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… Read more »
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