DPP concerns about current state of rule of law, governance in Malawi

As Malawi commemorates our 48th Independence Anniversary, we look back with pride to the positive contributions that the Democratic Progressive Party (DPP) has made to the economic, social and political landscape in Malawi between 2005 and 2011. DPP also considers 2012 as significant and unforgettable in many ways as it is also the year when the nation lost its beloved leader Ngwazi Professor Bingu Wa Mutharika.

Almost three months after the transition, the DPP has noted with serious concern the recent developments in the governance and rule of law sectors in Malawi. The DPP considers constitutionalism as a cardinal principle to the democratisation process, and that constitutionalism is an inseparable tenet for any people-focused development process.

However, it is with the most profound regret that since the ascendancy to the presidency by Her Excellency Mrs Joyce Banda and the introduction to parliament of her newly formed party, the country has taken a strange and frightening posture in as far as the application of the principle of rule of law is concerned. As Malawians commemorate the 48th Independence Anniversary, the DPP wishes to highlight this and other related serious concerns which need urgent redress.


Stifling Rule of Law and Killing the Spirit of Constitutionalism

The DPP has observed deliberate machination towards selective application of the provisions of our Republican Constitution. During the transition immediately after the death of President Bingu Wa Mutharika, the current administration strongly called for adherence to the Constitution in as far as succession to the presidency is concerned. Section 83 and 84 of the Republican Constitution were applied and this allowed the then Vice President (Mrs Joyce Banda) to be sworn in as the president. However, recently the new administration has embarked on a scheme of selective application of the same Constitution where the principle of rule of law is being applied only to constitutional matters that are favourable to the new administration. Provisions that are bound to negatively affect the administration are being shoved to the periphery. This is how the spirit of constitutionalism is swiftly being eroded and the rule of law is being dealt a fatal blow.

To amplify this serious observation, we have in mind the way implementation of Section 65 of the same Republican Constitution is being handled, or indeed being mishandled.  The Constitution is clear on the action that needs to be taken on any parliamentarian who has crossed the floor. “Rule of law” requires that seats for such parliamentarians must be declared vacant. However, the new administration of Mrs Joyce Banda has chosen to relegate Section 65 to a secondary and almost non-essential provision. This is evident through the court injunctions which have been obtained and served on the Speaker of Parliament by parliamentarians that are within the political fold of the new administration. Another piece of evidence obtains from a recent political rally which Her Excellency Mrs Joyce Banda conducted in Mangochi. She defends with impunity her government’s anti-Section 65 actions by arguing that it will be costly and expensive to hold by elections.

The DPP finds such behaviour to be anti-democratic. Constitutional provisions are non-negotiable as they are about the rights of the people which cannot be guaranteed in a piecemeal fashion. The DPP wishes to remind the new administration and Her Excellency that she vowed to protect and uphold the Constitution during her swearing in. Therefore, Her Excellency Mrs Joyce Banda has no choice but to defend the Constitution, and this means ensuring that Section 65 is implemented without excuses.

The new administration should have assessed the cost implications on Section 65 way before enticing the MPs to cross the floor to the administration’s new party. Between costs and the constitution, it is the constitution which is supreme. The constitution an embodiment of the wishes of the people, and the people are supreme than any other considerations. The DPP therefore reminds the new administration, of the inexcusable duty and indispensable need to speedily implement Section 65. DPP also recommends that all branches of government(Executive, Legislature, and Judiciary) should execute their mandates vis a vis Section 65 and rescue Malawi from sliding into lawlessness and constitutional disorder.

        Serious Conflict of Interest: Attorney General and Minister of Justice

The DPP observes with concern the doubling of roles by the Attorney General who is also the Minister of Justice. A straight forward instance is where the Attorney General is expected to advise government on matters that directly concern himself or his office. For example, Section 65 court injunctions have been served on the Speaker through the Attorney General. The Attorney General is part of the Executive (Cabinet) which is an interested party, and the same Attorney General is expected to advise the President on the same matters over which both have a direct interest. The DPP therefore sees a huge problem with this doubling of roles as it has very high potential for compromising rule of law and constitutionalism in Malawi.  In addition, the current office holder had court cases to answer with the previous administration, and now it is the same person who, as Attorney General, and some way as Minister of Justice, is expected to make executive decisions over the future or conclusions of the same cases he is involved in. The DPP is deeply worried that this is another potential area for conflict of interest where the Attorney General is going to make decisions that are in his favour, and decisions that advance his narrow political interests at the expense of the broader interests of constitutionalism and wider interests of all citizens. Therefore, the DPP strongly urges the new administration, and especially Her Excellency Mrs Joyce Banda, to walk the talk, protect and promote constitutionalism, in this case by addressing the conflict of interest surrounding the Attorney General and the Minister of Justice. She must urgently appoint separate persons to be Attorney General and Minister of Justice.

         Walk the Talk: Stop Abuse of Public Funds

The new administration is being called upon to walk the talk in as far as management of public funds is concerned. It is just about three months since the administration ascended to office, and it is important to raise red flags at this early stage. Her Excellency has so far been conducting political rallies disguised as development meetings. However, these are political party meetings which are mostly about advancing the agenda of the new administration’s party. All these meetings are happening with total financing from public resources and taxpayers money together with (indirectly) some donor money are being abused in this fashion. The DPP raises this as a concern because of the hypocrisy which is associated with this action. The same administration has announced the need for expenditure controls and tough austerity measures during the State of The Nation address and also during the 2012/13 Budget Statement. The nation and Malawians would therefore expect Her Excellency Mrs Joyce Banda’s administration to walk the talk and stop the trend of abusing public funds on political party events. The Mangochi political rally is a fresh example. We wish to state that the new administration will be held accountable over its actions which have a bearing on public finances and on our governance.

Similarly, the DPP observes the manner with which funds for use by the Vice President (VP) are being used at this stage, an indicator of possible abuse of funds as the financial year progresses. The incumbent VP is doubling roles as Minister of Health. While this combination of roles might have been designed to serve resources, practically we could end up with a situation where more public funds are being siphoned down the drain under this arrangement. The DPP therefore recommends to the new administration to provide statements of accountability and procedural openness as to which Budget Vote the VP is using. There is most likely going to be a thin line between which Vote the VP is using to finance his activities. The DPP is worried that the budget line under the VP’s office could be abused as the incumbent VP could be enjoying double exposure to public funds. The VP’s office budget line may be a neutralized budget line being used to finance political activities contrary to parliament’s approval. In the interest of accountability, the new administration should declare to the people the financing arrangements availed to the activities of the current VP if he continues to double as Minister of Health and indeed as any minister.

A third area of concern on abuse of public funds relates to foreign travel which Her Excellency has excessively undertaken. The DPP joins other concerned observes in that the country risks loosing scarce public funds through excessive foreign travel. Recently, the State President has been to six (6) countries within a period of less than three (3) months of her ascendancy to the seat of presidency. While some of the countries visited are critical to the developmental future of Malawi, the DPP is gravely concerned with the trips made to Liberia and Nigeria. Millions of tax payers Kwacha went down the drain since the visits to the two countries were remotely connected to promoting the strategic interests of Malawi. If anything the visits were simply a showy adventure, a tour to display the medal of presidency which was still glittering new at that moment. However, the truth is that while the President is preaching austerity and expenditure cuts, her actions at this moment are hypocritical and are in sharp contrast to her rhetoric. DPP wishes to reemphasize and recommend that the new administration must walk the talk. Malawians are watching and are eager to hold government to account.

       Shoulder-lifting of the Minister of Finance

The conclusion surrounding the role of the Minister of Finance in the Malawi Revenue Authority (MRA) funds borrowing issue needs further scrutiny. The DPP feels dissatisfied with the overall verdict that the Minister of Finance had absolutely no knowledge over the transactions at MRA. We wonder how possible it was for the Minister not to be aware about the instruction memos originating from his Ministry to MRA by his very own Ministry of Finance officials. The DPP feels that the Minister of Finance is simply being shoulder-lifted and the new administration could be rewarding him for some unknown service the Minister might have provided to the new administration. We wish to strongly state and we fear that the shoulder-lifting of the Minister of Finance is a form of corruption, an informal bribe which has been extended to the Minister in return for some future favour. By any standards, we in the DPP wish to think that the current Minister of Finance has lost credibility, he cannot command sustained trust from the people, and therefore not fit to hold such an office which demands high levels of probity and integrity. If the Minister of Finance had no absolute knowledge of the MRA transactions, what guarantee is there that he will have full knowledge in the management of other functions under his Ministry? We strongly argue that the Minister demonstrated incompetence and negligence. The DPP recommends removal of the incumbent Minister of Finance for the sake of installing trust in the management of public finances.

        Deliberate Steps to Weaken our Democracy

In addition to our observation made above, the DPP further observes that the current administration of Her Excellency Mrs Joyce Banda has swiftly taken steps that are tantamount to theweakening of our democracy. We point to the poaching of MPs from existing political parties to the newly established party of the new administration. We also point to the lack of consultation with political parties on the inclusion of some MPs who do not belong (or at least did not belong to the party of the new administration) into cabinet. Such action is frustrating to the entrenchment of multiparty democracy as is inconsistent with the building of a culture of parliamentary democracy. The lack of consultation with the political parties confirms the desire of the new government to weaken intra-party democratic processes. Intra-party democracy is a building block to health inter-party and multiparty relations which culminate into strong democratisation processes. The DPP recommends that the new administration should respect internal processes of other political parties and should help to foster unity and not sow division in Malawi’s governance processes.

          Politics of Vengeance, Retribution and Witch-hunting

The DPP has observed the intentions and practical steps taken by the new administration to inflict vengeance and pain on the DPP, on persons connected to the DPP, or even those suspected to have had some sort of relation with the DPP. Unfortunately, the spirit of vengeance has characterised itself with sheer hatred which has the potential of sowing seeds of discord and tension.Again we observe hypocrisy of the highest order at play, contrary to Her Excellency’s inaugural speech that vengeance would have no room. However, contrary to that assertion, the Malawi politics currently is filled with acrimony, retribution and witch-hunting. The ugly face of this witch hunting displays itself through the incessant firing of professionals from public offices and in some statutory corporations. Vengeance has spread itself to some boards of directors which were simply carrying out their professional roles. Vengeance by the new administration has not stopped, and is currently creeping into offices created by the Constitution and Acts of Parliament. These include Parliament secretariat and the Anti-Corruption Bureau (ACB) whose top officers are recent victims of witch-hunting. The DPP wishes to advise the new administration to desist from such actions as they are creating unnecessary tensions and discontent. This is more so among key professionals who deliver their duties without any political interestsand their contribution to the nation needs not be rewarded with vengeance.

           Too Much Powers of OPC and Status of NICE

The DPP notes with concern recent structural changes to give additional responsibilities to the Office of President and Cabinet (OPC). DPP is of the strong opinion that at a time like this in our democratisation history, Malawi needs to progressively get involved in establishing autonomous entities with little control from the office of the president. Recently, government announcedthat the National Initiative for Civic Education (NICE) will also be controlled under OPC. Given the political nature of events at OPC, and the direct hand of the State President in OPC matters, it would not be in the interest of neutrality to place NICE under OPC. NICE is important to the impartial delivery of civic education and voter education during elections and in during other periods. Neutrality and impartiality is therefore paramount in the operations of NICE and also in terms of decisions made by government on NICE. DPP recommends that OPC should not be loaded with functions that would compromise democratic processes and that NICE should be taken out of OPC. We recommend the initial arrangement where Ministry of Finance through the National Authorising Office (NAO) had some oversight role over NICE, while the programme implementation of NICE should be established as an autonomous function without influence from any politically related government ministry.

          Silence of Civil Society: Death of NGOs?

The DPP has noted that immediately the new administration took office, the civil society has to a large extent gone to sleep and have abandoned their role. This begs the difficult question as to whether civil society was active only to see DPP taken out of government, or whether civil society actions were only motivated by hidden agenda against the late President Bingu Wa Mutharika. The DPP is left to wander as such because of the silence and almost zero activism that has engulfed the once vibrant and active civil society sector. We continue to wonder if this silence means the death of civil society at a time when there are equally important governance and rule of law shortfalls that are already being perpetrated by the new administration. Are current shortfalls in rule of law and recentconstitutional gaffes, of little magnitude? Was the civil society activism designed to target DPP individuals and not the issues? If the answer is about the issues, then we urge the civil society to wake up from their slumber and continue with their role. Any further silence will only strengthen our observation and fear that civil society is either dead, or was merely motivated by hatred towards certain individuals in DPP.We challenge civil society to make their positions known on Section 65. We challenge civil society organisations to speak against abuse of public resources, and against the teething problems that are already a characteristic of the new administration.

           Call for a Distinct Strategy by Joyce Banda’s Administration

The DPP continues to observe that the new administration is operating without its own known set of development philosophy. The new administration continues to recycle and re-hatch DPP policies. In essence, the new administration has resorted to running government business using the DPP manifesto. This is contrary to the need for what is called transparency of ideas where intellectual property rights need to be respected to the uttermost. DPP operated under the banner of creating wealth for poverty reduction where nine (9) priorities within the MGDS priorities were central to the national development agenda. Much as the new administration has decided to continue with the development programs started by the DPP, it is equally important for the new administration to come up with an outline of its own distinct development agenda between now and the next general elections. It does not make much sense for the new administration and Her Excellency Mrs Joyce Banda to condemn the DPP administration yet embrace its programs wholesale.

Similarly, the DPP wishes to remind Malawians of the remarkable progress the then DPP administration made on food security where Malawi was turned into a hunger free zone. This is a fact and it is wrong for the current administration to start painting a wrong image of Malawi’s achievement in food security. Similarly, the DPP administration made strides in infrastructural development and this too needs to be acknowledged. Under the DPP administration Malawi was on record to be on-track four (4) key Millennium Development Goals (MDGs). Lastly, it must be put on record that the fuel and forex shortages Malawi experienced under the DPP were a combination of factors which include the high demand for fuel and imports occasioned by a growing economy. The record economic progress that Malawi achieved between 2005 and 2009 meant that increased economic productivity heightened demand for fuel and forex. For example, cars were being imported at an alarming rate while the construction industry multiplied its operations. On the other hand, the forex and fuel shortages were occasioned by the withdrawal of donor budgetary support. The donors faulted DPP on rule of law on issues to do with Section 46, the injunction law, local courts law, and same sex (minority) rights laws.


In conclusion, the DPP urges all players to help make Malawi a prosperous nation economically but also politically where governance and rule of law issues are not treated in a selective fashion. The commemoration of our 48th Independence Anniversary should remind us all of the need to jealously guard our Republican Constitution. All regimes must be called upon to adhere to rule of law with equal measure and this includes reminding the new administration of Her Excellency Mrs Joyce Banda that the current government too is not above the law. This is the only sustainable way of managing our politics and economics in a way that anchors economic progress, prioritises the interests of all Malawians, and gives hope to the voiceless in our society

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