And as they continued to ask him, he stood up and said to them, “Let him who is without sin among you be the first to throw a stone at her.” – John 8:7
In last week’s column, entitled “Calling for respect for the principle of separation of power in Malawi,” drew some ripples of reaction. The column was basically underscoring the critical role the principle of Separation of Powers plays in our democracy in Malawi; how there is the need for all institutions and individuals alike need to respect the rule of law. A major point was made that claimed fair and square, that there is no room for any of the three branches of government to believe that it is superior to the other and therefore cannot be censured by the law.
The first reactant to the column was a Thungande, who asked for an explanation as to why the judges determined on issues that were not in the case. He or she said that the “petitioners asked the court to annul the Presidential poll. Why did the judges introduce 50+1?
Then a Najere waxed lyrical and went way down low and personal. Her or his outrage said “A Janet Karim, you just want to humiliate yourself. You ate enough during MCP’s Kamuzu regime with your father Nyemba Mbekeani before you married late Karim. What point are you trying to make? Parliament is sovereign – it can pass or reject bills. Tell your judges that they overstepped their mandate. Do you know what ‘Separation of Powers’ means? Or you are just joining the bandwagon in the hope that you can get a position from Chilima or Chakwera. Unatha iwe (translation: Your time ended) – just go to retirement.”
I seldom respond to commentaries from the reading public; I am however compelled to respond this week on two counts; firstly, for the honor of my late father, Ambassador N.W. Mbekeani, and my late husband. Secondly, to put into proper perspective various misconceptions entwined in the responses.
On the point that I am humiliating myself is a no brainer: I put my name to my columns, never hiding my identity behind any untraceable pseudonyms. If in the process. I humiliate myself, it is only I who is disgraced and not an entire lineage with the same clan name as Najere.
While Najere accuses me of having eaten during MCP’s Kamuzu regime with my father Nyemba Mbekeani, it must be pointed out that every Malawian is a beneficiary of the works and achievements of Dr. Kamuzu Banda as the leader of the Malawi Congress Party. At the outset, we have a country called Malawi; secondly, we have been fortunate that as a result of the policies of Dr. Banda, Malawi has continued to enjoy an existence of peace. Thirdly, Dr. Banda was arrested in 1959, along with a large contingent of fellow freedom fighters. Joining the fray of agitators, was my father (Ambassador N.W. Mbekeani) and his brother (J.A. Mbekeani, former Post-Master General). As loyal, dedicated and empathetic followers of dr. Banda, they were raised to various positions of honor. The left of their stay in such positions, speaks volumes to the deliverables the two rendered to their country. It is needless for me to point out that it was not only I that benefitted (ate enough).
All Malawians eat enough and continue to eat the benefits of the foundation of the Malawi nation.
The point that were made in the article was clear and succinct. In short, there are three branches; these are namely the executive headed by the President; the legislator is the law-making arm of the government; and the judiciary exists to interpret the Constitution, adjudicating where and when necessary. All three branches are instituted and have powers that are enshrined in our Constitution.
This brings this response to the comment that states: “Tell your judges that they overstepped their mandate.” Firstly, these are not anybody’s justices; they are the justices of the land. The DPP, MCP, UTM, UDF, PP and other political parties must respect the role that the Judiciary has, in the same way, respect must be accorded to the Parliament, and to the Executive. Secondly the February 3, 2020 decision by the Constitutional Court, was precisely within the mandate of the role of the Judiciary, as stipulated in the Republican Constitution of Malawi.
The Constitution is clear and provides for a division in the powers of the three branches. This is what is meant by the ‘separation of powers’ means. By defending this principle, it does not mean I joined “the bandwagon in the hope that one can get a position from Chilima or Chakwera.”
Najere implies that I do not know the law or the Malawi Constitution. For the critics that may be concerned, I was a delegate at three of Malawi’s constitutional conferences (1995, 1997, and 2007). During the first one, I was part of distinguished Malawians (thank you VP Justine Malewezi); in the second, I part of a three-person representative of the media and women (thank you Esnath Kalyati who encouraged me to start a media women’s association), and third, as a facilitator at the review conference (thanks to Justice Anthony Kamanga). By this, one could say I’m the Benjamin Franklin of the drafting of the Malawi Constitution.
As a scholar of history (European, US, African, and world history, absolutely yes, I have a fair understanding of the meaning of separation of powers. Inherent in the term is the unity of purpose, which is protecting the Constitution.
On the comment that “Unatha iwe (translation: Your time ended) – just go to retirement,” I believe we should all retire; we should start with the President and Najere.
Responding to Tungande’s why did the judges introduce 50+1, permit me to draw attention to the famous Mwangulu decision on Press Trust. Mwaungulu, as have other justices, has etched a niche in Malawi law for his decisions, that have caused upheavals and much gnashing of teeth. The point is in the Constitution; and constitutional delegates, of which I am proud to have been one, fought hard to have the 50+1 provision to ensure that the winner has over 50 percent of the population.
Undemocratic politics in the past 25 years, has pulled water over it. The ConCourt has the foresight and their patriotism compelled them to unearth the provision.
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