Punishing Mutharika’s accomplices: The morality of forgiveness

Could anyone have imagined in 1993-94 that Malawi would be ruled by another despot in the near future? Certainly not, but Malawi is a country where the unimaginable can happen. Barely a decade later, a new tyrant emerged in the name of Bingu wa Mutharika, who held himself out as a Banda reincarnate of some sort, arrogating to himself the names of the dead despot, mimicking his dressing code, and simulating his parochial governance style.

Flashes of Mutharika’s dictatorial disposition were visible during his first term of office, but the general public took little notice due in part to his relatively stellar performance on the national economic front and to the myopic political shenanigans of opposition parties. Indeed, Mutharika will go down in history as the first presidential contender to defy regional boundaries on the Malawian electoral map and win overwhelming support in all three regions of Malawi. Many thought that he would use this show of massive electoral support to redouble his efforts and leave a legacy of a towering statesman. He didn’t, quite surprisingly.

DPP officilas, Gondwe (c), Zikhale (L) and Vuwa Kaunda : In opposition

Instead, Mutharika regarded the second term as a prize, an entitlement. He would abandon his political manifesto and concentrate all his efforts on the plunder of state resources, the ‘dynastisation’ of the presidency (including his wife in the cabinet, installing his younger brother as de facto Vice President, and launching a sustained pre-mature campaign for his younger brother to succeed him), the ‘Lhomweisation’ of the state (as evidenced by ethnic-based deployments to senior public posts), and the ‘Zanufication’ of local politics (using violence to whip the population into submission).

To cover up these aberrations, he would flex his dictatorial muscles to crush any dissent. Civil society leaders would be spied upon and, if necessary, ‘petro-bombed’. Religious leaders would be publicly vilified and demonised. Powers of the courts would be curtailed by immunising the state from the famous injunction law. Freedom of expression and assembly would be truncated by ‘midnight injunctions’, a display of excessive police force and a new law demanding that organisers of any protest deposit huge sums of money as security for possible damage resulting from the protest. Donor relations would be recklessly severed in order to prevent international oversight over palpable mismanagement of public resources, and the ‘zero-deficit’ budget would be advocated as the deus ex machina to the depleted state coffers.

Within just two and a half years, Malawi would be plunged into a downward spiral of economic malaise and stagnation never seen before. It was as if the country was at war, with no visible enemy but itself. Calls for greater accountability and responsibility were unfortunately met by arrogant outbursts and threats of violence.

Unexpectedly, Mutharika succumbed to the fatal call of nature, at once throwing the country into a brief period of uncertainty, fear and expectation. An attempt to circumvent the Constitution by Mutharika’s inner circle was quickly nipped in the bud as the general public, military and international diplomats rallied in defence of the Constitution. Malawi was miraculously saved from the precipice, first of Mutharika’s dictatorial nightmare and secondly of his henchmen’s attempt to usurp power.

That was slightly more than three weeks ago. And we now hear talk of forgiveness, closing the Mutharika chapter and opening a new one. Some members of the DPP have, shamelessly, swiftly pledged their support to the new President as if they played no part in sustaining the old regime and benefiting from it. Others have offered, with their tails between their legs, blanket apologies to the President and the nation. The vital question is: should the nation ignore the abuses committed by Mutharika and his accomplices, forgive them and simply move on?

To answer this question, we must first consider who is asking for forgiveness and for what. DPP’s Secretary General and one or so other senior DPP members have spoken about their remorse and asked the nation for forgiveness for the manner in which the DPP governed. However, such demonstration of remorse seems to have been made prematurely without the blessing of their party.

Nevertheless, we can group the acts for which DPP members may be seeking forgiveness into two. The first category encompasses those actions and decisions taken and made with reckless disregard of the national interest. These include insults against the public and specific individuals, careless decisions jeopardising international and donor relations, ethnic-based discrimination, enacting oppressive laws, implementing economically unsound policies, etc. These decisions were a result of poor decision-making whose consequences reside only in the political realm. They are amenable to a public apology from the DPP, but it is up to the electorate to accept or reject DPP’s apology – at the ballot box.

The second category comprises actions, decisions and activities that are criminal in nature. These include allegations of fraud, embezzlement of state funds, unlawful detention, intimidation and assault of activists and political opponents, abuse of state institutions and resources, murder of protesters, criminal defamation, contempt of court, etc. It seems plausible to expect that those that took part in these criminal acts should apologise individually and specify the acts for which their apology is made. The DPP does not have mandate to seek reprieve for the criminal acts of its members. Unfortunately, even if each DPP member were to apologise individually to the nation, criminal acts are not easily amenable to forgiveness, and there are several reasons for this.

Criminal acts constitute a wrong against society as a whole and hence no single individual, including the victim let alone the President, has the power to confer immunity on any person from criminal prosecution. Exceptions to this rule occur in the rare circumstances when a country is emerging from a long era of oppression, characterised by deep societal divisions, a fragile peace accord, overwhelming numbers of perpetrators of violence and a decimated justice system, in which case considerations of peace, reconciliation and reconstruction of society militate against the demand for criminal prosecutions. We are not dealing with such kind of transition in our circumstances.

We still have a Constitution which subscribes to the principle of the rule of law and evokes the notion of public power as a trust. Consequently, all Malawians are equal before the law and all laws must be enforced against every person irrespective of one’s status. Theft by an ordinary person must be prosecuted in the same way as theft by a politician. Murder by a political leader is not different from murder by an ordinary person. To exonerate politicians from criminal prosecution for crimes committed over the past few years would amount to a fundamental breach of the rule of law and discrimination against ordinary Malawians who committed crimes of equal, more or lesser gravity over the same period who are now languishing in prison or are currently being investigated or tried.

The notion of public power as a trust posits that, when politicians capture public power, they assume the role of public trustees, which implies certain duties of care on the trustee to the public, including the duty to exercise public powers lawfully and reasonably in the national interest. Abuses of that trust may result in the political loss of power and criminal and civil sanctions.

Crucially, Malawi, as is the case elsewhere in Africa, faces an acute challenge to building a culture that regards public office as a duty rather than an entitlement, an opportunity to give instead of a chance to loot, and a platform to set an example as opposed to an occasion to glorify oneself. The building blocks of such a culture will not be laid until as a society we start taking accountability and responsibility seriously.

The situation we are in now is not different from that of 1994 and 2004. Kamuzu Banda’s regime was not only accused of wide-ranging violations of human rights but also of serious financial mismanagement. However, that regime escaped responsibility due to a poorly designed transitional justice policy implemented by Bakili Muluzi’s regime. Muluzi was not interested in implementing a comprehensive investigation into the wrongs of Banda’s regime, but focussed instead on prosecuting the perpetrators of the famous Mwanza four, ignoring all other victims of the human rights abuses of that era. Some form of restitution and compensation was given to some victims of abuses via the National Compensation Tribunal, but critics have pointed out that the Tribunal was grossly underfunded, and prioritised compensating victims allied to the UDF. The greatest success of that transitional justice policy was arguably the confiscation of the Press Trust from Dr Banda and the Malawi Congress Party. The failures of the Muluzi transitional justice model mean that the extent of the abuses of the Banda regime remains a mystery.

Muluzi too and his political side-kicks were accused of serious diversion of state resources to their own use, and of unleashing violent young democrats on political opponents. Yet, Mutharika made a tame effort to investigate those abuses and excesses, deploying the legendary inept Anti-Corruption Bureaux only as a ploy of keeping Muluzi away from politics. Only Sam Mpasu was successfully prosecuted for his role in the Fieldyork notebook scam, but many suspect he was singled out because of his fierce criticism of the government.

The inability and reluctance of successive governments in Malawi to investigate patent abuses of previous regimes and take action to redress them has resulted in a growing culture of impunity among politicians and their accomplices, lack of professionalism among senior civil servants and reinforced the ‘za boma’ syndrome – the thought that public resources belong to no one and can thus be plundered at will, with pomp, without consequences. The militarisation of youth wings of ruling parties facing dwindling public support has also become a worrying recurrent feature of Malawian politics.

Accordingly, it is pertinent to ask: will this interim government break with all its predecessors by mounting a credible, independent and comprehensive investigation into the excesses of the Mutharika regime? Will this government go beyond the Chasowa inquiry and respect all victims of violence and other forms abuses committed by that regime? Perhaps more importantly, does this government have the backbone to delve into the so-called ‘lost decade’ during which Muluzi was at the helm? And can this government prove with action that it will not engage in similarly malevolent acts and conduct? Or do we, once more, simply have the proverbial same old wine in a new bottle? 

* Danwood Chirwa is a Professor of Law at the University of Cape Town and co-editor of Accountable Government in Africa: Perspectives from Public Law and Political Studies (United Nations University Press/UCT Press, 2012).

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