THE MALAWI DIGEST

In the referendum of June 1993, Malawians loudly rejected the one-party dictatorship which they had endured for over 30 years, in favour of democratic pluralism. Thus when the United Democratic Front (UDF) party came to power as the first democratically elected government since l964, it pledged itself to give the nation a government based on the will of the people, and one which would be transparent, accountable and committed to respect for the rule of law and to the promotion and protection of human rights for all.

However, only seven years later, Malawians are watching with dismay as all the promises heralded by the 1993 referendum, which seemed to be confirmed by the 1994 general elections, begin to evaporate as the country appears to be rapidly sliding back to a new form of one party rule. The government has turned back on its promise to provide good governance based on constitutionalism and on respect for the rule of law and observance of human rights. Not withstanding its continued public declarations of commitment to a plural democracy under-pinned by an effective opposition, the government’s actions have, in fact, been promoting the direct opposite. Taking advantage of a fragmented and weakened opposition, the government has openly embarked on a systematic erosion of all the pillars of genuine democratic governance and rule of law, characterized by, among others, lack of a balance of power between the Executive and the Legislature as well as an independent Judiciary.

Unless this situation is urgently arrested, Malawi risks degenerating into another one-party dictatorship, despite the existence of a multi-party setting. . This digest intends to highlight some of the major contradictions that Malawi is currently living with. These include a drift away from constitutionalism, abdication of responsibility by the Legislature, growing government intolerance for dissent, emergence of politically sponsored violence, lack of transparency and accountability, and disregard for the rule of law.

1. DRIFTING AWAY FROM CONSTITUTIONALISM

· Undermining the Popular Will
In order to prevent any return to dictatorship and also ensure that the government reflected the will of the people, the Malawian people adopted in 1994 a Constitution providing for checks and balances and contained several entrenched clauses. To avoid a prolonged hold on power, the Constitution set a limit on the Presidential tenure to two consecutive 5-year terms only. To check abuse of power, the Constitution provided for a bi-cameral Parliament comprising an elective lower house, i.e. the National Assembly, and an upper house, i.e. Senate, comprising traditional leaders and appointed representatives of various key sections of Malawi society; the Senate was vested with powers of veto over the National Assembly and would have authority to impeach the President. The Constitution also contained a Recall clause so the constituents could replace a Member of Parliament who had lost the people’s confidence and mandate. These and other entrenched clauses could be changed only through a referendum or by Parliament after the widest possible consultations.

In the very first act of undermining the popular will, Members of Parliament unilaterally repealed the Recall Clause ( Section 64, repealed by Act No. 6 of 1995 ) when the Constitution, adopted provisionally in 1994, came up for review in May l995. The Members justified their action on the grounds that such a provision could be abused and would thus be injurious to the development of Malawi’s young democracy.

In January 2001, without prior consultation and in complete disregard for calls by civil society and other sections of society, Parliament adopted a bill abolishing the Senate. The ruling party, which sponsored the amendment bill, stated that it would be too costly for the nation to have a senate at this time. Significantly, the bill was not allowed the twenty-one days notice period before being debated in the House, a move which was widely seen as intended to avoid a possible blockage by opponents of the proposed amendment.

During its current budget session, Parliament has proposed another fundamental amendment which would see the quorum in the House, currently at 50% of elected Members, reduced to a mere one third. If passed, this amendment would completely negate the principle of majority opinion in passing laws; Malawi would be the only country where the minority makes decisions over the majority. This amendment, it would appear, is a prelude to a suspected plan by the Executive to amend the Constitution further by abolishing the two-term limitation on the President’s tenure of office. The reduction in the quorum requirement would thus give legality to a clearly illegal and unconstitutional act.

Through the above Constitutional amendments and others which have been adopted during the past six years, the people’s will as expressed in the Constitution has been steadily undermined. If allowed to continue unchecked, such developments as these will ultimately render the people’s will irrelevant, as was the case during the thirty-years of one-party dictatorship.

· Erosion of the Balance of Power:

The past few years have also witnessed a steady erosion of the principle of the separation of powers amongst the three arms of Government, namely the Executive, the Legislature and the Judiciary. At the same time the principle of the independence of the Judiciary has been severely tested. However, inspite of the fact that certain judges have seemingly succumbed to Executive influence, the Judiciary has generally succeeded in maintaining its independence. Meanwhile, the Executive and the Legislature have, both jointly and severally, tended to ignore or have shown open contempt for its authority.

The most disturbing aspect of the erosion of the principle of separation of powers has been the way that the office of the Speaker has placed Parliament in a virtually subservient relationship to the Executive.

One of the most glaring example of this subservience was the unprecedented motion adopted by the House in May 2000, at the suspected instigation of the Executive, which saw Mr. Gwanda Chakuamba, president of the Malawi Congress Party (MCP), the main opposition party in Parliament, being suspended from attending Parliament for a year. The reason for the suspension was that the MCP leader had “shown disrespect for the Head of State” by boycotting public Presidential functions, including the State Openings of Parliament, which the former had maintained pending the outcome of a suit which he had filed in the High Court over alleged rigging during the 1999 presidential election, in which Mr, Chakuamba had lost to the incumbent, Dr. Bakili Muluzi.

The MCP leader challenged his suspension in the courts, which subsequently ruled that Parliament had over-stepped its mandate in suspending him from the House, to which he was elected by his constituents. Reacting to the High Court decision, the Speaker of Parliament declared that Mr. Chakuamba should be punished further for having shown contempt of Parliament by challenging its decision in the courts. The Speaker further declared that the presiding judge had no authority over Parliament and, instead, summoned him to appear before the House to answer to charges of contempt of Parliament. Probably on subsequent advice, the Speaker allowed the matter to die, but not before the judge had reminded him of the separation of powers between the judiciary and the legislature and also of the independence of the judiciary.

Despite the MCP leader’s return to Parliament, the Speaker and Members from the ruling party in the House, supported by a faction loyal to the MCP vice president, have decided not to re-instate him to his de jure position of Official Leader of the Opposition. This situation has, predictably, contributed to continuation of a deep split between the rival MCP factions whilst at the same time destabilizing and weakening the opposition. Needless to say, the Executive has derived much satisfaction from the prevailing situation since the vice president’s faction, led by the de facto Leader of the Opposition, has consistently been co-operative and supportive of the government side in the House.

In a separate incident which has further underlined this co-operation in undermining the Judiciary, the Executive and the office of the Speaker are openly flouting the ruling by the Supreme Court in May 2001 on a petition brought by the MCP faction loyal to the vice president, Mr. John Tembo. In the petition, the faction asked the Supreme Court to quash a ruling late last year by the lower court which found to be null and void the results of two separate conventions held simultaneously on 9th August 2000 by the two rival factions. The convention held in Blantyre by the faction loyal to the party president had confirmed Mr. Chakuamba in his position whilst that of members loyal to the vice president held in Lilongwe elected Mr. Tembo as president.

The Supreme Court upheld the lower court’s ruling and ordered that the party’s leadership position revert to that prevailing before 9th August 2000, pending an internal resolution of the split in the party.

In complete disregard of the Supreme Court’s ruling, the Head of State has, to the dismay of many, publicly declared the MCP vice president to be the “genuine leader” of the party. The President’s view is evidently supported by the office of the Speaker of Parliament. For, during one meeting of the current sitting of the House, the First Deputy who was then in the chair, did nothing to correct an MCP Member who rose on a point of order against a reference to Mr. Tembo as the “MCP vice president” and “to remind the Member (then holding the floor) that Mr. Tembo is the president of the MCP, not vice president…” For his part, the Speaker himself has stated that there can be “ no question of the position of Leader of the Opposition going to Mr Chakuamba”, citing as justification the fact that Mr. Tembo “ was duly elected to that position by the MCP Members of Parliament”. The Speaker’s statement of course flies in the face of the Supreme Court ruling and contravenes Parliament’s own standing orders regarding appointments to positions in the National Assembly.

The preceding cases have illustrated both the erosion of the principle of the separation of powers as well as the constant pressures exerted on the independence of the Judiciary. There have been other cases, some dating as far back as 1995, in which actions by the Executive or by the Legislature have prejudiced matters before the courts, resulting in the cases having to be withdrawn.

There have been numerous other cases illustrative of the Legislature’s subservience to the Executive. For instance, Parliament has seemingly accepted that the President can create administrative districts without reference to the House, despite the obvious inherent political as well as financial implications. For the ruling party, the creation of additional districts has been beneficial in giving it extra seats in Parliament arising from the constituencies which are automatically created in the new districts. Another example is the creation last year by the Office of the President and Cabinet of a new national intelligence service (the National Intelligence Bureau) without any prior notification to legislators. During the 2000 budget session, Parliament proceeded to allocate funds for its operations without even asking why such a body was necessary or enquiring what had happened to the Special Branch which had previously operated under the police establishment.

Clearly, the principle of separation of powers has been greatly eroded and, as a consequence, Malawi has begun a very real and worrisome drift away from constitutionalism.

2. LEGISLATURE ABDICATING ITS RESPONSIBILITY

The previous section highlighted the subservience of the Legislature to the undue influence of the Executive, which is in contrast to the efforts of the Judiciary to preserve its independence from both of the other arms of Government. As for the Legislature, it is to be noted that apart from the Executive, Members have also allowed themselves to be influenced in carrying out their work by such unhelpful factors as political affiliation and selfish interests. As a result, members of the Legislature are seen by most Malawians as having abandoned their responsibilities as representatives of the people.

· Political Affiliation

The Constitution states that Members of Parliament have the right to make independent decisions, based both on the interests of their respective constituents and on their own conscience. In practice, however, Members have been constrained to follow the dictates of their parties. In some circumstances it has been pragmatic and beneficial for the Members to obey, but in most cases this has been at the expense of national interest and good governance. For instance, when, in 1996/97 members of the Malawi Congress Party and the Alliance for Democracy, on a point of principle, boycotted Parliament for several months, the governing party carried on without them and in the meantime passed a number of controversial bills which subsequently worked to the disadvantage of the two parties.

Recent examples of Members of Parliament voting according to party direction include the 100% “yes” votes cast by Members from the ruling United Democratic Front Party (UDF) and those from the pro-Tembo faction of the Malawi Congress Party to suspend the MCP president from the House in June 2000 and also in connection with Constitutional amendment bills on abolition of the Senate, and the “crossing of the floor” by Members, which they knew fully well was targeted at certain Member. Earlier, in January 2001, the same pattern repeated itself when the House adopted a bill which would in effect give the government control over the activities of non-governmental organizations (NGOs), and was thus aimed at stifling those NGOs considered to be too critical of the government. This was despite the privately expressed opposition of some of the Members to these bills. Invariably, virtually all Members from the AFORD party and all those from the MCP faction loyal to the party president cast dissenting votes.

The nation is obviously ill-served when elected representatives pass laws which they themselves do not believe in.

For fear of being considered disloyal to their parties, Members, particularly those from the ruling party, have refrained from raising questions about some of the actions of the Executive even though these were clearly unacceptable. In one of the earliest examples of this problem, for instance, Parliament was in 1995 prevented from taking any meaningful action over a scandal in which the then Minister of Education procured without following the proper procedure educational supplies from an overseas supplier affiliated to a local firm for which the Minister had previously worked. As a consequence, a lot of public funds were lost in clearly unethical circumstances. Yet the Minister was never seriously held to account. In the most recent incident, Members belonging to the ruling party joined the Speaker in blocking any discussion of attacks perpetrated at Parliament grounds by members of the UDF’s youth wing against individuals and property belonging to the opposition on the opening day of the current budget session.

During the June 2000 session of Parliament, a prominent and staunchly loyal UDF Member from Mangochi, commenting on an audit report on one of the parastatal corporations (the Petroleum Control Commission) whilst making a contribution on the budget speech raised a question regarding the problem of corruption in the public sector, observing that those involved in corruption were not serving the President and his government well. The Member received no support from other MPs. Meanwhile, he was summoned to appear before the UDF disciplinary committee, where he was severely castigated and forced to issue a public apology for his “erroneous insinuations”. Even the President launched a scathing public attack on the Member. If the Member had any evidence of corruption against anyone, the President stated, he should submit it to the Anti Corruption Bureau.

Ironically, only two months later, the chairman of Parliament’s Public Accounts Committee made public the Auditor General’s report which showed the existence of widespread corruption and fraud in government Ministries as a result of which three implicated Ministers were subsequently dropped from the Cabinet. There has never been any apology made to the Member from Mangochi, but his experience served as a brutal lesson to other MPs who might be tempted to take their responsibilities to the public too seriously.

Thus for most legislators the operative principle seems to be “my party first”, even if this may not be in the interest of their respective constituents or the majority of Malawians.

· Personal Interests

Members of Parliament have, from the very beginning, shown that their personal interests take high precedence when taking decisions in the House. Reference has been made earlier to their decision to unilaterally repeal the Recall Clause from the Constitution. Obviously, this was because they wished to protect their respective tenure of office, regardless of their performance.

Since then, the Honourable Members have shown themselves to be particularly concerned about personal financial rewards than in issues of benefit to the public. In 1995, the House decided against implementation of the Chatsika Report, commissioned by the government in 1994 to review the conditions of service for the Civil Service, on the grounds that the recommended remuneration package would be too costly to the state. Yet only a few months later, the same Members had no qualms in granting a request for improved salaries and allowances for the Judiciary, subject to the Members’ own sitting and other allowances being improved first. Unashamedly, the Members then promptly awarded themselves the increases, in utter disregard of public disapproval. During the current session, Members have once again awarded themselves increases in sitting allowances and per diem allowances, with the result that it is now estimated that the latter allowances alone will now cost Parliament about K60 million per week. This excludes monthly salaries of K30,000 and sitting allowances of K42,000 per Member.

This apparent greed and preoccupation with money has made most Members from the opposition vulnerable to enticement into defection to the ruling party, in return for financial reward. In the process, true representation of the people has been sacrificed at the altar of personal satisfaction .

3. EROSION OF THE RULE OF LAW
The President is fond of reminding the nation and the world of his government’s commitment to the rule of law and to the assurance of justice and equality for all before the law. Unfortunately, this commitment is honoured more in the breach than in observance. From the earliest days, members of the administration have behaved in ways which have suggested to the public that some people are above the law. Commitment to the rule of law has, instead, been characterized by unpunished incidents of certain individuals who regard themselves as being above the law, and by corruption, abuse of powers and, lately, politically sponsored violence.

· Living above the Law
The now familiar cavalier attitude of senior government officials toward the rule of law first manifest itself in 1996. During the budget sitting of Parliament in 1996, civil servants staged a demonstration at Parliament to press for the adoption of the Chatsika Report on civil service conditions of service. As the Minister of Education left Parliament grounds, his car was mobbed by the demonstrators. Following this incident, another Minister declared publicly that he would shoot to kill anyone who might be tempted to accost him. As though to prove the point, and to the horror of other Members of Parliament in the House, the Minister brandished his gun, boasting that he had several others which he was ready to use on anyone challenging him.

The Minister’s public conduct since 1996 has suggested that he may well have been serious about shooting at anyone who stood in his way. In the meantime, he had deliberately breached the sanctity of Parliament by bringing a gun into the House. Neither the Speaker’s office nor the government censured the Minister or took any kind of action against the Minister on his behaviour.

Contrary to Constitutional provisions, in 1999 the ruling party fielded as a candidate in that year’s general elections, and later the President appointed to the Cabinet, an individual already known to be under police investigation in a homicide case arising from a dispute over land. Although the individual concerned subsequently voluntarily resigned from the Cabinet so as to “not go into court in a Ministerial suit”, the incident showed a lack of respect for the law on the part of the ruling party and the Executive.

In January this year, the Mayor of the City of Blantyre defied a court injunction against interfering with the convening of a meeting by a recently formed pressure group, the National Democratic Alliance (NDA). The mayor refused to sign for the court order and, instead, on 15th January 2001, the day of the meeting, he called in the police to forcibly disperse the people. Several people, including women and children, were injured in the ensuing stampede; a family living near the venue of the meeting was reported to have lost a little baby, who died from inhalation of fumes from tear gas used by the police.

The mayor was taken to court where he, together with the Regional Commissioner of Police who authorized the use of the police and other officers, was found guilty of contempt and given a suspended sentence. Unrepetant, the mayor ignored calls to resign over the incident whilst the Minister responsible for the police refused to take any disciplinary action against the convicted officers.

Significantly, the Minister responsible for Presidential Affairs, and a member of the national executive of the ruling UDF party, accompanied the mayor everyday during the court hearing in a clear show of Executive support.

Shortly thereafter, this Minister himself and the UDF regional governor for the Southern Region appeared before the court, also on charges of contempt arising from defiance by the two against an injunction barring them from discussing or referring to a case then in the magistrate’s court where the leader of the NDA, Mr. B.J. Mpinganjira, was on trial on charges of corruption. Both men were subsequently acquitted, but their case demonstrated once more the government’s disrespect for the rule of law.

· Abuse of Power

Another manifestation of erosion of the rule of law has been the misuse and abuse of the institutions established to either administer the law, i.e. the office of the Director of Public Prosecutions (DPP), or to promote and protect justice, such as the office of Ombudsman.

Following the formation of the NDA towards the end of the year 2000, the opposition seems to have been revitalized. The public enthusiasm that has greeted joint meetings and rallies of the NDA, Alliance for Democracy Party (AFORD) and the Chakuamba faction of the MCP have apparently shaken the government and its party, the UDF, out of complacency and caused it to worry about its own support. As a result, the governing party has, since the end of November 2000 been conducting a non-stop high profile campaign, led by the President himself, to rally support and prevent an exodus to the opposition. At the same time , the government has launched a dis-information campaign, in which the three heads of the opposition MCP,AFORD and NDA have been accused of plotting to start a civil war in Malawi and over-throw the government through force. Consequently, surveillance through the national intelligence bureau (NIB) against the opposition leaders and on suspected sympathizers has been stepped up. In this context, there are strong indications that the government is now intercepting mail and tapping telephones of both real and imagined “opponents”, all of which is reminiscent of the practices under the old one-party regime.

In the midst of all this has come the DPP’s declaration in April 2001 that he would now arrest any persons who, in his opinion, may be considered to be guilty of treason; he has not explained what would constitute treason but no one doubts as to the intended targets of the veiled threat. It is also generally agreed that the DPP’s statement was made at the behest of the Executive.

Another example of the abuse of the DPP’s office was reported in the “Eye of the People” newspaper of 10th June 2001 which suggested that, on instruction from the President, the DPP withheld permission for the Anti-Corruption Bureau to prosecute Dr. Casssim Chilumpha, a former Minister of Finance and one-time Minister of Education. Dr. Chilumpha was dropped from the Cabinet in November last year together with Mr. Mpinganjira and a third Minister, Mr. Peter Chupa, after a report by Parliament’s Public Accounts Committee implicated them in a K187 million corruption case involving the Ministry of Education. Indeed, it may be recalled that whilst the DPP lost no time in bringing Mr. Mpinganjira to court last November, where he was acquitted on all charges, it was not until March/April this year that Dr. Chilumpa was brought before a magistrate’s court by the Anti-Corruption Bureau, only to have his case dismissed on a technicality.

The government has not refuted the report by the “Eye of the People” newspaper, thereby giving credence to the article.

As for the Ombudsman, no action has been taken against his office yet. But it is significant that the government has not refuted or commented on reports that it intends to present a bill aimed at reducing his powers, which the authorities now consider to be “ too excessive” and used to discredit the government.

As with the other issues, many more instances abound which have served to confirm the prevalence of abuse of the instruments intended for the delivery of fair justice and for the promotion of the rule of law.

· Lack of Accountability

Members of both the Executive and the Legislature have been reticent about declaring their assets, as they are constitutionally required to do immediately upon assuming office and in the interest of transparency and accountability. Undoubtedly, many of the Honourable Ministers and Members fear that if they declare their assets, they might be unable to account for the wealth that some of them have amassed so soon afterwards. Significantly, neither the President nor Parliament have so far taken any action against defaulters.

In 1994 and 1995, the government, on the President’s direction, distributed to Members of Parliament sums of money amounting to K50,000 per person. The money was ostensibly to be used by the members in development activities in their respective constituencies. However, it is significant that the moneys were given only to members from the UDF. Meanwhile, there has been no accounting for these funds, and neither has there been any evidence provided as to such projects as may have been carried out with the money.

Similarly, and at about the same period, the government also gave out a considerable amount of money to enable youth to start income generating activities as part of efforts to encourage participation by the youth in national development as well as promote their economic empowerment and self-reliance. Again, no tangible results seem to have come out of this scheme. Meanwhile, reports indicate that virtually all the money was given to individuals and groups of youth affiliated to the ruling party.

In both instances, the government has not accounted for the funds disbursed, and it has resolutely blocked any attempts by opposition Members to raise these issues in Parliament.

· Corruption
Such examples of lack of accountability on the part of the Executive arm of government have indisputably contributed to the development of the culture of corruption now widespread in public institutions. And the corruption seems to have tainted everyone, including the Head of State himself. For instance, according to a key witness in the K187 million (approximately $4.5million) scandal involving the Ministry of Education, to which reference has already been made, the President himself was not only implicated, but might also have supported the actions that led to the misuse of public funds under that Ministry . According to the witness, the problem in question was most prevalent in 1999 when the Ministry was directed to assist aspiring UDF candidates in that year’s general election. Such individuals were officially recorded as contractors engaged on Ministry of Education projects and would be paid in advance for their “projects”; in fact, however, the money went to finance the election campaigns of the individuals concerned.

In similar and other ways, millions of Kwacha have been siphoned from government departments by senior officials and from parastatal organizations by chief executives and other senior officials as well as by board members and used on personal projects. In some instances moneys have not gone to individuals but have been spent on personal aggrandizement of individuals, such as by buying the latest models of luxury cars for personal use of senior company personnel even when the organizations concerned are operating at a loss.

Nepotism has been among some of the forces driving corruption. Nearly all chief executives and members of boards of parastatal corporations are relations of senior members of the ruling party or Cabinet Ministers. Thus, for instance, the present chief executive of the Petroleum Control Commission, responsible for oversight on the importation of fuel and petroleum products, was appointed to the post on direct orders of the Minister for Presidential Affairs, who, apparently is a man friend of one of the executive’s sisters. The wife of the same Minister is chairperson of the national telephone company, the Malawi Telekom Networks Limited (MTL). The Regional Governor of the ruling UDF party in the Southern Region was chairperson of the PCC board of directors, and has, together with the Minister then in charge of the Ministry of Energy and Mining, now responsible for Presidential Affairs, been implicated in 1997 audit report which revealed widespread misuse of funds. The chief executive at the time, according to the audit report, had foreign accounts, one of which had $220,000 whilst another had over 200,000 pounds sterling. Despite pressure by the World Bank and International Monetary Fund, both of them PCC creditors, to have the chief executive prosecuted and appropriate action taken on the Minister and the board chairman, the case remains outside the courts. Meanwhile the chief executive, a close personal friend of the Minister, has since been transferred to another parastatal corporation from which he had been previously moved, also on grounds of financial impropriety.

In the most recent case of official corruption, the Minister for Information has been implicated in an insider deal involving the sale of public telephone bureaux as part of the privatization of MTL; others involved are the chairperson of the company, the chief executive and several other senior officials. When the matter first came to light, the Minister tried to reverse the sales of the bureaux; he also denied reports that he, too, had acquired one of the assets being sold off. However, the Anti-Corruption Bureau immediately took up the matter for investigation. When asked about the matter in Parliament, the Minister declined to comment on the grounds that it was now sub judice. He rejected for his resignation to permit the investigations to be carried out. The Minister concerned is one of those that have prospered greatly since being appointed to office.

It may be worth noting that the Minister for Presidential Affairs is quoted by the press as declaring that the MTL bureaux issue is “a finished matter” and that nothing will happen to his wife, regardless of investigations by the Anti Corruption Bureau, because, allegedly, the Minister, his family and his friends are “untouchable” and “above the law”.

Other cases of corruption uncovered in recent years include dubious awarding of contracts, such as one where two Ministers conspired and bought a fleet of second-hand Land Rover vehicles for use by the Malawi Police Force from a regional supplier instead of purchasing direct from the manufacturers in Britain. The vehicles, which have been impounded by the Anti-Corruption Bureau, were purchased at a higher price than that of the manufacturers. In another, a supposed agent collected millions of Kwacha in fees involving the supply of equipment for making national identity cards.

Another way in which corruption has been perpetrated has been the formation of dubious companies by public officials, including Members of Parliament and Cabinet Ministers to whom contracts are then awarded for the supply of services and goods. Nearly seven months ago the first woman Deputy Inspector General of Police in Malawi had to be sent on forced leave when junior officers complained that they were being denied allowances because priority on funds was going towards paying the Deputy Inspector General, who had complete monopoly in supplying food-stuffs to the entire police service. It is understood that she has since been quietly retired. However, many others known to be involved in similar deals have escaped detection or have been allowed to go unpunished. .

During the past eight months, it has seemed that no week goes by without a fresh corruption scandal surfacing. In virtually all cases, no one has been punished, which has greatly tarnished the integrity of the government and made a mockery of the President’s frequent exhortations against corruption.

4. ELIMINATING COMPETITION AND MUZZLING DISSENT

From the very early days of the current political dispensation, the ruling party has shown an unmistakable aversion to genuine multi-party governance, characterized by healthy though keen competition during election campaigns and co-operative partnership in the running of national affairs between the winning party and the losers. Instead, following the short-lived alliance between the UDF and the AFORD parties in l994/95, the former has treated the opposition, both in word and in deed, as the enemy. Thus the opposition parties are never consulted on national policies or programmes, and inter-action between Cabinet Ministers and other officials, including Members of Parliament from the UDF, is taboo, except within the premises of Parliament.

Similarly, despite invitations by the President during the euphoric aftermath of the UDF’s 1994 victory for the citizens of this country “feel free to criticize this your government”, in fact, the government had always shown a warriness about anyone voicing descent. This trait may initially have been forgiven as arising from lack of confidence in people newly in positions of power where every act and utterance was subjected to public scrutiny and comment. However, over the past six years, it has become evident that this government does not take kindly to dissent.

· Politically Sponsored Violence
In the past, the government had seemed to be content to keep the opposition parties at a distance and to destabilize and weaken them by enticing their members to defect to the UDF or by encouraging rivalries and divisions among them, as has been so successfully done with the Malawi Congress Party. Election campaigns were characterized by vigorous competition, but, in general, they were peaceful. But this seems to have changed and instead the UDF has come up with new strategies for dealing with the opposition. In this regard, a very disturbing recent development has been the emergence of politically motivated violence.

The use of intimidation and violence as political tools was first noted in seemingly isolated incidents during the 1999 Parliamentary and Presidential elections. In nearly all instances, the violence was initiated by elements belonging to the ruling party. On two separate occasions, for instance, the president of the Malawi Congress Party, Mr. Gwanda Chakuamba, together with other party officials, was attacked in Kasungu District and in Nsanje District in the presence of the police; in Kasungu, the car in which he had been traveling was badly damaged and he and the others were actually chased even within the police precinct. It was not until the MCP leader took these matters to court that the police began to take action, but up to now no arrests have been made, despite the fact that some of the people involved are well known people.

Since the 1999 general elections, organized violence has become a feature of electioneering, especially in areas regarded by the UDF to be particularly critical.

Thus, for instance, during a campaign rally organized by the MCP candidate for a by-election in the Blantyre East constituency in April this year, a truck-load of UDF party operatives were ferried to the venue where they immediately attempted to break the meeting up. In the fighting that ensued between the intruders and MCP supporters, one person, later identified as a UDF member, was killed. Despite the fact that the vehicle which ferried the UDF elements was clearly identified as belonging to the Blantyre City Assembly, which should have facilitated investigations, the police claim to have been unable to arrest the real culprits. Perhaps because the person who was killed belonged to the UDF party, the President immediately ordered that the matter be investigated and the guilty parties be brought before the court. Whereupon the police immediately detained a number of MCP members, including the candidate for the by-election, and held them in police custody until Friday June 22, when they were released, ostensibly “for lack of evidence.” The President’s concern was remarkable, as only a few weeks earlier, during a similar confrontation between UDF and NDA supporters in which the former severely damaged NDA property and critically injured some supporters of the pressure group, the President and the government chose to maintain silence; not surprisingly, the police made no arrests.

On the occasion of the official opening of the current sitting of Parliament, on June 4, a group of Young Democrats , went on a rampage in the full glare of a massive police presence against individuals and property belonging to opposition parties and critics of the government, especially the National Democratic Alliance. They burnt down, within Parliament grounds, a Mercedes Benz car belonging to a senior NDA official and sprayed graffiti on several others belonging to other NDA leaders. A Moslem cleric known to be a critic of the government was stripped almost naked and beaten up, as were several other people. No arrests were made; the government has made no statement on the incident, and the Speaker has resolutely prevented any attempts by Members of Parliament to bring it up for discussion in the House. Ironically, however, the owner of the car, who was not using it himself on the day of the incident, was soon afterwards suspended from his job at the Lilongwe City Council on orders from the Minister of Local Government.

On the night of Tuesday June 26, a prominent Moslem Sheikh belonging to the Quadriya sect, and one of the authors of a recent pastoral letter critical of the President and the government, was attacked inside his home at Liwonde, in Machinga District, by a group of people whom he has since identified as UDF party operatives. They beat him up brutally and apparently left him for dead. Friends had to take him away from the hospital in Liwonde, where he had initially been admitted because of reported rumours that his attackers were planning to finish him off at the hospital.

As in the other incidents, the government has not made any statement and no arrests have been made. It is significant, however, that the attack on Sheikh Bugidad, came only days after a public rally attended by the President and at which some senior UDF leaders called for the death of critics of the rumoured plan to have the President seek a third term. The Moslem pastoral letter spoke very strongly against any attempts to amend the Constitution with the aim of enabling Dr. Muluzi to go for a third terms as President.

It is also significant that the use of violence against opponents of the ruling party and against critics of the government emerged at the very same time as the President and other leaders began to show open intolerance of the opposition and will do anything to disable, and perhaps even eliminate completely, anyone who might threaten their hold on power. On more than one occasion, the President has publicly threatened to use force against opposition leaders, whom he has accused of plotting to bring his government down through civil war. Since no evidence has ever been adduced to support such accusations, the President’s remarks have given the unmistakable impression that the government has now become paranoid. In such circumstances, the apparent indications are that the UDF is officially sanctioning the use of force by its members, especially the Young Democrats, whose activities have become reminiscent of those of the MCP’s defunct Malawi Young Pioneers. This is cause for great concern.

· Silencing the Critics
Despite the change from dictatorship to democratic rule, and inspite of the official existence of legal guarantees of freedom of expression, Malawian citizens remain afraid to openly voice their opinions. Having silently endured 30 years of brutality and suppression under the regime of Dr Banda, Malawian citizens are now bewildered at contractions imposed on them by the evolving political environment.

Until now, only civil society organizations have been at the forefront in voicing concerns about political and other developments in the country. However, it has been evident for a while, especially in the past two years, that the government had grown tired of these critics, especially non-governmental organizations, NGOs, and that it would only be a matter of time before they were silenced. Thus it came as no surprise when it became known last year that, as part of its strategy to silence dissent, the government was considering legislative measures to control NGOs, especially those involved in the fields of good governance.

After initially giving assurances that any such measures would be mutually agreed with the civil society organizations, the government decided to take unilateral decisions on the matter. Thus, despite protests from civil society organizations and other critics, the government forced through Parliament in January this year a bill which gives it power to virtually shut down any NGO, on a number of questionable grounds, including one of being “involved in activities of a political nature.”

A board dominated by government appointees, and on which the NGOs will have no real representation, will determine what NGOs may be permitted to operate, subject to the organization concerned being also a member of the Council for Non-governmental Organizations in Malawi (CONGOMA), membership of which has previously been voluntary. The board will monitor the activities of the NGOs and will have authority to have any NGO de-registered.

Armed with this Act, the government has already begun to put pressure on NGOs to toe the line. At the same time, pressure seems to have been put on organizations that support NGOs involved in good governance and human rights, including foreign donor agencies in the country, with a view to persuading them to reduce or cut off financial support to a number of targeted organizations.

Meanwhile, the government has in recent weeks shown in various ways that it will not brook any criticism. In this regard, and as noted in previous sections of this discourse, various incidents of calculated acts of violence directed against critics of the government have been cited.

Among the recent victims of such action has been one NGO concerned with civil liberties, whose director was personally attacked following some remarks in which she had criticized the government. In what may have been a precursor to the use of violence to silence criticism, a seeming break-in took place a few months ago at the home of another prominent woman human rights activist. The intruders took away a number of items, including some money which they demanded on the director and members of her household; they also attempted to rape a female servant. At the time were taken to be mere robbers but, with hind-sight, it has to be considered that this was a politically directed act of intimidation against the director of the Malawi Centre for Advice, Research and Advice on Rights (Malawi CARER). Coincidentally, her organization had earlier published an article in one of the journals which was critical of the government.

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· Curtailing Dissent by Ordinary Citizens

Previously, the government’s disapproval of dissent has been especially against criticisms from organizations which it has labeled as “political parties masquerading as NGOs”. Now, however, it seems, even peaceful demonstrations and petitioning of government by ordinary citizens are no longer tolerated. Nearly two months ago, a group of 6oo Moslems belonging to the Quadriya Moslem sect marching in Blantyre to present a petition to the President on the current political situation in the country was prevented from reaching Sanjika Palace. A heavy contingent of armed police dispersed the group using tear-gas and arrested their leaders, including Sheikh Bugidad, head of the sect and a staunch critic of the President. (Having failed to present the petition to the President himself, the group decided to release it to the public, among whom it caused a stir with its stinging forthrightness. Which is undoubtedly why the sheikh was attacked and apparently left for dead last week.)

In the northern district of Chitipa, two local Members of Parliament organized a peaceful march on Friday May 25 to present to the District Commissioner a petition addressed to the President. In the petition, the people wanted to seek the government’s assurance that, contrary to some rumours suggesting otherwise, the funds intended for construction of a long awaited road connecting Chitipa to the neighbouring Karonga District had not been spent on another project. Despite the organizers having duly notified the police in good time about their intended march, the police officer-in-charge declared it illegal and ordered his men to forcibly stop the march. Tear gas canisters and live bullets were shot into the crowd, resulted in the instant death of three people. Immediately thereafter, the two MPs were arrested and flown to Lilongwe where they were arraigned on Monday May 28 on charges of incitement, among others.

As with all such cases, the government has said nothing and done nothing, despite widespread calls for an official statement to explain the circumstances behind the Chitipa shooting and demands for an inquiry so that the wrong-doers may be dealt with and the victims compensated, the government has so far remained silent.

Thus, having come to power with a promise of openness and readiness to accept advice and even criticism, the government has now not only become intolerant of dissent but is showing itself prepared to employ any measures to stop criticism, even if in doing so, such rights as the citizens’ right to freedom of expression are violated. The government seems determined to gag its citizens into silence again.

5 CRIME AND SECURITY
§ Law Enforcers as Criminals
The past decade has witnessed a phenomenal rise in serious crime in Malawi , including armed robberies, resulting in a great sense of insecurity among the people. And crime has also spread to rural areas. A lot of the activities indicate the existence of organized crime and crime syndicates, some of which appear to have external connections. The erection of security walls around premises is now a major growth section of the construction industry whilst thriving private security companies have mushroomed throughout the country.

At the local level, the government has initiated, in selected areas throughout the country a programme of community policing with a view to preventing crime rather than dealing with offenders after crimes have occurred. At the same time, communities in other areas, particularly in urban centers, have begun operating a system of independent neighbourhood watches. Whilst in some areas where they have been instituted, the community policing programme and the neighbourhood watches have made some impact, in general, the crime rate has continued to rise. The population thus lives in constant fear of loss of property and life.

The most disconcerting aspect of the criminal activity to emerge in Malawi during the past few years is the growing evidence of the direct participation by elements of the Malawi Police Force. For instance, less than two months ago, patrons at a night club in Blantyre had their evening suddenly disturbed by two disguised persons who burst in, started shooting in the air and demanded money from the cashier. Unfortunately, the two were over-powered by the patrons who, on searching them, found badges identifying them as serving police on them before one of the men broke loose and escaped. The captured officer was handed over to the nearest police station, together with the AK 45 rifles which had been snatched from the two as well as the identity badges. Those at the station confirmed the identity of the policemen but tried to protect them by suggesting that, in fact, the two were on duty and had been in pursuit of suspects who had run away in the direction of the club. There were apparent difficulties in accounting for the AK45 rifles, which are not standard issue for the Malawi security forces, or for the partial disguises which the men wore at the time, and why they came into the night-club with guns blazing. The spokesperson for the Malawi Police headquarters also tried unconvincingly to cover up for the two officers. And this has been the pattern with most similar incidents.

Recently there have been reports of a series of break-ins at a number of police stations where arms have been stolen. It is suspected that such break-ins are planned from inside the stations involved and that the arms stolen end up in the hands of criminals. This was the case with a cache of arms that was stolen from the Malawi Army armory at army head-quarters in Lilongwe about 18 months ago; these were later found in the hands of ex-soldiers who had apparently been involved in crimes carried out in areas around the capital city. There are also suspicions that some of the stolen arms are sold to criminal elements by policemen in need of money.

This development has increased the sense of insecurity among Malawians. The government has, in the meantime, indirectly admitted to failure to deal effectively with crime by dismissing four Inspectors General of Police within the of six years.

§ An Unprofessional and Politicised Police
With financial assistance from Britain, the government embarked upon a reform programme intended to transform the Malawi police force into a professional non-political institution for dispensing law, based on equitable dispensation of justice and respect for the civil rights and liberties of the individual. The programme’s objective was to change the image of the police as a tool for brutalizing and suppressing the people at the behest of politicians, which it had come to be regarded under the previous dictatorial regime, and portray it, instead, as friend of the community.

Despite the wide publicity with which the reform programme was launched, the police reform programme does not appear to have made any progress beyond, perhaps, the senior officers at the national headquarters. In a previous section, reference has been made to how, for instance, at the request of the mayor of the city of Blantyre, the police officer in charge of the Southern Division sent some of his men to break up a political meeting organized by a pressure group perceived by the government to be its enemy. Police also assisted the aggressors by not intervening to break up a fight that erupted between supporters of the ruling party and those of the MCP when the former tried to break up a campaign rally organized by the latter, resulting in a death. Reference has also been made to the violence that occurred at the Parliament grounds when the President officially opened the current session of the House, where, once again, the police failed to intervene since the perpetrators were members of the ruling party.

But events during the past fortnight have served to illustrate another example of how the Malawi police force which was supposed to be transformed into a non-partisan professional law enforcement agency has, instead, now become a tool for use by the politically influencial in breaking the law. A fortnight ago, the general manager of the Malawi Broadcasting Corporation, the national radio, who is known to be affiliated with the ruling party, called in the police to prevent agents from the Malawi Revenue Authority from sealing up the radio station and siezing vehicles and other property in lieu of monies owed to the revenue collection agency. The monies comprised un-remitted arrears in income taxes collected from employees on behalf of the Malawi Revenue Authority as well as levies on varied income received by the radio over a number of years. In statements later, the police headquarters tried to justify the police action by suggesting that the local police had intervened in order to prevent disturbance of peace at the Malawi Broadcasting Corporation, which is situated next to the Southern Division office of the Malawi Police. This statement, unfortunately, only made the police sound ridiculous.

Naturally, such incidents as this have done little to engender confidence in the law enforcement agency among the citizens of this country, who have been severely traumatized by the insecurity pervading their country.

6 CONCLUSION

This presentation has centred mainly on issues of governance and the rule of law with the aim of highlighting the very real danger of Malawi sliding back towards a one-party dictatorship behind the façade of public statements by the national leadership professing continued commitment to plural democracy, equity for all and respect for the law. Unfortunately, those making these statements seem to have willed themselves into believing their own declarations. Unwittingly, many of this country’s well-wishers outside Malawi who have no way of seeing for themselves the contradiction between the words and the deeds have, regrettably, also been led to believe the picture presented by officialdom.

The contradictions also exist in other spheres of Malawian life. For instance, in the economic sphere, the government’s stated goal of eradicating poverty bears very little, if any, relationship to the ever more unbearable situation resulting from the government’s economic policies and practices as a result of which the multitudes of the poor are getting poorer, whilst the few who are affluent, including those whose wealth has been acquired through doubtful means, are getting even wealthier. The social sphere, too, presents its own kinds of contradictions. In education, the pride of the government’s policies is the introduction of free primary education which has, in less than seven years, more than doubled the enrollment of children entering the education system to more than 3 million. It speaks volumes about what those who run the education think of its quality that most of them have sent their children to schools outside Malawi. In health, too, the majority of people who cannot afford to pay for private clinics have to put up with inadequately provided but over-burdened health clinics and hospitals manned by poorly motivated, over-worked and under-paid staff.

Whilst the leadership is constantly talking about its desire to see development spread throughout the country, the reality for Malawians has been that areas in which the opposition predominates have seen very little development since the government’s publicly declared position has been one of punishing such areas for not supporting the ruling UDF party. Unfortunately, this has meant that, since the national election results have been along geographical lines, with the Southern Region voting for the UDF, the Centre largely supporting the MCP and nearly all of the North going to the AFORD, the government’s development programmes have been least in the north. The public exhortations to the people to regard each other as one have not been matched by policies and practices that promote and strengthen such unity.

Malawi is sitting on a time bomb whose explosion could be triggered by any of the factors examined in the preceding pages. The consequences of such an explosion would, naturally, have the most devastating effects on Malawi itself, but the implications for the other countries in the region cannot be over-stated.

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Malawi Institute of Democratic and Economic Affairs,
P.O. Box 30465,
Lilongwe 3
Malawi 2nd July 2001