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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In Tanzania and Zambia you mwenyes have no say!!! I call ourselves fools for allowing previous politicians whom you bribe rule us. Not this time around becoz we have the president and vice president of the people.
You call us lazy yet you know you accumulate wealth corruptly. You survive through bribes. We are going to root out becoz we are watching you…….
Savjani family have looted billions. And still has the audacity to object to us the indigenous benefitting? The Savjani’s are blood suckers.
My fellow Malawians we should not fight fire with fire… Sometimes we need water to fight fire. What I am saying is we don’t have to go on the offensive and chase everyone out we have to be smart and fight back smart like how they are doing now. Now if you look at the section 20 part 2 Reads “legislation may be passed in addressing unequality in society” now we have this economic unequality in our society and hence legislation needs to be passed to address this unequality and its all within the law that they have quoted.
Hajat is a leech thriving on the blood of the indigenous Malawians. He is jobless and survives on cheating donors to fund his NGO.
Asatinyase awa. Kwao ndi ku India. Most of them have UK citizenship anyway.
You are just piece of shit… and mukunyase ndi iweyo… khumba cho nunkha iwe. Stupid moron
Fact is, these people have one leg in India or UK and another in Malawi. They are not patriotic, that is why they are involved in looting and illegal externalization of Forex.
Going by statistics over the years, businesses belonging to Indians, whites(in Malawi) and coloured have had and still continue to have over 70% of government’s procurement budget. If this is not descrimination against the other section of the people then what is it? Without any preferential procurement to address this imbalance opting for status quo is also not a solution. What the government wants to do is already being done in the US,UK and in South Africa and it’s the case of sharing the cake fairly on 60/40 proposed.
First & foremost most of them are Gold diggers there care very little for their fellow human beings .how many times have they done corporate social responsibility .Give.tenders to locals first to uplift them.We want Malawi to move forward so everyone has a fair chance.
can they indicate which Malawian does business and win tenders in India or Pakistan? they are big economies but why have they run away from those countries and come to Malawi to greedly share our small cake? this is our land. leave us and leave if u r not happy
Why not start with the Fertiliser Tenders which have just closed and are being evaluated.
See if you can do award these Tenders to indigenous Malawians and do with whom without awarding the tenders to the same Indians our leaders are in bed with being bribed with shoe box full of US $. Bakili eat big, Bingu eat bigger, Mama Corruption Joyce Banda even bigger still, but now who will eat from the fertiliser Tender ???? Can Talk Talk President Chakwera resist eating with the Indians? Will indigenous pay bribes to the leaders like the Indians pay? Will indigenous be trusted to pay bribes???
Maybe no way can this bill pass as Bwana Rafik Hajat the big boss has spoken and leaders have follow the orders Hajat gives.
Forty percent is even too much. They should have mowamvela Chifundo restricted them to 25%. State contracts should benefit as many bonafide indigenous Malawians as is possible. For instance a K1bln state contract should be broken down to 10 x K100ml small contracts with indications to bidders as preferred sources or products. Awa a-Madawa akasume ku lndia kwawo tione ziwathela bwanji.
I agree 40% is too much let them compete at 25% its enough for them. Hon Sosten Gwengwe please do not relent to these thieves and bribers. They get or win most all business through bribes or fraud. The companies that come to invest in Malawi have already links with these Mwenyes please Hon Minister need to vett these so called investors. This is our country not them. Ask them they have British passports and Indian Passports one leg in Malawi the other leg in UK or India..
Adya zokwana amwenye opusa awa
They get 98 percent of contracts because of corrupt people at the top. If we were not stupid and corrupt they would not reach this stage.
These Indians think they are clever. In their companies they make sure they bring the CEO or directors or senior managers from India yet we have Malawians who are capable of doing the same job. They think we are fools and play around with weakness of our constitution. If the court grand them whatever they want we will demonstrate. This will be dangerous to them. We are not saying they should not do business but they still have a 40% to compete why are they worried? In America Trump has always said America first they are quiet in Malawi we are also saying “Malawi First” they must go to hell.
Some of the signatory of this purported letter are the pioneer of hatred and so stingy who do not want to see Malawian do well. They would not allow their employees even to get a loan through their company. Anything good for the employees these Indians would reject.
What we know is that they have a policy which they say; Let them work hard, shout to them, pay them less and make them poor forever and let them retire with nothing. That is the Mwenyes policy. Ask those who work for them have stories i tell you. They are evil. We are cleaning the rumble and we are cleaning them soon.. Its either they oblige or leave.
MALAWI FIRST CAMPAIGN!!!!!
You just barking…. first n foremost sort out your problems of laziness, corruption and stealing, foolishness. All you know is to bark. Tell your fellows to change the attitude of stealing. Anything you see, you want to steal. Reason for you not progressing is you peoples tendency of free money, which comes largely by stealing, and that’s all you know. So dont put blame of your failure onto Asians. Get a life and work for your monies. Change your laziness attitude.
Go back to India to those filthy over-crowded streets
You fool if you were clever why did you run away from India. Lazy my foot!! No Malawians who are lazy. Thieves you are!! You think we do not know the way corrupt you are. You corrupt politicians so that you should find way out of milking black Malawians. We are taking you head on and watch what we will do. We as black Malawians we are taking over. Of course forget of getting your bloody money which you corrupt politicians. Laziness what laziness are you talking about. Fool Nonsense!! You use indigenous Malawians work tiressly for you from the bloody money you inherited from grandfathers fools. Leave us with our laziness and we will prove you wrong that we are NOT lazy….
Asians are not malawians. They isolate themselves from indegenous malawians. They don’t allow us to touch their girls. They don’t allow us to marry their daughters but they want our money; never! 60/40 yomweyo basi. In future it should be 85% for black indegenous malawians and 15% for non indegenous malawians.
This is our country for black people not asians…..go to hell. Thieves
Look who’s talking… you are a born thief and piece of kaak.
Deport Rafiq Hajat. This man is inciting Asians to oppose any law to benefit indigenous Malawians. Hajat is dangerous and a threat.
Blame our leaders, they are the ones who cannot do without these Indians bribing them for government tenders.
Why do these self claimed Malawians not vote when other Malawians are voting? Are these really Malawians? Kapena ndi zija zimachitika anthu akamadya mphaka, kumutchula dzina loti Bvumbwe? Dzina lodyera?
When why is all your money in foreign banks and not re invested in Malawi apart from buying properties and land. Why is Malawi so poor when you were getting the bigger share. You have destroyed our country totally.
hehehehe how many of the indegenous big fish have foreign accounts?
Where were these people when Blacks were being butchered by the British?They were just quite and now because it’s a free country that gives them all those human rights in the constitution they can stand up and talk about discrimination. You have to look to the past to understand that black people are the ones who have been marginalized by other races all around the globe. It doesn’t matter which continent a black man has been to. He has always been in chains one way or another. Until that day when a black man shall stand up and fight for what is rightfully his we will continue being exploited by all races in the world. You mean to say that you don’t know that right from slavery to colonialism who is that one race that has been marginalized. We are majority here we need to change that constitution to suit our needs. Not the other way round. Let those who don’t want migrate to other places where they can make their own decisions in their best interest. I like people like Kagame they understand their history very much. Now they will never allow anyone to manipulate them against each other.
Let’s just change the constitution. If they don’t want let them leave.
There are such deliberate efforts in almost all countries in the world. You will find such efforts in America and South Africa among so many other nations. If the Asian Midleastern Malawians are not happy then they are free to go back to the Middle East and Asia. After all indegenous Malawians cannot be allowed to do proper business in Asia and the Middle East. These people evade tax and are involved in fraud. We do not need Asians in this country. Call it xenophobia or whatever I dont care.
it should not be allowed because it leaves out gaps like where the coloured community fit. Achina Sidik Mia. They are mixed Malawians living in the villages and speaking sena and their grandmother is a proper black person. so where do you want them to go?
Mia is not complaining because he is a true Malawian who speaks sena.
As much as the grouping’s arguments sounds true and honesty, my take is, greedy and superiority is the root cause of their concern not discrimination. Did they show any concern when their members, who are a minority were awarded 98% of government business over the indigenous population? Why are they quoting clauses in the constitution which are against discrimination yet for decades Black population has been subjected to same discrimination in the name of ” black people don’t have capital ” to do business? Is the constitution relevant only when the odds are against you? Sometimes government needs to use discriminatory-like policies to fix the wrongs of the past and really 40% is not bad for someone who has been running forever against 60% to a toddler who should learn how to walk.
The idea is to root out corruption and not this racisms. if people are corrupt even if the contracts go to black people it will just be the same black people.
Why are these Indians only interested to be called Malawians when it comes to business only? If they are real Malawians why do they not take part in demand for change? Indians are Indians full stop. This is what Idi Amin was against. Let them keep on complaining but we should not change that piece of legislation. It is correcting mistakes made by other legislations. Has anyone seen an Indian Malawian applying for the job to serve in police service, the army or prison services , if they are real Malawians? Have you seen Indians demonstrating in the streets with Malawians asking for change of government policies?
We can just host another demostrations strictly foe these foolish asians. they have raped our economy for far too long, more than enough what else do they want from us. this is our country. if they are not Oky with this regulation let them pack and go we are tired of amwenye.
Pure racism…sad
Leave it the way it is, we are happy. If you are citizens why do you leave as if you are not malawians. Poti pakutchulidwa za ndalama mwati muzionetse u citizen wanu. Leave us alone kwanu nkwanu its our time.
can Trapence and Mtambo now please speak up.
Ngatidi muli mbadwa ndi nzika za Malawi munali kuti nthawi ya ma DEMO amwenye inu???? Nditi munali kwaaani tikavota ife muja pa 23 June amwenye inuuuu???? U Malawi wanu mwawuwona lero pofuna kupondeleza anzanu?? Eni nthaka ife tinawona asiyeni atukule dziko lawo osati zokabisa ndalama mu account zakunja.Ngatidi muli a Malawi imangeninso Limbe ndi Bwalo la Njobvu akhale ma CITY osamangolandira ndalama muzisakasa zanuzo kukabisa ku RSA & UK AKEEEEEE!!!!
NO NO NO NOT THIS TIME YOU AMWENYE you got your reaches through bribes and Malawians will take back their country, in INDIA no black will be allowed to do business with your goverment Go back to india we are tired of you people and any goverment which does not want to suport indiginous Malawians risk to be removed