitution in Section 46  provides that the National Assembly or any subordinate legislative authority shall not make any law, and the executive and the agencies of government shall not take any action which abolishes or abridges the fundamental rights and freedoms conferred by this Chapter, and any law or action in contravention thereof shall, to the extent of the contravention, be invalid.

The law also says “Any person who claims that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled-

(a) to make application to a competent court to enforce or protect such a right or freedom; and

(b) to make application to the Ombudsman or the Human Rights Commission in order to secure such assistance or advice as he or she may reasonably require.

“Where a court referred to in subsection (2) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms.

“And where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to protect those rights and freedoms from being unlawfully denied of violated.”

Also quoted in the Constitution is a clause that says: “A court referred to in subsection (2) (a) shall have the power to award compensation to any person whose rights or freedoms have been unlawfully denied or violated where it considers it to be appropriate in the circumstances of a particular case.

“The law shall prescribe criminal penalties for violations of those non-derogable rights listed in subsection 44 (1).”

Section 47 of the Constitution also provides that: “Every person who, immediately before the appointed day, was a citizen of Malawi under any existing law shall continue to be a citizen of Malawi after the appointed day.”

MADA says PPDA’s provisions, regulations and the practices in relation to Malawi firms discriminate against Malawi firms who do not have black Malawian ownership and control even though all their partners or shareholders are Malawi nationals.

“We repeat that the introduction of the category of ‘black indigenous Malawian’ is unconstitutional and has the effect, whether intended or not, of creating a sub-category of Malawian citizen of all those are not ‘black’ or of African descent.

“Citizenship may not be arbitrarily denied under our Constitution and the creation of categories has the effect of doing so.

“This position is simply unacceptable and has no support or basis under our Constitution.”

MADA is, therefore appealing to PPDA engage the legislature and all relevant stakeholders to review the offending provisions and regulations and ensure compliance with the Constitution.

“We look forward to you facilitating the resolution of a situation brought about by legislation whose conflict with the Constitution appears not to have been considered,” says the petition.

Earlier, human right activist Rafiq Hajat said no one in Malawi can claim “to be indigenous in the strict sense.”

He said the word is now being used interchangeably with ‘black’ to advance ethnocentric agendas.

Hajat condemned the regulations, observing that they a blatant disregard of the spirit and letter of the country Constitution and the UN Charter of Human Rights.

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