1 CONCEPTUAL AND CONTEXTUAL BACKGROUND

Augustine Titani Magolowondo

INTRODUCTION

This book is about Government and politics in . The diversity of issues that are discussed in the subsequent chapters bears testimony to the complexity of this subject matter. The aim of this first chapter is twofold. First, as you may have probably experienced in our daily discourse, the terms Government and politics are often confused with other key terms such as state and nation. As a starting point, this chapter clarifies these related concepts, which are inherently connected but yet conceptually distinct. Second, the discussion in this chapter aims at providing the context within which politics and Government in Malawi operate. In this regard, I look at both the political history and key socio-economic characteristics of Malawi. Finally, I discuss challenges facing Malawi’s politics and Government today.

WHAT IS POLITICS?

The concept of politics is as old as Government itself. Aristotle, the Greek philosopher (384–322 BC) argued that ‘man is by nature a political animal’. What was meant is that politics is not only inevitable but also essential to human activity. In other words, wherever there are human beings, politics is unavoidable. However, much as Aristotle’s maxim has become almost indisputable among the students of politics, there is no consensus on what exactly is to be understood by politics. To appreciate the conceptual complexity of politics, let us consider for instance the 2000 to Section 65 of the Malawi Constitution (popularly called the ‘crossing of the floor’ provision). This amendment was to result in any member of Parliament (MP) losing his/her seat should he/she join

1 GOVERNMENT AND POLITICS IN MALAWI any organisation whose objectives were deemed to be political in nature. Before this amendment, an MP could only lose his/her seat if he/she joined another political party that was represented in Parliament. Later, the constitutional amendment was overturned by the courts on the grounds that it was unconstitutional. We are not interested in reviewing or reviving this case here. We are only interested in the controversial question that this amendment raised. The question is that of defining organisational objectives that are ‘political in nature’ or, put simply, defining what politics is. The commonly used definition of politics has been provided by Harold Lasswell (1936). He defines politics as being concerned with ‘Who gets what, when, and how?’ There are a number of observations that can be made here. First, it is clear that politics is a social process that exists in any social setting. This is because the question, ‘Who gets what, when and how?’ is the kind of question that cuts across all societal levels: family, community, district, regional and governmental. Second, the issue at the centre of politics is choice. Choice in politics is largely to do with (re)distribution of resources. Resources exist in different forms and at different levels of society. Material resources could be money and development projects. Other resources could be power and authority. Furthermore, the question of who gets what, when and how also presupposes a diversity of interests and values, a phenomenon that is a norm in all human societies. Given this reality, politics is, therefore, not concerned with the elimination of differences and conflicts. Rather, it is the role of politics to reconcile and resolve them through negotiation, bargaining, persuasion and compromise.

DEFINING STATE, NATION, AND GOVERNMENT

Informally, the terms state, nation and Government are often used interchangeably but in political science it is important to clarify exactly what each term means.

State

A state is made up of four elements namely: population, territory, Government and sovereignty. This means that a state is an institution within a defined geographical area with its own people who are governed by one sovereign Government. Sovereignty is the exclusive and undivided power to make and enforce laws. In other words, people of a state must abide by the laws passed by the state through its machinery called Government even if they are ignorant of those laws or did not participate in their formulation. The state has at its disposal ‘state apparatuses’ such

2 Chapter 1: Conceptual and Contextual Background as the public bureaucracy, the police, the armed forces and the courts. The parameters within which powers of the state are exercised are defined by both domestic laws (such as the Malawi Constitution) and international laws and treaties (such as the United Nations Charter). Sovereignty also implies that each state is equal to and yet independent of other states. Thus, Malawi is legally equal to the USA, although the latter is territorially bigger and economically stronger than the former. What this means is that Malawi has the same rights as the USA.

Nation

A nation refers to a particular group of people who identify with one another and share a common genealogy and/or historical origin, culture and language. Their sense of belonging to this particular group that is bound together by the kind of factors mentioned gives rise to a sense of national identity. Such people may not necessarily be found in the same state. For instance, the Chewa, who are a group of people that passes a test of a nation on all the attributes, are found not only in Malawi but also in and . In fact most African states consist of more than one nation. That is to say, many of the African states are a constellation of groupings of people that are heterogeneous in terms of their origin, culture and language. When a state is comprised of people that belong to only one nation, it is referred to as a nation-state. A good example is Swaziland. It is important to note that when states are made up of diverse groups of people or nations, it does not necessarily mean that it is not possible to develop some form of common identity that would define their belonging to one state. On the contrary, once a state is defined, the next task becomes that of building a nation. Following the end of colonialism, for instance, it became an overarching agenda of the African leaders who took over from the colonialists to build this common national identity. With the passage of time, people started identifying themselves with a particular state and developed some form of a common identity of being Malawians although among them are Chewa, Nyanja, Tumbuka, Yao, Lomwe, Sena, Tonga, Ngoni, Ngonde, Asians, and Europeans. As a matter of fact, most modern states are multinational, multicultural states, yet they strive to achieve a single national identity.

Government

The word Government has its etymological roots in the Greek term, ‘kyvernites’ which means ‘steersman’, ‘governor’ or ‘pilot’. To govern is therefore to steer, to guide or to give directions. In this regard, Government is the machinery through

3 GOVERNMENT AND POLITICS IN MALAWI which a state operates. Thus, Government consists of institutions that are responsible for making collective decisions for society. It is through Government that the state is able to not only formulate the rules and laws but also enforce them. The exclusive powers that we said the state possesses to use force are executed through Government. As a rule, it is inconceivable to have an effective state without a Government.

Branches of Government In modern states, Government comprises of three institutions, popularly called arms or branches of Government. They are the Executive, Legislature, and the Judiciary. The primary responsibility of the Executive is to formulate policies and implement laws. Government is often narrowly reduced to mean the Executive arm of Government. This is particularly so because much of what is said about Government being the agency of the state is undertaken by the Executive. The Head of Government, commonly called President or Prime Minister, and his/her Cabinet constitute the Executive. The Legislature is the branch of Government whose prime function is to make laws. The legislative body can be made up of one chamber as in Malawi which has the National Assembly or two chambers called lower and upper chambers such as in the UK and USA whose upper chamber is the House of Lords and the Senate respectively. The single or lower chamber consists of elected members, called, in Malawi and in some other countries, members of Parliament (MPs). Other than making laws, the Legislature also serves two other functions: that of representation and oversight. As elected representatives of the people, MPs are supposed to represent the interests and aspirations of the electorate whenever they are conducting state business in the National Assembly. The oversight functions are performed when, for instance, MPs are scrutinising the national budget that the Executive has presented or when they debate on a proposed piece of legislation. The third arm of Government, the Judiciary, is the one that interprets the laws and resolves disputes that may arise among people and/or institutions. It is headed by the Chief Justice. It comprises courts which are of different classes. The Supreme Court of Appeal is the highest court. Below it are the High Court, the magistrates’ courts, the industrial relations court and other lower courts that may be established by an act of Parliament.

Functions of Government In a way, the functions of these three branches of Government outline what Governments do. In other words, if one wanted to understand the role of Government in society, one needs to look at what the Executive, the Legislature

4 Chapter 1: Conceptual and Contextual Background and the Judiciary do. Given the extensive tasks that are performed by these institutions as briefly outlined here and also as the subsequent chapters illustrate, it is apparent that Government is probably the most significant element of the state. Furthermore, it is in the process of governing that politics is quite visible. Put differently, politics is at the heart of Government. In any society, much of the discourse revolves around Government and politics. For example, the Government may raise or lower taxes. Every person hopes that the Government will provide both individual and public security. When there are floods or there is hunger, the Government is called upon to intervene. If the roads are in bad condition, the blame is levelled at the Government. Students often expect the Government to ensure that there are enough lecturers and learning materials at university. Patients look to the Government for the provision of drugs and medical personnel. When Local Government elections are not held on time as provided for in the Constitution, Central Government is said to be ‘playing politics’. Similarly, those who were born in the 1950s and 1960s often compare how the ‘democratic Government’ performs vis-à-vis the ‘autocratic one’. When the opposition political parties do not approve the budget that the Government has allocated to the Electoral Commission in a given financial year, politics is said to be at play. Many people will also argue that when the President appoints into his/her Government members from other political parties, it is a political manoeuvre. Traditional leaders are not allowed to ‘actively’ participate in politics but should rather serve the Government of the day. From the foregoing brief outline, it is apparent that Government and politics are terms which not only dominate public discussion, but are also understood differently, depending on the person, the context and the time.

CLASSIFICATION OF GOVERNMENTS

Governments exist in different forms. A number of factors distinguish one form of Government from another. As the following discussion illustrates, it is possible to classify the same Government under different labels depending on the criterion you have chosen.

Monarchy versus republic

You can distinguish one Government from another by considering how the Head of State comes into existence. In this regard, we have a monarchy on the one hand and a republic on the other. Monarchies are the oldest form of Government. In a

5 GOVERNMENT AND POLITICS IN MALAWI monarchy, the Head of State is the Queen or King (the monarch) who holds the office for life. Succession is hereditary. In most contemporary monarchies, there is also an elected person who heads the Government and it is usually this particular person who wields a great deal of political powers. In such cases, the Head of State performs ceremonial functions such as receiving letters of credence from diplomats and presiding over state functions. Monarchies where the two offices (Head of State and Head of Government) are separated are referred to as constitutional monarchies. The UK, Belgium and Denmark are examples of this kind of monarchy. Constitutional monarchies are different from absolute monarchies where the monarch is both the Head of State and Government as is the case in Swaziland, Brunei, Bhutan, Saudi Arabia, Kuwait and Morocco. In contrast to monarchies, a republican form of Government has an elected Head of State called the President. Thus, when we talk of Malawi gaining republican status in 1966, we essentially mean that from that year on, Malawi had an elected Head of State. Prior to 1966 Malawi was part of the British monarchy with the Queen/King of England as the Head of State based in the UK. During this time the Head of Government was a British citizen called a Governor. In some republics, the same person is both Head of State and Head of Government. This is the case in the USA, Zambia, Malawi and for example. In other states with a republican form of Government, the two offices are headed by two different but elected persons, as is the case, for example, in Germany and France.

Parliamentary versus presidential form of Government

You can also distinguish one form of Government from another by looking at how the Executive arm of Government is constituted. In this case, you may differentiate a presidential form of Government from a parliamentary one. There are two basic differences between these forms of Government. Firstly, the Head of Government in a presidential Government is often directly elected by the electorate. For this reason, he/she draws legitimacy directly from the general public. In a parliamentary system of Government, however, the Head of Government is normally elected by the Legislature. As a result, the life of his/her Government depends on the continued confidence that he/she enjoys in Parliament. Secondly, Heads of Government in a presidential form of Government usually have a limited term of office that is constitutionally prescribed, unlike their counterparts under a parliamentary system that often have open terms. What this means in practice is that it is possible under a parliamentary system of Government to have a President or Prime Minister who stays in office for quite a substantial period of time. Helmut Kohl, for instance, was the German

6 Chapter 1: Conceptual and Contextual Background

Chancellor (Head of Government) for 16 years (1982–1998). In the USA, a President can only serve a maximum of two (four-year) consecutive terms. In the case of Malawi, the Constitution provides for a maximum tenure of two (five-year) consecutive terms for the presidency.

Unitary versus federal form of Government

We can also classify Governments by considering how state power is horizontally distributed in the territory. In this case, a Government can be said to be unitary or federal. The fundamental defining feature of a unitary form of Government is that there is one main source of authority regardless of whether there are Local Governments which have independent powers or not. For instance, Malawi is a unitary state although it has constitutionally provided for Local Government structures. Contrary to a unitary form of Government, in a federation, territorial sharing of state authority between Central Government and other levels of Government such as provincial or regional Governments is constitutionally recognised. The types of activities that are under the jurisdiction of each level of Government are clearly outlined either in the Constitution or in relevant legislation. In most cases, Central Government is responsible for the kind of activities that are considered to be of national importance. These may include defence and foreign policy. The other levels, which may be called provincial, regional or state Governments, are tasked with activities that are predominantly local or regional in nature. In addition, these provinces, regions or states have their own ‘central Governments’ and also parliaments. Some examples of states with federal forms of Government include Nigeria, the USA, Germany, and Switzerland.

Democratic versus non-democratic Governments

Finally, it is also possible to classify Governments by analysing how they actually govern. In this case, Governments can be regarded as either democratic or not. In order to distinguish these two types, we need first to understand what we mean by democracy. Etymologically speaking, democracy draws its origin from the Greek concept: ‘demokratia’, a term whose root meanings are ‘demos’ (people) and ‘kratia’ (rule). Thus, democracy essentially connotes a form of governance in which ‘the people rule’. In other words, those who govern in a democracy only govern on behalf of the people. This is the concept of governing on trust that is underlined in Constitutions of democratic states as it is the case in Malawi (cf Chapter 2 in this book). In other words, a democratic Government is put in place through

7 GOVERNMENT AND POLITICS IN MALAWI mechanisms that ensure that it is the people that have ultimate authority. Elections that are held on a regular basis and under terms that are considered free and fair are an example of such a democratic mechanism of putting in place people to govern. From this perspective, political competition that is manifested through elections underlies the most fundamental democratic institutional arrangement. However, democracy cannot be reduced to just holding elections. There are also other institutional requirements that have to be in place for a system to be called democratic for it is possible for a Government to be democratically established (through elections) and later abandon all or some democratic values and principles. Such other institutional guarantees include freedoms of association and expression, the right to alternative sources of information, the right to vote, the right of political leaders to compete for support and for votes, eligibility for public office, and the existence of institutions such as an independent media and civil society which ensure Government policies are responsive to the expressions and preferences of the electorate. The characteristics of a democratic Government mentioned above may in real life be present to a greater or lesser extent. This means that the concept of democracy may be seen as a scale, running from less to more democratic. An example of such a scale is that developed by The Freedom House Survey (http://www.freedomhouse.org/template.cfm?page=1) where countries are rated on two scales: political rights and civil liberties. Countries are classified on each scale ranging from 1 (most free) to 7 (least free). Each scale consists of several indicators. Another way of conceptualising democracy is to see it as a category. In that case, democracy may here be contrasted with such categories (of non- democratic forms) as ‘absolute monarchy’, ‘autocratic Government’, and ‘totalitarian Government’ that are briefly outlined hereunder.

Absolute monarchy Unlike in a constitutional monarchy where, as we have noted above, the King or Queen does not wield political powers, an absolute monarch has enormous power over almost every aspect of the state including Government. The Government machinery is run as if it were the monarch’s personal estate. The people being governed are in effect treated as subjects and not citizens. That is, they do not have any powers or avenues through which they can hold the monarch to account.

Autocratic Government An autocracy is a system of Government where all political power over all the activities of the state is concentrated in the hands of one person without a voice of those being governed. Such a form of Government is also referred to as a

8 Chapter 1: Conceptual and Contextual Background dictatorship. While elections may be held, the conditions under which they are conducted deny the electorate genuine choices. This is so because under an autocracy, the media is highly controlled by the Government and civil society is either weak or non-existent.

Totalitarian Government As in democracies, totalitarian Governments provide for and are often constituted through an election. However, unlike in a democracy, there is only one party through which people may express their political ‘choices’. Therefore, it is very difficult to consider such elections as fair in as far as their democratic quality is concerned. Another characteristic of totalitarian Governments is that they regard all aspects of individual, economic and social life as matters of Government concern hence the need for their regulation by Government. In addition, such Governments have a clearly defined political ideology that they pursue and uphold and all the existing state machinery is used to advance popular adherence to this given ideology. Where necessary, terror may be used to enforce obedience and in the process suppress criticism.

HISTORICAL BACKGROUND

The context of politics and Government may be looked at under four different phases of Malawi’s history. These are the pre-colonial (prior to 1891), colonial (1891–1964), the post-colonial one party era (1964–1993) and the democratic era (1993 and beyond). During these different phases the types of Government and politics changed both in terms of how they were perceived and how they were in practice as the subsequent discussion demonstrates.

Pre-colonial era (prior to 1891)

The identity of the present-day Malawi can largely be traced back to the 16th century following the establishment of the Empire and the coming in of other immigrants that settled in the various parts of the country. The Maravi Empire covered much of Central and Southern Malawi and stretched as far as Northern Zambia and the East African coast. The Empire comprised of related Bantu speaking ethno-linguistic groups that had migrated from the Katanga region in today’s Democratic Republic of Congo. At the peak of its political hegemony, this Empire embraced a wide range of people that included the Nsenga, Chikunda, Chewa, Mbo, Mukua, Zimba, Chipeta, Ntumba, Nyanja and the Mang’anja. They

9 GOVERNMENT AND POLITICS IN MALAWI were ruled by a paramount chief called who had established some form of a centralised system of Government whose headquarters was at Mankhamba near Ntakataka in present-day . Karonga’s authority was passed down through leaders of the various clans that were part of this empire. These clan leaders included, for instance, Lundu who had settled at Mbewe wa Mitengo near Chikwawaa, and Undi who established himself in the northern part of Mozambique. The Empire fragmented at the end of the 18th century particularly because of internal rivalries and also the coming in of other immigrants. The internal rivalries were mainly due to the quest by the subsidiary kings to control the ivory trade that was the main source of wealth. Thus, as these kings started dealing with the traders directly, they grew in strength and ultimately became independent of the Karonga. Other chiefdoms such as Mwase in Kasungu and Kanyenda in Nkhotakota emerged in the process. The other immigrants being referred to here were the Ngonis and Yaos. Between 1850 and 1860, warlike and pastoralist Ngonis trekked into Malawi from South Africa. They were in two groups. The Zwangendaba group whose descendants settled in Mzimba under Mbelwa and an offshoot led by Chiwere established itself in Dowa. The second group, the Maseko Ngoni, settled around Domwe and Dedza mountains. The Ngoni were a highly organised military-like group who through their use of force quickly established political dominance over the people they found in these areas who included the Tumbuka, Chipeta, Tonga and Nsenga. This led to the further weakening of the Maravi Empire. The Yao, who were mainly traders, entered Malawi around the 19th century and increasingly became influential in both ivory and later the slave trade. They established their political dominance over much of Southern Lakeshore and the hence weakening the chiefdoms of the Chewa, Nyanja and Mang’anja who had settled in these areas as part of the Kalonga dynasty. The most notable Yao chiefs included Mponda, Makanjira, Jalasi, Kawinga, Malemia, Mlumbe, Matipwiri, Liwondo and Pemba. In the north, other than the Ngoni chiefdom that had been established in Mzimba, there was the Chikulamayembe chiefdom which established its centralised authority in the Nkhamanga Plain and Henga Valley south of Nyika Plateau under the leadership of Mlowoka. The Balowoka (as the people who had established this chiefdom were called having crossed the lake from the north) were involved mainly in the ivory trade. The original inhabitants of this area, the loosely organised Tumbuka-speaking Henga, Nkhamanga and Phoka were subsequently subsumed into the Chikulamayembe chiefdom. Pre-colonial Malawi was, therefore, predominantly, a collection of chiefdoms, each one of them with their own leadership structures and traditions. Leadership

10 Chapter 1: Conceptual and Contextual Background succession was and remains hereditary, following a defined lineage. Under this hereditary monarchy, leaders were not accountable to their subjects. Clan membership was the main source of social identity. Chiefs did exert some form of authority over their subjects. They demanded for instance that they get some tribute such as a tusk of every elephant or skin of every lion or leopard that were killed in their respective territory. The chiefs also settled disputes that arose among their subjects. In this regard, some governmental functions were being performed. The system of Government changed when the colonial administration was established.

Colonial era (1891–1964)

At the beginning of 1860s, the Christian started entering into present- day Malawi. , the Scottish , was the first to arrive in 1861. The Universities Mission for Central Africa (UMCA) followed immediately thereafter while others came later. They included the Livingstonia Mission of the Free Church of (1875), the Mission of the Established Church of Scotland (1876), the Dutch Reformed Church Mission (1889), the Industrial Mission and the Nyasa Baptist Industrial Mission (1892). The Catholics only arrived at the beginning of the 20th century. It was mainly the idea of David Livingstone to complement the missionary work of evangelisation with the introduction of ‘legitimate’ trade particularly as the slave trade was still being practiced at that time. As a result, the coming in of the missionaries was followed by traders and planters who established their commercial enterprises here, the most notable being the Livingstonia Central African Company which became the African Lakes Corporation (ALC). Gradually, a white political community that was predominantly British was formed. It is important to note that at the time when these missionaries and traders were coming in, the Portuguese had already established themselves here and had an upper hand in controlling trade. The coming in of the missionaries and their counterparts, the traders and planters, was partly an attempt to fight against the slave trade but also to counter the influence of the Portuguese who, as part of their control, were collecting taxes from all those traders who were doing business in the areas that were considered to be under their (Portuguese) control. In a bid to fight against slave trade and also in order to protect their own commercial interests, the British planters, traders and the missionaries exerted pressure on the British Government to assume a more active role in the Nyasa region. This was the advent of colonialism. It was manifested in the imposition of a protectorate status on the Districts as the area was called before 1891

11 GOVERNMENT AND POLITICS IN MALAWI when it was renamed British Central Africa Protectorate, underscoring the British ‘ownership’ of the territory. The country was renamed Nyasaland in 1907. Sir Harry Johnstone became the first Commissioner and Consul General, the title that would later change to Governor and Commander-in-Chief. The Governor was essentially the representative of the British monarch and also head of the local colonial administration. Until 1896, the colonial administration tried to establish direct rule. The structure of Government was as follows: the Governor was assisted by a Deputy, Vice Consuls and a number of administrative officials that included a secretary to the administration, a judicial officer, a Postmaster-General, and a medical officer. The country was divided into twelve districts, each with a District Collector (later called District Commissioner) whose primary responsibilities were both administrative (e.g. collecting taxes) and judicial (e.g. presiding over cases that arose in their areas of jurisdictions). The colonial administration, therefore, represented and defended the interests of the monarch in Britain to whom it was also accountable. Traditional chiefs became mere subjects and loyal supporters of colonialism. They were brought into the system of Government only after the attempts to establish a direct rule failed in 1896. The country was too vast for the small colonial administration to effectively manage. More districts were created and the districts were further divided into smaller units that were put under the jurisdiction of traditional leaders who were appointed by the colonial authorities. Some of the responsibilities of the District Collectors such as maintaining law and order and collecting poll tax, were then delegated to these local chiefs, who in turn got a stipend for the services rendered. It was through these chiefs that the colonial Government was then able to be in touch with the Africans under a system that was called ‘’. It was not until 1907 that legislative and executive bodies were established. These were the Legislative and Executive Councils respectively. The Governor, his Deputy, the Government Secretary, and the Attorney-General formed the Executive Council while the Legislative Council (LEGICO) consisted of all members of the Executive Council and three non-governmental members who were nominated by the colonial administration and had to be approved by the London based Colonial Secretary. Usually, the three nominees included one missionary, who was said to represent the Africans, a planter and a trader. It is worth noting that the imposition of the British protectorate status did not come unopposed as it challenged the established traditional systems of governance and also commercial interests of the other traders particularly those that were dealing in . At this time, some of the chiefs such as Chikumbu, Mponda, Mwase, Makanjira, Gomani were so organised militarily that their resistance could only be quelled through bloody encounters that resulted in loss of life on both sides.

12 Chapter 1: Conceptual and Contextual Background

Political consciousness among the Africans in Malawi started emerging with the establishment of native associations when some of them (the Africans) had the opportunity of being exposed to other countries like South Africa. The First World War (1915–1919) also contributed significantly in facilitating this exposure and creating a spirit of political activism among Africans. During this war, many African men were forcibly recruited to fight in the British Army abroad. Chilembwe’s uprising in 1915 was partly a protest against these forced recruitments. Despite the obvious negative implications that these forced recruitments had, Africans’ participation in this war had a profound effect on the evolution of political activism and nationalism. A clear example here is the proliferation of native associations after the First World War. The first two had been formed already before the war started. They were the North Nyasa Native Association (1912) and the West Nyasa Native Association (1914). Immediately after the First World War, a number of others emerged. The Mombera Native Association was formed in 1920. In 1922, the Nyasaland (Southern Province) Native Association was established. Out of this, other associations were born in Blantyre and Thyolo. The Representative Committee of the Northern Province Native Association came into being in 1924 while the Central Province Native Association followed in 1927. These native associations served three functions: a) to keep Government informed of African opinion, b) to keep the Africans informed of the laws introduced by the Government, and c) to provide a platform where matters of general or special interests to Africans could be discussed. The significance of these associations is particularly manifested in the formation of the Nyasaland African Congress (NAC) in 1944 which itself can be credited to the Representative Committee of the Northern Province Native Associations. The NAC played an instrumental role in the fight against colonialism in Malawi and it was a forerunner of the (MCP). However, despite the formation of these native associations, governance and participation in Government remained the preserve of the colonials until in the late 1940s when some reforms in the colonial administration were made, especially in the area of Local Government. The idea of these reforms was to provide Africans with possibilities to participate in political decision-making. Most noteworthy is the dispatch to all the colonies in 1947 by Arthur Creech Jones, Secretary of State responsible for the colonies in which he appealed for the introduction of an efficient and democratic system of Local Government in each dependency. Pursuant to this dispatch, the Local Government (District Councils) Ordinance was passed in 1948 which gave minimal representation of Africans in the LEGICO. In addition, rural District Councils were established modelled on the

13 GOVERNMENT AND POLITICS IN MALAWI

English system in terms of both their structure and functions. These councils were given some powers to make bye-laws affecting a wide range of issues, from health through education to agriculture. The Government appointed native authorities were made non-voting ex -officio members of the LEGICO. From 1955 onwards, Africans were also represented in the Executive Council. Despite the reforms that the colonial administration made, resistance against colonialism still continued particularly because institutions of the colonial Government still represented the interests of the colonial Government. The ex- officio members, being Government appointees, could hardly be expected to question or depart significantly from the thinking of those who appointed them. The imposition of the white settler backed Federation of and Nyasaland in 1953 further heightened the pressure for independence. In 1958, Dr Hastings Kamuzu Banda returned to Malawi to lead the NAC. The fight for independence reached a climax in March 1959 when the colonial administration, fearing for a great uprising, declared a state of emergency. A number of African nationalists, including Kamuzu Banda, were arrested and the NAC was banned. Meanwhile, the MCP was formed and would later be led by Kamuzu Banda after he was released from prison on 6 July 1960. Subsequently, the colonial Government entered into political negotiations with the African nationalists under the leadership of Kamuzu. On 15April 1961, the MCP had a landslide victory in the first general elections for LEGICO and gained an important role in the Executive Council. Subsequently, Nyasaland was granted internal self-Government in February 1963, ten months before the Federation of Rhodesia and Nyasaland was officially dissolved. Following the granting of internal self-Government, Dr Banda became the Prime Minister hence assuming the powers of Head of Government while the British monarch remained Head of State. Colonial rule finally ended in 1964 when Malawi attained independence.

Post-colonial one-party era (1964–1993)

Having achieved independence, Malawi then acquired republican status in 1966 with Kamuzu Banda as Head of both State and Government. Although Malawi had gained independence from the British, for the next 30 years Malawians had to bear one of the worst dictatorial regimes. In the name of building the nation, the declared in 1966 that there should only be one party in Malawi and that party was to be the MCP. In 1971 Kamuzu Banda was declared Life President. Various repressive laws were instituted that significantly curtailed personal liberties. Any forces that were deemed as challenging the leadership were silenced in various ways, ranging from detentions without trial to imprisonment

14 Chapter 1: Conceptual and Contextual Background and mysterious ‘disappearances’. With his MCP being both party and Government, Kamuzu controlled (or was perceived to be in control of) all public resources. Thus, as in a typical neo-patrimonial rule, success in any sphere of public life could only be secured through an overt and unqualified demonstration of loyalty to the party and, by implication, to the President.

Democratic era (1993 and beyond)

At the beginning of the 1990s, Malawi experienced unprecedented political reforms which saw the country being one of the first in sub-Saharan Africa to be included in the category of ‘third wave’ democracies. Both domestic and external/international factors contributed to this paradigmatic shift in politics and Government.

Domestic factors Kamuzu’s iron rule met with internal resistance almost from the very beginning. Since the 1964 Cabinet Crisis, there had always existed in Malawi what one would describe as domestic forces for political reforms. This currency of political opposition to Kamuzu Banda was largely maintained by exiled politicians and intellectual ‘dissidents’. Some of these politicians founded their own political parties which, obviously, could only operate outside the country. It was not until 8 March 1992, that a more overt and popular domestic pressure for political change was mounted with the publication of the Malawian Catholic bishops’ pastoral letter. The letter, which was read out in all the Catholic churches to mark the beginning of Lent, condemned, among other things, the massive social, political and economic injustices that had characterised the Banda regime. It also clearly called for democratic reforms. The pastoral letter, which was publicly supported by other churches through inter alia their own public statements, was followed by nationwide industrial unrest and public demonstrations. Meanwhile, political pressure groups, which had been operating underground, came out in the open and joined the campaign for political change. Most important were the Alliance for Democracy (AFORD) and the United Democratic Front (UDF). Proponents for change grouped themselves under one umbrella called the Public Affairs Committee (PAC) which not only included the pressure groups but also the business community, churches and the Law Society of Malawi. The worsening economic conditions domestically also contributed to the waning of Banda’s regime. What had ameliorated the economic hardships until the late 1980s was the fact that Kamuzu Banda, to some extent, was able to play a role of a benevolent . With approval and assistance of the international

15 GOVERNMENT AND POLITICS IN MALAWI community, the Banda Government pursued a state-oriented economic policy. This led to the creation of numerous public corporations which, on the one hand, created employment and on the other, provided essential social services, albeit in an inefficient manner. These state corporations also gave Kamuzu the possibility of granting some favours to his political loyalists as most of them were appointed directors of boards of these public companies, hence deepening levels of political clientlism and neo-patrimonialism. Furthermore, most of the social services were highly subsidised including agricultural inputs, which for the majority, the rural poor, was a critical factor for their survival. In the late 1980s, the Government had started implementing Structural Adjustment Programmes (SAPs) as a precondition to access the much needed economic support from donors. This was against a background of an already deteriorating economic situation. Most of the SAPs’ conditions, however, required that the state should allow market forces to be key determinants of the economy. For a regime that partly survived on neo-patrimonialism as a source of its legitimacy the deteriorating economy contributed significantly to the breakdown of the regime’s legitimacy. However, possibilities for the general population to express their loss of confidence in the MCP were made particularly possible with the general wind of change that was blowing across the world.

External factors The external factors that contributed to the democratic transition in Malawi are particularly linked to the end of the Cold War in the late 1980s, and the subsequent fall of communist regimes. These global developments facilitated political change in other parts of the world including Malawi in two ways. Firstly, for pro-democracy actors in other countries, such developments provided them with the much needed courage and resilience to face their respective authoritarian regimes and press for political change. The fact that the collapse of communism was taking place against a background of the failure of that political ideology to bring about social progress also threw its African exponents off balance, giving pro-democracy advocates a competitive edge in their struggle by enhancing the ‘attractiveness’ of democracy. Secondly, the dramatic events taking place in Eastern Europe served as a ‘wake-up’ call for authoritarian African leaders like Kamuzu as this meant that some form of accommodation had to be sought with their opponents before it was too late. Thus, the developments taking place in Eastern Europe had a ‘contagion’ effect on political developments that ensued in other parts of the world including Malawi. In the case of Malawi, the ‘contagion’ effects are made clearer when the democratisation trend in sub-Saharan Africa is taken into account. In this regard, there has been some linear trend starting with the case of Benin in West Africa,

16 Chapter 1: Conceptual and Contextual Background decolonisation of in 1990, and the fall of Kaunda in Zambia in 1991, to the end of in South Africa which was taking place almost concurrently with the fall of the MCP in Malawi in 1994. Those Malawians in exile had the advantage of being exposed to what was happening globally and establishing their own networks that would then prove instrumental in their political struggle in Malawi. It is, therefore, not surprising that most of the civil society organisations, especially those established in the early 1990s, were founded largely by those who were originally in exile. The breakthrough in communication technology also contributed to the downfall of Kamuzu as can be seen by the role played by the South African radio station, ‘Channel Africa’. This was the radio station that provided South African based self-exiled Malawians a political platform to communicate with the Malawi population in exposing the evils of Kamuzu Banda’s regime and advocate for change. As political change unfolded in other countries, potential and actual reform advocates within and outside Malawi were indirectly strengthened. The end of the Cold War also marked the beginning of a policy shift in international development cooperation. People started to see development as a question of not only getting the economics right but also the politics. This brought issues concerning democracy, human rights and good governance to the fore of development cooperation. Thus, as the influence of realpolitik as a decisive factor in allocation of aid was fading, the deterioration of started gaining international attention. In 1991, aid to Malawi, as it was the case also with several other countries, started being attached to issues of good governance, rule of law, democracy and human rights. The climax for political conditionalities came at the 1992 Paris Club meeting where all donors present unanimously agreed to suspend all new aid to Malawi until the governance and human rights situation had improved. For a country whose entire development budget and, to some extent, recurrent budget was donor dependent, the impact of all these developments did not take long to be felt: foreign exchange became scarce leading to the massive depreciation of the Malawi Kwacha (MK), high levels of inflation and other related economic problems. Fearing for serious economic, social and political crises, whose implications – without succumbing to pressures, and taking into account developments in other parts of the world – would have been disastrous, the Banda regime conceded to instituting political reforms. This was marked by the announcement in 1993 that there would be a referendum asking the electorate whether they wanted a one-party or multiparty system. The result of the referendum was that Malawians wanted a multiparty system; thus the advocates for political change won. This was a decisive step in the transition towards democracy.

17 GOVERNMENT AND POLITICS IN MALAWI

The referendum was followed by founding elections that took place in May 1994. The UDF won with as President. A new Constitution based on democratic principles, which was provisionally adopted in 1994, came into force in 1995.

Key democratic features in the Constitution Among other things, the Constitution underscores the centrality of people as the source of authority to govern as it declares in Section 12(i) that ‘all legal and political authority of the State derives from the people of Malawi and shall be exercised in accordance with this Constitution solely to serve and protect their interest’. In addition, the Constitution also provides for separation of powers among the three arms of Government: the Judiciary, Legislature and Executive as a way to provide for checks and balances. A number of other institutions that aim at furthering the democratic process in various ways were also put in place. The National Compensation Tribunal (NCT), which has a constitutional time limit, aims at addressing past human rights abuses by providing possibilities for the victims of the Banda regime to seek redress in form of a largely symbolic financial compensation. The Law Commission reviews all previous and current legislations to ensure their consistency with the current Constitution. The Office of the Ombudsman and the Human Rights Commission (HRC), are primarily responsible for investigating, promoting and safeguarding human rights and The Electoral Commission has the mandate to manage elections. Furthermore, the Constitution also provides for local Government authorities. Another key public institution that was established following the adoption of democracy is the Anti-Corruption Bureau (ACB) which, although not constitutionally provided for, is an essential public institution to the realisation of the fundamental constitutional principles, especially those related to transparency and accountability. The Constitution also provides for a bill of civil, political, social, economic and cultural rights and the establishment of key institutions to uphold democracy in Malawi.

TOWARDS DEMOCRATIC CONSOLIDATION

The holding of elections in 1994 concluded Malawi’s transition phase. After these founding elections, therefore, a consolidation process commenced. This is a process in which democratic values will have to be entrenched and become a way of life. This is a lengthy and arduous phase that cannot be achieved overnight. It is within this phase of the democratisation process that Malawi finds itself today and one needs to consider contemporary politics and Government in Malawi in this context.

18 Chapter 1: Conceptual and Contextual Background

Prospects for democracy seem to exist. According to a public opinion survey carried out in Malawi in 2005 (Bretton et al 2005) a majority (65%) of citizens prefers a democratic Government to a non-democratic Government. A substantial majority rejects various forms of authoritarian rule: 83% reject military rule, 87% reject one-man rule and 76% reject one-party rule. However, for a country like Malawi to achieve consolidation of democracy, there is a need for time and coming to grips with complex challenges. Such challenges include sustaining operations of the established democratic institutions, development of a democratic culture, and dealing with unfavourable socio-economic conditions. Development of a democratic culture

As a way of (political) life, democracy thrives on the prevalence of a kind of culture that is supportive of such a system. It is the kind of culture that tolerates divergence of views and critical voices, encourages participation of the populace in public life, respects independence of the Judiciary, rule of law and nationally established bureaucratic rules and regulations, supports emergence of a constructive civil society, a service/client oriented public sector, among others. Unfortunately, the legacy of the pre-colonial era, the 73 years of colonial rule and 30 years of a dictatorship has not facilitated development of such a culture. Instead, there are still traceable anti-democratic tendencies characterising contemporary politics and Government. This is partly because contemporary democracies in Africa (Malawi inclusive) are emerging alongside a well entrenched legacy of traditional systems and values, some of which are inimical to democracy and what present-day politics and Government entail. These traditional values and systems manifest themselves to a larger extent in what is called neo-patrimonialism tendencies. Thus, whilst there are established rules and procedures that are supposed to guide rational decision- making in the public sphere, having informal networks and connections remains an important factor. Those in leadership positions act as patrons who often use their positions in order to secure patronage and loyalty of their clients and/or the populance in general. In the process, a high degree of dependency of the ‘subjects’ on their leaders is created which helps to support evolution of undemocratic traditions as these leaders, who are deemed the ‘providers’, cannot be held accountable to the people they are supposed to serve. They (the leaders) are the ‘big men’ or ‘big bwanas’ who in extreme instances are hero-worshiped. The other related challenge here is that the introduction of democracy has led to the establishment of structures that are challenging the already established traditional ones. For instance, there are often conflicts between traditional leaders and elected councillors who are supposed to represent the people. They both claim the same representative functions but their sources of authority and legitimacy are

19 GOVERNMENT AND POLITICS IN MALAWI different. Due to these diffused roles and responsibilities, it will take some time to reconcile these leadership structures. Unfavourable socio-economic conditions

The undemocratic political legacy is further complicated by the fact that Malawi is still endowed with onerous socio-economic conditions. Years after the introduction of democracy, Malawi is much poorer than the years before the transition. Although the illiteracy rate is gradually going down, the rate of 38% in 2002 was still above the 37% average illiteracy rate in sub-Saharan Africa (World Bank 2004). Per capita gross national income (GNI) has not exceeded the US$ 240 mark reached in 1993. Unsurprisingly in 2002, Malawi ranked at 163 on the Human Development Index (HDI). In an environment characterised by high levels of poverty as the case is here, it becomes difficult for the larger part of the poor population to appreciate and actively take part in a democracy. In Malawi, more people think of social and economic equality, such as acquiring jobs and access to education, as of importance than of various procedural issues, such as regular elections and competing parties (Bratton et al 2005). The biggest threat emerges when those who are disenchanted start attributing their ‘suffering’ to the new political system and democracy. At that point, there is a danger of throwing the baby out with the dirty water.

CONCLUSION

As the foregoing discussion demonstrates, politics and Government are complex subjects. A clear conceptual understanding is called for, one that disentangles the various related terms that are at times lumped together as if they were one and the same. It is also important that we understand the context within which the discussion is taking place. The notions of politics and Government are not really new to Malawi as they date back to the pre-colonial era when the Maravi Empire was established. However, the way politics and Government have been operationalised has varied from one era to the other providing Malawi with an opportunity of experiencing different forms of politics and Government that have included a monarchy, a federation, an autocracy and finally a democracy. From the challenges that we have discussed towards the end of this chapter, it would appear that there is an inter-play between and among the different phases that Malawi has gone through in that some of the features of politics and Government under, say, the authoritarian regime still influence or constrain the present-day democracy. The subsequent chapters discuss further and in detail some of the key issues that have been raised in this chapter.

20 Chapter 1: Conceptual and Contextual Background References

Aké, Claude (2000) The Feasibility of Democracy in Africa, Dakar: Council for the Development of Social Science Research in Africa

Bratton, Michael, Robert Mattes and E. Gyimah-Boadi (2005) Public Opinion, Democracy, and Market Reform in Africa, Cambridge, Cambridge University Press

Bratton B. and van de Walle N. (1997) Democratic Experiments in Africa: Regime Transitions in Comparative Perspective, Cambridge: Cambridge University Press

Dahl, Robert (1971) Polyarchy, Participation and Opposition, New Haven and London: Yale University Press

Democracy Consolidation Programme (undated), Building an Informed Nation. A Handbook for Civic Education on Governance and Human Rights, : Democracy Consolidation Programme

Diamond, Larry (ed) (1994) Political Culture and Democracy in Developing Countries Colorado and London: Lynne Rienner Publishers Inc

Episcopal Conference of Malawi (1991) Living Our Faith: Pastoral Letter of the Catholic Bishops, Lent 1991 Huntington, Samuel (1991) The Third Wave. Democratisation in Late Twentieth Century, Norman and London: University of Oklahoma Press Kadzamira, Z. et al (1999) Profile and Views of Political Parties in Malawi, : Konrad-Adenauer Stiftung Lijphart, Arend (1999) Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, New Haven: Yale University Press Lipset, Seymour Martin (1963) Political Man. The Social Basis of Politics, Garden City: Doubleday & Company Inc, New York: Anchor Books

Lwanda, J.L. (1993) Kamuzu Banda of Malawi, 1961–1993: A Study in Promise, Power and Paralysis, : Dudu Nsomba Publications

21 GOVERNMENT AND POLITICS IN MALAWI

Magolowondo, Augustine, ‘Cnsolidation of Democracy in Malawi’ The Lamp,No 36, July–August 2002, pp 4–5

Meinhardt, Heiko and Nandini Patel (2003) Malawi’s Process of Democratic Transition: An Analysis of Political Developments Between 1990 and 2003, Lilongwe: Konrad- Adenauer Stiftung

Nwabuzor, E. and Mueller, M. (1985) An Introduction to Political Science for African Students, London: Macmillan

Nwokedi, Emeka (1995) The Politics of Democratisation: Changing Authoritarian Regimes in Africa, Münster/Hamburg: Lit Verlag 1995

Ott, M. et al (eds) (2000) Malawi’s Second Democratic Elections: Process, Problems and Prospects, Kachere Series, Blantyre: CLAIM

Pachai, B. (1973) Malawi: The History of a Nation, London: Longman

Phiri, Kings M. and Kenneth R. Ross (1998) ‘Introduction: From to Democracy in Malawi’ in Phiri, Kings M. & Kenneth R. Ross (eds.) Democratisation in Malawi. A Stock Taking, Blantyre: CLAIM, pp 9–20

Przeworski, A. et al (2000) Democracy and Development. Political Institutions and Well- Being in the World, 1950–1990, Cambridge: Cambridge University Press

Tsoka, Maxton Grant (2002) ‘Public Opinion and the Consolidation of Democracy in Malawi’ Afrobarometer Paper No 16

Venter, D. (1995) ‘Malawi: The Transition to Multi-Party Politics’ in Wiseman, J.A. (ed.), Democracy and Political Change in Sub Saharan Africa, London: Routledge, pp 152–192

Website: http://www.freedomhouse.org/ratings/allscore04.xls

22 2 THE CONSTITUTION

Fidelis Edge Kanyongolo

INTRODUCTION

Every society has standards that regulate the relationships among its people and institutions. Where a society is organised as a state, some of its standards are enforceable directly by the state itself and are known as rules of law. These rules originate from a variety of sources and have different levels of authority. In almost all states, however, one set of rules of law is regarded as being superior to all others. This body of supreme legal standards is called the Constitution and seeks to reflect the general vision of the people of that state. In practice, state Constitutions often result directly from political agreements reached among various interest groups following particular processes of historical development of their particular states.

This chapter discusses the following issues:

• What is the nature of a Constitution? • What are the historical origins of the Constitution of Malawi? • How are Constitutions made? • What does the current Constitution of Malawi provide for? • To what degree has the Constitution of Malawi been adhered to since it came into force? • How can the Constitution of Malawi be amended or repealed?

THE NATURE OF A CONSTITUTION

Definition of Constitution

23 GOVERNMENT AND POLITICS IN MALAWI

Key concept: Constitution A set of basic rules of a political or social organisation that determines the power of key political institutions and often guarantees human rights and liberties

The above gives us the formal definition of constitution but the term constitution can be used more broadly to include other laws made by Parliament, legal principles laid down by courts, and practices that seek to entrench fairness in the competition for political office. In addition to its formal and material meanings, the term constitution may also be used to refer to the actual behaviour of the various actors in the political arena. This is sometimes referred to as the actual constitution. Although the term constitution may be used in its formal, material or actual sense, in this chapter the term will mainly be used in its formal sense. In other words, the term will refer to the set of fundamental rules of a political or social organisation whose main functions are to establish state structures, distribute power among them, and protect human rights.

Key concept: human rights These are special inalienable moral entitlements. They are applicable to all persons equally simply by virtue of their humanity. They specify the minimum conditions for human dignity and a tolerable life. (Oxford Concise Dictionary of Politics 1996)

Types of constitutions

The fundamental rules that make up a constitution may be written up in a single document or may be contained in a number of separate legal texts and unwritten customs and conventions. In the former case, the rules comprise a written constitution, while in the latter case, they collectively comprise an unwritten constitution. An example of a written constitution is that of Malawi, which consists of a set of legal rules enacted into a single document in 1994. In contrast, the Constitution of the United Kingdom is unwritten because it consists of a collection of various statues passed by Parliament, judicial precedents, and unwritten conventions and customs. Whereas written constitutions are considered to be rigid, i.e. cannot be easily changed, unwritten constitutions are considered to be flexible, whereby changing them is easier.

24 Chapter 2: The Constitution

Regardless of their type constitutions typically consist of legal rules which establish the branches of the Government and determine their interrelationships; assign specific powers to the branches of Government and other state institutions; and provide for the protection and enforcement of the fundamental rights and liberties of citizens. Unlike the constitutions of other associations, such as sports clubs, those of states consist of legal rules. The distinguishing feature of legal rules is that they can be enforced directly by the state.

Constitutional supremacy

In the formal sense, a constitution is the highest norm of the state system. A norm is an authoritative standard or principle of action that guides the members of a group. As such, the constitution has more authority than any other norm within that state. In theory this means that no other law, rule, official decision, or other act is above the constitution. So if any law, decision or act contradicts any provision of the constitution, the constitution must prevail. Section 5 of the Constitution states that: ‘Any act of Government or any law that is inconsistent with the provisions of this Constitution shall, to the extent of such inconsistency, be invalid’, while Section 199 states that: ‘This Constitution shall have the status as supreme law and there shall be no legal or political authority save as is provided by or under this Constitution’. In practice, the issue of the supremacy of the Constitution of Malawi has been the subject of judicial decisions in a number of cases. An example is the case of Malawi Congress Party v The Attorney General. In this case, Parliament had enacted a law called the Press Trust Reconstruction Act (PTRA) whose effect was to transfer control and ownership of Malawi’s largest business empire from private to public hands. The High Court decided that the procedures that Parliament had followed in passing the PTRA and its content were inconsistent with the Constitution. On that basis, the court declared that the PTRA was invalid. In this case, the decision of Parliament had to give way to the requirements of the Constitution because of the latter’s supremacy. Constitutionalism

Constitutionalism is the exercise of power within limits set by the Constitution. In practice, this requires that the Constitution in an actual sense, i.e. in the sense of the actual behaviour of actors in the political arena, should correspond to the Constitution in the formal sense of the set of legal rules and principles which constitutes a written or unwritten constitution. Everyone in the political arena is required to observe the specific rules laid down by the constitution and, more generally, to uphold and promote the general principles that underlie it.

25 GOVERNMENT AND POLITICS IN MALAWI

Constitutionalism requires adherence to both the letter and the spirit of the constitution. There is no constitutionalism in a state if the actual behaviour of Government structures, other state agencies, and the rest of the actors in the political arena is inconsistent with the formal rules or the underlying principles of the constitution. There is also no constitutionalism if the rules of the formal constitution are amended every time that those who hold power consider them to be an inconvenient obstacle to their exercise of that power. A good example of such an amendment is that which was attempted unsuccessfully by the National Assembly in 2001 to extend the term of office of the President beyond the limit set down by the Constitution of two consecutive terms of five years each. In Malawi’s recent history, constitutionalism has also been undermined by a disregard of constitutional requirements. Since the current Constitution came into force in 1994, the state has acted inconsistently with it through the violation of human rights; abolition of offices established by the Constitution; the breach of procedural requirements for the appointment of people to some public offices and unprincipled amendments of constitutional provisions. Human rights that have been violated frequently include the freedom of expression, freedom of the press, right to campaign freely for political parties or causes and the right to development. Another example of unconstitutionalism has been the abolition of the constitutional Office of Secretary to the President and Cabinet and the unprocedural dismissal of an Inspector General of Police and a Director of Public Prosecutions. To ignore the rules set down by the constitution in this way rather serves the short-term political advantage of particular political parties and politicians than the public interest. Examples of non-compliance with the Constitution since 1994 are:

• 1994: Dismissal of MacWilliam Lunguzi as Inspector General of Police without giving him reasons for the decision as required by Section 154(4) of the Constitution (http:// www.worldlii.org/ int/cases/ ICHRL/1996/23.html) • 21 June 1999:Arrest of the editor and a reporter of the Malawi News new paper for reporting that some members of the public had chanted the words ‘take over’ to army and police personnel in expressing their disappointment with the results of the 1999 election results. This violated the right to freedom of the press guaranteed by Section 36 of the Constitution (http://www.ifex.org/en/content/view/full/8218/). • 28 May 2002: Presidential ban of public demonstrations of support for, or opposition to, the amendment of the Constitution to extend the presidential

26 Chapter 2: The Constitution

term of office. This was contrary to the guarantee of the right of every person to freedom of demonstration and assembly by Section 38 of the Constitution (http://www.rsf.fr/article.php3?id_article=2686) • 24 May to 14 June 2004: The Government operating without a Cabinet as required by Section 92(1) of the Constitution (http://news.bbc.co.uk/2/low/africa/3804565.stm) • 12 July2004: Dismissal of Fahrad Assani as Director of Public Prosecutions without giving him reasons as required by Section 102(2) of the Constitution (http://archive.ibanet.org/news/NewsItem.asp?newsID=150). • 7 October 2004: Police assault of journalists from The Nation newspaper for taking photographs during a strike at a tea factory in southern Malawi (http://www.freemedia.at/wpfr/Africa/malawi.htm).

It is therefore possible for a state to have a formal constitution without having constitutionalism. In practice, this situation is quite common. Many states adopt constitutions and declare them to be the supreme law, yet in practice the holders of power exercise power without regard to the limits set by the letter and spirit of the constitution. In other cases, formal constitutions are amended to satisfy the selfish interests of those who numerically dominate the Legislature. Lack of constitutionalism may in fact be due to a number of reasons, including a lack of genuine belief in the principles and rules of the constitution, political expedience, or ignorance of the relevant constitutional rules and principles. Whatever the reason, a lack of constitutionalism eventually erodes the authority of the formal constitution.

THE HISTORY OF THE CONSITUTION IN MALAWI

Pre-colonial period

The original inhabitants of the territory that is now Malawi were people known as the Akafula. From the 12th century onwards, the Akafula were joined by various groups of Bantu-speaking peoples mainly from Southern and Central Africa. The Akafula and the groups of later migrants did not live as part of an organised state in the modern sense of the term. They did not have a common legal system but each group was governed by the traditional norms that were considered to be binding only by members of that group. Such norms set down for each group were the structure of society and distribution of political and legal power within it, as well as the rights and obligations of its members. Since these norms served as the fundamental rules for groups that were politically and socially organised, they amounted to constitutions.

27 GOVERNMENT AND POLITICS IN MALAWI

It is not possible in the context of this chapter to provide a comprehensive description of all the constitutions of the various pre-colonial groups who occupied the territory that is now covered by the present Constitution. This is mainly because of the variations of content and form of these constitutions. Nevertheless, a number of common features of those constitutions can be mentioned. The first feature is that these constitutions established distinctive political units that were governed by unwritten customary laws which established structures of authority based on hereditary kingships and chieftaincies. The second feature is that they established structures of Government that, in most cases, were relatively centralised and did not adhere to the notions of separation of powers as understood in modern constitutional theory. The third feature is that they provided a degree of protection of human rights, although this was mainly in relation to entitlements based on communal solidarity and patriarchy rather than on individualism and gender equality.

Colonial period

It was not until the late 19th century that the various socio-political groups in the territory that is now Malawi were brought under the authority of a centralised body of constitutional rules as part of the establishment of colonial rule. The centralised Constitution was superimposed on the various pre-existing pre-colonial constitutions and was subsequently proclaimed by the colonial authorities to be the supreme law governing the whole territory and its inhabitants. The first of such centralised colonial constitutions was the British Central Africa Order-in-Council which was put in place in 1902 by the British Government following the declaration in 1891 that the territory was the British Central Africa Protectorate. The British Central Africa Order-in-Council had the characteristic features and functions of a constitution, namely: the establishment of state structures and assignment of political authority and power to them, and the definition of the rights and obligations of the inhabitants of individuals. The Order-in-Council vested political power and authority ultimately in the British Government as represented by various agents who exercised executive, legislative, and judicial powers. It also defined the basic entitlements of the inhabitants of the territory, although these were largely based on whether a person was of European, native African or Asian origin. One notable aspect of the Order-in-Council as a constitution was that it mainly reflected the interests of the minority of the population. Despite being in the majority, black Africans could not participate in choosing the Government and the various civil society organisations they established were unable to influence the Government which was accountable to the Colonial Office of the British Government.

28 Chapter 2: The Constitution

The British Central Africa Order-in-Council of 1902 was subsequently replaced by a succession of other constitutions which were put in place by the colonial authorities. Among other things, the constitutions that succeeded the Order-in- Council of 1902 changed the official name of the territory from British Central Africa to Nyasaland and, at some point, integrated Nyasaland into a federation with the territories of Northern and . The various constitutions following the Orders-in-Council made provision for Government structures and their powers, but did not fully protect the human rights and liberties of the majority of the population.

Post-colonial period

The first critical change in the structure of the state and the rights of the majority of the population came about because of various nationalist resistance movements against colonialism – from the in 1915 to the protests that led to the declaration of the state of emergency in 1959. By 1961, the pressure for political independence had risen to the point where the colonial administration was forced to hold the first Government elections in which the black majority had the right to participate. Three years later, the process of decolonisation was formalised by the adoption of a new Constitution. The Constitution of 1964 declared Nyasaland to be an independent state and established a parliamentary system of Government in which the executive branch of Government was headed by a Prime Minister. The Queen of England remained the formal Head of State but real political power was vested in the elected Government. The Constitution also provided for an independent Judiciary and a Bill of Rights which guaranteed people a wide range of civil and political and human rights, including the right to form political parties and to participate in regular elections. Less than two months after the adoption of the 1964 Constitution, however, the first Prime Minister fell out with the younger, more radical, members of the Cabinet as a result of personality clashes and ideological differences. Matters came to a head when the Ministers unsuccessfully attempted to force the Prime Minister to resign and they subsequently fled into exile. It was in this context that the Prime Minister led a movement demanding the replacement of the 1964 Constitution. The demand culminated in the enactment of the 1966 Constitution. The 1966 Constitution declared Malawi to be a one-party state with a presidential system of Government based on a number of principles, including ‘Unity, Loyalty, Obedience, and Discipline’. The President would be directly elected and would be both Head of Government and Head of State. The President had

29 GOVERNMENT AND POLITICS IN MALAWI the power to appoint an unlimited number of Members of Parliament (MPs) and to dissolve Parliament at any time. The Constitution also allowed the establishment of traditional courts that were subject to the control of the executive branch of Government. In 1974 the Constitution was amended to provide that Dr Kamuzu Banda who was the first President would be President for life. The Constitution did not have a Bill of Rights and, therefore, provided no explicit guarantees of human rights as had been the case with the Constitution of 1964. By the end of the early 1980s, the people were disillusioned with the political and economic conditions that the Constitution of 1966 helped to create. Civil society groups and countries that provided financial assistance to Malawi began to demand a new Constitution different from that of 1966. The demand eventually led to the enactment of the 1994 Constitution which was based on principles of liberal democracy. Among other things the Constitution of 1994 retained the President as both Head of Government and state, but removed from the presidency the power to nominate an unlimited number of MPs and to dissolve Parliament at any time. It also limited the President to a maximum of two consecutive terms of office. The Constitution explicitly established an independent Judiciary and included a Bill of Rights that guaranteed a wide range of individual rights and liberties.

Democracy and constitutions in the

The first Constitution of 1902 was not based on democratic principles; on the contrary, it was a tool for colonial administration and, therefore, promoted the interests of colonial settlers at the expense of the majority indigenes. The first democratic Constitution was that of 1964 which provided for universal franchise, a Bill of Rights, and a multiparty Parliament. This was quickly replaced, however, by that of 1966 which legitimised an undemocratic political system with a one-party state and a life presidency. Democratic principles were re-established by the Constitution of 1994, which included among its fundamental principles: people’s trust as a basis of state power, accountability, transparency, and human rights.

Key concept: accountability The requirement for certain institutions or persons holding power that they are answerable for the exercising of that power

30 Chapter 2: The Constitution

THE PROCESS OF CONSTITUTION-MAKING

State constitutions often emerge from specific historical processes as is illustrated by the various constitutions that have been enacted during the constitutional history of Malawi. The British Central African Order-in-Council Constitution of 1902 marked the consolidation of the process of colonisation; the Constitution of 1964 was the product of the struggle for independence; and that of 1994 resulted from the domestic and international push for democratisation that followed over 20 years of single-party rule. In general, each constitution laid down specific rules aimed at promoting the general objectives of the particular historical process which preceded it. Ideally, in a democracy, the rules of law that comprise the constitution of a state should reflect the views of the people within that state. In practice, however, constitutions might only reflect the views of the small group of people who participated directly in its evolution. The important factor that determines whether a constitution reflects the views of the majority or a minority is the process by which it is made. Typically, the process will involve four main stages: agreement, consultation, drafting, and formal enactment.

Agreement

As stated earlier, the making of any constitution is preceded by a specific process of historical development. Such a process typically involves competition for domination among various political, economic, and social interest groups. The nature and intensity of the competition depends on the context. In some cases, violent conflict has preceded the making of constitutions. Examples include the making of the constitutions of Mozambique in 1975, Zimbabwe in 1980, and South Africa in 1994 which resulted after long periods of armed conflict between incumbent Governments and armed liberation groups. On the other hand, other constitutions such as that of came into being because of political contestation that did not involve violent conflict. Regardless of whether competition among various interest groups prior to the creation of a constitution is violent or not, the process culminates into some form of resolution of the fundamental conflict. In the case of the establishment of colonial rule, this resolution took the form of imposition of constitutional orders on native populations without their agreement. In the history of Malawi, such imposed constitutions included the British Central Africa Order-in-Council (1902), the Nyasaland Order-in-Council (1907) and the Federation of Rhodesia and Nyasaland (Constitution) Order-in-Council (1953). In other cases, constitutions are

31 GOVERNMENT AND POLITICS IN MALAWI not the result of imposition but agreement reached by the main competitors for political control. This has been the case in post-colonial Malawi, starting with the 1964 Constitution which was based on an agreement reached between representatives of the colonial administration and those of the biggest nationalist political group called the MCP at a conference held in London in August 1962. And more recently with the making of the 1994 Constitution which was based on an agreement made in 1993 in Lilongwe between a group of MCP officials (who represented the advocates of a one-party state) and the Public Affairs Committee (PAC – a grouping of civil society groups advocating the adoption of a multiparty system of Government).

Consultation

It is common for parties that have reached constitutional agreements to consult the wider public on the constitution proposed by the agreement. Such consultation involves seeking the opinions of various groups and individuals on specific aspects of the proposed constitution. Consultation may be done through formal mechanisms such as conferences or informal ones such as through the monitoring of public opinion expressed in the media or other public forums. In the history of Malawi, consultation was only carried out in the making of the Constitutions of 1966 and 1994. In the making of the 1966 Constitution, proposals for its content were developed by a committee comprising of some senior members of the ruling MCP who had been appointed to a constitutional committee by the President. The proposals developed by the committee were then presented to the 1965 annual meeting of the MCP, which was attended almost exclusively by members of the party. Delegates at the conference endorsed the proposals unanimously. The proposals were then enacted by Parliament into the Constitution, which remained in force for the following 28 years. The making of the Constitution of 1994 also involved consultation. In contrast to the 1966 Constitution, the consultation over the 1994 Constitution was more extensive because it was not limited to the members of one political party but involved representatives of a wide range of communities, organisations and special interest groups. The drafting of the Constitution of Malawi of 1994 was done by a committee of lawyers nominated by nine political parties. After a draft Constitution was agreed, Parliament enacted it in a provisional form pending further consultation. Parliament then solicited the views of members of the public on the Constitution. In addition, Parliament organised a national constitutional conference which was held in Lilongwe in February 1995. The conference was attended by over 200 delegates from a variety of backgrounds,

32 Chapter 2: The Constitution including one army officer, one civil servant (Regional Administrator, South), two representatives of religious organisations, two High Court judges, 14 members of business associations, 14 trade unionists and members of employers’ associations, 31 members of other non-governmental organisations, 22 members of governmental and quasi-governmental commissions and boards, 44 traditional chiefs, 85 MPs chosen by their political parties and 50 individuals in their personal capacities. Drafting

After the framework of a constitution has been agreed upon and its content has been subjected to consultation, the next step is to draft the text itself. Drafting involves reducing the general ideas that emerged from the agreement and consultation into specific rules in a language that aims at communicating the intentions of the constitution-makers as accurately as possible. This is challenging, particularly if it requires drafters not only to interpret those intentions but also to write them in a language that is different from the one in which they were originally expressed. This has been the case in the drafting of the constitutions of post-colonial African states, which have produced texts in the official languages of English, French, or Portuguese from agreements and consultations which were made in indigenous languages. In seeking to reflect the intentions of the originators of the constitution in the constitutional text, those who draft it must ensure that the constitutional text is comprehensive enough not to omit any important issues, while at the same time being concise enough to facilitate ease of comprehension. Drafters must also decide on the language that the constitution is to be written in. If it is decided that the constitution should be drafted in more than one language, the legislators who enact it into law must also determine which version will be authoritative for purposes of resolving any ambiguities that occur between texts in different languages. The task of drafting the text of a constitution is usually left to lawyers. This is because they have the technical expertise and experience in legal drafting. The technical drafting team must be answerable, however, to a political body which has final responsibility for the draft. The responsibility for drafting the Constitution of Malawi of 1994 was given to the National Consultative Council which set up a technical committee to do the actual drafting. The team consisted of lawyers nominated by each of the nine political parties which were members of the council. The committee produced a draft Constitution that the National Consultative Committee adopted and Parliament subsequently enacted as the provisional Constitution. The draft also formed the basis for public consultation prior to 1995 when Parliament finally enacted it (i.e. established by law), with some amendments, as the country’s definitive Constitution.

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Enactment

After the draft of a constitution has been developed and all necessary consultations have been completed, the next step is enactment. This is the responsibility of the legislative power at that time. There is no standard way of enacting constitutional drafts or provisional constitutions. In practice, however, two approaches are common. One involves enactment by the regular Parliament that has general legislative powers to pass all other laws. In such cases, the common approach is for Parliament to debate the constitution as if it were any other law, using the usual procedures that apply to the enactment of other laws. All constitutions in Malawi’s history have been enacted in this manner. The alternative approach is to have constitutional drafts or provisional constitutions enacted into final constitutions by bodies established specifically for that purpose, using procedures prescribed specially for that purpose. This was the case in the making of the 1994 Constitution of South Africa, in which the Constitutional Assembly (consisting of a combination of members of the two Houses of Parliament) used a special procedure prescribed in a 1993 law.

STRUCTURE AND CONTENT OF THE CURRENT CONSTITUTION

There is no standard format for a constitution. However, it is common for a constitution to contain separate statements that express particular legal rules or principles. The separate statements are usually numbered for ease of reference, with each numbered statement or group of statements described as an article, a section, or a paragraph. It is also common to group statements that deal with the same subject matter into separate sub-divisions of the constitutional document. There is no standard way to determine these sub-divisions so those who enact particular constitutions ultimately decide the matter. The same is true regarding the substance of constitutions, which is also a matter of choice and varies from state to state. Despite the many variations that exist, however, it is common for constitutions to articulate the fundamental structure of the state, including provisions that define the identity of the state, its fundamental principles of governance, its institutions and their powers, its protection and enforcement of human rights, and its procedures for repeal and amendment of the constitution. The rest of this chapter examines the content of the current Constitution of Malawi. Identity of the state

Constitutions often lay down the main elements of the state which the constitution governs by asserting its sovereignty and defining its territory, citizens, and symbols of

34 Chapter 2: The Constitution identity. In the case of Malawi, the Constitution of 1994 states that Malawi is a sovereign state with rights and obligations under international law. It also provides that the national territory of the Republic of Malawi consists of all the territory, including the airspace, waters, and islands which comprised the territory of Malawi before 1994 , as well as any territory lawfully acquired after 1994 by adjusting boundaries. In terms of the symbols of identity, the Constitution expressly provides that Malawi shall have a national flag, a national coat of arms, a national anthem, and a public seal. The specific details of the exact location of the boundaries of the national territory, the design of the national flag and coat of arms, and composition of the national anthem are provided in other laws and not the constitutional text itself. Details relating to citizenship, however, are provided for in both the constitutional text as well as other laws. The Constitution recognises that citizenship may be acquired by birth, descent, marriage, registration, and naturalisation, and that a person cannot be arbitrarily deprived or denied citizenship. All other aspects of the acquisition or loss of Malawian citizenship are provided for by parliamentary laws. Fundamental principles Most constitutions contain a statement of the basic rules which serve as the foundation of the rest of the constitution, and any other laws and norms that govern the relationship between the state and individuals and among individuals themselves. In Malawi, these basic rules are contained in the chapter of the Constitution entitled ‘Fundamental Principles’. The fundamental principles are sub-divided into ‘Constitutional Principles’ and ‘Principles of National Policy’. The former are principles that underlie the Constitution while the latter are goals aimed at by policies and legislation.

The Constitution lists the following constitutional principles: • All legal and political authority of the state comes from the people of Malawi and must be exercised solely to serve and protect their interests. • Everyone who exercises state powers does so on behalf of the people and must exercise that power within its legal limits and in accordance with his or her responsibilities to the people. • All state power can only be exercised by authorities who maintain the trust of the people by being open, accountable, and transparent and ensuring that people have informed democratic choice. • The state and all persons must recognise and protect the human rights of all people. • Any right that is granted by the law can only be limited if the limitation is

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necessary to ensure peaceful human interaction in an open and democratic society. • All institutions and persons must observe and uphold the Constitution and the rule of law (i.e. exercise power in accordance with the limits set down by legal rules). The constitutional principles may be summarised as requiring that governance in Malawi be based on the following ideas: legitimacy, accountability, transparency, human rights, and the rule of law. Legitimacy is covered in the requirement that all legal and political authority of the state derives from the people of Malawi; accountable and transparent governance is explicitly mentioned in the principle that the state’s exercise of power is conditional upon the sustained trust of the people of Malawi; human rights are expressly covered by the requirement that the state and all people recognise and protect human rights and assert the equality of all people before the law; and the rule of law is provided for in the requirement that every institution and person must observe and uphold the Constitution and the rule of law. In addition to the constitutional principles, the Constitution enumerates principles of national policy which require the state to actively promote the welfare of the people of Malawi by implementing policies aimed at achieving the following goals : • gender equality • adequate nutrition and health care • environmental preservation • improved quality of rural life • a well-financed education sector • support for the disabled and the elderly • healthy, productive, and responsible members of society • safe families • law and order • development of the law of nations and the rule of law • peaceful settlement of disputes • maintenance of a sensible balance between creation and distribution of wealth • strengthening of confidence in public institutions

Establishment, power and functions of branches of Government

Another key function of any state constitution is the establishment of branches of Government and the allocation of functions and powers to them. Most constitutions recognise the main branches of Government as the Legislature, the

36 Chapter 2: The Constitution

Executive, and the Judiciary. The three branches of Government are supposed to act independently of each other by virtue of the principle of separation of powers which requires that no branch should exercise the functions of another; no branch should control or interfere with the operations of another; and no person should work for more than one branch at the same time. However, if the principle of separation of powers were to be applied to the letter, it would undermine the ability of the branches of Government to act as checks on each other’s power. In spite of the principle of separation of powers, therefore, each of the three branches exercises powers that appear to interfere with the operation of the other branches. Examples include the power of the courts to review decisions of the executive and legislative branches; the power of the Legislature to impeach the head of the executive branch; and the power of the executive branch to appoint judges. This principle is discussed more fully in Chapter 3. For purposes of this chapter, it suffices to note that the separation of powers requires that none of the branches should dominate the others and that there should be a balance of power among the branches. The composition and powers of the Executive, Legislature, and Judiciary are discussed in more detail in Chapters 3, 4, and 5 of this book respectively. The main responsibilities of the branches as set down by the provisions of the Constitution are as follows: The executive shall be responsible for the initiation of policies and legislation and for the implementation of all laws which embody the express wishes of the people of Malawi and which promote the principles of this Constitution. The legislature when enacting laws shall reflect in its deliberations the interests of all the people of Malawi and shall further the values explicit or implicit in this Constitution. The judiciary shall have the responsibility of interpreting, protecting, and enforcing this Constitution and all laws in accordance with this Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law. (Sections 7, 8 & 9, The Constitution of Malawi)

As mentioned above the interrelationship of the three main branches of Government should be based on the principle of separation of powers. Throughout Malawi’s constitutional history, however, the balance of power has often tilted in favour of the executive branch with the President being the most dominant office in the Constitution in the actual as opposed to the formal sense. In addition to making provision for branches of Central Government, the Constitution also establishes and sets out the functions and powers of Local Government. A detailed discussion of various aspects of Local Government in Malawi is presented in Chapter 6 of this book. Within the limits of the present

37 GOVERNMENT AND POLITICS IN MALAWI chapter, it is sufficient to note that the Constitution establishes local Government authorities whose members are elected by voters registered in their respective areas of jurisdiction, and lists the main responsibilities of these authorities. These include the promotion of infrastructural and economic development; the presentation of local Government plans and information on local issues to Central Government; and the consolidation and promotion of democracy at the local level.

Independent state institutions

In addition to establishing the Executive, Legislature, and Judiciary, the Constitution of Malawi also creates other institutions that contribute to the promotion of accountability by the Government and its officials, and the promotion, protection, and enforcement of human rights. These institutions are referred to as state institutions because they are funded by the state. However, they are supposed to operate independently and separately from the main branches of the Government. The most prominent of these institutions are the Ombudsman, the Judicial Service Commission, the Human Rights Commission, the Law Commission, and the Electoral Commission. Some of these institutions are discussed in more detail in other chapters of this book because of the nature of their powers and functions. This is the case with the Ombudsman and the Judicial Service Commission which are discussed in Chapter 5, and the Electoral Commission which is covered in Chapter 8. This chapter looks at the Human Rights Commission and the Law Commission.

Human Rights Commission The Human Rights Commission consists of the Law Commissioner, the Ombudsman and other individuals who are appointed by the President from a list of nominees proposed by Malawian human rights organisations which the Law Commissioner and the Ombudsman consider to be reputable and representative of Malawian society. The Constitution requires the removal from office of any member of the commission, other than the Law Commissioner or Ombudsman, if he or she is incompetent, incapacitated or incapable of acting impartially in the discharge of his or her duties. Under the Constitution, the Human Rights Commission’s primary function is the protection of human rights and the investigation of any violation of them. The commission is empowered by the Constitution to undertake investigations of human rights violations either in response to a request by any individual or group of persons, or at its own initiative. The commission has no legislative or judicial power and can only follow up its investigations into human rights violations with

38 Chapter 2: The Constitution recommendations that are necessary for the effective promotion of the rights guaranteed by the Constitution or any other written law.

The Law Commission The Constitution also establishes the Law Commission, consisting of the Law Commissioner, whom the President appoints on the recommendation of the Judicial Service Commission, and any other people the Law Commissioner appoints in consultation with the Judicial Service Commission from time to time. In order for a person to qualify for the appointment of the Law Commissioner, he or she must be a lawyer. Once appointed, the Law Commissioner serves a term of five years, although this can be renewed for further terms of five years each. He or she, as well as any of the other people that he or she appoints to the commission, may be removed from office for incompetence or incapacity. The commission has constitutional powers to review and, where necessary, make recommendations on any matter related to the Constitution as well as on any matter relating to any other laws and their conformity with the Constitution and international law. The commission also has the constitutional power to receive submissions (suggestions for law reform) from any person or institution relating to the Constitution or any other law, and to report its findings and recommendations to the Minister for Justice who is required to publish such a report and present it to Parliament.

Service commissions

The Constitution also establishes service commissions that facilitate various aspects of the operations of the Government such as the Civil Service Commission, the Police Service Commission, and the Prisons Service Commission. These commissions are mainly responsible for the recruitment of staff and the setting and enforcing of standards of discipline within the civil, police and prisons services respectively.

Human rights

One of the common features of modern state constitutions is their provision for human rights. The Constitution of Malawi is no exception and in its Chapter IV provides an elaborate framework of rules for the protection and enforcement of a wide range of human rights. These rights may be defined as entitlements, which every person has by virtue of being a human being, and have been accorded international legal protection since the end of the Second World War. Such protection has been declared in a number of international agreements. The most important of such agreements have been made under the auspices of the United

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Nations and include the Universal Declaration of Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Convention on the Elimination of All Forms of Discrimination Against Women; and the Convention on the Rights of the Child. The guarantee of human rights in the Constitution is based on the philosophy of liberal individualism, which holds that people are autonomous individuals who should be free to do as they wish unless their actions are harmful to other people. This position is evident in the provision of the Constitution which states in Section 12(v) that ‘the only justifiable limitations to lawful rights are those necessary to ensure peaceful human interaction in an open and democratic society’. Rights which protect individuals from interference by the state or others are sometimes referred to as negative rights. In addition to these liberal rights, the Constitution also guarantees so-called positive rights which entitle individuals to participate proactively in various social, economic, and political processes. Human rights are often classified into three categories. The first is that of civil and political rights which consist of entitlements that mainly define the relationship of each individual to other people and to the political process. Included in this category are rights to life, equality, freedom of expression, freedom of association, and freedom of conscience. The second category is that of economic, social, and cultural rights. These rights relate to survival and livelihood and include rights to economic activity, education, health, and food. The third category of rights consists of solidarity rights, which are also known as group rights. These rights mainly relate to benefits enjoyed collectively by members of the community. The main solidarity rights are the right to self- determination, the right to development and the right to a clean and sustainable environment.

Human rights guaranteed in Chapter IV Chapter IV of the Constitution guarantees a wide range of human rights, which are summarised in the table below.

Civil and Political Rights Human Right Content of the right

Right to life No person may be killed unless such killing is done to implement the judgement of a court. In Malawi, a court must sentence a person to death if he or she is found guilty of murder or treason. It may also do so in some cases of armed robbery or rape.

40 Chapter 2: The Constitution

Right to protection from genocide No person should be subjected to genocide.

Right to not be discriminated against No person should be treated less favourably than others on the grounds of his or her race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, property, birth or other status.

Women must have the same legal protection Right to gender equality as men, and should not be discriminated against on the basis of their gender or marital status.

Right to personal liberty Every person must be free from physical restraint, slavery and forced labour. A person may only be confined if such confinement is authorised by the law; for example, where a person is sentenced to imprisonment.

Right to dignity The dignity of every person must not be violated and no person should be tortured; subjected to cruel, inhuman, or degrading treatment or punishment, or corporal punishment; detained without trial or solely because of his or her political or other opinions; or imprisoned merely for not fulfilling the requirements of a contract.

Right to freedom of association Every person is free to choose individuals or groups with whom he/she wishes to associate.

Right to freedom of conscience Every person is entitled to act according to his or her conscience; to hold and exercise any religious or other belief and thought; and to engage in academic activities of his or her choice.

Right to privacy Every person is entitled to keep his or her activities away from the public. Among other things, the Constitution prohibits the searching of people and their property unless this is specifically authorised by the law. It also prohibits the seizure of a person’s possessions or interference with his or her mail and all forms of telecommunications.

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Right to freedom of expression Every person in Malawi is free to express his or her views or opinions on any matter and in any form. Right to freedom of opinion Every person has a right to have, receive, and communicate any opinion without interference. Right to freedom of the press The media is entitled to report and publish freely, and to access public information. Right to have access to information Every person is entitled to access any information held by the Government or any other public body if the information is required for the exercise of any of that person’s rights. Right to freedom of assembly and demonstration Every person has the right to assemble and demonstrate with others peacefully and unarmed. Right to freedom of movement and residence Every person is entitled to move freely and reside anywhere in Malawi. Every person also has the right to leave Malawi while citizens also have the freedom to return to the country at any time.

Rights of criminal suspects and prisoners Every person arrested as a criminal suspect must be told of the reason for the arrest and must be taken to court or released within 48 hours of the arrest. Every person in custody as a criminal suspect or convicted prisoner must also be treated with fairness and humanity. Every person arrested has the right to a lawyer. Right to access to justice and legal remedies Every person has a right to take disputes to a court of law for final settlement and to be provided with compensation by a court of law and tribunal in cases where his or her rights and freedoms are violated.

Right to administrative justice Every person is entitled to be treated lawfully and in accordance with fair procedures by administrators. Everyone who is adversely affected by an administrative action is entitled to written reasons for that action.

Unlike in other countries, in Malawi the Right to participate in political activities Constitution declares that it is the human right of every person to form, to join, to participate in the activities of, and to recruit members for a political party; to campaign for a political party or cause; to participate in peaceful political activity intended to influence the composition and policies of the Government; to freely to make political choices; to vote in secret; and to stand for election for public office.

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Each member of a family is entitled to enjoy full Family and marriage rights and equal respect and to be protected by law against all forms of neglect, cruelty, or exploitation. Every person who is over 18 years old has the right to get married while people aged between 15 and 18 years may get married only with the consent of their parents or guardians.

All children under 16 years of age are Rights of children guaranteed equal treatment before the law. They also have the right to have a given name and a family name and a nationality. Every child is also entitled to know and to be raised by his or her parents. Every child also has a right to be protected from economic exploitation or treatment, work or punishment which is dangerous or may interfere with his or her education or harm his or her health and development.

Right to property Every person is entitled to acquire property and keep it except where the Government takes it from him or her for the public benefit having given adequate notice and paid him or her compensation.

Economic, Social and Cultural Rights

Human right Content of the right

Right to economic activity Every person is entitled to freely engage in economic activity, to work and to try to make a living anywhere in Malawi.

Right to fair labour practices Every person has the right to fair and safe labour practices and to fair wages. Among other things, the right requires that workers should be paid equally for work of equal value regardless of their gender, disability, or race.

Right to education Every person has the right to be educated. Everyone is also entitled to establish private schools and private institutions of higher learning as long as such schools or institutions are registered with the Government under the law and maintain standards that do not fall below those in Government schools.

Right to choose a culture and language Every person is free to use the language and to participate in the cultural life of his or her choice.

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Solidarity Rights

Human right Content of the right

Everyone has the right to economic, social, Right to development cultural, and political development. Among other things, this right imposes on the state an obligation to take all necessary measures to provide people with equal opportunities to access basic resources, education, health services, food, shelter, employment, and infrastructure..

Limitation and suspension of rights guaranteed in Chapter IV Some of the rights guaranteed in Chapter IV of the Constitution are absolute since the Constitution provides that their enjoyment cannot be suspended or limited under any circumstances. Such rights are said to be ‘non-derogable’ which means that they are not to be limited under any circumstances. These consist of the following: the right to life (excepting those legally sentenced to death or enemies of war); the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment; the right not to be subjected to genocide; the right not to experience slavery and related practices; the right not to be imprisoned for merely failing to fulfil a contract; the right not to be punished for something that was not a crime at the time that it was done; the right to equality and recognition before the law; and the right to freedom of conscience, belief, thought and religion. Other rights in Chapter IV are not absolute and can be suspended during states of emergency. Section 45 of the Constitution provides that a state of emergency can be declared by the President, and then only if there is a war, a threat of war, a civil war or a widespread natural disaster. The Constitution also requires the President’s declaration of a state of emergency to be approved by the Defence and Security Committee of the National Assembly and must not violate the country’s obligations under international law. It also entitles any person whose rights are suspended during a state of emergency to challenge such suspension in the High Court. The rights which may be suspended during states of emergency are: the right to freedom of expression, the right to freedom of information, the right to freedom of movement, the right to freedom of assembly, the right not to be detained without trial; and the right to be charged or released within 48 hours of being arrested. In addition to the suspension of certain rights during states of emergency, the exercise of rights guaranteed in Chapter IV, except those which are non-derogable, may be restricted or limited at any time. However, in order for such limitation or

44 Chapter 2: The Constitution restriction to be valid, it must be prescribed by law, be reasonable, be recognised by international human rights standards and necessary in an open and democratic society. In addition, the restriction or limitation must not be so far-reaching that it negates the essential content of the right in question. Any purported restriction or limitation which does not fulfil any of these requirements is invalid and may be successfully challenged in a court.

AMENDMENT OF THE CONSTITUTION

Key Concept: Amendment A formal change of the content of a law by an authorised body through a legal process

A constitution serves as the legal foundation of a state. As such, it should be as stable as possible. Such stability creates certainty about the basis, scope, and limits of powers of a Government and gives people a sense of security because it assures them that their rights and freedoms will not be subject to arbitrary definition and re-definition. On the other hand, if no provision of a constitution could be changed, the structure of the state, the distribution of powers among the various branches of Government and the methods and processes for promoting, protecting and enforcing human rights would be incapable of adapting to economic, social and political changes. The constitution would become out of step with society and would eventually lose all credibility and authority. Ideally, therefore, a constitution should strike a balance between stability and flexibility. The Constitution of Malawi recognises the value of constitutional stability, particularly with reference to certain provisions that are critical to the survival and development of democracy. The Constitution, therefore, protects certain provisions from arbitrary change by providing that they cannot be amended, i.e. have their content changed, by Parliament unless the majority of people voting in a national referendum supports such an amendment. The specific sections of the Constitution whose amendment requires a referendum are listed in a schedule to the text of the Constitution. The listed provisions are those that provide for: • national sovereignty • the national flag • the national territory • protection of the people of Malawi under the Constitution • supremacy of the Constitution

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• universal and equal suffrage • the separate statuses, functions, and duties of the Executive, the Legislature and the Judiciary; • application and interpretation of the Constitution • constitutional principles • principles of national policy • protection of human rights and freedoms • citizenship • independence and jurisdiction of the courts • appointment, remuneration and tenure of judicial officers

The requirement to have a referendum to amend the provisions listed in the schedule is not necessary if the proposed amendment does not affect the substance of the provisions. The Constitution grants the power of certifying whether a particular amendment affects the content of a provision to the Speaker of Parliament. A proposed amendment of a provision that does not affect its substance seriously must nevertheless be supported by a vote in favour by at least two thirds of all MPs. The Constitution balances stability with flexibility by dispensing with the requirement for a referendum for those provisions not included in the schedule. However, even in the case of these provisions, the Constitution safeguards its own integrity by permitting Parliament to amend these provisions only if at least two- thirds of the total number of MPs entitled to vote support such an amendment. In the history of the current Constitution, there has been no formal move to amend any of the provisions that require a referendum before amendment. On the other hand, there have been numerous amendments to other provisions in the Constitution. The first set of such amendments was effected when the Constitution was in its provisional form following the National Constitutional Conference held in February 1995. Since it came into force, the Constitution has been amended no less than 100 times. This contrasts with the constitutions of many other countries that have been amended less frequently – a good example being the Constitution of the United States of America which has been amended only 27 times between 1789 and 1992.

CONCLUSION

A constitution is the legal foundation of any modern state. It serves to establish the branches and institutions of state and to distribute power among them and to

46 Chapter 2: The Constitution limit that power, thereby safeguarding the fundamental rights and liberties of citizens. In the history of Malawi, constitutions have also served the useful purpose of embodying the agreements made between competing political forces at times of political transition. The current Constitution of Malawi has the potential of making a critical contribution to democracy because it is based on fundamental principles that include legitimacy, accountability, transparency, and human rights. The fact that Malawi has a formal constitution which resulted from a process that was consultative, albeit to a limited degree, is indicative of political development. However, the future of the Constitution depends on whether it guides the actual practice of the various actors in the political arena. It is constitutionalism that will make a real difference to the quality of political life in practice.

Questions

1. Did pre-colonial societies in Malawi have constitutions? 2. To what extent have constitutions been important in the various political transitions that Malawi has experienced since it became an independent state in 1964? 3. How consultative was the process of making the 1994 Constitution? 4. Have the principles of the 1994 Constitution of Malawi been applied in practice? 5. Does the 1994 Constitution of Malawi adequately provide for separation of powers and checks and balances? 6. How can the protection of human rights guaranteed by the Constitution of Malawi be reconciled to the preservation of public order and national security? 7. Why should there be limits on the power of Parliament to amend the Constitution when MPs are democratically elected representatives of the people? 8. Why do you think there have been so many more amendments to The Constitution of Malawi than to The Constitution of the United States of America?

47 GOVERNMENT AND POLITICS IN MALAWI References and further reading

Banda, J.R. (1998) ‘The Constitutional Change Debate of 1993–1995 in K.M. Phiri and K. Ross (eds) Democratization in Malawi: A Stocktaking, Blantyre: CLAIM

Kanyongolo, F.E. (1998) ‘The Limits of Liberal Democratic Constitutionalism in Malawi in K. Phiri and K. Ross, Democratization in Malawi: A Stocktaking Blantyre: Christian Literature Association of Malawi

Mair, L. (1962) Nyasaland Elections of 1961, London: University of London Press

Malawi Government (1995) Report of National Constitutional Conference, Zomba, Government Printer

Meinhart, H. and N. Patel (2003) Malawi’s Process of Democratic Transition Lilongwe: Konrad Adenauer Foundation

Mutharika, P. (1996) ‘The 1995 Democratic Constitution of Malawi, Journal of African Law pp 205–219

Ng’ong’ola, C. (1996) ‘Managing the Transition to Political Pluralism in Malawi – Legal and Constitutional Arrangements’ The Journal of Commonwealth and Comparative Politics, Vol 34/2, pp 85–110

Nyasaland Protectorate (1959) Annual Report of the Secretary for African Affairs, 1959, Zomba, Government Printer

Pachai, B. (1973) Malawi: The History of a Nation, London: Longman

Phiri, K.M. (1988) ‘Pre-colonial States of Central Malawi: Towards Reconstruction of their History’ Society of Malawi Journal, Vol 41, No 1, pp 1–29

Rotberg, R. (1965) The Rise of Nationalism in Central Africa: The Making of Malawi and Zambia Cambridge, Mass.: Harvard University Press

Sichone, O. (ed), (1998) The State and Constitutionalism in Southern Africa, Harare: SAPES

48 Chapter 2: The Constitution

South African Institute of International Affairs (2004) ‘Malawi and the African Peer Review Mechanism: A Review of National Readiness and Recommendations for Participation’, Johannesburg: South African Institute of International Affairs

Van Donge, J.K. (1995) ‘Kamuzu’s Legacy: The Democratization of Malawi. Or Searching for Rules of the Game in African Politics’ Africa Affairs, Vol 94, pp 227–257

49 GOVERNMENT AND POLITICS IN MALAWI

50 3 THE EXECUTIVE

Boniface Dulani

INTRODUCTION

The Executive is one of the three branches of Government. Its primary responsibility is to formulate policy and implement laws. The other two branches are the Legislature, which is responsible for making laws; and the Judiciary, which is responsible for interpreting, protecting, and enforcing all laws. Of the three branches of Government, the Executive often represents the face of politics with which the public is most familiar. Such is the extent of the familiarity and popular visibility of the executive branch of Government that most people often refer to it as the Government. The Executive, too, is by far the largest branch of Government, both in terms of numbers and scope. The Executive comprises the Head of Government, Cabinet ministers and their deputies, all Government ministries and employees, the police, and the army. This chapter discusses the following issues • What is the Executive? • What are the types of executive systems? • What is the composition of the Executive in Malawi? • What are the powers, duties, and responsibilities of the President and of the Vice Presidents? • What are the duties, responsibilities, and powers of Cabinet Ministers? • What is meant by ministerial responsibility? • What is the composition and role of the civil service in Malawi? • What are the limitations on the powers of the President and Cabinet in Malawi?

WHAT IS THE EXECUTIVE?

The Executive is the branch of Government that determines and directs Government policy. In practice, however, its responsibilities tend to be substantially broader as well

51 GOVERNMENT AND POLITICS IN MALAWI as more complex. For example, the President, as Head of State and Chief Executive, is the country’s first citizen, representing the wider Malawian public in various international fora. Cabinet Ministers provide executive leadership to their ministries and also undertake various responsibilities at international, national and community levels. Because the Executive has so many responsibilities and so much power, many nations have struggled to prevent it from overstepping the limits of its power.

Key concept: the Executive The branch of Government that is responsible for formulating policy and implementing laws

The formal provisions of the Constitution regarding the executive branch of Government in Malawi appear in Chapter VIII of the Constitution. This chapter sets out the principles of election of the President, his or her deputies and their removals. The Constitution also details the procedures for appointments of Cabinet Ministers, their duties and functions, and the appointments of other key officers that work with the Executive in the execution of state business, including the Attorney-General and the Director of Public Prosecutions (DPP).

TYPES OF EXECUTIVE SYSTEMS

There are many systems or types of constitutional Government. However, they can broadly be classified under the categories of presidential and parliamentary. The basic characteristics of the two systems are as follows:

Table 1: Presidential and Parliamentary Systems

3. The Head of Government cannot be 3. The tenure of the Head of Government removed from office except by a process of depends on the support it enjoys in the impeachment through the Legislature. Legislature. The Head of Government and his/her Cabinet can be voted out of power through a vote of no confidence by simple majority in the Legislature

4. The parliamentary system organically links 4. The presidential system is based on the the Executive and Legislature, based on the principle of separation of powers between principle of accountability of the Executive the three arms of Government and requires to the Legislature. horizontal accountability between them.

5. In both systems, the Judiciary plays a balancing role between the Executive and Legislature.

52 Chapter 3: The Executive

Presidential system

In a presidential system, executive authority is exercised by a President who is also Head of State. The defining characteristic of such a system is that the President, who is both the Head of State and Head of Government, is usually elected directly in a popular ballot. Under a presidential system, the Legislature and the Executive are formally distinct, and the President and other executive officers cannot be members of the Legislature. Additionally, the President has a fixed term of office and elections are held at scheduled times, and cannot be triggered by a vote of confidence or other such parliamentary procedures. Under this system, a President is elected for a fixed term and can only be removed for a serious offence, such as the violation of the Constitution, by impeachment which is discussed in the next chapter. Countries with presidential systems include the USA, Argentina, Brazil, , Nigeria and Russia.

Advantages of the presidential system Supporters generally cite the following four advantages of a presidential system: • Direct mandate – the people directly elect the President, which makes the President’s power more legitimate than that of a leader appointed indirectly. • Separation of powers – the presidential system establishes the presidency and the Legislature as two distinct structures, which allows each structure to supervise the other, preventing abuses. • Speed and decisiveness – a President with strong powers can usually enact changes and make decisions more quickly. • Stability – a President, by virtue of a fixed term, may provide more stability than a prime minister who can be dismissed at any time through a vote of no confidence in Parliament.

Disadvantages of the presidential system Critics generally point to the following three disadvantages of a presidential system:

• Tendency towards authoritarianism – a presidential system can often result in authoritarianism because power is concentrated in the Office of the President. • Separation of powers – the separate but parallel structures of the presidency and the Legislature can create stalemates between the executive and legislative branches. Further, it reduces accountability by allowing the President and the Legislature to shift blame on to the other.

53 GOVERNMENT AND POLITICS IN MALAWI

• Impediment to leadership change – the difficulty in removing an unsuitable President from office before his or her term has expired represents a significant problem.

Parliamentary system

In a parliamentary system, a Cabinet headed by an official with a title such as prime minister or premier exercises executive authority. The prime minister usually comes from the largest political party in the Legislature, although exceptions can be made in coalitions. The prime minister chooses a Cabinet, generally drawn from members of the Legislature. A vote of no confidence in the Legislature may remove this Cabinet at any time. Under a parliamentary system, the Head of State can be either a monarch (as is the case in the UK, Spain, and Swaziland), or can be a nominal President (as is the case in countries such as Italy, Germany and Israel). The Head of State in such cases is often notionally the head of the Executive but is bound, by either law or custom, to always act on the advice of the Cabinet or prime minister. Under such a system, the distinction between the Legislature and the Executive is necessarily not clear-cut, and members of the Executive often hold seats in the Legislature. Countries with parliamentary systems include the UK, Italy, , Singapore, Ethiopia and .

Advantages of a parliamentary system Supporters generally cite the following advantages of a parliamentary system: • Flexibility – they are more flexible and responsive to the public. • Accountability – they allow for more accountability than presidential systems, which have fixed tenures of office. Being linked to the legislative, parliamentary executives can face an early election and be ousted on a ‘vote of non-confidence’. • Checks and balances – parliamentary executives face more direct questioning by opposition politicians as they are members of the Legislature, whereas in a presidential system, the legislative branch usually has less chances to question the President directly. • Passage of bills – it is easier to pass legislation within a parliamentary system. Within presidential systems, the Executive is often chosen independently from the Legislature. If the Executive is of a different party from those leading the Legislature, then stalemate can occur.

Disadvantages of a parliamentary system Critics generally point to the following disadvantages of a parliamentary system: • Executive dominance – since there is an obvious lack of separation of

54 Chapter 3: The Executive

powers between the Executive and the Legislature, a parliamentary system can place too much power in the executive branch. This can lead to a feeling that the Legislature or Judiciary have little scope to administer checks or balances on the Executive. • Less democratic – a few individuals in the Legislature choose the Prime Minister, often by virtue of leading the largest political bloc in Parliament. This deprives the people of choosing their own leader in a more democratic process. • Legislative constraints: in taking action, a Prime Minister needs to retain the support of the Legislature which constrains him or her from taking some decisive decisions. • Instability – although votes of no confidence tend to be rare in some parliamentary systems, they are common in a few others. Countries such as Italy and Israel have had problems with Government stability. • Disproportionate power to small extremist parties: when a parliamentary system has multiple parties and Governments depend on coalitions, extremist parties can theoretically use the threat of leaving the coalition to blackmail the centrist parties who are leading.

In reality, even states which claim to have a distinctly presidential or parliamentary system often have elements of the other system in practice. For example, although a President in a presidential system does not have to choose a Government answerable to the Legislature, the Legislature may have the right to scrutinise his or her appointments to high Government office. In some instances, the Legislature might even have the right to block presidential appointments. By contrast, though answerable to Parliament, a parliamentary system’s Cabinet may be able to make use of the parliamentary ‘whip’ (that is, the obligation of party members in Parliament to vote with their party) to control and dominate Parliament, reducing its ability to control the Government. Some countries, such as France, have evolved to such a degree that they are no longer either presidential or parliamentary-style Governments. Instead, their Government is a semi-presidential system, in which the directly elected President, as Head of State, and the appointed Prime Minister, as Head of Government, share executive power. In Malawi, the Constitution provides for a presidential system, whereby the President is elected for a fixed five-year term of office. However, there are aspects of the system in Malawi which make it appear to have elements of a parliamentary system. The President is both Head of State and Government, and it is in his or her capacity as Head of State that he or she is part of the Legislature and has the

55 GOVERNMENT AND POLITICS IN MALAWI power to pass or veto legislation. The President can not only choose Cabinet Ministers from outside Parliament but also from within. This latter provision nicknamed ‘doubling’ has caused much controversy and debate within The National Assembly, with many MPs calling for it to be disallowed.

COMPOSITION OF THE EXECUTIVE IN MALAWI The composition of the Executive includes both political executives (i.e. politicians) and bureaucratic or official executives (i.e. civil servants). This means the Executive has two distinct parts: political and administrative.

The political executive

The political executive is drawn from within and outside Parliament and is accountable to the Legislature. It includes the President and Cabinet Ministers whose job is to make policy in accordance with the political and ideological priorities of their parties and to oversee its implementation. In addition to policymaking, Cabinet Ministers also provide a link between Government and the public, whose interests are expressed through elected representatives in Parliament. As heads of ministries and departments, Ministers are required to report to Parliament on the activities of their ministries and departments. The bureaucratic executive

The bureaucratic executive includes appointed professional civil servants, whose primary responsibility is to offer advice and administer policy, subject to the requirements of political neutrality and loyalty to their Ministers.

Key concept: political neutrality The absence of any form of partisanship or commitment on the part of members of the civil service or the civil service as a whole. As a principal, the absence of political sympathies and ideological leanings.

The civil service makes up by far the biggest employment sector in Malawi, with more than 135,000 people serving as civil or public servants (a person employed by the Government). The number of civil servants includes administrators in the various Government ministries and the front line or field staff, responsible for implementing various Government policies, such as teachers, doctors, the police and agricultural extension workers.

56 Chapter 3: The Executive

STRUCTURE OF THE EXECUTIVE IN MALAWI

The Executive in Malawi is organised hierarchically, with the President and the Vice President at the helm, followed by the Cabinet and the civil service. There is often an informal hierarchy of the Cabinet Ministers as well, according to the importance of their portfolio (office of a Minister of State) or seniority in the party structure. For example, the portfolios of finance, education, defence, foreign affairs, agriculture are very important and are entrusted to prominent and senior politicians. For example when Kamuzu Banda was President, he usually reserved these key ministries for himself, sometimes holding as many as six to eight portfolios. Principal secretaries are the top civil servants in the ministries and follow members of Cabinet in hierarchical importance. These civil servants act as overall controlling officers for ministries and Government departments. Below them come teams of civil servants, ranked according to seniority, following Government scales. Figure 1 on page 58 provides an overview of the structure of the Executive in Malawi.

THE PRESIDENT

The Office of the President, and the constitutional and legal status that it enjoys, has a variety of formal and informal powers, responsibilities and influences.

Formal powers, duties and responsibilities

The Malawi Constitution of 1994 vests executive power in the ‘President of the Republic, who is Head of State, Head of Government, and the Commander-in- Chief of the Defence Forces of Malawi’ (Section 78). The designation of the President as Head of State and Government puts the office holder at the apex not only of the Executive, but also of the whole Government and state institutions. As Head of State and Government, the President serves as a national unifying figure, and wields considerable responsibility and power. The offices of the President and his or her deputies, as is the case with Cabinet Ministers, are full-time jobs. The Constitution bars the President from holding any other public office. He or she can neither take on any other remunerative work outside the duties of his or her office nor run businesses except where such a business is held in trust on his or her behalf.

57 GOVERNMENT AND POLITICS IN MALAWI

Figure 1: The Structure of the Executive in Malawi

President (directly elected in elections)

Vice President (elected together with the President)

Second Vice President (appointed by the President)

Cabinet (political heads of ministries) (appointed by the President)

Chief Secretary for the Chief Secretary for the Public Service President and Cabinet (overall head of the Civil Service)

The Official Bureacracy, • Principal Secretaries - overall controlling officer fo ministries and Government department. • heads of departments • public service

58 Chapter 3: The Executive

The President exercises his or her powers, duties, and responsibilities in two capacities: first, as Head of State and second, as Head of Government (Chief Executive).

The President as Head of State As the Head of State, the President has overall responsibility for overseeing that the executive branch respects the Constitution as the supreme law of the land. Acting in this capacity, the office holder also exercises formal, largely symbolic authority including carrying out diplomatic and ceremonial duties representing Malawi. In this capacity, the President sends messages to specific individuals or groups in the country and to other countries on behalf of the Malawi nation. He or she attends a number of functions and activities, including meetings and conferences representing the people of Malawi.

The President as Head of Government (Chief Executive) As Chief Executive, the President leads the process of formulating, articulating and implementing Government polices in the interests of national unity, based on the Constitution and the laws of Malawi. This position carries policymaking and political responsibilities and is the President’s most visible position. As Chief Executive and Head of Government, the President chairs Cabinet meetings. The President is also Commander-in-Chief of the army and in this capacity he or she has the last authority in declaring war. As part of the checks and balances mechanisms in the Constitution, the President is required by law to attend Parliament just before the official presentation of the budget. During these sessions, the President addresses the Legislature on the state of the nation and on the future policies of Government. He or she also provides a report on the policies of the previous year and responds to questions raised by MPs. Apart from these mandatory appointments with the National Assembly, Parliament may also decide to summon the President at any time to answer questions on the Executive.

Informal duties and responsibilities of the President

In addition to his or her formal duties and responsibilities, the President in Malawi undertakes a number of informal duties. For example, very often the President is also head of his or her party. This explains why so many people seek to identify themselves with the President and his or her party, because when the President wants to make appointments to the executive branch of Government he or she often turns to the members of his or her party. In practice, the distinction between the President’s party

59 GOVERNMENT AND POLITICS IN MALAWI and the office of the President becomes blurred. The office of President is also associated with a lot of influence on development interventions, to the extent that many people seek to identify themselves with the President or his or her party as a way of securing development favours from the presidency.

Election

The President in Malawi is directly elected by a majority of the electorate through direct, universal, and equal suffrage. By law, all candidates for the post of President have to be Malawian citizens and at least 35 years of age. However, certain categories of people are constitutionally barred from selection as presidential candidates. These include: • Those declared as an undischarged bankrupt under a law of the republic • Those convicted of a crime involving dishonesty or moral turpitude in the preceding five years • Those who owe allegiance to a foreign country • Those serving as members of the Malawi Defence Forces or the Malawi Police Service • Those convicted of violating any law relating to elections of the President or election of the MPs in the seven years preceding the election. In addition, the Constitution bars any person who has been elected to the high office of President from being an MP (Section 80 {7}{e}). This means that once a person is elected President, he or she has to resign as an MP if already elected to Parliament. This is why former President, Bakili Muluzi, and his Vice, , (1994–2004), and the current President, and his Vice, (2004), all had to resign their parliamentary seats before they could be sworn in as Presidents and Vice Presidents respectively. Before running for the office of President, every presidential candidate is required by the Constitution to nominate his or her running mate, who would be Vice President if elected. This means that the presidential candidate and his/her running mate stand as a team and are jointly voted for. There is no requirement for the President or Vice President to stand on a party ticket. This gives room for independent candidates as well as members of political parties to contest for the offices of President and Vice President. In addition, there is no requirement for presidential and vice presidential candidates to be nominated by the same political party (called colloquially, ‘to run on the same party ticket’). However, as Table 2 below shows, presidential candidates and their running mates in the first three elections between 1994 and 2004 have either come from the same party or from different parties which formed a coalition.

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Table 2: 1994 Elections

Party or coalition which Candidate Running Mate nominated the candidates

Dr Hastings Kamuzu Banda Malawi Congress Party (MCP) (MCP) (MCP)

Bakili Muluzi (UDF) Justin Malewezi (UDF) Common Electoral Group (UDF, Malawi Democratic Union, United Front for Multiparty Democracy; Congress for the Second Republic and Malawi National Democratic Party).

Chakufwa Chihana Augustine Mthambala Alliance for Democracy (AFORD) (AFORD) (AFORD)

Kamlepo Kalua (MDP) Unandi Banda (MDP) Malawi Democratic Party (MDP)

Source: Dzimbiri 1998

1999 Elections

Candidate Running Mate Party or coalition which nominated the candidates

Bakili Muluzi (UDF) Justin Malewezi (UDF) United Democratic Front UDF)

Gwanda Chakuamba (MCP) (AFORD) MCP/AFORD Alliance

Bingu wa Mutharika (UP) Febbie Nyirenda (UP) United Party (UP)

Kamlepo Kalua (MDP) Lyson Milanzi (MDP) MDP

Bishop Daniel Mkhumbwe Silvester Chabuka (CONU) Congress for National Unity (CONU) (CONU)

Source: Malawi Government Gazette, 2,446: VOL XXXVIU, No. 31, 4 June 1999, Zomba: Government Printer

61 GOVERNMENT AND POLITICS IN MALAWI

2004 Elections

Running Mate Party or coalition which nominated the candidates

Bingu wa Mutharika Cassim Chilumpha UDF/National Congress for Democracy (UDF (UDF) (NCD) and AFORD coalition

Gwada Chakuamba Aleke Banda (PPM) : Republican Party (RP) (RP); the People’s Progressive Movement (PPM); Movement for Genuine Democratic Change (MGODE); People’s Transformation Party (PETRA); the Malawi Democratic Party (MDP), National Unity Party (NUP) and the Malawi Forum for Unity and Development (MAFUNDE)

John Tembo (MCP) Peter Chiona (MCP) MCP

Brown Mpinganjira Clara Makungwa (NDA) National Democratic Alliance (NDA) (NDA)

Justin Malewezi Jimmy-Koreia Mpatsa Independent (Independent) (Independent)

Source: ‘2004 Presidential and Parliamentary General Elections Results’, Malawi Government Gazette, 2,758: Vol. XLI No. 34, July 16th 2004, Zomba: Government Printer

Tenure of office

The President can serve a maximum of two consecutive terms of five years each from the time he or she is sworn in into office. This means that after his or her first five-year term in office, elections must be held and, if re-elected, the President would only be able to serve an additional five-year term. After the second term in office, the President cannot stand again in the next elections and must step down. However, whenever an individual is completing the remainder of a term of office left by a previous incumbent (who might have died, was incapacitated, was impeached or resigned from office), that period does not count as a term of office. Any individual filling such a vacancy is therefore free to run as President in his or her own right and complete two full five-year terms if elected. Attempts were made

62 Chapter 3: The Executive between 2001 and 2003 to lift the two-term limitation. However, these attempts were not successful.

Removal from office

The President can only be removed from office during his/her term in a process called impeachment on the grounds of serious violation of the Constitution or serious breach of the written laws of the republic. An impeachment vote can only be effective if it is supported by at least two-thirds of the members of the National Assembly (Section 86{2}{b}). Conviction in cases of impeachment not only leads to the removal of the office holder from office, but also acts as a disqualification from future office (Section 86{2}{d}).

Key concept: impeachment The formal process of removing a public official for personal or professional wrongdoing

Apart from in the case of impeachment, the President is granted immunity from being sued in civil proceedings and cannot be charged with any criminal offences during his or her term of office. However, this immunity does not apply to court orders concerning rights and duties enshrined in the Constitution. The presidential immunity, however, lapses after the President leaves office, although he or she is not liable for acts done in an official capacity during the office tenure. However, the new Constitution that came into force at the dawn of the introduction of multiparty rule in 1994 abolished the provision for the life presidency. Instead, it provided for a maximum presidential tenure of office of two consecutive five-year terms.

THE VICE PRESIDENT/ SECOND VICE PRESIDENT

Power, duties and responsibilities

A Vice President assists the President in his or her day-to-day activities. In the President’s absence, the Vice President chairs the Cabinet meetings and stands in for the President. In the case of death or incapacitation of the President, the Vice President assumes the post of President for the remainder of the term of office of the deceased President.

63 GOVERNMENT AND POLITICS IN MALAWI

Following a constitutional PRESIDENTIAL POWERS UNDER amendment in 1995, the BANDA’S PRESIDENCY President may appoint a second Vice President where he or she considers it ‘desirable in the The late Dr Hastings Kamuzu Banda served for 30 years as Malawi’s ‘President-for-Life’, from national interests to do so’ 1964 to 1994. During this period, Banda was (Section 80{5}). Former hailed as the ‘Supreme Leader’ and symbol of President Bakili Muluzi first used supremacy of the MCP. The MCP rules stated this provision to appoint that Banda was to be respected, honoured and Chakufwa Chihana from revered by every member of the party, and party members were required and expected to conduct AFORD as Second Vice themselves in a courteous and respectful manner President in 1995, and again in in his presence. The adoration and public April 2002. The Constitution enthusiasm led to the characterisation of Banda does not spell out any specific as ‘Ngwazi’ ‘the Conqueror’; and he was duties and responsibilities for the described locally as the greatest leader that Africa had produced. Second Vice President. The Immediately after attaining independence, holder of that office is therefore Kamuzu Banda tightened his grip on power, assigned duties and expelling Ministers opposed to his style of rule responsibilities by the President. and leadership a few months after the attainment of independence in 1964. This was followed by the development of a personality cult. He was Election given names and titles, referred to as the ‘Lion of The Vice President is directly Malawi’, the self-styled ‘Nkhoswe Number One’, (the ‘Number One Clan Leader’), ‘Mchikumbe elected with the President in a Number One’ (the ‘Principal Farmer’). general election and the Development infrastructure was often named eligibility criteria are the same after him – facilities such as roads, bridges, as those of the President. stadium, airports, dams, hospitals, army barracks As mentioned above, the and many others being named after Kamuzu. It was on the heels of this adoration that the MCP’s Second Vice President is not annual convention of September 1970 pushed for elected by the electorate but an amendment to the republican Constitution with appointed by the President. the specific aim of making Banda President for his However, where the ‘President lifetime. Parliament formally endorsed the was elected on the sponsorship proposal in December of the same year and Banda legally became Malawi’s President-for-Life, of a political party, the Second translated into the local vernacular as ‘President Vice President cannot be wamuyaya’, which translates as ‘the eternal appointed from the President’s President’. In the ensuing years, Banda tolerated own political party’ (Section no opposition to his rule, systematically 80{5}{b}) – an example being imprisoning opponents without trial and sometimes even torturing them to death. Bakili Muluzi (UDF) and his Second Vice President Chakufwa Chihana (AFORD).

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Removal from office

The Vice President can only be removed from office by impeachment. This has significant implications, especially when the President and his or her Vice President do not get on after having been elected on a joint ticket (i.e. the same party or coalition nominating them). Such tension in the course of their twinned tenure of office can create Government paralysis and confusion. A case in point was in January 2004, when the then Vice President, Justice Malewezi, resigned from the UDF party, which had nominated him jointly with Bakili Muluzi, but maintained his position as Vice President. A similar situation also arose in February 2005 when President Bingu wa Mutharika resigned from the UDF, on whose ticket he had contested and won the 2004 elections, but his Vice, Cassim Chilumpha, remained in the UDF. These kind of scenarios can undermine Government business as if one office-holder remains loyal to the party that nominated him/her in the elections, and the other office holder changes party affiliation, the President’s and Vice President’s positions and party ideologies may seem to be in conflict. While the Vice President can only be removed by impeachment, the Second Vice President can be removed by the President, whenever he or she wishes.

CABINET

The Cabinet consists of the President; the Vice President; and the Second Vice President, if one has been appointed; the Attorney-General; ministers and their deputies.

Responsibilities, duties and functions

In Malawi, as is the case elsewhere, the Cabinet provides political and administrative leadership in the running of Government. It also bears responsibility for initiating policies and legislation. The Cabinet provides a link between party interests, and attempts to reflect the interests of the general public and special interests groups in Government policy. Normally, the Cabinet meets weekly but it can also meet more frequently when there is need. As an arm of the Executive that is answerable to Parliament, the Cabinet provides a vital link between the public, the civil service, and Parliament. It provides political leadership and is responsible for coordinating state administration. In addition, the Cabinet exercises a number of vital functions of state, including monetary allocations to various departments. As political heads of their ministries and departments, Cabinet ministers shoulder the responsibility for

65 GOVERNMENT AND POLITICS IN MALAWI the supervision of the work of their senior public officers. The specific duties and functions of Cabinet Ministers in Malawi appear in Section 96(1) of the Constitution. They include: • Advising the President; • Directing, coordinating, and supervising the activities of Government departments, including parastatal bodies; • Initiating bills for submission to the National Assembly and explaining those bills to the National Assembly and the broader public; • Preparing, explaining and formulating for Parliament the budget of the state and Government’s economic programmes; • Answering queries in Parliament pertaining to the content of the policies of Government; • Assisting the President in determining what international agreements to be concluded or acceded to, and to inform Parliament on the same; • Taking responsibility for the implementation and administration of laws.

Criteria for appointment

Cabinet Ministers and their deputies are appointed by the President. There are no specific eligibility criteria for the selection of Cabinet Ministers or their deputies, meaning that anyone can serve as a Cabinet minister or deputy. However, under Section 94(2) of the Constitution, certain categories of people cannot serve as Cabinet ministers or deputies. These include persons who: • Owe allegiance to a foreign country; • Are under any law in force in Malawi; • Are declared to be of unsound mind; • Have, in the preceding seven years, been convicted by a competent court of a crime involving dishonesty or moral turpitude; • Are an undischarged bankrupt; • Hold or act in any public office or appointment; • Belong to and are serving in the Malawi Defence Forces or the Malawi Police Service • Have been convicted of any violation of any law relating to electing the President or MPs in the preceding seven years.

Apart from the above restrictions, the President can select into the Cabinet both those who are serving as MPs and those who are not. The Cabinet members can also come from within the President’s own party (if he or she belongs to a party) and/or from outside his or her own party.

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By affording the President such scope to select any person for Cabinet, he or she has the latitude to select individuals purely on merit. However, selection of Cabinet Ministers is often based on partisan political interests, with the President appointing Ministers from his or her own party or coalition parties. This can result in a situation where the Cabinet includes individuals who lack the necessary skills, knowledge, and expertise to carry out their jobs effectively. There is also an increasing tendency for the President to appoint the majority of Cabinet ministers from Parliament. This has the effect of narrowing the division between the executive and legislative branches of Government, and by extension, the principles of separation of powers (as discussed in the preceding chapter).

The size of Cabinet and female representation

The Malawi Constitution of 1994 and the Public Service Regulations Act do not provide a specific limit on the size of the Cabinet. The President, therefore, has the discretion to appoint any number of people to the Cabinet. This has meant that Cabinet sizes vary from President to President and over time. Bakili Muluzi appointed the first Cabinet under the new democratic Constitution on 24th May 1994. This Cabinet had 22 members (20 ministers, the President, and the Vice President). Although Muluzi started out with a commitment to maintain a very lean Cabinet, the size of his Cabinet actually increased over time. By April 9th 2003, and as the country was preparing for the third multiparty general elections in May 2004, the Cabinet had a record 30 full Cabinet ministers and 15 deputies. Adding the President as chair of the Cabinet to the list, this brought the total number of Cabinet members to 46, the largest Cabinet in Malawi’s history so far. Generally, however, most presidents prefer small, compact Cabinets. This is an important way of facilitating smooth policy making. Smaller Cabinets ensure that decisions can be made with relative ease whilst enjoying substantive inputs from the majority, if not all, of Cabinet members. By contrast, bigger Cabinets not only translate into longer Cabinet meetings, but might also be unable to incorporate the input of all the members. For example, if all the 46 Ministers in Muluzi’s April 2003 Cabinet were to speak for an average of 5 minutes, Cabinet meetings would have taken a minimum of 3 hours and 50 minutes. This could result in an influential group of Ministers dominating the Cabinet discussions and decisions being made out of exhaustion. Upon assuming the reigns of the presidency after the May 2004 elections, President Bingu wa Mutharika mainstreamed a number of the ministries and brought down the total size of the Cabinet to 29. The actual composition included

67 GOVERNMENT AND POLITICS IN MALAWI the President, the Vice President, 19 Cabinet ministers, and eight deputy ministers. Of these 29 members, five (two ministers and three deputies) were women. This translated to slightly over 17% female representation in the Cabinet. This small number of female Cabinet members highlights the fact that men still dominate Malawian politics. This means that women only have limited access to the highest decision-making body of state.

Accountability

Because the Cabinet exercises overall responsibility for Government administration, there is often a need for mechanisms of control to ensure the smooth running of Government as well as promoting oversight of Government powers. The Executive, including the Cabinet, is responsible to the Legislature, the Judiciary and the public.

Ministerial responsibility In liberal democracies, especially ones with parliamentary executive systems, political control is largely dependent on respect for the doctrine of ministerial responsibility. This doctrine holds that ministers alone are responsible to Parliament for the actions of their officials and the policies pursued by their ministries and departments. There are two main forms of ministerial responsibility, namely, collective and individual responsibility. The widespread use of Cabinets reflects the political and administrative need for collective procedures within the political executive. Cabinets enable Government to present a collective face to assemblies and the public. In this regard, all members of the Cabinet, including the President, are collectively and individually responsible for all the decisions of Cabinet. The tradition of collective responsibility draws upon the British constitutional law tradition, where the Cabinet acts as a single unit. Once decisions are made, they are tabled before Parliament as representative of the entire Cabinet. By law and tradition, Cabinet discussions and debates are secret and cannot be made public. This ensures that Government decisions have a collective face and that Government does not appear to be a personal tool wielded by individuals. As the overall heads of ministries and departments, Ministers are individually accountable to Parliament, and by extension, to the public, for their ministries. This is in addition to the collective and shared responsibility for Cabinet decisions. It is under this aegis of individual responsibility that Ministers have to receive and respond to questions raised by MPs concerning specific ministries in the National Assembly. There are three different kinds of individual ministerial responsibility, namely:

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• Explanatory: a minister has to explain why mistakes have been made in his or her ministry, usually to the National Assembly. • Amendatory: a minister has to promise to rectify mistakes made in his or her department. • Resignatory: a minister must accept all responsibility for policy failure in his or her department and, if the failures of the ministry are too great, must resign. Resignatory responsibility is in two categories, namely vicarious responsibility and personal role responsibility. In vicarious responsibility, a minister asserts that he or she personally did nothing wrong but concedes and accepts that the mistakes made by officials in his or her department or ministry are so serious that his or her leadership and oversight were not sufficient, and therefore resignation is the only option. Personal role responsibility on the other hand, means that the minister has done something personally that is unacceptable, such as abusing public funds for private benefit, and has therefore to resign.

Whilst the first two forms of individual ministerial responsibility are less controversial, the last (resignatory responsibility) has been a source of major controversy in Malawi. Whilst British ministers often take responsibility by resigning from Cabinet if there are glaring failures either on their or their respective ministries’ part, the Malawian situation is very different. Very often, ministers refuse to resign, whether they themselves or their departments or ministries are implicated. In May 2005, when the media alleged that the Minister of Education had used funds from his ministry to pay for his wedding, the Minister refused to resign to pave way for investigations. Finally the President dismissed him from Cabinet after the Anti-Corruption Bureau (ACB) arrested him.

Removal of Ministers from office

At his or her discretion, the President can dismiss ministers and deputy ministers or re- assign to them different portfolios, commonly referred to as a Cabinet reshuffle.

OFFICE OF THE PRESIDENT AND CABINET

Responsibilities

The Office of the President and Cabinet (OPC) coordinates the various activities of all ministries and provides a linkage between the political and official executive. The Constitution provides for a single office of the Secretary to the President and

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Cabinet, who conducts the overall management and administration of the public service. However, in 2004, President Mutharika decided to split the duties of Secretary to the President and Cabinet between two officials. So two new posts were established: Chief Secretary for the President and Cabinet, and Chief Secretary for the Public Service.

Appointment

Although the holders of both posts are career civil servants, the President normally makes these appointments.

PRINCIPAL SECRETARIES AND HEADS OF DEPARTMENT

The number of Government ministries and departments can vary depending on the determination of the President. As already mentioned, ministers are appointed by the President to oversee each ministry but all the other people working in the ministries are civil servants. The principal secretary (PS) is the most senior civil servant working in a ministry. He or she heads each ministry under the direction of a minister. Department heads oversee individual departments within each ministry and report to their relevant PS.

Responsibilities

The PSs have the overall responsibility as the controlling officers of their respective ministries, while departmental heads, who are below PSs in hierarchy, lead departments within each ministry. As controlling officers, PSs have responsibility for the following: • Managing and administering all resources of the ministry or department in accordance with appropriate public service regulations • Setting directions, objectives, and appropriate guidelines and strategies for the ministry or the department; and initiating, formulating, implementing, and reviewing the policies of the ministry or department In addition to the above responsibilities, PSs have the task of advising their ministers on all matters relating to the management and administration of the ministry or department. This is crucial as, often, ministers head ministries without any particular expertise and knowledge of the issues that the Government ministry or department in question handles. The heads of departments are experts on specific areas and issues that are handled by their respective ministries. They therefore provide expert guidance on key policy issues and report to their PS.

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Recruitment

Under Section 189(2) of the Malawi Constitution, the power to appoint PSs rests with the President, subject to confirmation by the Public Appointments Committee of Parliament. However, by tradition, individuals appointed as PSs tend to be long-term career civil servants.

Retirement

This is the same as for all civil servants as mentioned below.

CIVIL SERVANTS

In addition to the President and Cabinet, the civil service forms part of the executive branch of Government. Although civil servants do not enjoy the same high profile that the President and Cabinet Ministers enjoy, they are by far the largest component of the executive branch. The thousands of public servants keep the machinery of Government permanently running. Overall, slightly more than 135,000 civil servants work at various levels of the Government machinery from Government headquarters at Capitol Hill in Lilongwe, to regional, district, area, field, and village offices. We have already looked at the top civil servant positions of the Chief Secretary for the President, Chief Secretary for the Public Service and the PSs, now we look at the role of other civil or public servants.

Duties, responsibilities and regulations

Civil servants work at various scales in a hierarchy determined by seniority, which dictates their individual salaries. Because civil servants serve as a permanent component of the Executive, they have to serve different Presidents and Cabinets that might have different political ideologies and leanings. However, as executors of policy, members of the civil service are required by the Constitution to exercise their functions, powers, and duties as ‘impartial servants of the general public’ (Section 193{1). Civil servants who would like to contest for political office have, however, the right to resign and exercise their right to participate directly in political activities. In discharging their duties and responsibilities, the civil service is guided by the Constitution and the Public Service Act (Act No 19 of 1994). The Public Service Act outlines the principles of the public service in Malawi and points out that it shall:

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• Aim to deliver services to the public in an efficient and effective manner be the instrument for generating and maintaining public confidence in the Government; • Be impartial, independent and permanent so as to enable the public to continue to receive Government services and in order that the executive functions of Government continue uninterrupted irrespective of the political party in power; • Be guided only by concerns of the public interest and of the welfare of the public in the delivery of services and the formulation and implementation of development projects.

Recruitment

The Civil Service Commission has the responsibility of recruiting civil servants to fill existing vacancies. Members of the Civil Service Commission are appointed by the President, subject to the confirmation of the Public Affairs Committee of Parliament. Members of the Commission serve for an initial period of five years and can be reappointed for a further five years. According to Section 193 of the Constitution, the Civil Service Commission is required to operate in an independent and impartial manner.

Retirement

The Public Service Act sets the retirement age at 55 years, after which no officer shall continue to serve in the public service, unless retained on a contract basis for a fixed number of years as the case may be. The mandatory retirement age may, however, be revised from time to time by the minister responsible for the public service.

HOW EXECUTIVE POWER IS KEPT IN CHECK

Although the executive branch in general and the President in particular wield a lot of power, there are a number of formal and informal limitations and checks on their powers.

Constitutional limitations and checks

The Constitution provides a number of formal limitations on the powers of the Executive. All actions of the President are subject to the Constitution as the

72 Chapter 3: The Executive supreme law of the land.. This means that the President and Cabinet have to operate within the bounds of the Constitution. Among the most important provisions introduced into the Constitution that limit the powers of the Executive include the: • presidential tenure provision: the President cannot stay in office for more than ten years. • Bill of Rights: the President cannot deprive the Malawian public their constitutionally guaranteed rights and freedoms (see also Chapter 2). • declaration of assets: an additional control in the Constitution to check the abuse of power by the Executive is the requirement that the President and Cabinet ministers should not hold any other public office and should not undertake any other remunerative work outside the duties of their offices. Further to this, the President and members of the Cabinet are constitutionally required to disclose all of their assets, liabilities, business interests, and those of their spouses (Section 88{3}). The provision requiring the President and Cabinet ministers to declare their assets ensures that the President and Cabinet ministers devote all their attention to their jobs and responsibilities. It also ensures that they do not use their positions to accumulate personal wealth. Although this provision provides a very crucial control on the operations of the Executive, in reality, putting it into practice has been difficult. As the Constitution does not specify what should happen if an individual does not comply, members of the Executive and the other branches of Government have often tended to take too long to declare their assets. There is also usually no follow-up afterwards to ascertain if any used these positions to accumulate personal wealth.

In addition, under the separation of powers principle laid down in the Constitution, the Legislature and Judiciary play an important oversight role:

Parliament The Legislature plays an important oversight role to check the activities of the President and the entire executive branch of Government. The President takes to Parliament a package of programmes, together with budget requests, which effectively mould the national political agenda for approval. In addition, both the President and Cabinet are answerable to Parliament which can also exercise the power to impeach the President if he or she is deemed to have violated the Constitution. Parliament limits the power of the executive branch through parliamentary questions and parliamentary committees. Presidential appointments to senior

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Government positions, including the Inspector General of Police, the country’s ambassadors to other countries, the Director of Public Prosecutions (DPP), the Director of the ACB, among others, have to be confirmed either by the entire Parliament or by the Public Appointments Committee of the National Assembly.

Judiciary The Judiciary too plays a significant role in shaping the political agenda, in part by exercising influence over the Executive. Judges, once appointed, cannot be controlled because of their security of tenure. They can therefore make judgements and decisions that can control the political ambitions of the President. During President Muluzi’s tenure of office, for example, the Judiciary made a number of rulings that had the effect of thwarting the political ambitions of the Executive. These included rulings against proposed amendments to Section 65 of the Constitution that governs crossing the floor of MPs and a number of rulings that invalidated attempts by the Executive to silence opposition to the infamous third term bills (see also Chapter 5).

Other institutional limitations The Constitution establishes a number of offices and institutions that serve as additional watchdogs in monitoring the actions of the Executive and other Government branches. These include the office of the Ombudsman, who investigates cases where a person has suffered an injustice and there are no other available avenues for seeking remedy. The office of the Auditor-General plays an important role in checking that no one misuses or mismanages public funds. The Human Rights Commission, whose primary function is to protect and investigate violations of human rights, plays an important role in monitoring to ensure that the actions of the President and Cabinet conform to the human rights provisions in the Constitution. The ACB plays an equally important role in ensuring that public officers do not use their offices for personal benefit.

Informal checks and limitations

Media The media present another important limitation to the operations of the Executive in general, and the President in particular. Often called the ‘fourth branch’ of Government, the media wields a lot of power and influence society, by helping to shape the political agenda. Political careers can be made and unmade through investigative reporting that uncovers professional failure or abuse of public resources and public offices. See Chapter 9 for more on the media.

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Lack of parliamentary majority Since the President in Malawi is elected separately from MPs, a person can be elected President without commanding a corresponding parliamentary majority of members of his or her party. This was the case in the 2004 elections when President Bingu wa Mutharika was elected as President on a UDF ticket, despite the fact that this party did not obtain the highest number of seats and did not secure a working majority in Parliament. The absence of a working majority in Parliament can significantly weaken the Executive’s ability to govern. An uncompromising and confrontational opposition can very easily derail the President’s agenda. He or she would need, at the minimum, the support of a number of opposition legislators in order to secure passage of Government bills in the National Assembly. The President can be forced to compromise a great deal on his or her policies and election pledges as a way of winning the Opposition’s support in Parliament. Apart from negotiations and compromise, the President cannot exercise the option of dissolving Parliament at will, as the Constitution does not give the Executive any powers to do so. Instead, Parliament automatically stands dissolved on the 25th March in the fifth year of its election (Section 67,1).

Civil servants Although in theory civil servants are part of the Executive and are supposed to serve the Government, in practice, they often act as a constraint on the President and Cabinet. Given that the civil service is by far the biggest component of the Executive and that it bears the responsibility of implementing Government policy and various programmes, it provides a vital asset, and at the same time can be a significant liability for the Executive. Failure on the part of the civil service to deliver very often translates into blame directed at the President and Cabinet. Strike action by civil servant groups, such as teachers, nurses and doctors, can undermine the authority of the President and Cabinet and can influence future voting patterns.

CONCLUSION

This chapter has presented the executive branch of Malawi as of the 1994 Constitution. The Constitution gives the Executive significant powers but also attempts to limit that power to avoid a return to the tyranny of the one-party state. The consolidation and advancement of Malawi’s democracy depends a great deal on how politicians entrusted with executive power use it to further the country’s democratic ideals.

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Questions

1. What is the Executive and what is its composition? 2. What type of executive system does Malawi have? What are the strengths and weaknesses of the executive system in use in Malawi? 3. Analyse the advantages of adopting a parliamentary executive system in Malawi. 4. What are the functions of Cabinet ministers? 5. What are some of the limits on the Executive in Malawi? 6. To what extent is the Executive independent of the other branches of Government? 7. Why is the notion of resignatory responsibility so controversial in Malawi? 8. To what extent does the Constitution control executive authority in Malawi? 9. Evaluate the proposition that the President’s legal inability to dismiss the Vice President is a recipe for political paralysis.

Glossary

Coalition: A grouping of rival political parties who agree to work together to ensure majority control of the National Assembly.

Collective responsibility: The doctrine of Cabinet Government that holds that all ministers are obliged to give public support to Government policies.

Impeachment: A formal process for removing a public official for personal or professional misconduct.

Individual and ministerial responsibility: The doctrine that ministers are responsible or accountable for the actions (or mistakes) of their own doing and of those of the civil servants working under them.

Separation of powers: The principle that each of the three functions of Government, namely, execution, legislation, and adjudication should be entrusted to a separate branch of Government, i.e. the Legislature, Executive, and Judiciary, respectively.

Suffrage: the right to vote.

76 Chapter 3: The Executive Further reading and references

Bayart, J.F. (1993) The State in Africa; The Politics of the Belly, London: Longman

Bratton B. and van de Walle N. (1997) Democratic Experiments in Africa: Regime Transitions in Comparative Perspective, Cambridge: Cambridge University Press

Chinsinga B. (2003) ‘Lack of Alternative Leadership in Democratic Malawi: Some Reflections Ahead of the 2004 General Elections’ in Nordic Journal of African Studies, Vol 12, No 1

Donge J.K. van, (1995) ‘Kamuzu’s Legacy: The democratisation of Malawi’ in African Affairs 14, pp 227–257

Dulani B. and van Donge J. (2004) ‘Parliament in Malawi: a bulwark against presidential usurpation of power – ten years of multipartyism, ten years of struggle between President and Parliament’, paper presented at the Conference on African Parliaments and Governance, Nairobi Hilton, Kenya, 19–22 April 2004

Dzimbiri, L. (1998) ‘Democratic Politics and Chameleon-like Leaders’, in K.M. Kings-Phiri and K.R. Ross (eds), Democratisation in Malawi, A Stocktaking, Blantyre: CLAIM

Episcopal Conference of Malawi, (1991) ‘Living Our Faith: Pastoral Letter of the Catholic Bishops’, Lent 1991 Government of Malawi (1993), Constitution of the Republic of Malawi, Zomba: Government Printer Heywood (1994) Political Ideas and Concepts: An Introduction, Basingtoke: Macmillan Heywood A. (1997), Politics, London: Macmillan Lwanda, J.L. (1993) Kamuzu Banda of Malawi, 1961–1993: A Study in Promise, Power and Paralysis, Glasgow: Dudu Nsomba Publications

Ott, M. et al (eds) (2000) Malawi’s Second Democratic Elections: Process, Problems and Prospects, (Kachere Series) Blantyre: CLAIM

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Pachai, B. (1973) Malawi: History of the Nation, London: Longman

Phiri, K.M., and K.R. Ross (eds) (1998) Democratization in Malawi: A Stocktaking, Blantyre: CLAIM

Shugart M. and Carey J. (1992), Presidents and Assemblies, Cambridge: Cambridge University Press

Williams, T.D. (1978) Malawi: The Politics of Despair, Ithaca: Cornell University Press

78 4 THE LEGISLATURE

Nandini Patel and Arne Tostensen

INTRODUCTION

The Legislature is one of the three arms of Government, the other two being the Executive and the Judiciary. Malawi’s republican Constitution of 1994, which is the supreme law of the land, defines and protects these branches as separate institutions. The legislative branch of Government performs critical functions, foremost of which are representing the people and making laws. In a representative democracy the Legislature is often called the ultimate forum of the people.

This chapter discusses the following questions:

• What is the Legislature and what are its functions? • What are the structure, composition and administration of the National Assembly? • What are the relationships between Parliament, the Executive and the Judiciary? • What is the relationship between Members of Parliament (MPs) and their constituents? • What are the challenges facing the National Assembly in performing its role effectively?

LEGISLATURE AND ITS FUNCTIONS

The Legislature simply means the state body that makes laws. Governing implies having the power to make laws, and the Legislature comprises a group of persons with the duty and power to make laws for a country and is usually referred to as Parliament. Although all Legislatures in the world perform this role, they differ in

79 GOVERNMENT AND POLITICS IN MALAWI structure, composition, and the manner in which they perform this role. Some Legislatures are unicameral which means they only have one House or ‘chamber’, while others are bicameral with two Houses or chambers. Legislatures may be composed of directly elected or nominated members, or a combination of both. How they perform their role depends on the legal framework, their internal organisation, and available resources. In Malawi, Parliament, which is the legislative body, consists of just one House, called the National Assembly, and the President as Head of State. In this chapter, the terms Legislature and Parliament are used interchangeably because they are essentially the same thing, but in daily speech Parliament is the term most frequently used. Although the term Legislature refers to law-making, parliaments generally have to do more than make laws. They have three fundamental functions: (a) representation; (b) law-making; and (c) oversight. Legislatures also have financial powers in the sense that they pass the state budget as law. Representation has to do with the relationship between the Members of Parliament (MPs) and the voters whom they were elected to represent, or what is called vertical accountability. Law- making and oversight concern the relationship between the Legislature and the Executive, or what is called horizontal accountability.

Key concept: Legislature One of the three arms of Government, the Legislature is the state body that makes laws. It is often called Parliament.

Representational function

MPs represent a hierarchy of interests. Firstly, they represent the interests of their constituents, who include the voters who elected them and all other residents of their constituency. Secondly, they represent the political party on whose platform they were elected (unless they stood as independent candidates). Thirdly, they represent the common national interest as Parliament makes laws for the whole nation. Consequently, MPs have to spread their time and energy to accommodate a wide range of interests.

Law-making function

Law-making, as a fundamental task of any Legislature, is an elaborate and complex process. The first step is the drafting of a bill, which is the term for a proposed piece

80 Chapter 4: The Legislature of legislation before it has actually PARLIAMENT become law. In the preparation of bills, a number of actors may make The word ‘parliament’ originally meant a contributions and influence the legal talk, and was derived from the French text. Normally, the relevant line word ‘parler’ which means to speak; the Ministry of the civil service plays a key English verb ‘to parley’ is also in current role, but other stakeholders may also use. The Latin word ‘parliamentum’ assert their interests, for example, civil referred to the after-dinner conversations held by monks in their cloisters. A modern society organisations (CSOs) and other definition of a Parliament would be an interested parties. The second step is elected assembly, responsible for passing putting the bill before Parliament, i.e. ‘it legislation and granting Government the is tabled’. The bill goes through a series right to levy taxation. The British of further steps before becoming a law. Parliament is one of the oldest, originating in the Anglo-Saxon period with When it becomes a law, it is no longer antecedents in the Norman Great Council, called a bill but an act. The procedure and the National Council first called by for the enactment of an act in the Simon de Montfort in 1264. The Magna Malawian Parliament is discussed later Carta of 1215, known as the great on in this chapter. constitutional milestone before the emergence of parliaments proper, confirmed the supremacy of law and the The oversight function principle of consent to taxation. The historic role of the British Parliament as the Parliament is tasked to examine and – ‘mother of parliaments’ and its apparent whenever appropriate – to influence virtues have made it a model emulated in the activities of the executive branch many parts of the world. of Government. It thus provides the legitimising link between the Executive and the people. The members of the National Assembly are accountable (through the representational function) to the people at large, while at the same time holding the Executive to account. The ability of Parliament to fulfil its accountability task is a key determinant of the quality of any Government. In some countries, the Legislature also ratifies treaties (makes formal agreements) with foreign states.

THE EMERGENCE OF A MULTIPARTY PARLIAMENT

Malawi has gone through a political transition from one type of political regime to another in the course of its post-independence era. This transition involved a fundamental change of the rules of the political game and how politics are conducted. Out of this transition from autocracy (dictatorship) emerged a multiparty Parliament, which ushered in a new democratic dispensation.

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Historical background

The 1964 Malawi Constitution was based on the British model of parliamentary democracy, but the republican Constitution that came into operation in 1966 departed from the British model in many ways. The President was made both Head of State and Government and a one-party state was created under Section 23(d). This section stated that no one could be elected to the National Assembly without being a member of the Malawi Congress Party (MCP). The President could appoint and dismiss ministers at any time and appoint people of his choice to Parliament in addition to those members who were duly elected, who were all from the same party anyway. The National Assembly debates in those days were full of praise for the President and, in effect, a mockery of the intended role of parliaments. The Legislature had no real powers to function as an effective countervailing influence on the Executive. The first step towards establishing a multiparty system was the repeal of the specific provision of the Constitution of 1966 that had made Malawi a one-party state. Following the 1993 referendum through which the people voted for political pluralism, the new multiparty Constitution was provisionally agreed upon between the Public Affairs Committee (an unelected body comprising representatives of civil society groups) and the Presidential Committee on Dialogue (which was made up of a number of Cabinet members of the one-party Government). This forum was later transformed into the National Constitutional Conference which was established for the formulation of the 1994 Constitution. The draft Constitution was adopted by the one-party Parliament and came into force on 18 May 1994, simultaneously with the election of a multiparty Parliament and a fixed-term presidency (see Chapter 2 on the Constitution). The Constitution of 1994 and the Political Parties Registration and Regulation Act of 1993 were the two significant instruments that facilitated the dawn of multiparty politics. Underground pressure groups came out into the open to register as political parties and contest in the 1994 elections. Besides the MCP, which was already registered, seven other political parties (see Table 1 for their names) registered and contested for the 177 National Assembly seats in the 1994 elections. Not all of them had the organisational strength to field candidates in all constituencies. Indeed, only the MCP and the UDF contested in all 177 constituencies, while AFORD managed to field 162. The others ranged between two and 35 candidates: UFMD (35); MDP (30); MNDP (11); CSR (6); and MDU (2). Out of the eight contesting parties, only three emerged successful in winning seats in the National Assembly. The 1994 elections thus brought three major political parties into the National Assembly. The UDF won the largest number of seats and became the incumbent party, while the MCP and AFORD were relegated to the Opposition.

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In the 1999 elections, the number of seats in the National Assembly had increased to 193 following a re-demarcation of constituencies by the Malawi Electoral Commission. These seats were contested by candidates from 11 parties: AFORD, CONU, CSR, MCP, MDP, MMYG, NPF, SDP, SNDP, UDF and UP (see table for names in full). In addition, a number of candidates contested as independents. The same three parties as in 1994 were returned to the National Assembly in 1999, roughly in the same proportion, with UDF (93 seats) as the incumbent party, and the MCP (66 seats) and AFORD (29 seats) as opposition parties. None of the other parties succeeded in winning seats but four independent candidates managed to secure seats (see Chapter 8 for details on political parties). The competitive trend has maintained its momentum with an increasing number of contestants for the National Assembly seats coming from more political parties. The 2004 elections saw contestants from 15 parties vying for 193 seats: AFORD, CONU, MCP, MDP, MAFUNDE MGODE, NDA, NSM, NUP, NCD, PFP, PPM, PETRA, RP, and UDF (see Table 1 for names in full). The National Assembly elected in 2004 was far more diverse than its predecessors, with representatives from nine parties and 40 independents. Some of these parties have since merged or aligned with larger parties in the course of Government formation and partly due to internal party strife (see Chapter 8). This diversity in the composition of Parliament reflects the increasing space for political competition and opportunities for new members to air their views.

Table 1: Seat Distribution by Party in Parliamentary Elections

Party 1994 1999 2004 Alliance for Democracy (AFORD) 36 29 6 Congress for National Unity (CONU) – 0 1 Congress for the Second Republic of Malawi (CSR) – 0 – Malawi Congress Party (MCP) 56 66 8 Malawi Democratic Party (MDP) 0 0 0 Malawi Democratic Union (MDU) 0 – – Malawi Forum for Unity and Development (MAFUNDE) –– 0 Malawi National Democratic Party (MNDP) 0 – – Mass Movement for Young Generation (MMYG) – 0– Movement for Genuine Democracy (MGODE) – – 3 National Democratic Alliance (NDA) – – 8 National Patriotic Front (NPF), – 0 – National Solidarity Movement (NSM) – – 0

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National Unity Party (NUP) – – 0 New Congress for Democracy (NCD) – – 0 Pamodzi Freedom Party (PFP) – – 0 People’s Progressive Movement (PPM) – – 6 People’s Transformation Party (PETRA) – – 1 Republican Party (RP) – – 15 Social Democratic Party (SDP) – 0 – Sapitwa National Democratic Party (SNDP) – 0 – United Democratic Front (UDF) 85 93 49 United Front for Multiparty Democracy (UFMD) 0 – – United Party (UP) – 0 – Independents 0 4 40

Total 177 192† 187* † An MCP candidate from Mchinji West constituency died in May 1999 just before the elections. Hence, a by-election was held only later for that particular constituency. * Six seats were to be contested in by-elections. - = did not contest 0 = contested but did not win any seats Source: Malawi Government Gazette

The Legislature under the 1994 Constitution

The Constitution of Malawi ranks among the most liberal in the world. It guarantees basic rights and freedoms, provides for periodic competitive elections, and ensures the separation of powers between the executive, legislative and judicial branches of Government. The Constitution establishes a presidential form of Government with the President as the Chief Executive with a limited term of office.

Key concept: separation of powers

Each of the functions of Government – execution/administration; legislation; and adjudication – is assigned to a separate branch of Government. This is to avoid the concentration of political power in a single person or institution, and to increase efficiency and effectiveness. By being limited to specialised functions, the different branches of Government develop expertise and a sense of pride in their respective roles, which would not be the case if they were joined or overlapping to a considerable degree.

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During the transition to a multiparty dispensation when the new Constitution was being drafted, a main concern was to secure the hard-won personal freedoms and adequate checks on presidential powers to prevent a relapse to authoritarian rule. Apprehensions about a parliamentary system were rife at the time for two different reasons. Firstly, it was feared that the leader of a dominant ruling party with access to state resources could easily find ways and means to continue in power forever. Secondly, a multitude of parties in Parliament, none of which with its own secure majority, might produce instability and render the country ungovernable. The country’s development would probably suffer as a result. The alternative, with a President elected for a fixed term of office laid down in the Constitution, was felt to be a safeguard against dictatorial tendencies. As a result, a presidential system based on the principle of separation of powers with adequate checks and balances seemed appealing and appropriate (see Chapter 2 for details on constitution-making).

Key concepts: presidential and parliamentary systems of Government In a presidential system, the responsibilities of leadership are vested in a Chief Executive, elected for a fixed term and independent of the Legislature, albeit counterbalanced by other institutions. The President cannot interfere with the work of the Legislature and vice versa. By contrast, in parliamentary systems the executive authority emerges from, and is responsible to, the legislative assembly. Leadership rests with a team of ministers, headed by a Prime Minister, who is accountable to Parliament. Parliament even has the power to oust the Executive.

The Constitution of Malawi vests extensive powers in the President, who is the Head of State, the Head of Government and the Commander-in-Chief of the armed forces. The President is at liberty to appoint and dismiss ministers, senior civil servants and ambassadors to foreign countries. However, the 1994 Constitution originally also set forth a strong Legislature with powers to check the Executive. It envisaged a Legislature with two chambers: the National Assembly and the Senate. The framers of the Constitution had carefully thought out the composition and functions of the two chambers as being distinct yet complementary. The functions and powers of the National Assembly The original Section 66 stipulated that the National Assembly should be a directly elected chamber, whose primary purpose was legislative, with the powers to debate and process public bills originating from the Government, private bills emanating from individual MPs and interests outside Parliament, as well as bills referred back by the Senate (see below). The National Assembly was also mandated to debate and

85 GOVERNMENT AND POLITICS IN MALAWI vote on motions regarding any matter, including indictment and conviction of the President or Vice President by impeachment.

The functions and powers of the Senate The now repealed Section 70 stipulated that the Senate should be an indirectly elected chamber whose primary purpose would be deliberative, with the power to scrutinise and amend bills from the National Assembly, to confirm or remit bills passed by the National Assembly, to debate any issue on its own, and to vote on motions in respect of any matter, including motions to indict or convict the President or Vice President by impeachment. The Senate was conceived as a body of 80 senators in total, elected indirectly. Each district would elect one senator through the District Council. In addition, each district would elect a senator being a chief through a caucus of all chiefs n the district. Moreover, 32 senators would be elected from various interest groups including: representatives from women’s organisations; the disabled; trade unions; the business, education and farming sectors, persons recognised for their outstanding services to the public or contribution to the social, cultural or technological development of the nation; and from the major faith communities in Malawi. The Senate never came into existence. In 2001, the sections dealing with the Senate were repealed by a constitutional amendment, ostensibly on the grounds that a Senate would be too expensive to maintain. There were strong reactions from political parties and CSOs against this move, because the Senate was perceived to have enhanced the principle of separation of powers and provided another channel of representation from below. In many quarters, this amendment was seen in an extremely negative light, as a violation of the Constitution. Obliterating a constitutional body without a referendum is considered by most people to be unacceptable.

THE NATIONAL ASSEMBLY TODAY

Chapter VI of the existing Constitution deals with the Legislature. Since the abolition of the Senate, the National Assembly of Malawi became unicameral, which means that the debates take place in the House in plenary (i.e. by all members). The National Assembly currently consists of 193 members elected directly by the people on the basis of the first-past-the-post plurality system in single-member constituencies (see Chapter 7 for details on the electoral system). In principle, the delineation of constituencies should be based on population and geographical features so as to ensure uniformity of representation and an equal number of voters in each constituency. In practice, however, there are wide disparities in constituency size.

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Qualification criteria for MPs A person is qualified to stand for election to the National Assembly only if he/she is a citizen of Malawi and has reached the age of 21 at the time of nomination. Furthermore, he/she should be able to speak and read the English language well enough to take an active part in the proceedings of Parliament, and be a registered voter. A person shall be disqualified for nomination or election as an MP if he/she is declared to be mentally incompetent or has, within the last seven years, been convicted of a crime involving dishonesty or moral turpitude, or holds any public office (except a ministerial post or appointment). The structure and administration of the Legislature The National Assembly determines and controls its internal procedures and arrangements. These are laid down in the standing orders, which determine who sets the agenda; what procedures to follow; how frequently and when to summon the House for sittings; how to organise question sessions; whether or not to allow mass media coverage, and so on. The quorum of the National Assembly is formed by the presence, at the beginning of any sitting, of at least one-half plus one of the members entitled to vote, including the Speaker. Speaker The Speaker, assisted by two Deputy Speakers, presides over the assembly in session. It is the responsibility of the Speaker to keep order and decorum in the House, and to decide on points of order and practice while stating the reasons for his/her decisions. The Speaker may not take part in the debates, however. The Speaker is elected by majority vote by the MPs from within their own ranks. Although the Speaker is an elected MP, he/she shall not be subject to the control, discipline, authority or direction of his/her party or any other party in the discharge of his/her duties as Speaker. Since the Speaker is an elected MP, the question has been raised whether he/she may act objectively and impartially. It is a widely held view that the Speaker cannot be impartial as long as he/she remains a politician. The case has been made for the appointment of the Speaker on professional merit without party affiliation; he/she should be a professional thoroughly conversant with the procedures of the House. This not having been the case may have caused this office to be compromised because party allegiance has tended to take precedence over impartial professionalism. The opposite view contends that, even if the Speaker were appointed on professional merit, he/she would be under tremendous political pressure and liable to accepting bribes. The problem lies rather in the political culture which may defy and undermine the formal rules. Whatever the pros and cons of these arguments, the Speaker is often likened to a football referee: whatever he does, he will always be blamed by one or the other of the parties.

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Clerk In the administration of the business of the House, the Speaker is assisted by the Clerk who is a public officer. The Clerk is responsible for the distribution of relevant documents to the MPs and for the safe-keeping of all the papers and records of the House, for example, the official, as nearly as possible verbatim report of the proceedings which is made publicly available in the Hansard.

Leaders of the House and the Opposition The Leader of the House is a Cabinet minister responsible for Government business in the House and recognised by the Speaker as such. He/she is the spokesperson of the Government in the House and liaises with the Opposition whenever necessary. The Leader of the Opposition is the parliamentary leader of the largest party, elected by the MPs of opposition parties who are not in coalition with the Government party, and is recognised as such by the Speaker. He/she is the spokesperson of the parliamentary opposition and is responsible for conferring with the Government side on matters of mutual interest.

Party caucuses and whips Strictly speaking, party caucuses do not feature in the formal parliamentary set-up (nor do parties for that matter). Even so, they play an important semi-formal function. All MPs from the same political party form a caucus. Ideally, the functions of the party caucuses are to ensure cohesion within party ranks on policy matters after a free exchange of views, and to instil a measure of discipline in the party group. Caucus meetings are called and chaired by the party whips – normally before a sitting when the agenda is known or during a sitting if need be. Each party caucus has a whip who is appointed by the party leadership to look after the conduct of party members in relation to business of the House or parliamentary committees. He/she is tasked to maintain party discipline and coherence on policy matters and behaviour in the House. Party whips can put considerable pressure on their party’s MPs to toe the party line, hence the name ‘whip’ to denote a person who figuratively whips the MPs into submission! Some parties maintain stronger internal discipline than others. On occasion, members do break ranks with the rest of the party caucus.

Party funding Section 40 (2) of the Constitution stipulates that the state shall provide funds to ensure that, during the life of any Parliament, any political party which has secured more than one-tenth of the national vote in elections to that Parliament has sufficient funds to continue to represent its constituency. Cheques are made payable to the registered name of the party. There are no guidelines regarding the use of these funds.

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Immunities and privileges of MPs MPs enjoy certain immunities and privileges. Every MP is privileged or immune from arrest while going to, returning from or while in the precincts of Parliament. Similarly, MPs are not liable for any other action or proceedings in any court, tribunal or body other than Parliament in respect of utterances in the assembly.

Representation of women Gender equality is enshrined as the first principle of national policy in the Constitution: discrimination based on gender is prohibited. This principle further suggests that legislation be passed to eliminate customary and traditional practices that discriminate against women. The Senate was intended to be one major means of redressing the gender imbalance in political decision-making. With the abolition of the Senate this opportunity was lost. However, women have progressively enhanced their representation and participation in the National Assembly. In 1994 there were ten women MPs. In 1999 the number went up to 17 and further to 27 in 2004.

Malawi and regional legislative fora The National Assembly of Malawi is a member of the South African Development Corporation Parliamentary Forum (SADC PF) and the Pan-African Parliament. MPs from Malawi participate in thematic workshops of SADC PF and observe elections in the region as part of the forum. Five MPs attend the Pan-African Parliament while in session, and also serve on its committees.

How laws are made

Normally, Cabinet ministers table Government bills for consideration by Parliament, which then scrutinises them, amends them if in disagreement, or passes them if they are found to be in the public interest. MPs may also submit bills of their own. These are called private members’ bills. Interests outside Parliament, for example, CSOs, may also submit bills, but only through an MP. Whatever the origin of a bill, the role of Parliament is to assess them on their merits and to pass them into law if found acceptable. Sometimes, bills are referred to the Legal Affairs Committee for refinement and are considered anew at a later stage. One of the largest and most important bills is the national budget which is passed as law following intensive debate because the budget determines the allocation of state resources for various purposes in society. The formal procedure for making a law is elaborate and prescribed in the Constitution and the standing orders. Figure 1 shows the various steps in the procedure.

89 GOVERNMENT AND POLITICS IN MALAWI Report Stage Constitution) Post-Chamber Post-Chamber Stages (SO 126 & Sections 73, 74 of to the bill during committee stage and indicates when third reading done will be the house are sent to president for assent. • Speaker resumes chair • Mace restored •happened what reportson Minister/MP • Questions put • Three clean copies of bill passed by • Assented copy is gazetted. Draft No.3, July 2004 (SO = standing order) (SO 117-125) First Reading Third Reading Second Reading Chamber Stages Committee Stage without motion if 28- day notice is met is not met, waiver motion to be moved under SO 117. BILL PROCEDURE • Bill introduced • If notice requirement majority is prescribed by law • Speaker vacates the chair • Mace is lowered • Deputy speaker presides as chairperson • Bill considered clause by clause or by schedules • Amendments are disposed first. • Bill is passed or rejected • Motion that bill be read a third time and passed • vote if Voice bill requires simple majority • Roll call if bill is constitutional amendment or fixed bill to all MPs. standing committee. • Clerk sends copies of • Clerk refers bill to (SO 116) National Assembly Handbook for Malawi Parliament, Pre-Chamber Stages Debate Source: . speech. spokespersons MPs sent to clerk at least 28 days before First Reading. Gazette • Minister/MP second delivers reading • Committee report is tabled if available • Responses • General debate on by committee report • General debate on the bill • Motion to curtail debate opposition • Minister or MP winds up debate • Questions put • Enough copies for all • Bill published in Figure 1: Formal Procedures for Making Laws

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Parliamentary committees

A critical factor bearing on the effectiveness of Parliament is its committee system. Parliament may establish any committees for the scrutiny of legislation and the performance of other functions. The Constitution stipulates that certain standing committees be formed:

Public Appointments Committee This committee confirms the nominations by the President of certain public appointees under the Constitution. It determines and recommends to the House, the conditions of service of the members of the Electoral Commission, the judicial officers, and the National Assembly. The committee furthermore determines the appropriate procedure for declaring assets by those in political and public offices and recommends actions to be taken by the Assembly to ensure ethical conduct by public officers.

Budget and Finance Committee This committee studies the Government budget and reports on economic issues, statistical information, international financial agreements, financial reports, and reports on economic policy and statements. It examines Government taxation policies, reviews bills with financial and budgetary implications, and sharpens public awareness of the Government budget, financial and economic policies. The committee moreover examines the estimates of receipts and expenditures presented to the House by the Minister responsible for finance, and reports to the House on estimates.

Legal Affairs Committee This committee investigates and makes recommendations on matters concerning the administration of the law. This committee scrutinises, reviews and reports on all subsidiary legislation and statutory instruments promulgated under an act of Parliament. It is tasked to exercise oversight of the office of the Director of Public Prosecutions. The committee furthermore reviews standing orders, procedures and practice in the Assembly and its committees on an ongoing basis and recommends such amendments, modifications or improvements as the committee finds fit.

Defence and Security Committee This committee investigates and reports to the assembly on matters of defence or security.

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Parliament has since established additional standing committees:

The Public Accounts Committee This committee examines the audited public accounts showing the appropriation of the sums granted by the assembly to meet public expenditure, and examines other public accounts laid before Parliament. In discharging its functions the committee has to satisfy itself that: • the expenditure was confined to the authority which governed it; • the monies shown in the accounts as having been disbursed were legally available for and applicable to, the services or purpose to which they had been allocated; • every re-appropriation has been made in accordance with the provisions made in this behalf under appropriate rules; and • cases involving negative expenditure and financial irregularities are subject to scrutiny and punishment under the Public Finance and Administration Acts of 2004, while taking account of the Auditor-General’s report and the estimates as approved by the House.

The Parliamentary Development and Coordination Committee This committee consists of the chairpersons of all committees and is chaired by the Speaker. It makes recommendations for all committees, except the Business Committee, regarding: • the total budget for the committees and its equitable allocation among the committees; • the development priorities and the allocation of equal opportunities among the committees; • co-ordination of activities and implementation of committee work plans; • the review of work plans, proposed budgets and priorities for committee work in the House.

The Business Committee This committee comprises the Speaker as chairperson, party whips and their deputies, the leader of the House, the leader of the Opposition, and the leader of the third largest party. The committee examines business items received from members before they are placed on the order paper by the Clerk . It further determines the following: • the order of business to be transacted in the House; • the time to be spent on an item of business; • the time for debating committee and statutory reports and ministerial statements;

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• the provision and publication of a list of bills and other Government business to be considered during the meeting.

Departmentally related committees In addition to the standing committees, there are departmentally related committees, of which there are eight, that deal with the substantive areas of the Government line ministries. They are: (a) Commerce, Industry and Tourism; (b) Health and Population; (c) International Relations; (d) Media and Communications; (e) Agriculture and Natural Resources; (f) Education, Science and Human Resources; (g) Social and Community Affairs; and (h) Transport and Public Works.

From time to time ad hoc committees may be established.

All departmentally related committees investigate, enquire into and report on matters relating to the mandate, administration, and estimates of their respectively assigned ministries, statutory corporations and public bodies funded by the treasury. These committees study the programmes and policy objectives of their respective ministries, statutory corporations and other publicly funded bodies, and the effectiveness of their implementation. Furthermore, these committees are tasked to study and review all relevant legislation and report their findings and recommendations to the House on a timely basis. The committees are formed across party lines in proportion to party strength. Parties designate their MPs through their respective whips to the Business Committee. But MPs are not always assigned to committees on merit, capacity or interest. Personal favouritism also plays a role. Each committee elects its own chairperson and vice chairperson. No Minister or deputy Minister may serve as a committee member except in the Business Committee. The committees specialise in certain policy fields and, over the years, their members accumulate considerable expertise that can be used to question and counter the bills and motions emanating from the Executive. It is in the committees that the real substance of parliamentary business is conducted. The efficiency of the House could be greatly enhanced if the committees were working well. For example, the time required for debating a motion or a bill in the plenary of the House could be shortened considerably if solid preparatory work were carried out in the committees.

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Challenges facing the committees The committees face several challenges and constraints, the main one being budgetary. A Legislature strapped of funds can ill afford to provide an adequate financial basis for committee work. Parliamentary facilities and support functions are often inadequate. While the Clerk, in conjunction with the Parliamentary Development and Coordination Committee, prepares the parliamentary budget every year, it is invariably cut by the Executive. As a result, the ability of the Legislature to perform its functions is severely undermined. In the absence of adequate domestic funding, international donors have, to some extent, stepped in to fill the gap. It is unfortunate that the supreme law- making body is compelled to solicit external funds to be able to operate properly. It is also problematic that only those committees receiving funding from foreign sources are able to work while the others remain dormant. Such donor dependency does not bode well for the country’s independence. The calibre and dynamism of committee chairs are also important. Likewise, their educational level, knowledge of the substance of their committees’ briefs, and command of procedure are significant. If the chairs are dynamic and pro-active, additional funding might be secured from external sources. But without up-front financial contributions, many of them become demoralised. The qualifications of regular members also have an influence on the quality of committee work. Moreover, the functioning of the committee system is adversely affected by breaches of reporting procedures. After inter-party deliberation within the committees, reporting back to plenary is not always allowed. Despite the cross- party composition of the committees, they do not seem to enjoy the confidence of the House in plenary. As a result, debates are repeated and valuable time wasted. The administration of the Malawi Parliament has worked on solutions to the challenges listed above and undertaken an analysis in the ‘Malawi National Assembly Strategic Capacity Development Plan’ which confirms the seriousness of the problems.

VERTICAL ACCOUNTABILITY

The vertical dimension of accountability refers to the relationship between elected officials, for example, MPs, and the voters, mainly through the mechanism of periodic elections. If the voters (or the constituents) think that their MP has done a poor job, they are unlikely to vote for him/her in the next election. Instead, they are likely to vote for someone else in whom they place greater hope. This is electoral accountability.

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Key concepts: vertical and horizontal accountability Vertical accountability refers to the relationship between the people and their representatives, which operates through the electoral channel, in combination with the mass media, political parties, and CSOs. Horizontal accountability refers to the relationships among key state institutions, principally among the Executive, the Legislature, and the Judiciary but also other institutions of restraint such as the Auditor-General, the Ombudsman, the Human Rights Commission, the Anti-Corruption Bureau (ACB), and so on.

MPs represent and are accountable to the constituents who have voted them into office and other citizens in their constituencies. They also have a responsibility to the party they belong to, and on whose platform they were elected. Furthermore, as members of the National Assembly, they are accountable to the nation as a whole. Sometimes MPs find themselves in a dilemma as to which of these three interests they should be loyal. For example, on the third term issue the party may have expected a vote in favour while the constituents were against. In terms of values, the orientation of MPs is above all to their constituencies. In other words, they are ‘service responsive’ vis-à-vis their constituencies in a tangible sense, rather than ‘policy responsive’ in relation to the general needs of the nation as expressed by political parties and other societal stakeholders. The primary emphasis put on the MPs’ relationship with their constituencies probably stems in large measure from the ‘first-past-the-post’ electoral system in single-member constituencies that Malawi has adopted. However, although there has been very little debate on electoral systems in Malawi and whether a case could be made for introducing some variant of a proportional representation system, this issue has started to attract public attention. Section 64 of the provisional Constitution that came into force on 18 May 1994 provided for the recall of MPs by their respective constituencies. However, this section was repealed by Constitutional Amendment Act No 6 of 1995. There have been repeated demands by various stakeholders to bring the provision back into the Constitution in order to enhance the accountability of MPs.

MPs’ relationship with their constituencies

The following observations are based on interviews conducted by the authors with MPs of the 1999–2004 Parliament. For most MPs, their primary accountability is to their constituencies for several reasons. Firstly, it is the formal responsibility of an MP to service his/her constituency because there is a reciprocal relationship between the elected and the voters. The voters give their support in the form of

95 GOVERNMENT AND POLITICS IN MALAWI votes to a person and expect tangible services in return. One might call it a transaction between two interested parties. For the voters, effective representation means initiating development and facilitating local initiatives for tangible outcomes such as better schools and health services, improved water supply, new roads, and so on. Secondly, helping to improve the lives of citizens in their home constituencies gives great personal gratification to the MPs. Thirdly, servicing the constituency is probably the best method of re-election. Mindful of the prospects for re-election, the constituents are often seen as the ‘employers’ of the MPs or the MPs as the ‘servants’ of the constituents. The general election is, therefore, the ‘time of reckoning’ when voter confidence can either be renewed or revoked. The demands and grievances from constituents are articulated directly through personal visits to the MPs’ homes, or through letters. Normally, there are long queues of constituents outside MPs’ homes from the early morning hours. MPs are expected to feed these people. Political rallies also play a role in crystallising demands, as do area committees. MPs with ministerial or other responsibilities in areas remote from their constituencies face a capacity problem in fulfilling both roles. Local Government is a parallel channel of representation and service delivery. Hence, there is often rivalry between MPs and local councillors when seeking attention and support from the grassroots. The type of requests from constituents is overwhelmingly for assistance to solve individual problems such as school fees, transport, drugs for medical treatment, funeral expenses, fertilisers, and so on. Rarely do constituents articulate collective demands such as a community clinic or a feeder road that will benefit many constituents. Most MPs find the constituents’ requests overwhelming, even exasperating, especially in populous and geographically large constituencies. At times, MPs are tempted to stay away from their constituencies because they know they cannot possibly accommodate all requests. So demanding are the constituents’ expectations, coupled with their perceived lack of understanding of broader policy issues, that MPs may be discouraged from seeking re-election. There is also an inherent danger that MPs with so many demands put upon them are tempted to help only those who give bribes and thereby enlarge their own purse’. In the current 2004 Parliament, only 17 MPs are serving their third term while 58 are serving their second term, and altogether 118 were elected for the first time; in other words, more than 60% of the current MPs are new.

MPs’ relationship with civil society

The attention MPs give to their constituencies is often reinforced by their relationship with CSOs of various types: faith-based organisations, community-based and non-

96 Chapter 4: The Legislature governmental organisations (NGOs). They are another channel of interest articulation from below, initiating and engaging in development projects of various kinds (see Chapter 10 for elaboration). There are numerous examples of NGOs implementing constituency projects in collaboration with MPs, thus assisting MPs to develop the area. NGO activities, whether in advocacy or development work, are complementary to those initiated by the MPs themselves, who have proactively solicited donor assistance – directly from bilateral and multilateral agencies alike or from NGOs – for projects in their constituencies, often with success. Successful development projects contribute considerably to securing re- election. Newspapers sometimes claim that MPs neglect their constituencies because they are only interested in personal gain. Whereas this may be true in exceptional instances, the periodic parliamentary elections do function as effective accountability mechanisms. The nature of the MPs’ relationship with their constituencies is critical to their re-nomination and re-election.

HORIZONTAL ACCOUNTABILITY

Parliamentary – executive relations

Parliamentary-executive relations centre on horizontal accountability. The horizontal dimension refers to institutional mechanisms put in place to check the discharge of responsibilities by officials by calling into question and punishing improper conduct. The relationship of checks and balances between the three branches of Government – the Executive, the Judiciary and Parliament – forms the classical case of horizontal accountability. But there are additional special institutions of horizontal accountability that also restrain the Executive: the Ombudsman, the Human Rights Commission, the Auditor-General, and so on. Their functions are enshrined in the Malawi Constitution. This section addresses the way in which the Malawian Parliament exercises its functions vis-à-vis the Executive, in particular that of horizontal accountability in terms of oversight and substantive policymaking alike, within the context of a presidential system of governance. Many terms have been used to describe the task of Parliament in holding the Government to account: monitoring, oversight, checks and balances, supervision, restraint, exposure, and punishment. All of them denote relevant aspects and may be used interchangeably.

Holding the Executive to account Notwithstanding the varying terminology, however, there are two dimensions that are critical to the exercise of this function: answerability and enforcement. The

97 GOVERNMENT AND POLITICS IN MALAWI former refers to the obligation of public officials (in this case the Cabinet and civil servants) to provide information about, explain and justify their actions and their intentions. It is also important to underscore that the answerable agency should volunteer information rather than providing it only when solicited. The enforcement function, on the other hand, denotes the capacity of accountability institutions (in this case Parliament) to censure or impose sanctions on public office holders (the President, his/her ministers or civil servants) who have neglected their public duties. It is central to the enforcement mechanism that it should be able to prevent abuse of power or neglect of duties as well as to enable remedial action. Sanctions might range from positive rewards to more or less severe punishment of miscreants. Forms of sanction would range from exposure and shaming, material punishment such as fines and payment of damages to loss of office, dismissal, indictment, or even imprisonment.

Constraints facing Parliament

Notwithstanding its subordinate position relative to the Executive in a presidential regime, Parliament remains a vital institution of Government in Malawi’s democratic dispensation. However, the degree to which Parliament is able to fulfil its potential role to the full – despite its relative subordination – depends on a series of constraints it is facing. These are both internal and external. Notwithstanding the specific constraints facing the parliamentary committees, Parliament as a whole is also constrained by a number of factors, some of which include the following.

Constitutional powers The constitutional powers conferred upon Parliament, define the framework within which it operates. They largely determine and delimit the room for manoeuvre that MPs have when facing the Executive. As opposed to parliamentary systems, in presidential systems, such as that of Malawi, the parliamentary powers do not include influencing Cabinet formation, censure or dismissal of Ministers, or ousting the Cabinet by means of a vote of no confidence. Presidential regimes restrict parliame- ntary powers to passing laws, not only reactively by responding to bills tabled by the Executive, but also through the authority to initiate legislation. A particularly important power is the approval of the national budget, i.e. passing it as law, which determines the distribution of state resources in society. While Parliament has the authority to pass the national budget it is at the mercy of the Executive for its own budget.

Duration of sittings A major constraint on parliamentary work is the frequency and duration of sittings.

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There is general agreement that the duration of sittings is grossly inadequate – only between 70 and 100 days per year. By comparison, in neighbouring Zambia Parliament was in session between 220 and 290 days a year after the democratic opening in 1991. The stated reason for the brevity of sessions is the purported lack of funds. Although the budget allocations for the National Assembly are protected in principle, it often happens that the meagre monies set aside are reduced by the Executive or arrive erratically, thus further hampering the work of the Assembly.

Waiver of 28-day rule of notice Standing orders require a bill to be received by MPs 28 days before its first reading but this ruling has been waived rather frequently. Even in the case of the national budget, which is a complex and important document, waivers have been given. The House in plenary makes the decision to waive the rule based on the Business Committee’s recommendation. The cited justification is, invariably, urgency and time constraint plus postal delays. The Opposition has little choice but grudgingly to go along with the waivers owing to the composition of the Assembly, i.e. the incumbent party or party collation has the majority. Such waivers may occasionally be justified and acceptable; while recognising that democratic rules should be adhered to, some flexibility is called for in applying the rules. But the frequency of waivers can be seen as an infringement by the Executive on the powers of the Legislature to hold the former to account. The MPs are thus disabled in exercising their duties because they have too little time for research, seeing experts on technical issues and for consulting with their constituents. The result is brief and uninformed debates.

Requirement of English The Constitution stipulates that a person must be proficient in the English language to be eligible as a candidate for Parliament. Those who do not hold an MSCE certificate will have to pass a language proficiency test before being accepted as candidates. This requirement is reasonable as long as the parliamentary language of deliberation is English. However, the suggestion has been made that Chichewa be introduced as a national language parallel to English. Those in favour of this proposal argue that using Chichewa would enrich and broaden the debate as those with limited knowledge of English are constrained as debaters. The English language requirement denies MPs their opportunity to debate and, in effect, pacifies them. A nationalistic argument is also pertinent: English is the colonial language and it is a matter of national pride to use a vernacular language. Besides, using a vernacular language would probably encourage more women to take part in politics, since women tend to be less educated than men. In other words, a vernacular language would be a democratising means.

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General training Related to the language question is general training for MPs, especially the newly elected. The mass media and others have often deplored the low calibre of some MPs in terms of their knowledge of issues under debate, particularly about the budget. Hence, there is a need for more training, not only on procedural matters but also on substantive issues. The case has been made that targeted, tailor-made training modules related to the portfolio of the respective committees should be given to the MPs who are members of these committees. For example, members of the Committee on Agriculture and Natural Resources would undergo a special programme to suit their special needs in agricultural and environmental affairs, and similarly for the other committees. Such training would encourage greater specialisation and, as a corollary, discourage the practice of shifting MPs from one committee to another during the term. A number of training activities – supported by donors such as CIDA and the UNDP – on national budgeting and on a wide range of subjects has been carried out for all MPs and THE LANGUAGE ISSUE these initiatives are starting to show results. The requirement that MPs be able to read and write in English to run for candidacy has been hotly Weak party system debated for many years. Opponents of removing In a representative organ such the English language requirement state three main reasons. Firstly, the requirement is not really about as Parliament, the political language proficiency. Rather, it is a proxy for a parties play a key role in minimum level of education. MPs need to articulating interests and understand the issues that are up for debate and grievances from the voters only education can see to that. Secondly, (see Chapter 7 on political introducing a second language would necessitate parties). How well the parties simultaneous interpretation in the House and be very costly. Thirdly, picking one of the many are able to perform their vernacular languages in Malawi would estrange representative task in the others and could be divisive; in the Parliament has a bearing on circumstances, English is a unifying factor. The parliamentary–executive proponents of Chichewa as a second language of relations and is largely a deliberation in the House dismiss language proficiency as proof of education. They also brush reflection of how well they off the cost argument by saying that democracy is are organised within the costly but worth the cost. Finally, they claim that Legislature. An important Chichewa is virtually a lingua franca in Malawi. The informal factor in the views diverge on the language matter and there is external environment is the merit to all arguments. However, given the degree of social legitimacy shortage of funds for parliamentary business in general, it is unlikely that a second language will be that Parliament enjoys in the introduced in the near future.

100 Chapter 4: The Legislature population and in the various social elites. If MPs are confident that they enjoy widespread popular or elite support their constitutional powers will be propped up. It is thus evident that the assertiveness of Parliament vis-à-vis the Executive is not only determined by the formal definition of its powers but also by internal constraints. The degree to which formal powers become a reality depends effectively on available resources and the internal organisation of Parliament. The above sections have discussed the resource and structural constraints and how they contribute to shaping the ability of Parliament to withstand executive dominance.

Parliamentary–judiciary relations

Key concept: judicial review The power of the Judiciary to review legislative and executive acts and to nullify those deemed to contravene the Constitution.

Since the dawn of multiparty democracy, there have been numerous occasions when legislative decisions have been subjected to judicial review (see Chapter 5 for further details). The courts have a constitutional responsibility to review all constitutional decisions because they are the protectors and guardians of the fundamental law of the country. Below are a few examples:

• On 25 October 1995, the Speaker of Parliament declared the seat of MP Nseula vacant on the grounds that he had crossed the floor from the UDF to the MCP. The Speaker had made the ruling in accordance with Section 65(1) of the Constitution. However, Hon. Nseula declared that he was still an MP and that the pronouncement by the Speaker was wrong and invalid. The Attorney-General stated that the courts did not have power of judicial review on this matter as a decision made by the Speaker under Section 65 (1) was part of the proceeding of the National Assembly. The High Court ruled that the matter was indeed within the domain of Parliament and outside the courts’ jurisdiction. That ruling was appealed in the Supreme Court of Appeal on the grounds that the parliamentary standing orders neither made reference to nor attempted to define what ‘crossing of floor’ meant; the Speaker’s decision was solely based on Section 65 of the Constitution. The Supreme Court held that the primary function of the Legislature does not include the interpretation of the Constitution, which is the sole responsibility of the Judiciary. Consequently, the declaration of Hon. Nseula’s seat as vacant was nullified.

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• Another case concerned MPs of AFORD who continued to hold Cabinet positions after the AFORD–UDF coalition had formally ended following the decision by AFORD at its national conference to sever relations. This decision was duly communicated to the President. Furthermore, AFORD recommended that its MPs serving in the Cabinet be withdrawn, failing which, they would be deemed to have crossed the floor and the Speaker should thus declare their seats vacant. However, the President not only refrained from withdrawing the AFORD ministers who defied their party’s decision but appointed two more from AFORD. The Speaker too did not observe AFORD’s decision by declaring the seats vacant. Therefore, the matter was taken to court. The High Court ruled that it did not have the jurisdiction to declare the seats of MPs vacant as this was the prerogative of the National Assembly. The court also held that the President had the prerogative to appoint ministers and their deputies without any limitation. Thus, the appointment of AFORD MPs as ministers was not deemed to constitute abuse of power. • AFORD and MCP members objected to the full-time participation in the proceedings of Parliament by those Cabinet ministers who were not MPs. A motion was introduced by an MP calling ministers without constituencies ‘strangers in the House’. The matter was referred to the High Court which ruled that Ministers who were not elected members of the House should not attend Parliament unless specifically requested to do so. The matter was taken to the Supreme Court of Appeal which overruled the decision of the High Court, and held that Parliament should decide such matters on the basis of its standing orders and defined it as an area where the Judiciary should not interfere in the affairs of the Legislature. • Another case in point was the Press Reconstruction Bill, intended to nationalise the monolithic conglomerate, the Press Trust, which had been created by the former Head of State, Dr Kamuzu Banda, and which controlled about 40% of the economy. This important bill was passed without a quorum as the opposition parties were, at the time, boycotting the sitting of Parliament in protest against the Government. The opposition parties took the matter to court and the High Court ruled that the act was illegal as it was passed without the required quorum. However, when the matter was appealed to the Supreme Court of Appeal, the ruling was reversed on grounds of ‘doctrine of necessity’, which means that important national business cannot be withheld because of a parliamentary boycott. • It can be inferred from the above examples that there have been instances in which High Court rulings on constitutionality and democratic norms have

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been overturned by the Supreme Court of Appeal – possibly owing to pressure from the Executive.

The most severe challenge to judicial independence was the petition by Parliament to remove three judges. Altogether 113 of the 193 MPs signed the petition in November 2001. The removal of the judges was sought on grounds of alleged misconduct and incompetence. This action on the part of the National Assembly generated widespread condemnation from within and outside the country. The legal adviser to the International Commission of Jurists (ICJ) stated that ‘the action to dismiss the judges flies in the face of the 1994 Constitution of Malawi, the African Charter on Human and Peoples’ Rights and the United Nations basic principles on the independence of the Judiciary which recognises the value of an independent Judiciary as necessary to uphold the rule of law’. The ICJ found that some politicians had been over-sensitive to judicial pronouncements they considered unpalatable. In turn, this spurred the action to remove the judges. CSOs came to the defence of the judges, soon joined by discreet pressure from most of the donors. The petition was subsequently sent to the President for assent, but he refused and referred the issue to the Judicial Service Commission, where the matter was quietly buried.

CONCLUSION

The importance of the legislative branch of Government in a democracy cannot be overstated. It has three fundamental functions: (a) representation; (b) law- making; and (c) oversight. As a representative state organ Parliament is close to and accessible by the people. The public expectations of MPs are often extremely high, while the MPs have few available resources and capacity to meet these demands. Yet, the degree to which MPs manage to satisfy the voters’ expectations largely determines their re-election. This is vertical accountability. The laws of the country are made by the Legislature through an elaborate process, which involves several stages. At the first reading only the title of the bill is read, followed by elaboration by a Minister or an MP. After the committee stage, the bill reaches the third reading at which time it is passed into law. When a law is assented to by the President, it is published in the Government Gazette and comes into force. The relationship of checks and balances between the three branches of Government – the Executive, the Judiciary and Parliament – forms the classical case of horizontal accountability. Presidential regimes reduce parliamentary powers

103 GOVERNMENT AND POLITICS IN MALAWI essentially to passing laws. But Parliament is also mandated to prevent the abuse of power or the neglect of duties as well as to enable remedial action. Sanctions might range from positive rewards to more or less severe punishment. Notwithstanding its subordinate position relative to the Executive in a presidential regime, Parliament remains a vital institution of Government in Malawi’s democratic dispensation. Although the Legislature has the sole prerogative to pass laws, including constitutional amendments, the Judiciary is tasked to review all legislation to assess whether it conforms to the principles and tenets of the Constitution. Parliament largely determines its own internal organisation. The Speaker presides over the deliberations in accordance with the rules laid down in the standing orders. The Speaker is assisted by a Clerk who oversees the administration of Parliament and records its proceedings in the Hansard. The party caucuses are important for debate and decision-making on party matters. Party discipline and cohesion are the responsibility of the party whips. While laws are made in plenary, much of parliamentary work is done in committees. There are both standing and departmentally related committees. The better the committee work the smoother the legislative process. However, the committees are currently under-resourced; some are even dormant for want of funds. In its operations Parliament is constrained by the short duration of its sittings, which reduces the scope for democratic debate. Many MPs are in need of training on the matters they are set to legislate. The weak party system also hampers parliamentary capabilities for policymaking and legislation. The Executive and the Legislature are, by nature, counterpoised: Parliament’s function is to restrain the way in which the Executive wields power. Even so, the relationship may be cordial and mutually respectful. However, the relationship between the Executive and the Legislature in the Malawian context has variously been characterised as ‘tense’ and often ‘confrontational’. Nonetheless, as democracy is gradually consolidating with room for all institutions to play complementary and effective roles, the Legislature could well assert its rightful position as an effective arm of Government in achieving the aims and aspirations of the people.

Questions

1. Was the repeal in 2001 of the constitutional section on the Senate beneficial for democracy?

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2. Does the level of party discipline and order have a direct bearing on their performance in Parliament? 3. Can Parliament gain the financial independence to hold sittings more frequently? 4. Should the recall provision be brought back into the Constitution? 5. How would you characterise the relationship between: (a) Parliament and the Executive, and (b) Parliament and the Judiciary? 6. What are the challenges facing Parliament in the performance of its functions? 7. To what extent are MPs accountable to their constituencies? State the reasons for your answer.

Glossary of terms

Bicameral and unicameral Legislatures: A Legislature with only one House is unicameral while a Legislature two Houses is bicameral. For example, the Legislature in the United States is bicameral with the House of Representatives as the Lower House and the Senate as the Upper House. The Legislature in Malawi is unicameral after the abolition of the Senate in 2001. Bill and act: A bill is the draft of a proposed new law. Once a bill is passed it becomes law or an act of Parliament. Constituency: A designated area whose population elect one or more representatives to a Legislature or any other representative body. National Assembly: a popularly directly elected House of Parliament for the purpose of making laws for the country – often referred to as the Lower House. Party caucus: The parliamentary group of all MPs from the same party. Political regime: A political regime is a set of rules and procedures for conducting politics – also referred to as the rules of the political game. These rules largely determine the distribution of power and prescribe who may engage in politics and how. These rules are formally codified in constitutions and other legislation but they may also be informal, embodying customs and habits to which the political players have become attuned and accepted through custom over the years. A distinction must be drawn between change of regime and change of Government. The latter does not imply a change of rules, only the change of party and personnel in power. Promulgate: To announce a law to show that it has entered into force.

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Recall: Normally MPs can only be removed from office if the voters decide not to re-elect them through periodic elections. However Section 64 of the 1994 Constitution provided for the mechanism of recall which means that an MP could be removed during the elected term if a certain number of constituents were very dissatisfied with his/her performance and started procedures to effect the removal. Referendum: The direct vote on a specific political issue by all people eligible to vote in a country or area. Representative democracy: In a representative democracy the voices of the citizens are heard mainly indirectly through their elected representatives who may be MPs in Parliament or councillors in Local Government assemblies. By contrast, in a direct democracy the citizens express their interest instantly to the authorities, typically through discussion in small-scale communities. In a modern state with millions of inhabitants direct democracy is not practicable, except through occasional referenda on key issues. Senate: Literally means ‘council of old men’. It is commonly referred to as the Upper House of the Legislature in most countries. Generally, the composition of the Senate is different from that of the Lower House. Whip: A member of a Legislature appointed by his/her party to facilitate the party’s organisation within the Legislature. Generally, parties have a senior whip and two or so junior whips.

References and Further Reading

Beetham, David, Sarah Bracking, Iain Kearton, Nalini Vittal and Stuart Weir (eds) (2002) The State of Democracy: Democracy Assessments in Eight Nations around the World, The Hague: Kluwer Law International Bratton, Michael and Nicolas van de Walle (1997), Democratic Experiments in Africa: Regime Transitions in Comparative Perspective, Cambridge: Cambridge University Press

Burnell, Peter (2003), ‘Legislative-Executive Relations in Zambia: Parliamentary Reform on the Agenda’, Journal of Contemporary African Studies 21(1); pp 47–68.

106 Elgie, Robert (1998), ‘The Classification of Democratic Regime Types: Conceptual Ambiguity and Contestable Assumptions’, European Journal of Political Research 33(2); pp 219–238. Englund, Harri (ed) (2002), A Democracy of Chameleons: Politics and Culture in the New Malawi, Uppsala: Nordic Africa Institute. Government of Malawi (2002), The Constitution of the Republic of Malawi, Zomba: Government Printer Heywood, A. (1997), Politics, London: Macmillan; Chapter 15

Malawi Parliament (2003), Standing Orders, Lilongwe: Parliament Press.

Maliyamkono, T.L. and F.E. Kanyongolo (2003), When Political Parties Clash, Dar Es Salaam: TEMA Publisher.

Mezey, Michael L. (1985), ‘The Functions of Legislatures in the Third World’, in Loewenberg, Gerhard (eds), Handbook of Legislative Research, Cambridge, MA: Harvard University Press; pp 733–772.

Norris, Pippa (1997), ‘The Puzzle of Constituency Service’, Journal of Legislative Studies 3(2); pp 29–49.

O’Donnell, Guillermo (1998), ‘Horizontal Accountability in New Democracies’ Journal of Democracy 9(3); pp 112–126. Roskin, M.G. et al (2000), Political Science: An Introduction, 7th Edition, Englewood Cliffs, NJ: Prentice Hall; Chapter 14.

Shaw, Malcolm (1998), ‘Parliamentary Committees: A Global Perspective’, Journal of Legislative Studies 4(4); pp 225–251.

Shively, Phillips W. (1997) Power & Choice: An Introduction to Political Science, 5th Edition, New York: McGraw-Hill

Van de Walle, Nicolas (2002), ‘Africa’s Range of Regimes’ Journal of Democracy 13(2); pp 66–80

Van de Walle, Nicolas (2003), ‘Presidentialism and Clientelism in Africa’s Emerging Party Systems’, Journal of Modern African Studies 41(2); pp 297–321

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108 5 THE JUDICIARY

Siri Gloppen and Fidelis Edge Kanyongolo

INTRODUCTION

Every society has conflicts, whether they be conflicts between people, between people and institutions or between institutions. Therefore, all societies need institutions that have the power to resolve disputes resulting from conflicts. The institutions that perform these functions through interpreting and applying rules of law are called the Judiciary. In a constitutional democracy, the Judiciary not only resolves conflicts between people and institutions, but it also seeks to ensure that all organs of the state exercise power responsibly. To ensure that the Judiciary acts independently and impartially, constitutional rules govern its resolution of disputes and interpretation of legal rules. Although judicial power has existed in Malawi since before colonial times, it was the 1994 Constitution that established a hierarchical Judiciary whose independence and impartiality are legally secure. To secure judicial independence in practice requires an environment in which the Judiciary enjoys administrative and financial autonomy and judges have security of tenure.

This chapter discusses the following issues:

• What is the constitutional role of the Judiciary, in particular regarding politics? • What is the history of the Judiciary in Malawi? • What is the structure and composition of the Judiciary? • What are judicial independence and impartiality, and how do they affect the functioning of the Judiciary? • How is the Judiciary seen as legitimate and how does access to justice affect its legitimacy? • How are judicial officers appointed and removed from office? • What are the Judiciary’s informal functions in politics?

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THE CONSTITUTIONAL ROLE OF THE JUDICIARY

Key Concept: Judiciary:

The branch of Government responsible for interpreting laws and applying them in cases of disputes brought before them by individuals or institutions. As guardian of the Constitution, the Judiciary must protect the rights of all citizens and ensure that public representatives and institutions exercise their powers in accordance with the Constitution and the law.

Judicial power in any society reflects the particular conditions in which the judicial institutions exist and operate. Thus, the prevailing political system determines the structure of its Judiciary and the specific rules that regulate its operation. The Judiciary in Malawi, as in any constitutional democracy, exercises specific functions that the Constitution lays down. The specific functions of the Judiciary in Malawi are the interpretation, protection, and enforcement of the Constitution and all other laws in accordance with this Constitution in an independent and impartial manner, using only legally relevant facts and the provisions of law. Courts perform the functions that the Constitution assigns to them in the context of specific cases that are referred to them. Cases that come before the courts may be criminal or civil. Criminal cases are those the state brings to court against individuals or institutions that violate laws that prescribe specific punishments for their violations. Common examples of criminal cases are those that involve people accused of violating laws that prohibit such offences as theft, corruption, assault, rape, and murder. In contrast, civil cases are those that any person or institution can bring to court in order to seek compensation or other remedy for some loss that they claim to have suffered because of some other person or institution. Examples of civil cases are those that involve unlawful dismissal from employment, breach of contract, divorce, and unfair electoral practices. Most of the courts’ time in Malawi is spent on such criminal and civil cases involving commercial organisations and the general public. The Judiciary also plays a critical political role. One political function of the Judiciary in constitutional democracies is similar to that of a referee in a football match, i.e. to enforce the rules of the game and sanction those who attempt to break them. This function of the Judiciary is captured by the two principles of the rule of law and accountable Government. The principle of the rule of law lies at the very heart of constitutional democracy and holds that law must govern the

110 Chapter 5: The Judiciary exercise of political power and authority. Everything that the Government and public institutions do must be based in law and no one, not even the President or Parliament, is above the law. Individuals and institutions are not free to use their power as they please, but are bound by laws and regulations. And they are subject to sanctions if they exceed the limits of their power, and violate specific rules of law or the broad democratic principles laid down in the Constitution. The principle of accountability requires that leaders must account to the people for their exercise of political power and provide reasons to justify their actions. As the only institution mandated to interpret and apply the law, the Judiciary plays an important political role in compelling institutions to account for the exercise of their powers. As mentioned above one of the functions of the Judiciary in a constitutional democracy is that of guardian of the Constitution: protecting the Constitution itself and the constitutional rights of all citizens (see Chapter 3 for an overview of the rights laid down in the Constitution of Malawi). This also applies in a political context. When political decisions fail to respect the fundamental rights of individuals and groups, the courts provide an arena where those who feel their legitimate claims are not heard and heeded in the political process can voice their claims. The courts’ protection of rights may take different forms. They can issue court orders to stop state actions that breech constitutional rights such as denying political opponents the right to free speech or peaceful assembly. Courts can also order state agencies to take positive steps to fulfil their obligations to secure and advance constitutional rights. For example, courts can order the Government to take steps to prevent third parties, such as private companies or individuals, from violating citizens’ rights. They also act as a referee and judge in elections by having the authority to judge whether actors in the elections (be it political parties, the media, the Electoral Commission) behave in a way which ensures free and fair elections, and, if certain players are found to have violated constitutional rights or broken the law, they ensure that they are punished accordingly. To impartially referee the political game and guard the Constitution and citizens’ rights are the two major responsibilities that the Constitution places on the Judiciary in order to secure Malawi’s democratic political system. If the courts manage to fulfil these responsibilities, they help to ensure that political decisions can be contested, that the democratic channels remain open and that a change of Government is possible by democratic means. Throughout the history of Malawi, the Judiciary has facilitated accountability of political institutions and protected rights. Table 1 provides just a few examples.

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Table 1: Examples of the Judiciary’s Constitutional Role in Politics

Refereeing the political game and enforcing accountability

Name of Case Decision

Gwanda Chakuamba v Peter Chiona (2000) Each of two rival factions of a registered political party held its own party convention. This was inconsistent with the provisions of the constitution of the party. The High Court held that both conventions could not be recognised and the decisions made at them were invalid since members of political parties must act according to the constitutions of their parties.

In Re Removal of MacWilliam Lunguzi as The High Court decided that the President Inspector General of Police (1995) was obliged to give reasons for the dismissal of the Inspector General of Police. The court also decided that the President could not effect that dismissal on grounds other than those mentioned in the Constitution.

Guarding constitutional rights

The President had prohibited all public Malawi Law Society v The State and the demonstrations in relation to a proposal to (2002) amend the Constitution to extend the presidential term of office. The High Court declared that the President’s order was invalid because it violated the Constitution’s guarantee of the right of every person to freedom of assembly and peaceful demonstration.

Kafumba v The Electoral Commission and During the campaign for the 1999 elections, the Malawi Broadcasting Corporation (1999) the Malawi Broadcasting Corporation had provided live coverage only to rallies addressed by the presidential candidate of the ruling party. The High Court declared that this was a violation of the constitutional right of the other presidential candidates not to be discriminated against.

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THE HISTORY OF THE JUDICIARY IN MALAWI

It is important to appreciate the history of any institution in order to understand its role in the contemporary political context. This chapter looks at significant aspects of the historical development of the Judiciary.

Pre-colonial period

Various population groups that established themselves in the territory now called Malawi had their own legal and political systems. These systems provided for judicial authorities responsible for resolving disputes among members of the various groups, determining the rights of individuals and groups within that society. Judicial authority was exercised in accordance with unwritten customary laws which were nevertheless regarded by the people as Perhaps the most politically difficult decision that binding. In most of these courts have to make is ruling on whether a societies, designated presidential election was conducted freely and traditional authorities at such fairly. The courts in Malawi have faced this challenge on at least two occasions. After the levels of the community as presidential elections in June 1999, most of the village, clan, or ethnic group candidates alleged that the election process had exercised judicial power. been mismanaged and manipulated. They joined in In general, chiefs, village a petition to the court to declare the election invalid heads, or elders exercised so that a new presidential election would be called. When the case (The Attorney General v judicial power under Chakuamba, Kalua, and Mnkhumbwe) finally was customary laws, depending decided in May 2000, almost a year later, the court on the subject matter to be found the presidential election to be valid, although decided and the parties it noted numerous problems and irregularities in involved in the particular the election process. Nobody was surprised. To invalidate a presidential election is a decision with disputes. Besides exercising enormous political and financial costs, particularly judicial power, they also held when time has passed and the new President is and exercised executive established in office. This was the case in Malawi, power since most customary where President Muluzi had been sworn in again legal systems did not as President following the declaration of the election results, despite the court challenge recognise the contemporary pending against his election. After the election in constitutional principles of May 2004, the ruling party candidate Bingu separation of powers and Mutharika won and was sworn in as President. judicial independence. The Again, the candidates who lost challenged the traditional authorities who election. Some of them later withdrew from the case which effectively died. No decision has yet (at exercised judicial power in the time of writing) been forthcoming.

113 GOVERNMENT AND POLITICS IN MALAWI pre-colonial societies derived their power from tradition as embodied in respective customary laws and practices. They did not come to office through appointment by state authorities or elections, although they were subject to some control by the state after the introduction of colonial rule.

Colonial period

In 1891, the British Government formally established colonial rule in Malawi by declaring the territory to be a British Protectorate and establishing a Government structured along the lines of the British model. The colonial Government included a system of courts established by written laws. These courts consisted of appointed officials whose main function was to enforce the written laws that the legislative arm of the colonial Government enacted, as well as the common law that English courts had developed. In the early period of colonial rule, colonial officers combined judicial and executive power. For example, officials of the first colonial administration, called Residents, served as local administrators as well as judicial officials. For most of the colonial period, courts in the territory were part of the broader colonial judicial system. Thus, after the British Central Africa Order-in-Council established the High Court, appeals against its decisions were referred to the East Africa Court of Appeal and the Privy Council of the House of Lords in Britain. Similarly, when the Federation of Rhodesia and Nyasaland was established in the 1950s, the Federal Supreme Court based in then Southern Rhodesia became an appellate court (i.e. a court that decides appeal cases) for cases decided by the respective High Courts of Nyasaland and the . Key concept: appeal An application requesting a higher court to reverse a decision made by a lower court

Establishing colonial courts did not result in the abolition of the indigenous judicial systems that had existed prior to colonisation. In practice, therefore, Malawi had two co-existing judicial systems. Although colonial law permitted the continued existence of courts based on customary law, the colonial state placed these courts under its control so that customary laws no longer governed them exclusively. The courts could administer only customary laws that were not ‘repugnant to justice and morality’ as determined by the colonial state. They lacked independence and did not operate according to the principle of separation of powers. The traditional authoriities who presided over them were also part of the executive branch’s administrative machinery responsible for collecting taxes and maintaining law and order on behalf of the colonial Government.

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Post-colonial period up to 1994

The end of colonial rule did not bring any fundamental change in the structure of the courts. Malawi continued to have two parallel systems of courts. On the one hand there were state courts whose main responsibility consisted of interpreting and applying state laws. On the other hand there were traditional courts which were used by the majority of the people. These courts administered the unwritten customary laws of the particular communities in which they operated. The state also continued to exercise control over the operations of the traditional courts as the President had the power to appoint those presiding over some court levels. The structure of state courts during most of the first 30 years of the post-colonial period was similar to that established by the Constitution of 1994. The highest court was the Supreme Court, which became the final appellate court instead of the East African Court of Appeal, the Privy Council, or the Federal Supreme Court. Below the Supreme Court of Appeal in the hierarchy was the High Court, below which were magistrate courts. Parallel to Regional traditional courts were established by this structure was that of President Banda during this period because he traditional courts. At the top was found he was losing cases in the ordinary courts. These had jurisdiction parallel to the the National Traditional Appeal High Court, including in such serious criminal Court, below this were regional matters as murder, sedition, and treason, and traditional courts and below this is where cases against political opponents them were various levels of of the regime were decided. The judges in these district and local traditional courts often lacked formal training and their courts lacked the independence of the normal courts. court system. The Minister of Justice appointed The Judiciary’s dual structure them and could also dismiss or suspend them. survived the end of colonialism The Ministry of Justice, through the Chief but significant developments Traditional Courts Commissioner, could also set such as the expansion of the aside judgments. The accused before these courts did not have the normal rights – legal jurisdiction of the regional representation required authorisation from the traditional courts as mentioned Minister – and their cases were invariably above changed their relationship decided in favour of the state. The ordinary in the post-colonial period. courts were therefore marginal in this period. After the adoption of the Looking at it from a democratic perspective, this may have been an advantage, because it Constitution of 1994, however, shielded them from being linked too closely with the two parallel systems were the Banda regime. Thus, they were less merged into one unified compromised than many other state institutions, structure, which is discussed in which enabled them to play an important more detail in the following political role during and after the democratic transition. section.

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Key concept: Jurisdiction

The power granted to a court by the law to decide matters as defined by the subject matter of the dispute or the particular geographic area in which the dispute arises.

THE STRUCTURE AND COMPOSITION OF THE JUDICIARY

The Constitution of 1994 establishes three main branches of Government based on the principles of constitutional democracy. One of these branches is the Judiciary, which has the responsibility of ‘interpreting, protecting, and enforcing the Constitution and all laws in accordance with the Constitution in an independent and impartial manner with regard only to legally relevant facts and the prescriptions of law’.

Key concept

Judicial hierarchy: the structure of courts that places them in an order relative to their power.

It is important to minimise situations in which courts make arbitrary decisions and to clarify the relative authority of the many courts that make up the Judiciary. The Constitution and other laws therefore structure courts in a hierarchy. The judicial hierarchy in Malawi consists of the Supreme Court of Appeal as its highest court, immediately below this is the High Court, which, in turn, has immediately below it subordinate courts which consist of Magistrates’ Courts, the Industrial Relations Court and, whenever Parliament authorises it, traditional local courts. The diagram below summarises the structure.

Supreme Court of Appeal

High Court

Subordinates Courts (magistrates’ courts, industrial relations courts, traditional local courts

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The Supreme Court of Appeal only decides cases that come as appeals when one of the parties, or both, are unsatisfied with decisions of the High Court. The High Court has unlimited power to decide cases of any type. It can order the payment of compensation of any amount and, in criminal cases, it can impose sentences of varying severity, including the death penalty for offences such as murder, treason and, in some cases, robbery and rape. The High Court also has the power to review decisions of other branches of Government and to enforce their compliance with the Constitution. This power of judicial review is the principal means by which the courts contribute to the accountability of the executive and legislative branches of Government. In addition to the power to decide cases that are brought directly to it, the High Court also decides cases in which people appeal against decisions of subordinate courts.

Key concept: judicial review

A process through which the High Court determines the validity of a particular action or decision of the Executive or the Legislature and enforces their compliance with the constitution

Subordinate courts consist of Magistrates’ Courts of various grades, the Industrial Relations Court and traditional local courts. Magistrates’ courts have the power to decide both criminal and civil cases of various types. For its part, the Industrial Relations Court decides cases that involve disputes between employers and employees relating to their contracts of employment. The Constitution also grants Parliament the power to enact a law that provides for the establishment of traditional local courts whose mandate is to decide cases involving customary laws and some minor criminal offences but, at the time of writing, Parliament has not yet passed the law required to make these courts operative. In practice, traditional and other community leaders perform tasks that are similar to those that the Constitution entrusts to courts in the judicial hierarchy in an informal way. Family elders, village heads, and traditional authorities resolve disputes at household and community levels –such as those involving dissolution of customary marriages and breach of customs and traditions – based on their interpretation and application of customary laws. However, although traditional authorities settle disputes within families and communities, their powers are not based on state laws and in principle they can only mediate between the parties. They are also not recognised as part of the formal structure of the Judiciary and do not have formal judicial powers under the Constitution or other laws made by Parliament to interpret and apply customary laws. Such powers are granted only to the Supreme Court of Appeal, the High Court, and subordinate courts.

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THE JUDICIARY IN A CONSTITUIONAL DEMOCRACY

The judiciary relationship to other branches of Government

The Constitution defines the relationship between the Judiciary and the other branches of Government as one based on the principle of judicial independence. Constitutional principles and rules promote judicial independence by making it unconstitutional for any member of the Executive or Legislature to interfere with the courts in their interpretation and application of the law. In addition, the Constitution does not allow a member of the Executive or the Legislature to be a member of the Judiciary or to exercise judicial functions.

Key concept: judicial independence The freedom of judges to decide every case based only on the evidence presented and the relevant law without fear of punishment or expectation of favours for deciding one way or the other.

Judicial independence is an aspect of the broader principle of separation of powers which prohibits any branch of Government from interfering with or controlling others. In one respect, separation of powers means that the Executive and Legislature cannot interfere with or control the Judiciary as it performs its constitutional functions. However, the principle of accountability limits the principle of separation of powers so the various branches of Government exercise some powers of oversight of each other. In a constitutional democracy it is necessary for the courts to enforce the accountability of the Executive and Legislature to the Constitution. The Judiciary thus exercises some powers of oversight of the Legislature and the Executive as well as other constitutional bodies. Likewise, while the Judiciary is required to operate independently of the other branches of Government, the Constitution also grants the Legislature and Executive some oversight powers over the Judiciary. For example, the President and the National Assembly have a role in appointing judges, and in certain circumstances have the constitutional power to remove judges from office. Working in conjunction, the National Assembly and the President (in his/her capacity as Head of State) can also enact laws to regulate the Judiciary as long as such laws are consistent with the Constitution. Disputes concerning the separation of powers and the relationship between the political branches arise in most societies, and particularly when the political system is young and not yet firmly institutionalised. As the final authority on constitutional

118 Chapter 5: The Judiciary issues, the Judiciary has a central role in settling such disputes. Since 1994, the Malawian Judiciary has decided a number of cases relating to the separation of powers. The relationship between Parliament and the Executive was an issue in the case of Nseula v Attorney General (1996) where the High Court ruled that ministers could not simultaneously serve as members of Parliament (MPs). This decision was, however, later overruled by the Supreme Court of Appeal which upheld the principle of separation of powers but decided that the High Court had not applied it correctly in that particular case. Other cases raise questions regarding the separation of powers between the Judiciary itself and Parliament, and in particular to what extent the Judiciary can legitimately ‘interfere’ with and regulate Parliament’s internal business. In some cases the Judiciary has taken an interventionist approach effectively overruling the Speaker’s decisions. In other cases it has declined to interfere with actions taken by the Speaker in the National Assembly on the grounds that the Constitution gives the Speaker immunity. Many of these cases have arisen when parliamentarians have had their seat declared vacant for ‘crossing the floor’, i.e. leaving the party that sponsored their election. In most of these cases, the MPs who have been expelled have obtained a court injunction which the Speaker has not challenged, and have thus retained their seats. The Judiciary has also reversed a decision by Parliament to suspend funding to a party that protested against a particular decision of the National Assembly by boycotting its proceedings. Whether the Judiciary has found the right balance in these cases is itself a political question. While some criticise the courts for not standing up to the other branches of Government, others – including the Executive – have in some cases criticised the Judiciary for exceeding its mandate and meddling in politics. Occasionally the other branches have taken practical steps aimed at discouraging judicial encroachment into their mandates. For example, there was an attempt by the National Assembly to remove some judges of the High Court from office who had made decisions that were considered to be usurping the powers of Parliament. This is discussed in more detail in the next section.

Judicial independence and impartiality

Regardless of the type of case that is brought before a court, the Judiciary in a democracy requires an environment in which it can interpret and apply the law independently and impartially. Political theory recognises the following factors to be critical to enable judiciaries to function independently:

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• Constitutional protection for judicial independence; • An independent and transparent process for appointing judicial officers; • Legal guarantees for judicial officers’ tenure security and satisfactory conditions of service; • Autonomy of court budgets and administration.

The most important precondition for the Judiciary to perform its constitutional function is that the courts must be independent of the interference and control of other branches of Government as well as any other institution or individual. Judges must decide cases only on the basis of the evidence and their interpretation of the law, and to ensure faith in judicial independence a basic requirement is that judicial officers not only act impartially but also appear to be impartial and without bias. Why is this so central? Imagine that your neighbour takes you to court over a land dispute. The judge rules against you and you loose part of your land. Later you discover that the judge’s husband is your neighbour’s business partner. Would this change your view of whether the judgment was fair? It might well do so even if the judge had actually acted impartially and did not let her husband’s business connection influence her judgement. The point is there would be reasonable grounds to presume her to be biased due to her ties with one of the litigants. The necessary basis for trust is lacking, and when the basis for confidence in a court decisions is violated, the proper thing for that judge to do is to recuse (withdraw) herself from that particular case. A particular problem arises in relation to judicial independence and impartiality when the state is a party to the case. Judges are appointed and paid by the Government, and given this institutional relationship between the Government and the Judiciary it is particularly important to secure the Judiciary’s political independence. But how can it be done?

Constitutional protection of judicial independence One important step is to formally commit all political bodies to the principle of judicial independence and provide formal legal protection for the independence of the courts in the Constitution and the law. The Constitution of Malawi contains a number of provisions that seek to secure the independence of the Judiciary. Section 9 of the Constitution requires the Judiciary to interpret, protect, and enforce the Constitution and all laws in an independent and impartial manner. Other provisions including Section 103(1), reinforce this provision: ‘[a]ll courts and all persons presiding over those courts shall exercise their functions, powers, and duties independent of the influence and

120 Chapter 5: The Judiciary direction of any other person or authority’. Furthermore, the Constitution declares the courts to be the final authority to decide whether any issue falls within its mandate and prohibits establishing any institutions that have powers such as those that the Supreme Court of Appeal or High Court exercises. There are also a number of international treaties which uphold the principle of judicial independence. Article 14 of the International Covenant for Civil and Political Rights provides that: ‘… everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law’. Similar provisions are also contained in the African Charter on Human and People’s Rights and other regional human rights instruments such as the European Convention on Human Rights and American Convention on Human Rights.

Judicial appointments The appointment of those in the Judiciary needs also to be done in a way that, as far as possible, ensures that the Judiciary is independent and impartial. Appointment of judges is regulated by the Constitution. The Constitution requires that to qualify for judgeship a person must have been a practising lawyer for a period of ten years or been a judge of a court at a similar level in another country. In Malawi judges are recruited both from the professional magistracy, other sections of the public service and from private practice. The President appoints judges on the recommendation of the Judicial Service Commission. In practice, the appointment process starts with advertisement of the posts. Interested individuals apply to the Judicial Service Commission which conducts interviews and sometimes consults the Malawi Law Society for opinions on the candidates, before they decide on a list of nominees to present to the President, who then makes the final decision. When the Judicial Service Commission selects candidates for judicial appointment, it is a closed process without public participation. Beyond the constitutional requirements mentioned above, there are no public criteria for the selection process. Commissioners indicate that candidates are evaluated mainly on professional merit, personal character, and relevant work experience, taking into account the need for gender balance in the composition of the Judiciary. The deliberations in the commission on evaluating and ranking candidates are not open to the public. No list of applicants is publicised and no reasons are cited for the final selection. So only the members of the commission know on which grounds the candidates were selected, or indeed, whether or not the President went with their recommendations when appointing a new judge. The President also appoints the Chief Justice, who is the head of the Judiciary. In this case, the Judicial Service Commission is not involved. Instead, a two-thirds majority in Parliament must confirm this very important appointment. It is the

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THE JUDICIAL SERVICE Chief Justice who, on the recommendation of the Judicial COMMISSION Service Commission, appoints magistrates and persons to ‘other he Constitution establishes the Judicial judicial offices’. There is no law Service Commission whose mandate T that lays down the minimum includes nominating persons to judicial office and enforcing discipline among judicial qualifications for magistrates, but personnel. The Judicial Service Commission in practice there is a distinction can also make recommendations to the between resident magistrates and President in other matters relating to the lay magistrates. The professional, Judiciary. Judicial independence in Malawi resident magistrates must have a thus depends crucially on how well the university law degree, while lay commission fulfils this role. But what about its own independence? The Judicial Service magistrates normally have a Commission has five members. Two are ex secondary school certificate and a officio members (their membership follows basic training course in law. automatically from their other positions). One The Constitution also gives the of them is the Chief Justice, who is the Judicial Service Commission chairperson. The second is the chairperson disciplinary powers over judicial of the Civil Service Commission. The other three commissioners are a judge or Justice of personnel and it has a role in Appeal, a legal practitioner, and a magistrate. removing judges from office The President appoints all five after through impeachment. However, consultation with the Chief Justice. Therefore there is no formal mechanism in the President does have a strong say in the place for receiving complaints composition of the commission. There is no from the public or for disciplining set term for how long the commissioners serve; the President replaces them at his/her judges. Despite perceptions of will. This increases the President’s potential widespread corruption in the lower for controlling the commission. Judiciary, this has only been proven in a few cases, resulting in magistrates being dismissed from office. Corruption allegations against High Court or Supreme Court of Appeal judges have never been proven. A proper complaints mechanism and disciplinary procedure could improve the public’s confidence in the Judiciary.

Security of tenure In terms of security of tenure, the Constitution seeks to protect judicial officers from arbitrary removal from office. If the authorities that appointed a judicial officer are able to remove him or her at their discretion, the officer is likely to perform judicial functions to gain their favour. This will compromise the ability of such an officer to act independently and impartially.

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In order to prevent this, the Constitution of Malawi, as in other constitutional democracies, provides that judicial officers may not be removed from office except in very limited circumstances. Judges are entitled to remain in office until they reach the age of 65. This encourages them to act independently and impartially, secure in the knowledge that they will have tenure of office until their retirement. But if judicial officers were to be immune from removal from office regardless of any circumstances that occurred prior to their reaching the retirement age, their accountability would be undermined. It is important that all branches of Government in a constitutional democracy be held to account. It is in recognition of this general principle that the Constitution provides that errant judicial officers may be subject to disciplinary measures, including removal from office. It is, however, important to prevent the demand for judicial accountability from being used as a pretext for eroding judicial independence. For this reason, democracies permit the removal of judicial officers only in very limited circumstances. In the case of Malawi, the Constitution provides that a ntil 2001, there had been no attempt to judge of the High Court or Uremove judicial officers from office. However, Supreme Court of Appeal can in November 2001, more than 113 of the 193 members of the National Assembly passed only be removed from office if motions petitioning the President to remove from he or she is found to be office three judges of the High Court for various incompetent in the allegations of incompetence and misbehaviour. performance of official duties This was seen as a reaction to a series of anti- or guilty of misbehaviour. The Government decisions. The Chief Justice, civil Constitution further provides society, and the international community all attempted to stop the impeachment process. that the removal of an International bodies, such as the International incompetent or unethical judge Commission of Jurists and the International Bar must be done in accordance Association sent delegations. Still, the majority of with an elaborate procedure representatives in the National Assembly that protects the judge against persisted in their petition to the President to unjustified or unfair removal impeach the judges. This caused an outcry, both from office. The President has from national and international actors. The United Nations Special Rapporteur on the Independence the power to remove a judge of Judges and Lawyers denounced the move as from office after consulting the blatant interference with judicial independence, Judicial Service Commission, and one donor gave this as a reason for stopping but only where the National their aid to Malawi. In the end, the President, after Assembly has submitted a having consulted the Judicial Service petition to the President Commission, decided to pardon the judges and seeking the removal of the abandon the impeachments. Concerns about the high political costs of this episode are likely to judge. The petition must be have played a critical role in this decision.

123 GOVERNMENT AND POLITICS IN MALAWI preceded by a debate in the National Assembly on the proposal to remove the judge and supported by a majority of Assembly members. The Constitution also requires that the removal of a judge must abide by the principles of natural justice which, in effect, requires that the judge must be informed of the allegations against him or her and the source of the allegations, given enough time to prepare the defence and allowed sufficient opportunity to defend him- or herself.

Conditions of service Conditions of service are also important to judicial inde-pendence. Judge’s indepe- ndence is compromised if they have reason to expect that their personal welfare depends on how agreeable their paymasters find the judgments they make. To avoid this, the Constitution protects the salaries and allowances of judges from being reduced. It also requires that they should be paid from the Consolidated Fund, which means that budget cuts cannot affect these payments. Beyond stating that salaries should be regulated to retain their real value, the Constitution does not regulate the level of payments that judges get. The level of remuneration may, however, also affect judges’ independence. If their salaries do not reasonably cover the life expenses of their family, judges are more likely to engage in other forms of income generation, such as business activities or even corruption. Corruption is of course illegal, but unlike in many other countries where there are strict regulations prohibiting judges from engaging in business or other activities that may create a conflict of interest this is not the case in Malawi where judicial officers can legally have business interests. This means that judges with businesses may find themselves in situations where their business interests are relevant to a court case which comes before them, and this obviously could influence their ability to be independent. There have been some improvements in the salaries and allowances of judges in the higher courts, but magistrates, and in particular lay magistrates, are paid very little. This makes them vulnerable to corruption which may compromise their independence.

Court budgets and administration In terms of judicial independence, it is best if the Judiciary has a secured share of the budget, or itself can influence the size of the budget and type of spending. Judges may otherwise hesitate to rule against those who provide the Judiciary’s funds for fear that their funding might be cut. In Malawi, Parliament approves the allocation of resources to the Judiciary, but the executive branch of Government through the Treasury Department decides the amounts that the Judiciary receives at any given time out of its budget. The position was changed in 2001, when Parliament passed a law that authorised the Judiciary to retain for its own use the

124 Chapter 5: The Judiciary funds that it collects by way of fines, fees and other payments made by court users. The Judiciary may also supplement its funds by fundraising from donors. Administrative autonomy of the Judiciary also contributes to realisation of judicial independence. Administrative autonomy of the Judiciary includes its ability to recruit its own support staff and regulate their discipline. Historically, the Judiciary in Malawi did not have administrative autonomy and the executive branch recruited and disciplined its support staff. The situation has since changed and the Judiciary directly employs its own staff, which is also subject to disciplinary regulation through its own administrative machinery. Taken together, the formal institutions to insulate the Judiciary from political influence are relatively strong in Malawi, although the President’s role in the appointment process is a cause for concern. But judicial independence is not only about formal rules – or resources. More important is the mindset, the culture and integrity of the people who make up the Judiciary, their ideas about how they should do their job and their willingness and ability to do it well. Likewise, the attitudes of all those interacting with the courts also matter. Whether politicians, the legal community and the general public respect the courts and see them as legitimate is of critical importance.

Legitimacy

Legitimacy is a critical feature of political institutions in a constitutional democracy. Institutions gain and retain legitimacy when they are trusted and the population accepts their authority. The most obvious way by which the public expresses such trust and acceptance is through elections in which people express themselves through a free and fair vote. In the case of the Judiciary, it is not directly elected by the people, but the democratic legitimacy that representative institutions, such as Parliament and the President, derive from being elected, are to some extent transferred to the office holder(s) that they appoint. For example, as mentioned above, the Chief Justice is appointed by the President but this appointment must be confirmed by a two-thirds vote in favour by the National Assembly. It is perhaps a more tenuous argument when you consider the appointment of judges and magistrates, since the former are appointed by the President in consultation with the Judicial Service Commission, one of whose members is the Chief Justice (see above on composition of the Judicial Service Commission), and the latter are appointed by the Chief Justice in consultation with the Judicial Service Commission. However, continued use of a public institution, and acceptance of its decisions, are other expressions of trust and legitimacy. Judges’ legitimacy is also derived from their professional competence and their role in the democratic system as guardians of the Constitution.

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It is clear from the preceding discussion that the Judiciary in Malawi exercises powers that have far-reaching implications for the political process, as is often the case in countries that are based on constitutional principles of democracy. It is thus important that its Judiciary maintains its legitimacy by retaining the trust and confidence of the country’s population. The factors that may undermine the legitimacy of the Judiciary include limited accessibility of courts, corruption of judicial and their support officers, inefficiency of court processes and perceived bias of judicial officers. It therefore follows that in order for the Judiciary in Malawi to gain and maintain legitimacy, it must have enough courts located in all parts of the country in order to improve accessibility; judicial officers and their support staff must act with integrity; the Judiciary must have adequate resources that facilitate the speedy resolution of cases; and judicial officers must ensure that they are not perceived to be biased. The social and economic factors that influence these goals in Malawi are related to the principle of access to justice and are discussed in the following section. Access to justice The broad goal of the Judiciary is the administration of justice. In order to achieve this goal courts must be as accessible as possible to all members of the population. The Judiciary as a whole must also have qualified personnel. As was stated earlier, the Constitution of Malawi sets criteria to ensure that only properly qualified people are appointed to judicial office – requiring that they either have been a judge of a court at a similar level in another country or a practising lawyer for a period of at least ten years – but it does not set minimum qualifications for personnel appointed as magistrates. The quality of justice that lay magistrates dispense may be affected by their relatively low legal qualifications. The ability of the Judiciary to administer justice is also affected by all citizens’ access to the courts. Among the main factors that affect citizens’ accessibility are the awareness of judicial functions, the distance that people have to travel to reach courts, the financial cost of judicial proceedings, and the language that they use. In Malawi, these factors have a particularly significant impact because of the low levels of awareness of state institutions and their functions among the majority of the population; the low number of courts, particularly in rural areas where the majority of people live; the general lack of financial resources among the majority of the population and the use of English as the language in which judicial proceedings are conducted. Another factor that affects the delivery of justice by the courts is judicial personnel’s access to the resources that they require to conduct judicial proceedings effectively and speedily. Such resources include court premises, stationery and legal texts and other legal literature, equipment such as typewriters, computers, and

126 Chapter 5: The Judiciary telephones. Due to the limited funds that the Malawi Government has, state institutions such as the Judiciary often have inadequate resources. The lack of adequate resources on the part of the Malawian Judiciary inevitably results in delays in the processing of cases and undermines the ability of the Judiciary to administer justice effectively and efficiently.

THE JUDICIARY’S INFORMAL FUNCTIONS IN POLITICS We have already considered the political role the Judiciary plays in ensuring fair play in the political arena and upholding the Constitution. In addition to these formal functions, the courts in practice influence the political process in Malawi in other ways, for better or for worse, as a consequence of people taking matters to court The courts often provide a safety valve by diffusing tensions that arise among the various actors in the political arena which threaten the political process. Conflicts that arise in the course of political competition may be taken to court for resolution, where the heated political battles can be fought by proxy through lawyers. Due to the nature of the legal process and the inevitable time this takes, sometimes this acts as a bonus in allowing tempers to cool. Courts also act as a safety valve in providing those who lose such political contests as elections the means to save face by removing their disputes from the public arena and allowing them to fizzle out in the relatively more private confines of a courtroom. By offering a controlled environment for the resolution of political disputes that for some reason fail to be resolved by political bodies, courts may prevent less desirable methods of dealing with disputes, such as violence. Courts can also act as adjudicators for political institutions, such as political parties, by offering them an external mechanism for resolving their internal disputes. This is particularly important in situations where the institutions’ internal dispute resolution structures and procedures lack functionality or impartiality, or are perceived to lack them. In such cases, if courts were not available as a mechanism for peaceful resolution of such internal disputes, such disputes would remain unresolved and impede the smooth operation of those institutions or in some cases their continued existence. This would weaken the institutions as is demonstrated by the experience of Parliament some of whose internal disputes could have been destructive had they not been addressed by the courts. Malawian courts have also assisted institutions in strengthening their internal dispute resolution mechanisms by taking on a mediator role, for example by requiring fighting fractions of a political party to negotiate. Examples of such cases are given in Table 2 below.

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Table 2: The Judiciary’s Informal Function in Politics

Diffusing political tension

Tensions between supporters of rival candidates in the 2004 presidential elections were partly diffused when the issue of whether The Republican the winning candidate had won the elections fairly was taken to the Party High Court for resolution. Subsequently, one of the losing candidates v who had taken the matter to court withdrew from the case after being The Malawi Electoral appointed a Minister. Another was disqualified from the case by the Commission High Court on technical grounds. One year after the elections, the case (2004) had still not been decided and public interest in the issue had almost disappeared in the light of more immediate social and economic problems such as famine.

Adjudicating in internal political matters

The High Court stated that ministers who are not MPs are entitled to attend National Assembly proceedings. If the courts had not been available and willing to decide this question, proceedings of the Mapopa Chipeta National Assembly would have been disrupted indefinitely. The two v groups of MPs who took opposing views on the question had no other Attorney General mechanism which both would have accepted as a means of impartially (1994) resolving the dispute. The indefinite disruption of proceedings of the National Assembly would have weakened it. If the High Court had not adjudicated in this matter, it would have led to an indefinite disruption of proceedings of the National Assembly.

Tchauya v Matchaya The High Court stated that parties should settle internal party disputes & using their own procedures. This encouraged the party to activate its National Democratic dispute resolution structures and rules. Alliance (2004)

Although the involvement of the courts in the internal disputes of political institutions may strengthen those institutions in the short term, in the longer term, it may have the opposite effect if the courts are always available and willing to undertake this task because institutions may not appreciate the need to develop their own internal mechanisms. In addition to this, valuable court time is taken up with such political cases rather than on other legitimate and pressing cases which get put to one side. Politicians’ use of the courts also influences the relative balance of power among political actors and institutions. Various actors in the political arena may turn to the courts when their powers and rights are violated or threatened – but

128 Chapter 5: The Judiciary they may also use the courts in more strategic and speculative ways for purposes of gaining political leverage over their competitors. This may take different forms. For example, politicians who hold powers of state may discredit their political rivals by initiating criminal prosecutions against them, even where the criminal charges may not be merited under the law. They may also threaten to initiate such proceedings as a way of pressuring their rivals into taking particular political positions. Similarly, politicians may use court cases as bargaining chips in political negotiations. For example, parties that lost an election may lodge election petitions in court as a means of pressurising the winners to accommodate them in Government. Both civil and criminal cases can have a direct relationship to politics. The following table illustrates the political significance of a wide range of cases, including those in which the Judiciary was ostensibly only contributing to the enforcement of criminal law.

Table 3: Impact of Criminal and Civil Cases on Politics

Name and Facts of Case Impact on Politics

Criminal Cases

Chihana v Republic (1992): A leader of an The prosecution of the Opposition leader opposition movement who made an anti- helped the ruling party’s efforts to weaken Government statement was found guilty of the Opposition’s campaign for a multiparty sedition. system of Government.

The case enabled the new Government to Republic v Kamuzu Banda et al (1995): portray its predecessor as a violator of Former President of Malawi, Kamuzu Banda, human rights. On the other hand, President was prosecuted for conspiring to murder four Banda’s supporters used the case as a focus political opponents during his term of office. for their campaign to oppose the new The jury found the accused not guilty. Government.

Republic v Mwawa (2005): The ACB The case portrayed the Government as prosecuted a minister in the Government that serious about its anti-corruption efforts and had come to power in the 2004 elections for even-handedness in its enforcement of anti- abuse of power. corruption laws.

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Civil Cases Aleke Banda v Robert Dangwe (1993): A Through the case, the Opposition leader leader of an opposition political party portrayed the campaign by the ruling party as successfully sued a member of the ruling being dishonest and unfair. party for defamation because the latter had said the former was a thief. The remarks had been made in a speech during an election campaign rally. Nthani v Regional Elections Coordinator The case served as a means for party (MCP) (2004): A member of a political party members to protest the attempt by the who had lost in the primary elections regional leadership to impose its preferred requested the court to declare that the candidate despite the wishes of the majority primary elections had not been free and fair. of the local party membership. However, he did not follow up the case to its final conclusion and contested the election as an independent candidate.

Kanjira v United Democratic Front (2004) A potential parliamentary candidate sued his own party arguing that it had held unfair primary elections. He later withdrew the case following negotiations with the party. His court action provided him an advantage in those negotiations.

The few cases outlined in the table above indicate that any type of case can have political significance even if it appears to be aimed at addressing a non-political issue, for example a crime. The political impact may arise unintentionally as a consequence of a regular court case, but may also be the result of a strategic use of the courts for political purposes. Political actors have used court action to weaken political opponents by discrediting or demoralising them or, in some cases, to enhance their own popularity. The above cases are merely illustrative. Many other cases involved a wide variety of criminal and civil laws whose application related to politics either directly or indirectly.

COMPLEMENTARY INSTITUTIONS

As was stated in Chapter 2 of this book, the Constitution of Malawi provides for a number of principles of national policy. One of the principles requires that the state should introduce measures ‘which will guarantee accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and transparency will strengthen confidence in public institutions’. To this effect, it authorises – in line with most modern Constitutions – a number of other institutions to aid the Judiciary in safeguarding the democratic process and

130 Chapter 5: The Judiciary protecting and advancing the rights of the citizens. The constitutional institutions that serve this purpose are the Ombudsman, the Human Rights Commission, the Electoral Commission, the Auditor-General, and the various public service commissions. Accountability is also promoted by an additional number of institutions that are established by laws other than the Constitution. One such institution is the ACB. The various accountability institutions are discussed in other chapters of this book which deal with matters that relate directly to the mandates of those institutions. For example, the Human Rights Commission is discussed in Chapter 2, which discusses protection of human rights as an integral part of the Constitution; public service commissions are discussed in Chapter 3 because of their role in facilitating the operations of the executive branch of Government; and the Electoral Commission is covered in Chapter 7, which discusses elections. This chapter restricts itself to a brief description of the rest of the institutions whose functions complement the accountability function of the courts, namely the Ombudsman, the Auditor-General and the ACB.

The Ombudsman

The office of the Ombudsman was established by the 1994 Constitution and the first Ombudsman was appointed in 1995. The President appoints the Ombudsman for five years and he or she may be re-appointed. The Constitution guarantees the Ombudsman security of tenure. The Public Appointments Committee of Parliament may remove him or her from office only when he or she is guilty of misconduct. The office investigates complaints on behalf of citizens regarding maladministration and abuse of power by public institutions, and then takes appropriate legal action. The Malawi Ombudsman has strong judicial powers compared to such institutions in most other countries (where their decisions usually are recommendations and not legally binding) and there have been disputes over the extent of the Ombudsman’s powers, with some arguing that it should be subject to judicial review. However, the Ombudsman is the strongest and most well functioning of the accountability institutions in Malawi. It performs a major and commendable role in providing a large number of ordinary Malawians with a cheap, effective, and speedy remedy. Thus, it contributes significantly towards easing the problems of access to justice discussed earlier in this chapter. The Ombudsman also serves as an ex officio member of the Human Rights Commission (see Chapter 2).

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Auditor-General

Almost all states, authoritarian and democratic, have a supreme audit institution, which has the responsibility for overseeing the accounts of Government institutions and state-owned companies. In Malawi, this is the office of the Auditor-General. This office existed prior to the adoption of the 1994 Constitution and, therefore, has been in existence for longer than the other accountability institutions discussed in this chapter. The President appoints the Auditor-General for a period of five years, and may reappoint him or her for a new term. The President may also dismiss the Auditor-General for incompetence or if his or her integrity is compromised. The Constitution obliges the Auditor-General to report to Parliament, through the Minister of Finance, at least once a year. Thus, the Auditor-General may provide useful information for Parliament to use in the budget process. This strengthens Parliament’s ability to hold the Executive accountable for the exercise of its powers.

Anti-Corruption Bureau (ACB)

The ACB, which has operated in Malawi since 1998, was established by an act of Parliament and is not mentioned in the Constitution. Nevertheless, it plays a role similar to that played by constitutional accountability institutions. The President appoints its director and deputy director, although the Public Appointments Committee of Parliament must confirm these appointments. Unlike constitutional bodies such as the Ombudsman and the Human Rights Commission, the ACB is a Government department. The bureau is subject to the Ministry of Justice on matters of policy, and its Minister submits the annual reports to Parliament. However, the enabling legislation provides for a certain autonomy, both in the professional exercise of functions and in terms of the management and administration of its finances.

The Role and Power of Complimentary Institutions

The various institutions mentioned above complement the Judiciary in that they have the responsibility of promoting horizontal and vertical accountability by protecting human rights and facilitating financial probity. However, it is important to remember that the Judiciary retains the primary responsibility of interpreting and applying the rules and principle of the Constitution and other laws. In this respect, the courts may review and reverse the decisions of all the complementary institutions if found to be inconsistent with the Constitution or other laws.

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Reinforcing the courts’ power of review is the constitutional provision that states that no institution can replace the power of the Judiciary.

CONCLUSION

The accountability of institutions and protection of human rights is a characteristic of constitutional democracies. In Malawi, the Constitution and other laws establish various institutions whose mandates are to protect human rights and facilitate the accountability of those who hold power. The most critical of these institutions is the Judiciary, which has the final authority to perform those tasks through interpreting and applying the Constitution and other laws. In order for the Judiciary to perform its functions effectively and to retain the trust of the public, it must act independently and impartially. The Constitution of Malawi seeks to facilitate this goal by formally declaring the principle of judicial independence, securing the tenure of judicial officials, and prohibiting the institutions that complement its role from usurping its mandate. Further enhancement of the role of the Judiciary requires addressing the lack of adequate access to the courts that most Malawians have, particularly those that are poor and live in rural areas. Nevertheless, the Judiciary makes a critical contribution to ensuring that politics in Malawi are based on principles of accountability, fairness, and civility. In addition to the Judiciary’s formal functions, the courts play an important role in Malawian politics by resolving political conflicts in a peaceful manner, adjudicating in internal political conflicts, and providing political leverage for various actors in the political arena. This role may not always be desirable and could be seen as an abuse of its true function and a misuse of its time but in the current climate the courts still provide this role for better or for worse.

Questions

1. To what extent has the Judiciary contributed to the consolidation of democracy in Malawi? 2. Is it consistent with democracy for courts in Malawi, whose members are not elected, to exercise control over Parliament, whose members are elected representatives of the people? 3. To what extent have the institutions that complement the Malawian Judiciary in the performance of its functions contributed to the enhancement of the accountability of the executive branch of Government since 1994? 4. Was it necessary for the colonial administration to establish state courts

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when Malawian societies already had their own indigenous institutions for the settlement of disputes? 5. Should the Judiciary in Malawi continue to include in its structure dispute resolution forums that are presided over by traditional authorities? 6. Should members of the Judiciary in Malawi be elected rather than appointed as is the case under the current Constitution? 7. Is there a need to expand or restrict the powers that the Constitution of Malawi grants to the National Assembly and the President to remove judges from office? 8. ‘The Judiciary’s democratic deficit’. Discuss the legitimacy of the Judiciary in Malawi. 9. Is it desirable for courts to resolve the internal disputes of political parties?

134 Chapter 5: The Judiciary References and Further Reading

Malawi Judiciary (2001), Malawi Judiciary Development Programme 2003-2008, Blantyre, Malawi Judiciary

International Foundation for Electoral Systems (2003/2004) State of Judiciary Report: Malawi/Washington DC

Gloppen, S. & F.E. Kanyongolo (2004) ‘The Role of the Judiciary in the 2004 General ’, CMI Working Paper WP 2004: 16, Bergen: Chr. Michelsen Institute Kanyongolo, F.E. (2005), ‘Courts, Elections and Democracy: The Role of Malawian Courts in the 2004 Elections’ in Martin Ott, Bodo Immink, Bhatupe Mhango, Christian Peter-Berries (eds), The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections Zomba: Kachere Series

Mutharika, P. (1996) ‘The 1995 Democratic Constitution of Malawi’, Journal of African Law Vol 40: p. 205

Mzunda, M.S. (1998) ‘The Quickening of Judicial Control of Administrative Action in Malawi 1992–1994’ in Kings Phiri and Kenneth Ross (eds.) Democratization in Malawi: A Stocktaking, Blantyre: CLAIM

Ng’ong’ola, C. (2002) ‘Judicial Mediation in Electoral Politics’ in Harri Englund (ed) Democracy of Chameleons: Politics and Culture in the New Malawi Uppsala: Nordic Africa Institute

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136 6 LOCAL GOVERNMENT

Asiyati Lorraine Chiweza

INTRODUCTION

Local Government has a long tradition. Since the 1950s, independent African states have sought to build upon the Local Government systems that they inherited from their colonial rulers. While countries have had different ideological reasons for establishing Local Government at different points in time, initiatives to reform and strengthen existing local Government systems are often made in the name of decentralisation. These initiatives have focused on how much power, authority, and responsibility local Government institutions should have; who should be the recipients of such power, authority and responsibility; and what Local Government should achieve. This chapter discusses the local Government system in Malawi in light of the nation’s experiments with decentralisation policies and initiatives. Specifically, this chapter discusses the following issues: • What is Local Government? • What is decentralisation and why is it important? • What was the nature of the Malawian local Government system in the pre- colonial, colonial, and post-colonial periods? • Since political changes in 1994, what has been the nature of and challenges for the local Government system in Malawi? • What prospects are there for a viable system of Local Government in Malawi?

UNDERSTANDING LOCAL GOVERNMENT Defining Local Government Local Government is that part of Government responsible for administering small areas of a nation. The word ‘local’ draws attention to an area where particular

137 GOVERNMENT AND POLITICS IN MALAWI people live and with which they identify. Thus, it may refer to a village, town, municipality or city. The word ‘Government’ comes from the Latin word ‘gubernator’, meaning someone who keeps the ship afloat and steers it to its destination. So Government literally means keeping a body afloat and steering it in a particular direction by its leader. Looking at it this way, Local Government connotes a group of bodies that are responsible for steering individual geographical areas in particular directions. Looking at it more broadly, Local Government is the umbrella term for all those systems appointed by Parliament to make decisions for particular sub-national areas of a nation. Local Government has therefore come to mean that citizens within a particular geographical area exercise political power either by directly influencing the policymaking process of the area or through elected representatives. According to western liberal political perspective, it is this aspect – having local Government organs which are composed of elected representatives who govern on behalf of the local people – that gives Local Government its democratic character. In Malawi, Local Government refers to that level of Government closest to the citizens where elected representatives exercise specific powers within defined areas.

Key concept: Local Government Government at the local level established by law in defined sub-national areas where elected representatives exercise specific powers on behalf of the people within those areas

Local authorities are the smallest institutions that make up the local Government system. In Malawi those institutions are called assemblies. Although local authorities vary from country to country, each local authority has defined powers, responsibilities, jurisdiction area, and citizens. Only the amount of power, responsibility, and autonomy granted to the local institutions varies from one system to another.

Key concept: local authorities The smallest institutions that make the up the local Government system which have defined powers, responsibilities, and a specific jurisdiction area.

Creech Jones, writing on African Local Government during the colonial period, recognised the difficulties of defining the terms ‘local authority’ and ‘local government’ because in some cases and during some periods in the history of

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African countries such terms referred to native authorities (chiefs) and in some they concerned democratic elected councils. These difficulties also complicate this chapter’s discussion of Local Government in Malawi, in which the term Local Government is used for a body of chiefs (indirect rule) during the early part of the colonial period and bodies of locally elected councillors (direct rule) after 1998.

Defining decentralisation

The process of creating local Government institutions entails some transfer of responsibilities and power from Central Government to local institutions. This process is called decentralisation.

Key concept: decentralisation The transfer of power and responsibility from the Central Government of a state to various offices and institutions at the local level of a state

Decentralisation is closely related to the concept of subsidiarity which states that the most effective form of governance of any organisation is when authority for decision-making is located as close as possible to where actions take place. This means that functions need to be devolved to the lowest level of the social order that is capable of carrying them out.

Key concept: subsidiarity

The concept of a central governing body allowing its member states, branches etc to take decisions on all issues best dealt with at subsidiary level

The form of decentralisation a country adopts determines the nature, system, and operations of Local Government in a country. Academically, it is common to distinguish between four different forms of decentralisation: deconcentration, delegation, devolution and privatisation. We look at each one in turn. Deconcentration This means the redistribution of administrative responsibilities within Central Government. It is intra-organisational entrustment in the sense that it relates to the transfer and shifting of some amount of administrative responsibility to local branches of Central Government ministries and departments outside the national capital. These branches are local administrative extensions of Central Government

139 GOVERNMENT AND POLITICS IN MALAWI and they are primarily accountable to Central Government although they may have some downwards responsibility built into their functions. The primary objective of deconcentration is efficiency and effectiveness of the central administrative system. An example of such a branch of Central Government in Malawi would be the district education offices or district health offices as they were before the 1998 decentralisation policy, which specifically carried out Central Government educational or health policy at the district level. In this case, staff members in the district offices are accountable to their parent ministries at the central headquarters and the ultimate decision-making authority rests with the parent ministry.

Delegation This refers to the transfer of managerial responsibility for specifically defined functions to lower levels of Government and other organisations that are outside the regular bureaucratic structure of Government. These may include organisations such as public enterprises also commonly known as parastatal organisations, or statutory corporations. These organisations are semi-autonomous and are indirectly controlled by the state in the performance of their functions. In Malawi, examples would include the , Agricultural Development and Marketing Corporation (ADMARC), Electricity Supply Commission of Malawi (ESCOM), Malawi Housing Corporation (MHC), Malawi Telecommunications Limited and all those organisations that bear the registration number marked by SC (statutory corporations). In most cases the services that such corporations provide are useful public services that would not be efficiently run by the Central Government itself and would not be cheaply provided by the private sector.

Devolution This is the transfer of authority and responsibility to specially created or strengthened sub-national units of Government that are autonomous and independent and have a legal status that makes them separate or distinct from Central Government. It involves vesting discretionary political, administrative, financial, and legal decision-making powers to plan and manage public functions and services in locally elected bodies. In most cases, local Government institutions, whose members are elected by the local inhabitants, have been considered the appropriate domain of autonomy and key recipients of devolutionary powers. These elected members represent the interests of the local inhabitants and through them local people are able to participate in decisions affecting them in the area in which they live. The primary objective for devolution is improvement of local public service delivery through political popular participation and empowerment.

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Privatisation This refers to the permanent transfer of responsibility and powers from Government to any non-state entity such as individuals; corporations; and non- governmental organisations (NGOs) and other non-profit making organisations such as religious bodies. These entities undertake to provide a public service either for profit as may be the case with an individual or corporation or for no profit as would be the case with an organisation such as an NGO. In effect a private organisation takes over the responsibilities of Government to provide public services, such as private clinics, schools, or building schools or implementing other development projects in the local areas such as water or agriculture projects. Although academics in the past have identified privatisation as a form of decentralisation, other scholars now argue that privatisation should not be considered as a form of decentralisation because it operates on an exclusive logic rather than an inclusive public logic of decentralisation. This is because in privatisation, the transfer of powers and responsibility is horizontal from public to private and not downward from the Central Government to lower levels within the public sector. These four classifications represent systematic attempts to deal with a central question of governance as to where power and authority should be located. In practice, however, there is rarely a pure form of decentralisation. Very often decentralisation programmes manifest hybrid forms of devolution and deconcentration. When we look at the history of Local Government in Malawi, we can see elements of both deconcentration and devolution featuring at different points in time. However, since 1994, the emphasis on decentralisation and local Government reforms has shifted from deconcentration or administrative decentralisation to devolution/political decentralisation. In particular it is being termed as ‘democratic decentralisation’, popularly heralded by the slogan ‘mphamvu ku wanthu’ which literally translates as ‘power to the people’.

Types of local Government authorities

Local Government authorities may be constituted on a single level or on multiple levels. A single tier local authority has a single level of local authority with corporate status such as owning property, discharging legal duties, employing staff and is responsible for all local Government functions within that area, such as a whole district or town. It may delegate some duties or consultative rights to sub- organisations or committees at village or area level but the organisations at that level are not local authorities in their own right. This is the system of Local Government that Malawi has legally adopted.

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A multi-tier local authority has several levels of authorities within one area. More than one local authority operates in the same area. If we take the example of a district, a multi-tier local authority would have a local authority at the district level and sub-authorities within the district at the area and village level. Each level of authority would have corporate status. Usually, the local authorities are arranged in a hierarchy and each authority would have specific functions and mandates but are designed to complement one another for the benefit of the particular geographic area within the district, with the district-wide local authority having the overall mandate for the entire district. Examples of this system operate in countries such as Ghana, Uganda and South Africa.

Rationale for Local Government Creating local Government institutions can achieve a variety of objectives, many of which are listed as desirable in state constitutions, acts of Parliament and policy documents. Most of these objectives are assumed to be beneficial in theory, but whether, when, and where these objectives actually materialise are questions which need to be investigated within each respective state or country. Among the possible benefits are the following:

• Political education: Local Government provides an avenue for prospective political leaders to develop skills in such areas as policymaking, conflict resolution, and allocation of resources at the local level, which could result in improving the quality of national politicians if they go on to be elected in the national elections. • Participation and democratisation: Local Government provides a way of spreading political power from the national to the local level, enabling local communities to have a voice, influence the decision-making process in their areas, and exercise control over their representatives and bureaucrats. Governance is democratic at the local level to the extent that people are able to influence the decisions most likely to affect them. • Accountability: Local Government promotes accountability by being closer and more accessible to the population whom it represents. People are more able to follow the policies and outcomes of their local leaders than those of distant national leaders. Similarly, by voting at local elections the population has a unique opportunity to register its satisfaction or dissatisfaction with local representatives’ performance. • Efficiency and Effectiveness: Local Government promotes efficient and effective service delivery since it has superior knowledge of local circumstances. As Local Governments are able to make specific plans for

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their areas, there is likely to be better matching of supply and demand for local public goods than would be possible through Central Government. • Development and poverty reduction: Local Government provides a way to reduce poverty through efficiency, participation, and democratisation. With greater participation and local democracy, activities of Local Governments can be geared towards local needs and aspirations. Greater participation leads to more relevant planning processes and delivery of more useful local services that are congruent with the needs of the locality. Poverty reduction can be a positive outcome of such participation.

Objectives of Local Government in Malawi

Local Government has gone through different stages in Malawi’s history. Despite different emphases over the years, the overriding objective of Local Government has remained that of efficient and effective service provision. Currently the major objective of Local Government in Malawi, as provided for in the Local Government Act of 1998, is to further the 1994 constitutional order based on democratic principles of accountability, transparency, and participation of people in decision-making and development processes. A detailed analysis of the objectives of each period of Local Government in Malawi is discussed in the following section.

THE HISTORY OF LOCAL GOVERNMENT IN MALAWI

The present system of Local Government, its operations, and associated problems have a long history, and they can be traced back to the way such systems originated and operated during the pre-colonial, colonial, and post-colonial periods. Each successive system of Local Government in Malawi has built upon its predecessors. Therefore, an understanding of this background is useful to understand the present situation.

Pre-colonial period

Prior to the colonial period of the 1890s, local governance was mainly through traditional authorities and it was based on traditional clan and tribal loyalties that were bound by strong socio-cultural affinities. Appointing a person to chieftaincy followed a family inheritance system and it was never questioned because of its basis in ancestral lineage. This period used a form of democracy by delegation: the

143 GOVERNMENT AND POLITICS IN MALAWI chief had counsellors who were representatives of different interest groups in the chief ’s jurisdiction. When decisions were to be made, these counsellors held discussions with the people they represented and took these views to the chief who would make the final decisions. People’s views and interests were respected and this gave authority, power, and respect to the chief ’s rule. Communities analysed problems and planned and implemented their own development undertakings, usually without external intervention.

Colonial period

The colonial period saw a number of steps taken towards the introduction of a single tier system of Local Government made up of urban and rural authorities. At the beginning of colonial rule, the British made a deliberate decision to crush the supremacy of the chiefs’ rule in order to consolidate the . They divided the country into districts and used civil servants to govern. At the top of the hierarchy was the Governor who represented the British Empire, below him was the Regional Commissioner and further below was the District Commissioner (DC), popularly known as the ‘District Resident’. The DC was the executive head of all Government services at the district level and had control over all aspects of local administration, police, security, justice, and finance and tax collection. By 1903, the colonial Government realised that this arrangement was problematic because, apart from the collection of taxes, it was not possible to administer the country without the aid of the chiefs because of the small number of DCs that had to look after large areas demarcated as districts in a country where communications were difficult. (There were a much smaller number of districts than there are today.) However, the colonial Government was uncertain as to how much power it should grant back to the chiefs.

Key concept: ordinance An authoritative order or act of Parliament during the colonial period

After contemplating the difficulties, the British administration passed a District Administration (Native) Authorities Ordinance in 1912 that incorporated the chiefs into the administrative structure. Under this ordinance, the DCs demarcated the districts into sections, each under the charge of a principal headman. These sections were further subdivided into groups of villages, each under the charge of a village headman. The principal headmen were incorporated into the administrative structure as executive agents of the Government administration. Their responsibilities were to collect hut tax, maintain law and order, report village

144 Chapter 6: Local Government deaths, and construct roads along with any other such functions as demanded by the colonial Government. Although the aim of the colonial Government in passing this 1912 ordinance was to formulate a subsidiary Local Government in the districts that would be chosen and manned by the people themselves under the supervision of the DC (or District Resident), the principal headmen were not always hereditary chiefs as chosen by the people themselves following the traditions of their tribes. Some were indeed tribal chiefs but many were persons of good standing with the colonial Government, who were favoured by the DCs because they had assisted them in administrative matters before. In some districts, the past record of the chief caused the DCs to have a preference for appointing these ‘selected’ personnel as opposed to the tribal chief. A series of other ordinances that the British passed between 1933 and 1960 led to the modification of the local administration system of 1912 and gradually introduced elements of Local Government. The emphasis of the ordinances was on rural areas since there were no sizeable urban African populations then. However, some legislation pertained to the urban areas. These ordinances are listed below:

1933: the emergence of powers of legislation and taxation The 1933 Native Authority Ordinance introduced indirect rule. Under this provision, chiefs gained considerable power so that emphasis shifted from principal headmen to native authorities. The native authority was defined as ‘any chief or other native or group of natives declared to be established as a native authority, and a chief was defined as any native recognized as such by the Governor’. These native authorities had the same duties as the principal headmen, as well as two other major powers introduced in this ordinance: c. They could issue minor legislation to provide for peace, order, and the welfare of Africans. d. They could also establish treasuries for financial management; levy rates, dues, and fees as taxation; and have responsibility for public funds with which to develop their areas. They had six sources of funds: a share of the hut and poll tax, fees and fines collected from African courts (courts that dealt with issues of Africans presided over by chiefs), land rentals (25% on lease fees in native authority areas), proceeds of ivory sales (in areas where native authorities could kill marauding elephants), local fees and dues, and small grants in aid from the Central Government.

The result of this was that several departmental functions were gradually transferred to these authorities, such as maintaining village water supplies, protecting crops, keeping up travellers’ shelters, collecting cattle dipping fees,

145 GOVERNMENT AND POLITICS IN MALAWI controlling floods, and recruiting midwives. However, the DC, who was the official supervisor of the native authorities, strictly controlled their powers. Complaints grew of the lack of contact between chiefs and the people. The chiefs kept close contact with the district headquarters but very little with their rural areas.

1938–47: Emergence of district councils of chiefs Gradually the colonial Government began to realise that the native authorities alone were not as effective as they had hoped and encouraged the formation of councils both to assist individual native authorities and in order to join together native authorities from the whole district. As a result, all native authorities in each district were joined to form a council of chiefs, with one district treasury and with powers to make district-based legislation. These councils of chiefs stood above individual native authorities as a decision-making body. The councils not only included native authorities, but their counsellors to the chief (nduna za mfumu) and also prominent members of their community whose knowledge or experience in education, social work, or commerce would assist the council. However, the colonial administration did not take a direct and active part in the selection of the council members but left this to the discretion of the chiefs. Therefore these councils comprised only of hereditary and appointed members and did not have any elected membership. The colonial administration also encouraged the development of section and village councils below the native authority councils because, in the early 1950s when local administration became complex and burdensome to village headmen, they became less able to cope with demands placed upon them. Therefore the section and village councils aided the village headmen and assumed an important role in local administration. 1953: Establishing statutory rural district councils In December 1953, following a detailed enquiry into the native authority councils in Malawi which looked at their areas’ economies, financial resources, staff conditions, responsibilities, and methods of representation, the British enacted the Local Government (District Council) Ordinance, which provided for establishing statutory formal district councils. According to the Secretary for African Affairs in the colonial Government, three criteria for developing the statutory councils had emerged from previous experiments and failures: • Firstly, the main units of Local Government had to dispose of adequate funds, engage capable and efficient staff, and command the best services in the councils and in their committees. • Secondly, the main units of Local Government had to have subordinate authorities close to the people.

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• Thirdly, the main units of Local Government needed to be truly representative to command the respect and confidence of all the people in their area. The result of this ordinance was that: • Rural district councils replaced the native authorities as local Government units. They took over most of the local Government functions and responsibilities of the native authorities. However, the ordinance provided that native authorities would still exist but were to be subordinate to the district councils. • These rural district councils had control over native authority finance and legislation, but the native authorities retained their function as agents of the Central Government in maintaining law and order. • Chiefs ceased to be the sole instruments of Local Government, either as native authorities or as part of the councils of chiefs. Within the new councils, chiefs, on average, constituted only one third of the membership. • Other people who were considered prominent members of their communities were included in the councils. These ‘commoners’ became members at the invitation of the DC or through the reference of chiefs. • DCs became chairpersons of the councils. A number of difficulties emerged in the working of the new ordinance. Firstly, there was lack of clarity on the roles of native authorities and the functioning of the district councils and this created confusion in the minds of chiefs and some Government officers leading to frustration, procrastination, and in some cases evasion of responsibility. Secondly, the native authorities had a special relationship with the Central Government in maintaining law and order which had developed ever since chiefs were included as part of the colonial Government’s administrative structure. Key nationalist leaders at the time such as Dunduzu Chisiza were of the view that the colonial Government was manipulating this relationship to prevent national politicians from gaining the support of the people because all over the country the rule to ban African political meetings had identical wording. In other words, the order was perceived by the nationalists to be a directive from Central Government to hamper the progress of national politicians in communicating with rural communities to advance their cause.

1960: Separation of rural Local Government district councils and native authorities Because of the ensuing problems, in May 1960, further legislation was enacted to amend both the Local Government (District Councils) and the Native Authority Ordinance. The following changes were made:

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• The native authorities were no longer subordinated to district councils. • District councils lost their powers to make bye-laws for good rule and Government and had their specific powers reduced. Their role was reduced to that of service provision only. • District councils lost control over native authority and African court finances and became a direct charge on the Central Government account. This entailed loss of revenue for the district councils and the colonial Government compensated for this by introducing an annual fixed grant known as the equalisation grant. • The native authorities were now responsible for: • acting as agents of the Central Government as its link with the African people; ✡ maintaining law and order locally; ✡ allocating rights to use trust land; ✡ administering justice through African courts.

Development of urban Local Government The British enacted separate ordinances to ensure that the emphasis of urban Local Government was on Europeans and other settlers and not Africans. The first legislation was the Townships Ordinance of 1931. It provided for the constitution of townships and provided for the election of a township council. It had the following features: • The Governor nominated its members (although practice varied from one town to the other, with others nominated by the Europeans and settlers themselves). • It was allowed to levy a rate on land and buildings. • It provided a wide range of services in commensurate with their finances. • It did not deal with judicial cases of African residents – only cases relating to Europeans and the other settlers. • It was not given a priority of providing social welfare for Africans, but rather for colonialists and the other settlers such as Asians.

The following are examples of the composition of urban Local Governments in selected towns: • Lilongwe had nine nominated members: six European officials, three European non-officials and three Asians. • Zomba had 10 nominated members: six officials, two European and two Asian non- officials. In 1949 one African was nominated as a member. • had four nominated counsellors with the DC as chair.

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• Blantyre had 12 elected members, three of whom were Asians, the rest European.

From this background, we can see that the development of dual distinct systems of local Government to cater for urban and rural areas was mainly propelled by racial segregation. The result of all these ordinances was that by the time Malawi became self- governing in 1961 its system of local Government was based on the English model with the following attributes: • A single tier system of urban and rural local Government councils that differed widely in size, scope of responsibility, financial sources, turnover, and quality of staff. • Powers and responsibilities that included involving local Government in a range of infrastructure services, such as local education, roads, public health, and sanitation. • A well-defined local tax system and the beginning of property tax in major urban areas.

Post-colonial period

Local Government in Malawi during the post-colonial period varied widely, best described by Phillip Mawhood as a ‘swing of the pendulum’. Political circumstances determined much of the reform efforts during this period. Therefore, the various stages deserve to be examined separately.

1961–1965: The move to popularly elected local Government councils When Malawians gained control of Central Government, they reformed the system of local Government inherited through the Local Government (District Councils) Amendment Ordinance of 1961, by: • Establishing statutory district councils in all rural districts. • Introducing popular election of a majority of members of district councils. • Barring chiefs from becoming members of the council as a right and reducing their status to that of ex-officio members so they had no voting powers. DCs were no longer chairpersons of district councils; instead, council chairpersons came from amongst the locally elected councillors. However, because of their experience and knowledge of local Government areas, the DCs were asked to play a part in guiding the council and its staff. • Replacing the Townships Ordinance with the Local Government (Urban Areas) Act.

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In terms of service provision, the district councils assumed all the responsibilities of the pre-independence councils; in particular, councils became responsible for education and public health – functions that were formerly under the control of the DC. The councils played an important role in providing public health, building rural dispensaries, and operating maternity clinics. They were also responsible for supervising markets, water supplies and slaughterhouses, and building and maintaining roads, bridges, and ferries in rural areas. In addition to these major functions, local Government authorities also operated postal agencies, provided community centres, libraries, sports grounds, home craft centres, and adult literacy classes. Urban councils also provided other services such as street lighting, fire brigades, and sanitation services. Councils during this period enjoyed a healthy status and were respected by Government. They raised adequate revenues from fees, taxes, dues and poll tax. In addition, Government gave them adequate grants. Councils provided a range of services to communities. For example, the councils, using their resources, were able to support almost 60% of self-help projects’ capital expenditure and 95% of self- help projects’ regular expenditures. Councils were popular institutions respected by the local community and enjoyed the confidence of the public. Accordingly, local residents were willing to pay appropriate council fees, rates and dues. In the history of local Government in Malawi, this brief period is considered the golden period of local Government because the councils: • were adequately funded by the Central Government; • provided many public services and were close to local people and their problems; • were democratic because all councillors except for chiefs were popularly elected; and • were efficient because the local Government officers and the experienced colonial DCs still exercised close supervision of the local Government institutions. 1965–1993 Weakening of the local Government system During the early part of 1965, after Malawi became independent in 1961, local Government performance began to deteriorate. Two factors contributed to this decline. Firstly, new DCs were recruited to replace the experienced expatriate Commissioners. These new DCs lacked direction and did not provide adequate control of the system. The Government’s view was that the inefficiency of many councils was a reflection of the detachment of certain DCs and their relaxation of control over district councils. The other factor was the inexperience of the new councillors since the former, experienced councillors were not elected, as they were widely perceived by the nationalist Government as ‘colonial stooges’. Thus for a brief period, corruption became a danger in the local Government system.

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Consequently, Central Government began to exert more control over the local Government councils. They passed several pieces of legislation that had a direct effect on the autonomy of the councils. • In 1965 the Minister of Local Government was given the power to remove the clerk of council, treasurer of the council, or any other employee of the council for any reason, including incapacity, negligence of duty, misconduct, or poor attitude, without having to consult the council. • In April 1965 any elected council member representing a Malawian political party had to vacate his or her seat if he or she left that party. • In 1966, when Malawi became a one-party state, political control of the Local Government council’s elected members was given to the ruling party. All the councillors had to belong to the party and became ex-officio members of the area committees of the party. The ruling party not the people elected members to local councils, thus reversing the principle of representative local Government. • In 1967 elected members could be replaced by nominees of the local branches of the Malawi Congress Party (MCP), approved by the party headquarters and the Minister of Local Government. • In 1967 civil servants were appointed to run the affairs of the Local Government councils. Government had the power to appoint a civil servant supervisor of any council to take over the duties of the clerk to the council. All senior posts in the Local Government councils, including finance officers’ posts, were taken over by civil servants. In addition, the environment within which Local Government councils operated at the time became less conducive to effective performance particularly with respect to rural Local Government. Firstly, while previously the councils were the only body at the local level responsible for service provision, the picture changed when other committees outside the Local Government system moved in to share the field, in particular the district development committees (DDCs). DDCs were introduced in 1966 as the main instruments for securing rapid local development throughout the country. They formed a parallel structure at the district level that resulted in duplication and competed with the Local Government institutions for resources. In operational terms, these committees received the lion’s share of Government resources, gaining all donor funding and political support formerly channelled to representative Local Government institutions. Initially, when the Minister of Development and Planning put the idea of the DDCs forward, the Secretary for Local Government insisted that these committees should be committees of the district councils, but this idea was rejected due to the ineffectiveness of the councils.

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At the local sub-district level, the implementation of the DDC system mainly relied on traditional institutions of chiefs (TAs) and not Local Government councillors. After independence in 1967, a chiefs’ act was introduced which abolished the title and position of native authorities in favour of TAs. Under this act TAs had no powers to make rules or issue orders and they were to function as stand-alone persons. However, in terms of their functions as listed in the act, the chiefs became integrated as an administrative extension of the state and had to continue to maintain law and order and to cooperate with the party and the DC. The hierarchical arrangement of chiefs that had evolved during the colonial period was formalised in such a way that it comprised the village headman at the lowest level who headed a village, then group village headman (GVH) who was in charge over a collection of villages. Above the GVH was the sub-chief who had responsibility over a number of group village headmen in places where that position existed. Next was the TA who was made in charge of sub-chiefs or group village headmen and operated on a larger territorial administrative scale. At the most senior level was the senior chief who had responsibility for a number of TAs. The only exception to this hierarchical structure was with regard to the Ngoni of both the North and Centre who had at the top the Paramount Chief known as Inkosi ya makosi with his/her advisors. Following this hierarchy, the DDC system enlisted traditional chiefs through the office of the DC to mobilise their jurisdictions for work. The chiefs were made chairpersons of area and village action groups as well as being members of the DDC itself. No clear role was spelt out for Local Government councillors at the sub-district level. Secondly, the implementation of the District Focus for Rural Development initiative in 1993, whose main aim was to promote people’s participation in planning and decision-making through the DDCs, further entrenched Central Government control at the local level. Although this was an innovative attempt to move the rural development process and decision-making process closer to the citizens who would then participate in decisions affecting their lives, the nature, scope, and content of the policy were however limited to the administrative provision and delivery of service responsibilities of line ministries (deconcentration) rather than emphasising the local representative institutions (devolution). Therefore the commitment of the political executive to implementing the District Focus for Rural Development Programme, with DDCs having been set up outside the Local Government councils, enhanced the standing of DDCs at the expense of locally elected Local Government councils although the councils were legally constituted. Finally, with the emergence of the one-party state, the activities of party members affected Local Government resources. For example, party officials slept in council rest houses free and used council vehicles as and when they wanted

152 Chapter 6: Local Government without paying for them. Similarly, they refused to pay rates and fees that were due to the council either for party functions or for personal use. Since the party was supreme, nobody could challenge its decisions. Although Local Government authorities were not sufficiently set up financially and politically by the Government of the time, they were still expected to deliver on the responsibilities they had acquired prior to and soon after independence. Given the fact that they had neither adequate human nor the financial resources to carry out their responsibilities, they were bound to perform badly. As councils widely became ineffective in terms of their ability to deliver services and manage their human and financial resources, Central Government began to withdraw some services formally performed by councils, reduced their fundraising powers, and controlled the appointment and management of human resources. In the end Local Government councils became unpopular and many people were not readily willing to pay their fees and rates due to perceived poor service provision. After 1994: Resuscitation of Local Government councils Due to political changes that took place in 1994, the new Malawi Government made the strengthening of Local Government institutions a priority as outlined in Chapter XIV of the 1994 Constitution. The Constitution created Local Government authorities, made them responsible for the representation of people over whom they had jurisdiction for their welfare, and gave them responsibility for: • consolidating and promoting local democratic institutions and democratic participation; • promoting infrastructure and economic development through formulating and executing local development plans; • representing local development plans to Central Government and promoting local issues to national Government; and • registering births and deaths and delivering essential and local services as detailed by the Local Government Act. The constitutional provisions only provided the legal foundations and imperatives for the creation, reform, and support of Local Government but did not stipulate the exact form the Local Government structures were to take. This necessitated a review of the Local Government Act, existing decentralisation efforts, and associated policies. This resulted in the 1998 National Decentralisation Policy that provided the basis for the 1998 Local Government Act. In this new policy, the emphasis on Local Government reform shifted from administrative provision of services to devolution or political decentralisation. As already mentioned, the term used for this is democratic decentralisation, translated into Chichewa as ‘mphamvu ku wanthu’ (‘power to the people’).

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Key concept: democratic decentralisation It entails meaningful authority devolved to local units of governance that are accessible and accountable to the local citizenry who enjoy full political rights and liberty. The major feature of democratic decentralisation is that it combines participation with accountability, i.e. the people are able to hold Local Government responsible for its actions.

From this historical background, it is important to note that in the colonial and post-colonial period of the one-party state, Local Government was mainly taken as an instrument of service provision, while after 1994 with the change to a multiparty system, Local Government was considered as an instrument of local governance, democratisation, and provision of local services. While the new Local Government system is a continuation of past approaches in some ways, it also represents a search for Local Government institutions that are genuinely participatory, and accountable to the local communities.

THE STRUCTURE OF POST-1998 LOCAL GOVERNMENT

Local Government Act 1998 Apart from the Constitution, the Local Government Act No 42 of 1998 is the principal legislation to support the implementation of the 1998 decentralisation policy. It repealed the Local Government (Urban Areas) Act of 1961 and the Local Government (District Councils) Act of 1958. It provided the framework for establishing the structure of Local Government institutions at the district level (called assemblies), and their composition, powers, functions, and financing. According to the act, the objectives of Local Government are to further the 1994 constitutional order based on democratic principles: accountability, transparency and participation of people in decision-making and development processes.

Institutions of Local Government As a result of this act, the Local Government structure is made up of 40 single tier local authorities called ‘assemblies’. Out of 40 assemblies, 28 are predominantly rural and are identical with the boundaries of the former administrative districts. Urban areas within these districts were given their own Local Government status in their own right, with the creation of city, town, and municipal assemblies. According to the 1998 Local Government Act, the power to amend the Local Government areas that designate the assemblies rests with the President and he or she may confer the title city on a municipality. Similarly, the act also mandates the

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Minister of Local Governmentt to declare any Local Government area to be a municipality or township. In structural terms, the assemblies are a mixed type of Local Government authority at the district level. Each assembly incorporates all the line ministry offices and departments represented at the district level and the former Local Government councils. In 1999, the former district administration offices, previously headed by DCs, were integrated into the Local Government system. Accordingly, the DC’s office merged with that of the former Clerk of council’s office. Table 1 below lists the names of the assemblies and their classifications by 2004.

Table 1: List of Local Government Assemblies as at December 2004 District Assembly City Assembly Town Assembly Municipal Assembly Balaka Balaka Blantyre Blantyre Chikwawa Chiradzulu Chitipa Dedza Dedza Dowa Karonga Karonga Kasungu Kasungu Likoma Island Lilongwe Lilongwe Liwonde Luchenza Machinga Mangochi Mangochi Mchinji Mwanza Mzimba Mzuzu Neno Nkhatabay Nkhotakota Nsanje Ntcheu Ntchisi

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Phalombe Rumphi Salima Salima Thyolo Zomba Zomba

Source: MLGRD and 1998 National Population Census The average population of the district assemblies is 321,503 with the largest being Lilongwe District Assembly with a population of 905,889 and the smallest being Likoma District Assembly with a population of 8,074. The average population of the city assemblies is 343,168, with the largest being Blantyre with a population of 502,053 and Mzuzu being the smallest with a population of 86,980. In terms of the eight town assemblies, the average population is 19,570 with the largest being Karonga with a population of 27,811 and the smallest being Luchenza with a population of 8,842.

ASSEMBLIES

Composition

As mentioned above, the political structure of Local Government provided for under the Local Government Act of 1998 is a council currently known as an assembly.

Key concept: council A body of people elected or appointed who are called together for consultation, deliberation, and discussion vested with some decision-making powers.

The assembly, in legal terms, is the body corporate having perpetual succession, a common seal, and the power to sue and be sued. It is the local authority upon which the Government has laid powers and duties prescribed under the Local Government Act. According to the Local Government Act 1998, the assembly consists of members whom citizens have elected through Local Government elections. One member is elected from each ward within the Local Government area. A full-time person elected from among the elected members for a term of five years heads the assembly as chairperson. In the urban assemblies, this chairperson has the title of mayor, whereas in the rural assemblies, the person is referred to as the chairperson of the assembly.

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The assemblies also have non-voting ex-officio members that include TAs and sub- traditional authorities (STAs), members of Parliament (MPs) from constituencies that fall within the Local Government area and five other persons appointed by the elected members to cater for special interest groups within the district as determined by the assembly. These special interests represented in the assembly serve to broaden democratic participation.

Functions

The assembly as a body corporate is responsible for policy formulation and the promotion of good governance principles such as accountability, transparency, and citizen participation in decision-making. The actual work of the assemblies falls into two categories: • Exercising powers and duties to provide a wide variety of services; • Making bye-laws to enforce decisions.

The 1998 act gives a comprehensive list of the functions of local authorities and provides for some which are mandatory and for others which are permissive which local authorities may provide or not as they wish or as their resources allow. It is not possible to reproduce all of the functions here, however some of the main ones include: • To make policy and decisions on local governance and development for the Local Government area; • To consolidate and promote local democratic institutions and democratic participation; • To promote infrastructure and economic development through the formulation, approval and execution of district plans; • To mobilise resources within Local Government area for governance and development; • To make bye-laws for the good governance of the Local Government area; • To maintain peace and security and perform other functions essential in the delivery of local services.

An important point worth noting in the provisions of this new act is that unlike the colonial and post-colonial one-party periods, the legislation does not distinguish between rural and urban assemblies in terms of their duties, powers, and responsibilities. In practice, however, the assemblies’ urban or rural characteristics influence their functions and ability to finance such functions.

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Assembly committees

As was the case previously, under the current Local Government system the assemblies work largely through committees. Some committees are compulsory and the Local Government Act 1998 has specified those that must be appointed, such as committees for finance, development, education, works, health and environment, and appointments and disciplinary matters. In practice, due to the lack of financing, in the majority of assemblies only the finance and development committees are operational and are able to meet and deliberate on important issues. The rest of the committees are not functional. The act has also given full discretion to the local authorities to establish other service committees at the Local Government area level either permanently to deal with regular business or from time to time to deal with special issues as they see fit. With these discretional committees, assemblies have the freedom to co-opt members who are not councillors to attend any meetings of these committees and take part in deliberations. However, such persons are not entitled to vote. With the exception of borrowing money, and making bye-laws, standing orders and levying rates, the assembly may arrange to discharge some of its functions through committees. The committees may make decisions and report to the whole assembly instead of merely making recommendations to the assembly. Unlike the colonial period where the colonial Government gave guidance on establishing sectional and village councils, the 1998 act has not specified the form of committees or structures below the district level; that is, at ward, area, or village level, and it has left this to the discretion of each assembly. Such structures have also not been clearly constituted in the urban areas. In the rural assemblies however, the Local Government District Planning System currently recognises village development committees (VDCs) and area development committees (ADCs) as basic structures for planning and promoting participation at the local level. According to the revised District Planning Handbook, the VDC is to be made up of: one elected member from each village covered by the VDC, the councillor of the ward in which the VDC is located, four women representatives nominated by people within the VDC and an elected worker. The ADC is a representative body of all VDCs under the jurisdiction of the TA. The committee’s membership as stipulated in the guidelines comprises of chairpersons and vice chairpersons of the VDC, elected Local Government representatives, representatives from the business, religious/faith, youth and women groups and the chairperson of the area executive committee. The guidelines also specify that the TA and the GVH should not chair these committees, and that members should elect a chairperson from among themselves.

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In practice the constitution of these committees varies from district to district and from community to community. Except for communities that have the presence of NGOs, in most districts and communities the VDCs are made up of village chiefs and rarely take into account the gender considerations provided by the planning guidelines. Contrary to the guidelines, both the VDCs and ADCs continue to be chaired by the GVH and TA respectively and traditional chiefs continue to influence and have power over the local environment and yet the provisions of the 1998 Local Government Act emphasises the role of locally elected members as representatives of the people in the local governance and development processes. The continued existence of the old DDC structures such as VDCs and ADCs below the district has revived the old question that dominated the previous systems: that of chiefs and their role in Local Government. It has also raised a number of issues such as: • Role confusion of the key stakeholders at the local level in terms of who is responsible for what especially between the locally elected councillors and the chiefs; • The whole question of the extent to which chiefs can promote democratic participation and the extent to which chiefs can be accountable to local communities given the amount of power and respect they wield in their communities. In many places, the chief ’s word is final while the whole essence of democratic decentralisation is to have communities who are empowered in such a way that they can begin to demand accountability from their leaders in the delivery of services; • Whether such committees would facilitate the achievement of the current objectives of Local Government of both governance and development given the fact that the initial orientation of such committees as they were originally created in 1966 was towards promotion of self-help activities and enlisting support of Government approved programmes especially in the field of agricultural orientation.

Duties of councillors

Local Government councillors are elected for a term of five years under the Local Government Elections Act 1996. The councillors themselves elect mayors, chairpersons and their deputies for a five-year term. The qualifications required for standing for election are specified in the Local Government Elections Act 1996. The requirements include that candidates seeking election as councillors should be able to read and write English and should not hold several public offices or appointments simultaneously. Since the enactment of the Local Government Act

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1998, the only local elections were conducted in November 2000, and the councillors elected finished their term in 2005. At the time of writing no local elections have taken place. Based on the Constitution, and the 1998 Decentralisation Policy and Local Government Act, Local Government authorities, in this case assemblies, have responsibility for the representation of the people over whom they have jurisdiction for their welfare; for the promotion and consolidation of local democratic institutions and democratic participation; for the promotion of infrastructural and economic development, for mobilising resources within the Local Government area for governance and development; and such other functions. By extension we can assume that the main duty of Local Government councillors, as key voting members of the assemblies elected by the people themselves, is to carry out those functions as stipulated by the act. However, the only functions that are specified in the Local Government Act 1998 are that councillors should meet frequently, serve on committees and sub-committees, and make decisions on assembly policies and plans. The Local Government Act does not specify the attendant obligations and operations of Local Government councillors, given that some functions had been relegated to TAs before the election of the councillors. The act does not also give a measure of performance or provide for mechanisms for removal from office of individual elected members should they fail to perform. Therefore, apart from what is contained in the act regarding responsibilities of Local Government authorities, there is nothing that explicitly clarifies the obligations of councillors at the community and assembly level, which contrasts with other countries pursuing similar decentralisation efforts. However, traditionally the duties of councillors are distinguishable from those of MPs and may be summarised as in Table 2 on page 161. As representatives of their respective wards, councillors’ work also entails travelling for interaction and consultation with the electorate within their respective wards. This naturally raises the issue of remuneration and financial support to enable councillors to carry out their responsibilities. A review of three key players’ selected allowances and remuneration over a four-year period from 2000 to 2004 (as depicted in Table 3) reveals that, while remuneration for chiefs and MPs was revised upwards in 2004, rural Local Government councillors’ allowances were not and remain on the low side.

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Table 2: Duties of Local Government Councillors and MPs

Duties of Local Government Councillors Duties of MPs

To represent the people of their wards in the To represent the people of their constituency local district assemblies and bring to the local in Parliament and bring to the national forum forum the local concerns that require Local the local concerns that require national Government solutions, e.g. community solutions such as resources or legislation projects such as boreholes.

To mobilise local support for local To mobilise national support for local development and bring to the attention of the development on behalf of national leaders in MPs those matters that require national pursuance of national development goals solutions and Central Government where such matters cannot be contained within the DDPs. .

To initiate and contribute to debate in the To initiate and contribute to debate in local district assemblies on local Parliament on national issues such as the development matters and management of making of national laws and advocacy for the district assemblies’ resources. human rights

To provide a systematic check on Central To provide a systematic check on Local Government expenditure and service Government expenditure and service delivery and demand accountability and delivery in the district, ensuring transparency. accountability and transparency.

To receive at the district assemblies all To scrutinise proposed national budgets, proposals for the DDP and scrutinise the and make sure resources are allocated in proposals and pass the budget. priority areas before passing bills.

To ensure an equitable system of distribution To ensure an equitable distribution of of resources amongst all wards and ensure national resources amongst all the districts an even spread of development amongst all of Malawi ward

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Table 3: Selected Allowances and Remuneration as of 2004

Councillors MPs TAs

2000/1 2004 2000/1 2004 2000/1 2004

Basic pay/month None None K12,000 K87,000 K1,863 K3,000

Same Ward or constituency rural/urban K1,000/ K30,000 K47,000 None None as allow-ance/month K5,000 2000/1

Assembly or Parliament sitting K1,000 K1,000 K6,000 K8,000 K1,000 K1,000 allowance/day

Motor vehicle allowance/month None None K20,000 K67,000 None None

Source: MLGRD and National Parliament Office

Due to these small allowances, many councillors became disillusioned and were unable to carry out their roles due to financial constraints. For those councillors that had to relinquish other public appointments, many struggled to secure a livelihood for their families given the voluntary nature of their work. Consequently many Local Government councillors were frustrated and focused more on their businesses and devoted little or no time to their communities and the affairs of Local Government. As a result close links did not exist between the elected representatives and the citizens they were supposed to serve. This is similar to the early experience with village councils in the 1950s where the introduction of such councils faced problems because members showed no great enthusiasm for unpaid service and were more concerned with finding food for their families (Baker 1975). In addition a Review of National Decentralisation Programme of Malawi (2001–2004) also noted that the disparity in these allowances fuelled already existing tensions between councillors and MPs. Consequently, a good number of the councillors resigned. In actual figures 110 (about 13% of the total number of councillors elected in 2000) resigned and absconded between 2000 and 2004 compared with no resignation from MPs within the same period.

Local Government appointed staff

While responsibility for local authority policy and decisions should rest with the elected members, appointed staff members who are paid should actually implement the decisions made by the assembly and run the day-to-day affairs of

162 Chapter 6: Local Government the assembly. These staff members together form the secretariat of each Local Government authority. The head of the secretariat in the districts is called the DC, while in the towns, municipalities and cities; he/she is known as the Chief Executive Officer (CEO). Below them are directors who head departments called directorates such as planning and development, finance, human resources and administration. In addition, civil servants already working in offices at the district level, carrying out decentralised functions that have been assigned to the assembly such as education or health continue to do so. However, functionally they should be under the assembly and should take their ‘orders’ from councillors. Further, other staff members or officers were supposed to be transferred from the relevant sectoral ministries in Lilongwe to handle devolved functions that were not already provided at the district level. In the period up to 2004, this did not take place in many cases. There was entrenched reluctance amongst key sectoral ministries to devolve their functions and resources to the local assemblies despite such devolution being at the centre of the whole process of Local Government reform. This reluctance may be due to lack of popular awareness or understanding of the reform process and fear among politicians and Government officials of losing control over resources (Kutengule et al 2004). In terms of recruiting senior assembly staff, the Local Government Act of 1998 required that the assembly, through the appointments and disciplinary committee, appoints the CEO or DC while the 1994 Constitution made provision for an independent body called the Local Authorities Services Commission (LASCOM). Legislators amended the act in 2001 to allow for this provision in the 1994 Constitution to protect staff from being victimised by councils and to prevent nepotism. The act does not specify any other senior appointments or departmental structures, other than requiring all assemblies to establish an internal audit department. The assembly has the power to appoint persons holding posts below the grade of director. However, LASCOM has been involved in appointing people below the director grade and has compromised its independent role by appointing some senior staff with directives from political leaders. The Local Government Act of 1998 does not define the appointed staff ’s or officers’ working relationship with those elected officers (i.e. councillors), but conventions stipulate that appointed officers should advise the elected officers or committees responsible for their own field of work. Their role is also to implement council decisions loyally whether they agree with them or not. However, over the years that elected councillors were in office, misunderstandings over roles were noted, in particular with regards DCs, who have tended to dominate the process while pulling the councillors along with them. This has mainly arisen because of two major reasons:

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• Firstly, the lack of experience on the part of and inadequate orientation given to councillors. • Secondly, the struggle on the part of the DCs and other officers to break from old habits where they were used to operating with almost a free hand. Local Government finance

To finance the activities and programmes of the assemblies, the 1998 act provides several sources of revenue and does not distinguish between rural and urban assemblies. The major sources include locally generated revenues and Central Government transfers. Locally generated revenues The local generated revenues include property taxes, ground rents, business licences and fees, commercial undertakings and service charges. Government transfers These include ceded revenues and unconditional Government grants. Ceded revenues are those revenues that the Central Government collects, such as toll fees, gambling and casino fees, motor vehicle registration fees, and industrial registration, which are supposed to be transferred to the assemblies. The decentralisation policy also made a provision for at least 5% of net Government revenues, excluding debt service, to be transferred to the assemblies as unconditional grants for development purposes. These funds constitute the general resource fund. Distribution from the new general resource fund is based on national Local Government finance committee (NLGFC) formulas. However, given the demands on the Government to service other obligations, the general resource fund allocated to the assemblies has always been far below the 5% of net national revenue as stipulated in the decentralisation policy. It has also been calculated based on other recurrent expenditure (ORT) and not net national revenue as recommended by the decentralisation policy. Table 3: Central Government Transfers to Local Government Authorities

Government Transfers Total ORT Percentage

2001/02 121,793,855 11,603,343,304 1.0%

2002/03 154,882,702 14,857,726,231 1.1%

Source: Kutengule et al 2004

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Other sources of financing This includes loans and overdrafts and funding from NGOs operating in local areas, and donor financing. Donor financing has mainly been in terms of development funding channelled through the District Development Fund (DDF) or Malawi Social Action Fund (MASAF). During the early years of the development of the decentralisation programme after the political changes, international financial assistance was forthcoming, even though a few donors were cautious about the programme. However, since then there has been fragmentation of donor effort during the policy implementation phase and funding from NGOs has mainly been earmarked for particular activities.

The overall financial picture of the assemblies As shown in Figure 1 below, although all assemblies currently have access to all local sources of funds, the city assemblies display a healthier financial situation than the district or town assemblies. Inevitably, these assemblies have always been far better endowed with resources because they have always had access to property rates which constitute a major source (about 60%) of local revenue in the cities. A related aspect is that there is a concentration of business and property areas in the cities unlike in other areas. District assemblies have relied more on donor financing and Central Government grants. However, donor financing is usually conditional and limited to development activities. Locally generated revenue, although it shows some improvement, does not constitute a significant source of financing for district assembly activities. The ability of the district assemblies to raise their own resources has been limited due to the limited capacities of the assemblies to exploit their full income generating potentials and weaknesses in collection and enforcement. In addition although the act provides property rates as a source of financing for the districts, they have not been able to utilise this revenue source because, despite the passage of four years, the Central Government’s responsible bodies have not yet declared rural assemblies as rateable areas. Therefore the district assemblies cannot collect any property rates until Government declares the areas over which they have jurisdiction as rateable areas. The result is that many of the district assemblies struggle to pay for recurrent expenditures like salaries and utilities. In the towns, the figure shows that donor resources and general resource funds have not been extended to the town assemblies. Instead, they have mainly relied on local revenue which is minimal due to poor collection and enforcement mechanisms.

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Source: developed from Kutengule et al 2004

The supervision and oversight of Local Government authorities

Relationship with Central Government The Decentralisation Policy (1998) rather than the Local Government Act of 1998 spells out the relationship between Central Government ministries and Local Government authorities. It states that Central Government ministries will retain responsibility for formulating national policy in relation to the functions that have been transferred to the district assemblies. In addition it is responsible for inspecting facilities; and establishing standards, training, curriculum development, and international representation. In undertaking this, all the ministries should have a direct link with the local authorities over professional and operational issues. The

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Ministry for Local Government and Rural Development (MLGRD) is responsible for providing assemblies with policy guidance and direction in the promotion of participatory democracy, accountability, transparency, socio-economic development and social stability. The ministry is expected to coordinate with other institutions and ministries in overseeing the activities of assemblies in matters of policy.

Powers of the Minister of MLGRD Apart from constant consultations with the MLGRD, the Local Government Act of 1998 empowers the Minister of MLGRD to make subsidiary legislation or administrative decisions in order to check on the activities of the local authorities. Such powers include authority: • to amend Local Government areas and to declare any Local Government area to be a township or municipality; • to amend the functions to be carried out by an assembly; t• o amend the sources of revenue in consultation with the Minister of Finance; • to exempt any assembly from any of the functions specified in the act at the written request of the assembly; • to prohibit assemblies from carrying out decisions which involve the assembly from incurring expenditure which is unlawful; • to surcharge an assembly for amounts and losses incurred in carrying out unlawful expenditure; • to suspend an assembly if it acts unlawfully; • to issue written instructions for better control and efficient management of finances of the assembly in consultation with the Minister of Finance; • to approve or refuse to approve all bye-laws before they can be put into effect; • to determine the conditions attached to the raising of loans within Malawi by assemblies; • to hold enquiries at his or her own discretion into the affairs of any Local Government authority; and • to transfer staff.

Local Government finance committee The 1994 Constitution in Section 149 provided for the national Local Government finance committee – an oversight institution that would promote financial accountability, effective resource mobilisation and use of financial resources in Local Government authorities. The Local Government Act of 1998 empowers the

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Local Government finance committee to approve annual and supplementary estimates of the Local Government authorities. Assemblies may therefore not incur any expenditure unless the committee has approved the estimates. Furthermore, an assembly may not reallocate approved expenditure to other areas except with the approval of the committee. The assemblies are also required to submit final accounts to the Local Government finance committee not later than 90 days before the commencement of a new financial year, and the committee forwards a copy to the Auditor-General. The committee also has power to disallow any item of expenditure contrary to the act and to surcharge any amount of any expenditure disallowed on the person responsible for incurring or authorising that expenditure.

Audit Another form of control and oversight that the Local Government Act provides for is the audit. It provides that the Auditor-General shall audit the accounts of each assembly or an auditor appointed by him or her. The role of the auditors is to consider the accuracy of accounting, check the legality of all expenditure to ensure that assemblies spend money only on those things that the law allows. The principle here is that if a local authority were to spend money for a purpose that is not specified in the act, the auditors might disallow such expenditure and the person/persons responsible for it might be surcharged. The aim was thus to keep checks on corruption. In practice, because the national audit office is understaffed, there has been a significant backlog of audits with many assemblies going without an audit for a period of five years. In many cases where the national audit office has been able to check accounts, it has been where the office has received a tip-off (i.e. secret information) of some suspected illegalities or fraud. Coupled with this is the fact that most district and town assemblies have staffing gaps in finance management and internal auditing due to difficulties in attracting and retaining staff. Staff currently in place has difficulties in producing timely and quality financial reports. This means that in effect there are insufficient financial checks and balances in place at assembly level. By freeing local officials from central control and without proper mechanisms for local accountability, the lack of sufficient checks and balances has created opportunities for poor resource management and corruption in assemblies.

Malawi Local Government Association (MALGA) Though not provided for in the Constitution or the 1998 Act, the Malawi Local Government Association (MALGA) previously called the Association of Local Government Authorities, which was formed in 1966, is an important institution in

168 Chapter 6: Local Government the effective operations of Local Government authorities in Malawi. As an association, it draws its membership from the local authorities and has a permanent secretariat, which was established in 1997, to coordinate its operations. It has the following responsibilities: • to seek representation on the interests of local authorities; • to lobby for promotion of democratic governance and popular participation in civic affairs; • to sponsor studies relating to Local Government including visits to other places; • to gain information and experience of benefit to the association and its members; • to contribute towards improvement of Local Government administration; • to coordinate activities between Central Government and the assemblies; • to represent Malawian local authorities in other fora such as, International Union of Local Authorities, Commonwealth Local Government Forum and others.

LOCAL GOVERNMENT IN THE MULTIPARTY ERA

The new Local Government system, as defined by the 1998 act, is working in a context significantly different from that of the past, including multiparty politics, dwindling Government resources, and an electorate that signals lack of enthusiasm for Local Government. Apart from having adequate financing, staffing, and Central Government political will, achieving the objectives of Local Government in Malawi also largely depend on the electorate, and complementary roles of the political parties and civil society to encourage a viable political process. While this chapter has already addressed the financial and Local Government staffing issues, the other two also deserve to be mentioned.

Electorate

A major objective of Local Government in Malawi now is to promote democratic principles of accountability, transparency, and participation of people in decision- making and development processes. Such aspirations require enfranchised citizens capable of pursuing their interests, articulating political demands rather than being passive and dependent subjects. The results of the 2000 Local Government elections showed a very low turnout as compared to the 1999 and 2004 national general elections. The low voter turnout of 14% of over 5.2 million registered

169 GOVERNMENT AND POLITICS IN MALAWI voters compared to 80.54% in the 1994 and 93.76% in the 1999 national elections was due to a number of issues such as: • Voters lack understanding of the roles and responsibilities of Local Government councillors, probably due to the vacuum created since the last Local Government elections in 1992. The experience with Local Government and locally elected councillors dates back to 1992 during the one-party era. Since the political changes of 1994 up until November 2000, Local Government councils were dissolved and the country operated without locally elected councillors. Thus political issues, debates and various civic education efforts have largely focused on the national issues. In addition, a majority of the electorate are too young to remember the days of the vibrant productive Local Government councils of the 1960s. • There is general disillusionment on the part of the electorate with elected officials such as MPs, who are perceived as having had little influence on local development and people’s needs. People are not certain that this new Local Government system would be any more useful to them than the old systems because although the political system and leaders have changed, the actual practice of politics is not very different from the previous systems where leaders were more interested in individual material gains than the needs of the electorate. • There is a lack of comprehension of citizens’ roles in Local Government. Although the Government carries out various civic education efforts, many citizens, especially in Malawian rural communities, are unsure how to translate the various messages and slogans into reality. People have heard the ‘mphamvu ku anthu’ messages, but many say that they do not know how to actualise that power so that it can make a difference to them.

Political parties and civil society

In promoting local governance and a democratic culture, it is important to have a viable local political process that should have responsibility for: • conveying information to the public about Government decisions; • organising the public to be attentive to Government actions; • mobilising public opinion about Local Government; and • holding local officials accountable for their performance.

Usually a viable local political process includes an active civil society, general political organisations such as political parties, and other mechanisms to gather and spread information such as the media.

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Political parties’ activities Traditionally, political parties have a role in maintaining competitive political processes by providing alternative policy options to the electorate. Thus within the Local Government assembly, the presence of organised political parties could allow for more effective scrutiny of Local Government practices. They could also serve as a mechanism for channelling public concerns to Local Government. Additionally, the presence of opposition political parties makes a powerful engine for enforcing accountability by presenting a vision of a viable alternative for doing public business. Political parties have a competitive incentive to ensure active information campaigns about Local Government and to expose corrupt practices. In Malawi partisan political party competition in local elections at the local level was adopted in keeping with the institutionalisation of multiparty politics at the national level. It reflects an acknowledgement that development is a political issue, not a politically neutral one, with different approaches and policies influenced by the distinct ideological positions of the various parties. However, political parties in Malawi are not distinguished from each other by having different social and economic policies and beliefs but by personalities and ethnic rivalries. In addition the majority of the political parties are not well established and vigorous at the local level. Therefore, the fight to win Local Government elections is not aimed at establishing rival plans for local development but in entrenching a party in power in a particular locality. As a result political parties do not emphasise providing balanced information about Local Government to create an informed public. In extreme cases, party allegiance and discipline have been responsible for squeezing deliberation and important local issues out of the public arena. The Review of National Decentralisation Programme of Malawi (2001–2004) noted that, because councillors and MPs feel that they have similar roles in the communities, they compete for recognition with the electorate. This has generated some tension and conflict between these two key players. MPs have viewed councillors as their competitors and harbouring ambitions to compete for parliamentary seats, while councillors have viewed MPs as encroachers of areas under their jurisdiction, underrating their role and functions and treating them as junior partners or messengers. In some cases, because of these tensions and MPs feeling threatened, councillors elected on a party ticket have been prevented from holding public meetings in the community and their activities have been controlled by the MPs. This has been done in the name of party discipline but the real reason is to prevent councillors from emerging as better representatives to the people they serve.

Civil society Civil society is usually identified as a people-centred participatory channel that can serve to articulate and express citizens’ ideas. It offers an organised force of

171 GOVERNMENT AND POLITICS IN MALAWI citizens to engage with Local Government. Its democratic role is to advocate for constituents, to act as a watchdog over the state, and to support political competition generally. In this context, these institutions have been noted to be weak, particularly in rural areas. They complement Local Government in implementing services and providing civic education but they are deficient in providing a voice for the people on social or political matters of interest. This can be partly traced back to the lack of clear Government strategy on civil society and Local Government and also the ways in which Local Government officials and technocrats of the decentralisation programme understand and conceptualise the need for a vibrant civil society and how such institutions can support local governance and democratic participation. Therefore even though the importance of civil organisations and other formal and informal associations is acknowledged in Government policy documents, the problem is how to translate this rhetoric into reality.

CONCLUSION

For a while, a viable Local Government seemed imminent in Malawi, based on the democratic principles that emerged with constitutional provisions, the Local Government Act 1998, and the new decentralisation policy. But implementation difficulties have plagued the first phase of the decentralisation process, so a transition to local autonomy has not occurred in a timely fashion. For democracy to be effective and sustainable, institutions must practice democratic governance, elected people must govern with due respect for the rules of the game and their voters, and the population must be knowledgeable about democratic norms and the values of justice, solidarity, tolerance, and fair play. Since 1994, local elections have taken place only once in 2000. These elections were not totally satisfactory as there was such a low voter turnout – a result probably of a lack of knowledge of the structure and functions of Local Government and their councillors. This also meant that the candidates elected did not have the popular mandate of the electorate that is required for leaders to govern in a democracy. The next Local Government elections were scheduled to take place in 2004 along with the national elections but this failed to happen. This has meant that for the most part unelected officials such as chiefs and assembly secretariat members have had to fill in for Local Government. These facts have undermined a democratic system of Local Government and diminished the link between Local Government actions and the expression of citizens’ approval or dissatisfaction with Local Government.

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Despite these facts, the new provisions and arrangements of the Local Government system included in the various post-1998 legal documents obviously represent a vast improvement of the system over previous Malawian Local Government systems. They acknowledge and support the need for transferring resources and personnel to the assemblies and developing a viable, grassroots- based, local political process. In addition, the experience of the first phase of Local Government having democratically elected councillors in Malawi should provide lessons for the programme planning of the next phase. However, if the problems highlighted in this chapter are not addressed, the intended objectives of an independent, democratic, sustainable, and accountable Local Government system will not be realised.

Questions

1. In what ways are the current Local Government efforts similar and different from past efforts?

2. What is the relevance of Local Government in Malawi?

3. Problems that hampered Local Government in the colonial and one-party eras are often the ones that plague the system today. Discuss the prospects for a viable Local Government system in Malawi.

4. Remuneration of councillors by the Central Government is a thorny issue in many countries. Some argue that payment will undermine accountability to the electorate, while others argue that, since their important roles do not significantly differ from those performed by MPs, they need incentives. Argue one side in light of the circumstances in Malawi.

5. There are current debates that seem to suggest that TAs and MPs should not be members of the local assemblies. What are your comments? Justify your arguments.

173 GOVERNMENT AND POLITICS IN MALAWI References and Further Reading

Apthorpe, R. A., Chiviya, E. C., & Kaunda, G. (1995) Decentralisation in Malawi: Local Governance and Development, Lilongwe: United Nations Development Programme and Ministry of Local Government and Rural Development

Baker, C. (1995) The Evolution of Local Government in Malawi, Ile-Ife: University of Ife Press

Immink, Bodo, Samson Lembani, Martin Ott, and Christian Peters-Berries (eds) (2003) From Freedom to Empowerment: Ten Years of democratisation in Malawi, Balaka: Montfort Media

Kaunda, M. (1999) ‘State Centralisation and the Decline of Local Government in Malawi’ International Review of Administrative Sciences, 65(4): pp 579–595

Kutengule, M., D. Watson, R. Kampanje, A Chibwana J. Chiteyeye, I. Matenje et al (2004) Report on Review of the National Decentralisation Programme of Malawi: 2001–2004 Lilongwe: GOM, UNCDF, UNDP

Ministry of Local Government and Rural Development/Malawi–German Programme for Democracy and Decentralisation (2005) Guidebook on Decentralisation and Local Government in Malawi, Balaka: Montfort Media

174 7 ELECTIONS: SYSTEMS AND PROCESSES

Lise Rakner, Mette Bakken and Nixon Khembo

INTRODUCTION

Malawi returned to multiparty rule in 1993 after a national referendum in which two-thirds of the votes cast favoured a return to a multiparty system of Government. The first competitive elections for President and Parliament were held on 17 May 1994. Since then, two parliamentary elections, two presidential elections, one Local Government election, and numerous by-elections have been held under a legal and constitutional framework that guarantees freedom of choice and participation in multiparty elections.

This chapter discusses the following issues:

• What are the rules governing elections? • What are the main principles of a free and fair electoral process? • What results have presidential, parliamentary, and Local Government elections in Malawi produced in the period from 1994 to 2004? • What is an electoral formula and how does the electoral system used in Malawi affect representation? • How has the electoral process in Malawi been administered since 1994?

ELECTORAL LAWS

Key concept: electoral laws A set of rules and procedures that govern the electoral formula and the electoral process

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How elections are conducted is determined by a set of rules, or electoral laws. Electoral laws can be divided into two distinguishable sets of rules. The first set of rules, the electoral formula, determines how votes cast in elections are converted into seats in national and Local Government assemblies. The second set of rules, the electoral process, determines how elections should be administered and conducted. The electoral process denotes a number of steps such as demarcation of constituencies, registration of voters, nomination of candidates and parties, electoral campaigning, voting, counting, and announcement of results and post election handling of results.

Key concepts: electoral formula and electoral process The electoral formula is a set of rules which determines how votes cast in elections are converted into seats in national and Local Government assemblies. The electoral process is the set of rules that determines how the various steps of an election – from the pre-election, election to post-election periods – should be handled or administered.

FREE AND FAIR ELECTIONS

The electoral process should ensure that all members of the electorate have an equal opportunity to participate and those candidates and political parties can campaign without the state or other actor/s preventing them from doing so. When everyone has this chance, the electoral process is called free and fair. The extent to which elections are free and fair is judged according to a set of international standards. Before we turn to analyse the electoral system and electoral process in Malawi, let us first discuss some common principals of democratic elections.

Key concept: election A competition for office based on an expression of preferences by a population and a mechanism for selecting representatives and holding them accountable.

Elections serve a central role in democracies. In democratic systems of governance, citizens hand over their authority to govern the country to their chosen representatives through elections. Elected leaders (or agents) govern on behalf of the people (or principals) and serve their interests. This form of

176 Chapter 7: Elections: Systems and Processes representation is made possible through elections. A democratic system of governance requires that (i) political leaders are elected though a universal ballot (ii) each voter has an equal opportunity to participate, and (iii) the voters are allowed to choose among alternative candidates and parties. In addition, elections provide a central mechanism of accountability. Through elections voters give elected leaders a term of office and hold them to account at regular intervals by granting/denying them re-election. In democratic systems of governance, elections thereby have two basic functions: • They provide a method for selecting political leaders. • They represent a method for holding leaders accountable.

According to Robert A. Dahl’s definition of procedural democracy (Dahl 1971), a democratic electoral process should provide legal guarantees that secure all eligible voters the right to participate in choosing candidates for public office. Furthermore, in a democratic election voters must have more than one alternative to choose from, and the contesting candidates and parties should be guaranteed a level playing field. The legitimacy of an election hinges on the electorates’ and candidates’ perception that the electoral process has been conducted in a way that does not ensure a certain outcome. In a democracy there should be certainty about the process, but uncertainty about the outcome. The results of elections should not be predetermined by the rules. To ensure legitimacy, elections must be regulated by constitutional rules and special legislation as well as by cultural norms developed to govern the behaviour of the actors.

International standards

Holding regular elections is not in it self a sufficient requirement to classify a state as democratic. At the same time, open, free, and fair elections are the essence of a democracy; it is not possible to conceive of a democracy without elections to key political offices. What constitutes a free and fair election? Since the mid-1990s a number of international organisations have arrived at a broad consensus and issued declarations about the requirements for free and fair democratic elections. These declarations synthesise international legal obligations as well as accepted norms (see Table 1). Broadly, most national and international election monitors refer to these standards when evaluating the quality of elections. These standards and norms emphasise the need to consider elections as a long-term process. In addition to the actual polling (the casting of votes) , free and fair elections should be measured according to the pre-election phase including voter registration, the

177 GOVERNMENT AND POLITICS IN MALAWI campaign environment, voter education programmes, and media access, as well as the post-election phase including counting, announcement of results, procedures for querying results and proper procedures for acceptance of results (see Table 1).

Table 1: Free and Fair Elections

Free Fair Freedom of speech Fair electoral laws Freedom of movement Independent Electoral Commission Before elections Universal suffrage Open registration of voters and parties No intimidation Orderly campaign Equal access to media Secret ballot Freedom to vote Only one vote per person During elections No intimidation Clear ballot papers Rules for void papers Proper counting Legal possibilities to complain Impartial reporting After elections Mechanisms to solve contested Impartial treatment of complaints decisions Acceptance of results

Deviations from the ‘ideal’ standards

While the expectation is that the electoral process should ensure that all members of the electorate are provided with an equal opportunity to participate and that the definition of who qualifies as a voter should not be biased against special groups in the population, in practise no country is able to fully ensure that all members of the electorate are given equal opportunity to participate. Deviations from this ideal occur regularly. The distinction between qualified and registered voters is one of the most problematic issues in this regard. A number of arrangements exist, from automatic voter registration as in European countries, to self-initiative to become registered as in the United States and in sub-Saharan African countries. These procedures inevitably create a discrepancy between the ‘potential’ and the ‘actual’ electorate. A permanent and automatically updated registry of voters requires a national citizen registry that continually takes into account changes in the composition of the population as people pass away, new ones qualify for voting, others relocate, and immigrants acquire citizen status. Inadequate registration leads to a gap between the number of voters and the number of citizens fulfilling the

178 Chapter 7: Elections: Systems and Processes requirements for registration of the electoral process. This may again affect the electoral turnout and in turn, the legitimacy of the election process. Similarly, having the right to vote is not synonymous with freedom to exercise the voting right. A wide range of factors impact on this exercise, from deliberate attempts to prevent groups of voters from participating to administrative problems involved in the location of polling stations, opening hours, and the availability of ballot papers. The organisation of the voting itself, such as ensuring secrecy of voting and the counting of votes according to democratic standards, can create additional imperfections in the electoral process. No country is fully able to ensure that an electoral process guarantees all members of the electorate an equal opportunity to participate or that each potential candidate or party is provided with equal means for participation. Nevertheless, these are standards that an electoral process is measured against by national and international election monitors. Marked deviations and intentional breaches from the stated ideals may signify that the electoral process has been influenced far in advance of the actual elections.

ELECTIONS IN MALAWI

The first multiparty elections were conducted in Malawi (Nyasaland) in 1961, three years before the country gained independence. The Malawi Congress Party (MCP) won a landslide victory and took up all seats in the new Legislative Council except for those reserved for the white minority. When Nyasaland became the independent state of Malawi in July 1964, a parliamentary system of Government was implemented. But the election that was supposed to take place the same year was cancelled because all MCP members were returned unopposed. A new Constitution was established in 1966 that led to the abolition of both the parliamentary system and multiparty elections. This marked the beginning of three decades of one-party authoritarian rule under Dr Hastings Kamuzu Banda. The third wave of democracy manifested itself in Malawian politics in March 1992 when the Catholic bishops issued an episcopal letter criticising the authoritarian politics of President Banda and the MCP. The formal protest initiated a popular movement for democratic reform that, coupled with pressure from the international community, led to the referendum for multiparty democracy in June 1993. After the referendum, the democratisation process gathered momentum. Elections from 1994 to 2004 The key elements of the legal framework that have guided multiparty elections in Malawi since 1994 are found in the Constitution of Malawi, the Parliamentary and Presidential Election Act, and the Local Government Act.

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Tables 2 to 7 present the results of the presidential and parliamentary elections from 1994 to 2004. The 1994 parliamentary and presidential elections brought a new Government to power, the United Democratic Front (UDF), and a new President, Bakili Muluzi, who was UDF’s presidential candidate and a businessman and former politician under Dr Banda. Since 1994, Malawi has conducted two more presidential and parliamentary elections in 1999 and 2004. Whereas only three parties gained seats in Parliament in 1994 and 1999, the number rose to nine following the 2004 elections. The 1994 election results displayed a regional voting pattern as the Alliance for Democracy (AFORD) won all the parliamentary seats in the Northern Region, MCP won the majority of the seats in the Central Region, whereas the UDF captured the majority of the seats in the Southern Region. This pattern was also witnessed in the presidential elections. This regional pattern persisted in the 1999 elections but was somewhat weakened in 2004 as both the AFORD and the UDF lost support in their traditional strongholds. Competitiveness, understood as the number of parties with a real chance of winning an election, is another significant feature of parliamentary and presidential elections in Malawi. The competitive nature of presidential elections in Malawi is reflected by the narrow margins of victory among presidential candidates. This trend is also marked in parliamentary elections, indicated by the significant turnover of candidates. For example, 51 out of 95 incumbent members of Parliament (MPs) lost their seats in the 2004 parliamentary elections to newcomers and independent candidates. (Data on registration and voter turnout are displayed and discussed in Table 10.)

Table 2 Malawi Parliamentary Elections 1994

Party Votes scored Seats

UDF 1,375,878 85

MCP 996,047 56

AFORD 563,417 36

Others 21,811 0

Total 2,963,612* 177

Source: The Malawi Government Gazette 1994 Vol XXXI, No 40 * The votes given under ‘Votes scored’ do not add up to the total figure given, however these are the official or gazetted electoral results

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Table 3: Malawi Presidential Elections 1994

Candidate Votes scored

B. Muluzi (UDF) 1,404,754

Dr K. Banda (MCP) 996,353

C. Chihana (AFORD) 562,862

K. Kalua (MDP) 15,624

Total 2,978,885*

Source: The Malawi Government Gazette 1994, Vol XXXI, No 40 (MDP = Malawi Democratic Party) *The votes given under ‘Votes scored’ do not add up to the total figure given, however these are the official or gazetted electoral results

Table 4: Malawi Parliamentary Elections 1999

Party Votes scored Seats

UDF 2,124,999 93

MCP 1,518,548 66

AFORD 474,215 29

Independents 319,936 4

Others 54,459 0

Total 4,492,157 192

Source: The Malawi Electoral Commission, 1999

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Table 5: Malawi Presidential Elections 1999

Candidate Votes scored

B. Muluzi (UDF) 2,442,685

G. Chakuamba (MCP) 2,106,790

K. Kalua (MDP) 67,856

D. K. Nkhumbwe (CONU) 24,347

B. wa Mutharika (UP) 22,073

Total 2,978,885

Source: The Malawi Electoral Commission, 1999 (CONU = Congress for National Unity, UP = United Party)

Table 6: Malawi Parliamentary Election Results 2004

Party Votes scored Seats

MCP 785,671 57

UDF 801,200 49

Independents 766,137 40

RP 231,002 15

NDA 256,713 9

AFORD 114,017 6

PPM 98,548 6

MGODE 53,127 3

PETRA 21,153 1

CONU 7,410 1 Others 26,609 0

Total 3,161,587 187

Source: The Malawi Government Gazette 2004 (Vo. XLI, No 34) (RP = Republican Party, NDA = National Democratic Alliance, PPM = People’s Progressive Movement, MGODE = Movement for Genuine Democracy, PETRA = People’s Transformation Party)

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Table 7: Malawi Presidential Election Results 2004

Candidate Votes scored

B. wa Mutharika (UDF) 1,195,586

J. Tembo (MCP) 937,965

G. Chakuamba (RP) 836,118

B. Mpinganjira (NDA) 286,320

J. C. Malewezi (Independent) 67,812

Total 3,323,901

Source: The Malawi Government Gazette 2004, Vo. XLI, No 34

Local Government elections

In the colonial period, there were no elected representatives in the Local Government structures. The first Local Government elections in democratic Malawi were held on 21 November 2000. According to the Local Government Act 1998 the constitutional life span of Local Government is four years, but between 1994 and 2005 Local Government elections were held only once, and these elections faced technical, financial and structural problems. The 2004 elections were originally intended as tripartite elections. But the proposal by the Malawi Electoral Commission (MEC) to conduct Local Government elections alongside the parliamentary and presidential elections was rejected by the National Assembly on the basis of lack of time and preparation. This decision, reached in January 2004, had implications for the administration of the elections, in particular voter education. In the 2000 Local Government elections, UDF won 616 out of a total of 860 contested seats, AFORD 127 and MCP 85. A total of 1860 candidates were competing across all wards. Only the UDF contested elections in all wards. In 114 of the wards, candidates ran unopposed and UDF were declared the winner of 103 uncontested seats. The voter turnout was very low at 14% of the registered voters which marked a great contrast to the 94% figure of registered voters who voted in

183 GOVERNMENT AND POLITICS IN MALAWI the 1999 presidential and parliamentary elections. (For further analysis of the Local Government structures, see Chapter 6 on Local Government).

Table 8: Malawi Local Government Election Results 2000

Region AFORD MCP UDF Independent NIP Total

North 121 (2) 5 33 7 166

Central 6 71 258 (8) 7 343

South 0 6 328 (103) 16 1 351

Total 127 82 619 30 1 869

Source: Malawi Electoral Commission 2000 (brackets): uncontested seats

ELECTORAL SYSTEMS AROUND THE WORLD

All elections are based on a particular system. But each system has three basic components: 1. Elections take place in electoral constituencies (or electoral districts). A constituency denotes the geographical electoral unit where eligible voters are organised to elect representatives. Some countries, like the Netherlands and Israel, arrange national elections using the whole country as one, nation-wide constituency. Most countries divide their territory into a number of constituencies for the purpose of elections. 2. The electoral formula comprises the mathematical formula used to calculate the seat allocation. The electoral formula can be based on a majority, a plurality, or a proportional principle. Majority rules require winning candidates or parties to have majority voting support (50% plus one vote). Under plurality rules, winning candidates only need to win more votes than any other candidate. The proportional formula distributes seats in proportion to the votes cast for each party. In principle, this means that if a party obtains 20% of the votes, it is entitled to 20% of the seats.

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3. The ballot can be structured in an ordinal or categorical way. Ordinal ballots allow voters to favour more than one party or candidate, enabling voters to rank-order some or all of the candidates competing in the constituency. Categorical ballots allow voters to support only one candidate or one party list of candidates.

With these basic features, electoral systems are often organised into four broad electoral families: plurality systems, majority systems, proportional systems, and mixed systems. A number of electoral systems fall under each family system. Although the systems within each family share important traits, they also have slight variations. The main characteristics of each electoral family system are given in the box.

Plurality electoral systems Electoral family features: • Winning candidates of parties are required to obtain a plurality of the votes, that is, more votes than any other contestant. • Most plurality systems apply single-member districts (SMDs). • The ballot is usually categorical. The ballot paper is often based on individuals rather than parties. Electoral systems Single member plurality (SMP), single non-transferable vote (SNTV), block vote (BV) and party block vote (PBV). Examples: UK, India, USA, , Kenya, Tanzania, Uganda, Zambia, Zimbabwe

Majority electoral systems Electoral family features: • The candidate is required to have majority support (50 per cent plus one vote) to be elected. • Majority systems usually utilise SMDs. • The ballot is ordinal and the ballot paper is candidate-based. Electoral systems Alternative vote (AV) and the two-round system (TRS). Examples: France, Australia, Mali, Gabon, Egypt, , Central African Republic

Proportional electoral systems Electoral family features: • The electoral formula is proportional. Principally, this means that if a party acquires 40% of the votes in an election, it is entitled to 40% seats. Different PR formulae are d’Hondt, Droop, Hare, and St Lagüe. • Proportional representation systems require multi-member districts (MMDs). • Ballots are categorical but in some countries voters may rank-order the candidates nominated within the party of their favour. The ballots are made up by the list of candidates presented by each party

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Electoral systems: List proportional representation (PR) and single transferable vote (STV) Examples: The Netherlands, Israel, South Africa, Mozambique, Namibia, Rwanda

Mixed electoral systems

Electoral family features: • Apply both proportional and plurality/majority formulae. • Apply both MMDs and SMDs. • The ballots are usually categorical, but preferences between candidates within the same party may be expressed in the MMD election. Party lists and candidate-based ballots are presented to the voter.

Electoral systems: Mixed member majority (MMM) and mixed member proportional (MMP). Examples: Germany, Italy, Japan, Russia,

THE ELECTORAL SYSTEMS USED IN MALAWI

In Malawi, there are three different elections for: (i) the presidential and vice presidential offices (ii) MPs in the National Assembly, and (iii) for officers in local councils (councillors). In this section, we explore the nature of each electoral system utilised for determining winners and losers in these elections. In many sub-Saharan African countries, the electoral system introduced by the colonial powers was retained when the country returned to multiparty politics in the 1990s. Malawi was no exception. The single member plurality (SMP) electoral system that was introduced by the British colonial administration was used on four occasions under Dr Banda’s rule. The SMP system was also applied to the parliamentary elections which took place in 1994 and finally adopted in the democratic Constitution of 1994. The plurality electoral formula was also used for the presidential and local council elections. While numerous other systems exist, it is interesting to observe that electoral system alternatives were never discussed in the constitutional debates in the early 1990s. But following the 2004 presidential and parliamentary elections, the electoral system was put on the political agenda in Malawi for the first time. The main reason was that many stakeholders felt that the drawbacks of the vote-to-seat translation method under the current electoral system had become more visible. In particular, several parties pointed to the way in which the system was unable to raise the number of female MPs in the Legislature. We now turn to describe the electoral system employed for presidential, parliamentary and Local Government elections in Malawi based on the three aspects of the electoral system identified above.

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Electing the President

The presidential election in Malawi takes place in a nation-wide contest between the candidates. The whole nation is thereby one constituency. The ballot is categorical, in other words, the voters have the opportunity to support one candidate only. It is not possible to express support for any other candidate(s). The electoral formula – or mathematical method – for determining the winner is the plurality rule. Thus, the candidate that wins more votes than any other candidate is elected President. This means that if more than two candidates are able to draw substantial electoral support, no candidate will enjoy majority electoral support (i.e. 50% plus one votes). As a consequence, the winning candidate can become President without a majority of the voters having voted for him or her. The UDF’s presidential candidate has won the presidency in all three elections following the introduction of multipartyism in Malawi. Whereas the electoral support of winning candidates remained relatively high in the two first elections, it decreased significantly in 2004. In 1994 and 1999, Muluzi was supported by 47% and 52% of the voters, respectively (see Tables 3 and 5). As Muluzi was constitutionally barred from running for a third term, the UDF went to the polls with a new candidate in 2004. Bingu wa Mutharika contested the presidency for UDF facing five other candidates. The UDF was again able to secure the presidency by winning more votes than any of the other candidates. But this time around, the elected President assumed office with only 36% of the votes in his favour (Table 7).

Electing MPs

Using the SMP system, Malawi is divided into constituencies (currently 193) and each elects one MP. Consequently, the number of constituencies equals the total number of seats in Parliament. The mathematical formula used is the plurality rule, and the candidate that receives the most votes in a given constituency is elected. As a result, if many contestants are able to draw substantial numbers of votes, it is possible that the winning candidate is elected by a small vote percentage in the constituency. Over the last three elections the number of representatives with majority (as opposed to plurality) support in their constituencies has decreased. In 1994 and 1999, only 8 and 19 representatives enjoyed less than 50% support respectively. In 2004, the number increased to 99 MPs. In addition, the ballot is categorical and the voters mark only the name of their most favoured candidate on the ballot. As the voters vote for individual candidates rather than lists presented by the different parties, by-elections are arranged to fill political offices that become vacant in-between elections.

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Vacancy occurs when incumbents die, resign or otherwise become ineligible to continue in office. In Malawi, by-elections have also been held in constituencies that have failed to elect a representative on election day due to technical complications.

Disadvantages of SMP

Unfair representation The SMP system has affected Malawian politics in two important respects. First, fair representation of the voters participating in elections has been compromised. As there is only one, undividable seat to win in each constituency, all votes cast in favour of losing candidates may be considered ‘wasted’ as they are not reflected in the composition of the National Assembly. The number of so-called ‘wasted votes’ can reach high levels when employing the plurality electoral formula. At national levels, altogether 24% and 32% of the votes cast were ‘wasted’ on non-winning candidates in the 1994 and 1999 parliamentary elections respectively. In 2004 nearly half of all votes (49%) were cast in favour of losing candidates. In the 2004 elections in Nkhata Bay North-West constituency the elected MP only acquired 2.445 of the 11.559 valid votes in the constituencies; the remaining 9.114 votes were ‘wasted’ on the losing candidates. Due to the ‘winner-takes-all’ nature of the SMP rules, the system of translating votes into seats may also produce some unexpected results. In the 2004 parliamentary election, the UDF gained more votes than the MCP (see Table 6). Nevertheless, the MCP received more seats than the UDF. This was also the case for the RP and the NDA. Whereas the NDA garnered close to 30,000 more votes than the RP, the party was only represented by eight MPs whilst the RP’s parliamentary group was almost twice as large.

Regionalisation The SMP system has contributed to a regionalisation of party politics. The importance of the regions and regional identities is rooted in Malawi’s colonial and authoritarian past when the administrative regions were played out against one another politically, economically, culturally and socially. The historical divisions became politically salient as the country turned to multiparty democracy. In the 1993 referendum, the Southern and the Northern Regions voted overwhelmingly in favour of a return to multiparty politics whereas the vote in the Central Region, the region which had been prioritised under Dr Banda, indicated support for a continuation of the single party rule under the leadership of the MCP. The two general elections that followed in 1994 and

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1999 displayed significant regional voting patterns among Malawian voters. The three main parties captured majority votes in the three administrative regions: the AFORD in the Northern Region, Banda’s old party, the MCP, in the Central Region and UDF in the populous Southern Region. The electoral system – the SMP rules – has contributed to the development of a regionally based political system in Malawi. As every constituency elects one representative only and the winner is only required to win a plurality of the votes, the party that wins the most votes in each region becomes over-represented in terms of parliamentary seats. Parties that acquire a smaller proportion of the vote in the regions are under-represented. For example, in 1994, AFORD won all (100%) of the Northern Region’s seats with only 85% of the votes. The UDF and MCP were also over-represented in their regions. With 68% of the southern votes, the UDF secured 88% per cent of the seats in the region. In the centre, the vote- to-seat deviation counted 11 percentage points in favour of the MCP. The pattern of systematic over-representation of the stronghold parties was replicated in 1999: AFORD captured 85% of the northern seats with 64% of the northern votes, MCP gained 75% of the Central Region’s MPs with 58% of its stronghold votes, and finally, UDF’s support base of 68% in the south awarded the party with 87% of the parliamentary seats in the south. The 2004 elections brought about a new situation in the north and the south. As the number of parties rose from three to nine and also the number of independent candidates winning in the constituency elections increased, both AFORD and UDF lost substantial support in their traditional stronghold regions. The MCP, on the other hand, was able to strengthen its position in the centre as, by winning 55% of the votes, it won 80% of the seats in the region and was thereby over-represented by 25 percentage points. Because of the continued systematic over-representation of the largest party at regional levels, the SMP system makes it difficult for parties to gain parliamentary seats outside their home regions. Thus, the electoral system reinforces the regional divide by discouraging parties to put effort into winning outside their ‘stronghold’. The parties are instead encouraged to direct campaign capacity towards the areas where prospects for winning are higher. This has, in particular, been the strategy of the AFORD. Due to uncertainty about the results, the party nominated candidates in almost all constituencies in 1994. Drawing on the experience from the previous election in which the party obtained only three seats in the Central Region and none in the Southern Region, the number of AFORD candidates in these areas dropped considerably in 1999 and even more so in 2004. Among the new parties that entered Parliament following the 2004 election, the NDA was the only party with an explicit national strategy. The party

189 GOVERNMENT AND POLITICS IN MALAWI fielded candidates in 97%, 99% and 94% of the constituencies in the Northern, Central and Southern Regions respectively. Due to the SMP system it was finally under-represented in all regions.

Advantages of SMP

Whereas ‘fair’ representation and regionalisation may be considered disadvantages of the SMP electoral rules, this electoral system also has several advantages in Malawi. First of all, the SMP system is a relatively simple way of electing representatives and the simplicity of the system has in particular been used as an argument in new democracies where voters and administrators lack experience with election processes. A valid vote only requires a mark beside the name of one of the candidates or parties and even when the number of candidates is large, the counting process is relatively simple. A second advantage of the SMP electoral system is that it is seen to facilitate strong links between the voters and the local community on the one hand, and the elected representatives on the other. By electing only one representative, voters in the constituency are more likely to identify their representative and this may facilitate greater contact with the elected MP. Additionally, the MP is accountable to a relatively low number of constituents within a fairly small geographical area. The representative is therefore in a better position to consult the electorate before making decisions on policy issues/votes in the National Assembly. Finally, the close and direct links provide extensive opportunities for the voters to hold the representatives to account. If an elected MP does not stick to his or her campaign promises, the voters know whom to blame and have a chance to show their dissatisfaction in the subsequent election. In Malawi, the voters have used the opportunity of parliamentary elections to show their satisfaction and dissatisfaction with their representatives. In 1999, a total number of 61 MPs chose to run for a second term in office. Altogether 59 were re-elected, signalling, perhaps, that the voters in these constituencies perceived that they were doing an acceptable job. In 2004 the situation changed as only 51 of the 95 incumbent candidates running in the election were re-elected. The way in which the SMP system opens up for independent candidates – that is, candidates that run without placing any party label behind his/her name on the ballot – played an important role in the 2004 election. Popular dissatisfaction with the way in which primary elections had been conducted, especially within the UDF, contributed to an extensive number of independent candidates who originally had been pushed away by the party in undemocratic nomination procedures. Altogether 39 representatives were elected on an independent basis, and 28 of these were

190 Chapter 7: Elections: Systems and Processes elected in constituencies that were formerly held by the UDF. Faced with the threat of losing seats to independent candidates, it is possible that the SMP system may promote intra-party democracy and lead to the establishment of acceptable rules and procedures for nominating candidates.

ADMINISTERING THE ELECTORAL PROCESS 1994–2004

We have considered how the electoral system employed in Malawi’s elections has affected representation and the regional characteristics of politics. But how democratic elections are administered may be as influential to the outcome and the legitimacy of the elections as the system employed. We now turn to discuss the administration of the electoral process in Malawi’s first three presidential and parliamentary elections 1994–2004, and the 2000 Local Government elections. It is increasingly recognised that how elections are administered has a significant impact on the legitimacy of the electoral process. Unless the electorates and candidates perceive that the administration of the electoral cycle, which includes the pre-election, the election, and the post-election periods, has been conducted in an impartial manner, it is likely that the results will be disputed. The quality of electoral administration therefore has a direct impact on the perception of the elections and the legitimacy of the outcome. The administration of elections takes place within an institutional framework comprising of an electoral management body, or electoral commission, the Judiciary, political parties, the Executive and Parliament. In addition to the formal institutions, civil society in Malawi plays a major role in the electoral process in the area of civic education, mobilisation for registration and the actual voting as election monitors. In the 2004 elections, a major part of civil society’s input was coordinated by the Malawi Election Support Network (MESN). MESN worked as a coordinating forum between Malawi Electoral Commission (MEC) and civil society. The Constitution of Malawi (1994) establishes the MEC as the main administrative unit in charge of the electoral process. The MEC is also responsible for voter education and civic awareness related to the electoral process. Civil society organisations must therefore be accredited by the MEC to participate in the electoral process. The Electoral Commission Act (ECA 1998) states the appointment procedures of the commission and provides that the chair of MEC shall be a judge nominated by the Judicial Service Commission and further that there shall be no less than six other commissioners. According to Section 4 of the ECA, the President appoints the chair and other commissioners in consultation with leaders of the political parties represented in the National Assembly. Terms and conditions are to be determined by

191 GOVERNMENT AND POLITICS IN MALAWI the Public Appointments Committee of Parliament, which can also recommend the removal of commissioners to the President on grounds of incompetence or incapacity in the performance of their duties. The tenure of the commissioners is four years and may be renewed for a further term. MEC has eight committees, each headed by a commissioner, with membership from within the MEC. The committees’ concerns are: legal affairs, finance and administration, civic and voter education, campaign monitoring, research, training, logistics and operations, and media and public relations. The MEC is serviced by a secretariat and the commission holds the following departments: personnel and administration, electoral services, media and public relations, civic education, finance and procurement, information technology. The MEC has three regional offices, in the North, South and Central Regions serving five districts in the North, nine in the Central Region and 13 in the South. The regional offices do not have a permanent structure; at the time of elections the MEC appoints a Returning Officer for each district. Section 6 of the ECA states that the MEC is an independent body, which shall perform its functions and exercise its powers independently of the direct interference of any public official. ‘For the purposes of accountability’, according to ECA, ‘the MEC shall report directly to the President on the overall fulfilment of its power and functions’. ECA Section 15(3) states that the MEC shall control its funds. Funding is provided through the Ministry of Finance. The Parliamentary and Presidential Elections Act (PPEA) (1993) mandates the MEC to manage the electoral process fairly, equitably and in a transparent and accountable matter. The Electoral Commissions Act (1998) establishes the appointment procedures of the MEC and tasks the commission with: • Determining constituency boundaries • Registration of voters • Registration of candidates • Regulation of electoral campaign • Handling the voting process on election day • Tabulating and announcing the results • Handling of election complaints

Below, we discuss how Local Government, presidential and parliamentary elections in Malawi between 1994 and 2004 have been administered along these key dimensions of the electoral cycle. Determining of constituency boundaries

According to the Malawi Constitution (Section 76), the MEC is responsible for determining constituency boundaries impartially. There is no separate delimitation

192 Chapter 7: Elections: Systems and Processes commission in Malawi. From a perspective of fair elections, the aim is to ensure that each constituency contains approximately equal numbers of voters eligible to register. According to the law, the only exceptions to this general rule should be considerations of population density, ease of communication, geographical features and existing administrative areas. Review of existing boundaries should take place at intervals of no more than five years. The recommendations of the MEC are then reported to Parliament, which can adopt the recommendations from the commission. Parliament itself cannot change constituency boundaries or the number of constituencies. Constituency boundaries have been altered a number of times since independence and twice since the establishment of multiparty democracy in 1994 (Table 9). But informal institutional processes linked to traditional leaders’ authority, MPs’authority, and regional concerns, coupled with financial constraints, have limited the ability of the MEC to carry out a demarcation process within the standards laid out in the Constitution. The 1993 demarcation process did not fulfil the principle of equal numbers of voters in each constituency. Avoiding constituency boarders crossing regional or district boundaries, constituency size ranged from the smallest (Nkata Bay East) of 3,307 registered voters to the largest (Machinga North) having 59,494 registered voters. Thus, the votes of the Nkata East Bay had 17 times more value than the votes of the people of Machinga North in the National Assembly. The 1998 demarcation exercise prior to the 1999 elections did not adequately address the discrepancies in constituency size. Before the 2004 elections, no demarcation exercise took place, and the discrepancies in constituency size continued to effect the administration of the 2004 general elections.

Table 9: Demarcation of Constituencies

Year 1964 1973 1983 1987 1992 1993 1998

Number of 53 63 101 112 141 177 193 constituencies

Registration of voters

All political systems distinguish between qualified and registered voters. However, the discrepancy tends to be larger in new democracies in the developing world such

193 GOVERNMENT AND POLITICS IN MALAWI as Malawi, since they do not have permanent voter registers but perform voter registration during designated time periods. To be eligible to vote in Malawian elections one must be a resident citizen or have been permanently residing in Malawi for seven years. In addition, a potential voter must have reached a specified age requirement. Before the 1999 elections, the age requirement for registration as a voter was reduced from 21 to 18 years. Because Malawi does not have a comprehensive system for recording births, in practice there have been problems in implementing the age restriction for both registration and voting. As a result, according to local and international election monitor reports, people under the age of 18 have registered and voted in the presidential, parliamentary, and local elections. Similarly, lacking a national death registry, the voters’ roll before each election has been inflated as no national system exists for deregistering the deceased. The registration system records the basic information of the voter, such as name, surname, age, sex, village, and traditional authority (TA). As very few Malawians have formal identifications, in the 1994 elections the village headman or some other person of standing within the community confirmed a voter’s identity. Before the 1999 elections, the registration system was upgraded and an electronic registration form was employed and photos were taken and attached to the registration card. Despite the upgrade, a large number of voters were reported to be excluded from the voters’ roll due to lack of registration materials. As many as 168,000 voters in the Opposition’s strongholds in the Northern and Central Regions were reported to have been excluded from the voters’ rolls in 1999 (Patel 2000: 34). The 1999 registration exercise was therefore not able to secure equal participation of all eligible voters. The registration process prior to the 2004 presidential and parliamentary elections also displayed a number of challenges in terms of securing equal participation. As in 1999 the 2004 registration exercise was hampered by shortage of equipment, confusion about procedures, and inadequate time. At the end of registration, the MEC indicated that 6.7 million people had been registered to vote. This represented an increase of 2.7 million voters from the 5.1 million people that were registered in 1999. The estimates of the Malawi National Statistics Office, however, put the number of voters at 5.6 million. After ‘cleaning’ the voters’ roll, the number of registered voters in 2004 was reduced to 5.7 million (Dulani 2004: 10). In the week leading up to the polling day, a number of political parties and NGOs petitioned the High Court arguing that the MEC had failed to conduct an efficient registration of voters and had not allowed sufficient time to inspect the voters’ roll. As in 1999, the problems experienced during the registration process led the courts to order a postponement of the polling date. Due to the inadequacies of the

194 Chapter 7: Elections: Systems and Processes registration, three reference documents were used to identify eligible voters during the 2004 voting process; the computerised voters’ roll, the manual voters’ roll of 1999, and the record cards. This caused delays and possible disenfranchisement of the voters. Popular participation in electoral processes is often used as an indicator of the quality of the electoral process. As Table 10 indicates, a number of challenges remain for the Malawi electoral process to fulfil its stated objective of guaranteeing all eligible voters equal participation. Both the 1999 and 2004 presidential and parliamentary elections were declared not fair by local and international election monitors, in part due to the inadequate registration procedures. In both the 1999 and 2004 elections voter registration was extended which led to the postponement of elections; in 1999 by convening an extraordinary sitting of Parliament and in 2004 the elections were postponed by a few days. These extensions helped to enhance voter registration. Table 10 suggests an increase in the number of polling centres, which may have reduced the administrative burden of voting for Malawian voters. However, as indicated by both the total number of valid votes and the percentage of voters among the registered voters, the voting population in Malawi decreased significantly from the 1999 to the 2004 elections.

Table 10: Voter Registration in Elections 1994–2004

Year Registered Total Vote/Reg % Total Polling Voters Votes valid vote centres

1994 3,775,256 3,004,835 80.54 2,934,285 n.a.

1999 5,071,822 4,755,422 93.76 4,663,751 3,698

2004 5,752,028 3,413,565 59.35 3,323,801 4,500

Source: Malawi Government Gazette

The 2000 Local Government elections were conducted only a year after the 1999 presidential and parliamentary elections. This may explain why the preparations in terms of voter awareness and civic education appear to have been inadequate and why the registration process was insufficient (Table 11). The programmes for

195 GOVERNMENT AND POLITICS IN MALAWI information and registration were delayed due to shortage of funds and other organisational constraints. This resulted in a lower figure of registered voters in the 2000 Local Government elections than the 1999 general elections. The main concern, however, was the low voter turnout as only 14% of the registered voters cast their votes. Table 11: Voter Registration in Local Government Elections 2000

Registered Total Null and Polling Year Total votes voters valid votes void votes Centres

2000 4,215,934 600,094 575,858 24,236 3,613

Source: Electoral Institute of Southern Africa (EISA): Election Update no. 1, 2004 (April) Registration of candidates

A free and impartial election campaign requires that the rules for establishing political parties are neutral. Furthermore, the rules for candidate nominations and for individuals to aspire to office on their own must be transparent and applied equally. In Malawi, the formation of political parties is regulated in the Political Parties Registration and Regulation Bill (1993). These rules are, in a comparative perspective, very liberal and do not represent a significant barrier towards new party initiatives. The rules for registering as a candidate are also simple, and the nomination fees in 2004 were K10,000 for parliamentary candidates, K50,000 for presidential candidates which are low in a comparative perspective. The enabling environment for candidates and parties to contest elections caused the number of political parties to expand after 1994. In 1994 there were less than 10 political parties in the country, in 1999 there were 18 registered political parties, in 2004, 28 parties registered. There was a similar expansion in candidacies. In the 2004 parliamentary elections, a record total of 1,267 candidates registered to contest. A further 372 contestants, or 29% of the total number of candidates, stood as independents. In the 2004 presidential race, six candidates contested, including one independent candidate. Thus, the formal rules for registration of parties and candidates in Malawian elections appear to fulfil the requirements of a free and fair electoral process. The way the individual parties select candidates through primary elections has, however, been criticised for lack of transparency of rules (see Chapter 8). The selection of candidates for the 2004 general elections generated a number of court cases as candidates took their respective parties to court over irregularities in the party primary elections.

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Regulation of the electoral campaign

The regulation of the electoral campaign should guarantee the freedom of all candidates and parties to communicate with the voters. Firstly, to ensure a free and fair electoral process, state controlled media, radio, TV, and newspapers should present the political alternatives neutrally. Secondly, all contesting parties should be granted equal opportunity to present their views publicly at rallies and public demonstrations. Finally, access to public resources for campaigning and running for office should be equally available or not available at all. But, the elections conducted since 1994 have suggested that the MEC and a number of other relevant institutions have faced challenges in terms of facilitating a fair electoral process and securing a level playing field. In terms of access to media, the Parliamentary and Presidential Elections Act (PPEA) Section 63 states that every political party is entitled to have the substance of its campaign reported on the Malawi Broadcasting Corporation (MBC) and any newspaper in circulation in Malawi. Furthermore, the act commits MBC to neutrality in the reports of news. The act also empowers the MEC to play a role in ensuring that MBC ensures a fair base for political competition. The Constitution specifies an official election campaign period, starting eight weeks prior to the election day. Maybe not surprisingly, considering that the 1994 elections were transitional elections from a one-party system, MCP dominated the radio. The MBC carried mainly reports of Banda’s tours around the country. The Opposition, on the other hand, dominated foreign broadcasting. As a result, political parties, civil society, local, and international election monitors concluded that media coverage was fairly balanced in the 1994 elections. In the 1999 election campaign, however, both local and international election observers reported that the playing field was not balanced. It was found that MBC did not provide fair coverage of all the parties contesting the elections as the incumbent party, the UDF, dominated. In order to ensure a more balanced media coverage of the 2004 general elections, a number of steps were taken in collaboration with political parties, the MEC, civil society, and the donor community. Most importantly, a media monitoring unit was established within the MEC. Nevertheless, the 2004 elections’ campaign was reported to be biased in favour of the incumbent party, the UDF. In a period of 15 weeks prior to the polling date, MBC gave 92.9% of positive election news in main news bulletins to the governing UDF/AFORD/NCD Alliance leaving 7.1% to be shared between all opposition parties and candidates (Neale 2004: 185). On the other hand, some newspapers and some private radio stations provided voters with more balanced

197 GOVERNMENT AND POLITICS IN MALAWI information. Comparisons of media coverage indicate that the MEC has not been able to secure the various contesting parties and candidates a level playing field in the electoral process. The unclear responsibilities between the Malawi Communications Regulatory Authority (MACRA), the MEC and MBC in terms of enforcing the electoral guidelines suggest that the rules and regulations guiding the electoral process in Malawi are ambiguous. The use of state resources in electoral campaigns also indicates a bias toward the incumbent candidate and party. In Malawi, political parties that gain a minimum of 10% seats in the parliamentary elections are entitled to state funding. But as these funds do not cover the costs of maintaining a party organisation or financing electoral campaigns, all parties rely on sponsors. Inadequately defined boundaries between the state and the party suggest that the incumbent party’s political campaign is regarded as ‘national affairs’ and therefore, supported by the Government. Electoral reports of the 1999 presidential and parliamentary elections found that that the UDF and the state President used state resources, including Government vehicles, to conduct its campaign. The 2004 election campaign witnessed newspaper reports and televised events showing the incumbent party’s (UDF’s) presidential candidate handing out money at public rallies. Vehicles from Government parastatals were also used for campaign purposes. The MEC failed to act on the openly displayed use of state funds for political campaigns.

Handling the voting process on election day

The main focus of any electoral process is of course that of voting itself. For the elections to carry any weight it is essential that voting proceeds in an unbiased manner and that the process is transparent and open to scrutiny by national and international observers. Having cast their votes, voters must be confident that each vote is counted, counted only once, that votes are counted for the alternatives they were intended and that no votes except those dropped in the ballot boxes are included in the tally. As discussed above, the 1994, 1999 and 2004 parliamentary and presidential elections in Malawi have all displayed administrative shortcomings. In terms to access to polling stations, the increase in polling stations from 3698 in 1999 to 4500 in 2004 represented an improvement. Nevertheless, in terms of voter turnout, the 2004 general elections showed a decline from the 1994 and 1999 elections. Of the 5.7 million registered voters, only 59% voted, compared to 80% in 1999 and 93% in 1994. Approximately 3% of the votes cast were declared null and void, representing a slight increase from 2% in 1999. Arguably, the decline in voter participation reflects an increasing public disenchantment with political processes in Malawi.

198 Chapter 7: Elections: Systems and Processes

Both local and international monitoring reports observed that the actual voting process was carried out in a transparent manner in all elections since 1994. Commenting on the actual polling in its report on the 2004 elections, the Commonwealth Observer Group noted that conditions existed for the expression of the voters’ will but that it was the people involved in that election rather than the policies and plans of the Electoral Commission that made it work: ‘The polling day, count and results arrangements were in many ways acceptable and the voters deserve to be congratulated for their commitment to democratic principles’ (Commonwealth Secretariat 2004: 55).

Tabulating and announcing the results

The tabulation and announcement of results have witnessed shortcomings in the 1994, 1999, and 2004 presidential and parliamentary elections. Election observers of the 1999 elections noted that the transmission of results to Returning Officers was undermined by delays and errors of documentation. Possibly due to the increased number of contesting parties and candidates, local and international observers found the tallying of votes in the 2004 parliamentary and presidential elections to be marked by even more irregularities than in the 1999 elections. The processing and declaration of results in the 2004 elections highlighted a number of flaws that impacted on the credibility of the results. In the days after the polling closed on 18 May 2004, the MEC failed to display all results for verification by stakeholders before announcement, which led to the announcing and gazetting of different sets of election results. Mirroring shortfalls experienced in the 1999 elections, the processing and declaration of results by the MEC were delayed. The delays raised suspicion of manipulation by key stakeholders. Furthermore, as the MEC resolved not to address complaints on irregularities before declaring the results, the results released were incorrect, particularly for parliamentary seats. The attempt to reverse the errors by changing the results diminished the credibility of the MEC.

Handling of election complaints

The Malawi courts have played a significant role in terms of solving disputes arising during the electoral process between contesting parties. Compared to the 1994 electoral process, the 1999 election results were to a greater extent disputed, and the Judiciary became involved in a number of cases. In 1994 a few court interventions took place that involved the legal framework. In 1999, the courts intervened to a greater extent at the campaign stage. The 2004 elections indicated

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CHALLENGES TO THE AUTOMONY OF THE MEC

he administration of the first multiparty elections in Malawi in 1994 attained Tinternational recognition as free and fair. This was largely attributed to the administrative efficiency of the first Malawi Electoral Commission (MEC) appointed by Dr Banda in December 1993 and chaired by Justice Anastasia Msosa. In December 1997, the new Head of State, Bakili Muluzi, dissolved the commission and appointed a new commission many months later (July 1998) chaired by Justice William Hanjahanja. In June 1999, under pressure from opposition parties and civil society organisations (CS0s), Justice Hanjahanja was removed. Justice James Kalaile was then appointed to head the commission. Kalaile resigned as Chairman of the MEC in August 2004 after considerable criticism of the handling of the 2004 presidential and parliamentary elections. In September, Justice Anastasia Msosa was again appointed to head the MEC. Since the 1999 general elections, observers have suggested that the MEC has failed in providing the contending parties and candidates with a level playing field in the electoral contests. The inability of the MEC to administer the election in an equitable manner is linked to its lack of autonomy from Government. The MEC’s lack of financial autonomy and predictable long-term financing is also a point of concern. On 5 May 2005, the The Daily Times announced that the Ministry of Finance had cut the funding for the MEC from K3 million to K600,000. It was also reported that Government had not released the arrears from the 2004 budget. Since the MEC owed Malawi Telecommunications K1 million in telephone bills, all their phone lines were disconnected as of 1 May 2005. The financial cuts suggest that the Government does not prioritise electoral administration. Lacking predictable funding, the MEC must rely on lobbying Government and international donors for funds, which further weakens its autonomy. MEC’s lack of budgetary autonomy is also linked to the fact that approximately 30% of the budget for the elections is financed by the international donor community. Reports from the 1999 and 2004 presidential and parliamentary elections have noted that the relationship between the MEC and the international donor community has been in conflict. The stated goal of democracy assistance to the electoral process in Malawi is to strengthen the MEC’s ability to manage elections, and to improve its accountability to Malawi’s citizens. Ironically, perhaps, in the 2004 election exercise, long-term capacity building activities were removed from the MEC’s elections budget as donors insisted on cutting costs. Subsequent assistance in part sought to redress the observed shortcomings on an emergency basis. an increased level of conflict as the courts became centrally involved in the electoral process from cases involving electoral rules, the voter registration process, the candidate selection, the election campaign, the polling process, the counting of the ballots, and the integrity of the results (Gloppen and Kanyongolo 2004). The impact of the courts in terms of safeguarding free and fair elections was particularly witnessed in securing the contesting parties’ and candidates’ access to

200 Chapter 7: Elections: Systems and Processes public rallies and demonstrations. Nevertheless, the number of election petitions brought to the courts after the 2004 elections indicates that the electoral process continues to be marked by irregularities that affect the legitimacy of the election results. In August 2003 the National Elections Consultative Forum (NECOF) was established in order to provide a forum for discussing and resolving issues of electoral conduct between the political parties, NGOs’ representatives and the MEC. A similar structure was established at the district level referred to as Multi- party Liaison Committees (MPLC). The intention behind NECOF was to improve the credibility and impartiality of the MEC in the eyes of the Opposition and civil society by bringing together stakeholders to discuss election related issues. In the period leading up to the 2004 presidential and parliamentary elections, NECOF was scheduled to meet every month, but lack of commitment on the part of some members meant that only a few meetings were conducted. Most observers noted that the MPLCs at the district level had been fairly successful in resolving political conflict at the district level (Patel 2004: 229). The fact that electoral contests are referred to the courts may reflect a lack of trust in the political institutions charged with the administration of the electoral process. Whereas observers described the 1994 elections as ‘free and fair’, the 1999 general elections were characterised as ‘substantially free and fair’ by international observers. The 2004 general elections were judged to be ‘free but not fair’ due to inadequacies of administering the electoral process. (This conclusion was reached by the election observer missions of the EU –– European Union Election Observation Mission: Republic of Malawi. Presidential and Parliamentary Elections 20 May 2004 – and EISA {Electoral Institute of Southern Africa}). CSOs as well as local and international election monitors have, in particular, emphasised the need to restructure the MEC in order to improve the administration of the electoral process and, thereby, ensure the legitimacy of the election results.

CONCLUSION

This chapter has discussed Malawi’s experiences with multiparty elections since 1994 emphasising the form of electoral system employed and the administration of the various steps in the electoral process. We have seen that an election is an important part of the democratic process. While it is not possible to judge the nature of a democracy on the basis of the conduct of elections alone, it is equally impossible to conceive of democracy without elections. In democracies, elections

201 GOVERNMENT AND POLITICS IN MALAWI should secure equal participation and competition. In Malawi, three elections are arranged for three different offices: the presidential office, Parliament, and the local councils. The electoral system determines the rules for how votes cast in elections are converted into seats in national and Local Government assemblies. An electoral system has three basic components: i) electoral constituencies (or electoral districts), of which Malawi currently has 193; ii) electoral formula used to calculate seat allocation which in Malawi is the plurality rule system; and iii) the ballot, which in Malawi is categorical. Since the mid-1990s a broad international consensus has emerged that views elections as a long-term process, involving a number of steps ranging from the pre- election via election to the post-election stage. The MEC is charged with the administration of elections with the support of Parliament, the courts, civil society, the political parties, and the international donor community. This chapter has shown that elections in Malawi, apart from the 2000 Local Government elections, have attracted large turnouts. Furthermore, the actual polling has in general been conducted in a peaceful and orderly manner. However, in all elections, the administration of the electoral process – from constituency demarcation, voter registration, campaigning, voting, results tabulation, and conflict resolution — has displayed weaknesses. Inadequate administration of the electoral process has affected the legitimacy of the 1999 and 2004 presidential and parliamentary elections and the ELECTION MONITORING 2000 Local Government elections. Partly as a result of administrative Election observers are representatives of shortcomings, both the 1999 and neutral national and international agencies 2004 parliamentary and who are sent into a country to purposefully presidential election results have gather information about the electoral process been challenged in the courts of and the public’s perception of it. They evaluate the election process using universal Malawi. standards. The way three multiparty Election monitoring or observation includes: elections have been conducted in • International observation conducted by Malawi fits a general pattern of missions sent by Governments, elections witnessed in many of multilateral organisations, or international NGOs sub-Saharan Africa’s new • Domestic monitoring by national democracies. While multiparty organisations and non-partisan civil democracy has emerged it is less society groups clear whether most African states • International supervision of post-conflict are progressing toward democratic elections, referenda, and other self- determination exercises by inter- consolidation, by which governmental organisations democratic norms and values are

202 Chapter 7: Elections: Systems and Processes institutionalised in the political system. Despite consecutive multiparty elections, observers have argued that the quality of the electoral process has not improved everywhere. In fact, a distinct decline in quality from the first to the second elections conducted in a number of Africa’s new democracies has been observed. Despite regular competitive elections, most African regimes have failed to meet more substantive tests of democracy, such as the possibility of a change of Government through free and fair elections. This has led observers to conclude that Africa’s new democracies are increasingly ‘illiberal’: Competitive multiparty elections are held and political freedoms and civil rights are formally recognised, but they are imperfectly observed in practice. In particular, the press is harassed in a number of ways, and the Government has retained tight control over radio and TV. Democracies are not built in a decade, and the creation of institutional practices that guarantee free and fair elections require the establishment of norms, administrative experience, resources, as well as legal instruments. Within this perspective, a decade of multiparty rule and three consecutive elections is a relatively short period. Both the time dimension, and the challenges facing poor developing countries emerging from authoritarian rule to multiparty politics, should be kept in mind when we evaluate Malawi’s electoral experiences since 1994.

Questions

1. What are the main characteristics of an electoral system? 2. List four types of electoral systems. 3. What are the main problems identified with the single member plurality system employed in Malawi’s elections? 4. What are the main attractions of the Single-Member-Plurality system? 5. What are the minimum criteria that must be met for elections to be free and fair? 6. Should the electoral system of Malawi be changed from the current first- past-the-post-system to proportional representation? Why? 7. How significant is electoral competition in electoral processes? 8. How can the effectiveness and efficiency of the MEC be safeguarded? 9. How can the quality of political representation be guaranteed in Malawi? 10 In what ways can elections install an illegitimate Government into power?

203 GOVERNMENT AND POLITICS IN MALAWI Glossary

Ballot: method of voting by putting a ticket in a box. The structure of the ballot may be categorical or ordinal. Ordinal ballots allow voters to favour more than one party or candidate. Categorical ballots allow voters to support only one candidate or party candidate’s name.

Ballot paper: a paper or ticket on which a vote is recorded.

Election: Competition for office based on a formal expression of preferences by a population.

Electoral system: A set of rules and procedures determining who elects officers for what offices, who participates, and how votes are translated into seats.

Electoral constituency: The geographical electoral unit where eligible voters are organised to elect representatives.

Electoral formula: The mathematical formula used to calculate the seat allocation. The electoral formula can be based on a majority, a plurality, or a proportional principle.

Voters’ roll: The final list of registered voters. In order to vote, the voters name must appear on the voters’ roll.

204 Chapter 7: Elections: Systems and Processes References and Further Reading

Bakken, M. (2005), ‘Electoral system design and the effects on representation and regionalization in Malawi 1994–2004’, Thesis, Comparative Politics, University of Bergen, Norway Bjornlund, E. (2004), Beyond Free and Fair. Monitoring Elections and Building Democracy Washington DC and Baltimore: Woodrow Wilson Centre Press/Johns Hopkins University Press Bratton M, Van de Walle N. (1997), Democratic experiments in Africa: Regime transitions in Comparative Perspective, Cambridge: Cambridge University Press Commonwealth Secretariat (2004), Malawi Parliamentary and Presidential Election May 20, 2004. Report of the Commonwealth Observer Group (http://www.thecommonwealth.org/shared_asp_files/uploadedfiles/Malawi% 202004.pdf) Dahl, R. A.(1971), Polyarchy: Participation and Opposition, New Haven: Yale University Press Dulani, B, (2004), ‘The Elections Under Scrutiny: Process – Results – Lessons’ in M. Ott, B. Immink, B. Mhango and C. P. Berries (eds) The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, Zomba: Kachere Books, No 14: pp 7–29 Electoral Institute of Southern Africa (EISA) (2004), ‘Election Update. Malawi’ (April) Elklit J. (2002) ‘The impact of election administration on the legitimacy of emerging democracies: a new comparative politics research agenda’, Commonwealth and Comparative Politics Vol 40: pp 86–119

Farrell, D. M. (2001) Electoral Systems: A Comparative Introduction, Basingstoke: Palgrave

Gloppen, S. and E. Kanyongolo (2004), ‘The role of the judiciary in the 2004 general elections in Malawi’, Bergen: Chr. Michelsen Institute, CMI Working Paper WP 2004: p 16

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Khembo, N., C. Kabemba and E. Mcheka (2004), Elections and Democratisation in Malawi: An Uncertain Process, Report to Electoral Institute of Southern Africa (EISA)

Meinhardt, H. and N. Patel (2003), Malawi’s Process of Democratic Transition. An Analysis of Political Developments between 1990 and 2003, Lilongwe: Konrad Adenauer Foundation

Neale, T, 2004: ‘Malawi’s Media – 2004 and Beyond’ in M. Ott, B. Immink, B. Mhango and C.P. Berries, The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections: pp 181–195

Norris, P. (1997) ‘Choosing electoral system: proportional, majoritarian or mixed systems’ International Political Science Review 18 (3):pp 297–312

Ott, M., K.M. Phiri and N. Patel (2000) (eds), Malawi’s Second Elections: Process, Problems, and Prospects, Blantyre: CLAIM

Patel, N, 2004: ‘Troublemakers and Bridge Builders: Conflict Management and Conflict Resolution’ in M. Ott, B. Immink, B. Mhango and C.P. Berries, The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections: pp 217–243

Patel, N. (2000): ‘1999 Elections in Malawi. Challenges and Reforms’, in M. Ott, K.M. Phiri, and N. Patel (eds) Malawi’s Second Elections: Process, Problems, and Prospects, Blantyre: CLAIM

Reynolds A. and B. Reilly (1997), The International IDEA Handbook of Electoral System Design, Stockholm: International IDEA

Washington DC and Baltimore: Woodrow Wilson Centre Press/Johns Hopkins University Press

206 8 POLITICAL PARTIES IN MALAWI

Lars Svåsand and Nixon S. Khembo

INTRODUCTION

This chapter describes how political parties have developed in Malawi. We first consider how the existence of several political parties in a state is one of the prerequisites for a democracy. We look at how in theory political parties provide important functions in a democracy. We then define the terms ‘political party’ and ‘party system’ and consider how the party system in Malawi has changed since the 1950s until after the elections in 2004. We go on to consider the internal organisation of political parties in Malawi, how they are financed, how candidates and leaders are nominated and the role of women and youth. Finally we reflect on whether political parties in Malawi have an integrative role and provide the electorate with different political alternatives. The following issues are discussed: • What is a political party? • What functions do political parties provide in a democracy? • What is a party system? • How has the Malawian party system developed? • What are the main characteristics of political parties in Malawi? • How different are parties from each other? • What are the challenges facing political parties as institutions?

THE CONCEPT OF ‘POLITICAL PARTY’

Key concept: political party An organisation that seeks political power by nominating candidates for publicly elected offices

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A political party has characteristics that distinguish it from other political actors. A political party is an organisation and as such implies a body of people acting together. It has an important recruitment function, as it selects candidates to compete for the presidency and for parliamentary seats. The party leader is usually the party’s candidate for the top political position in the political system, for example, the presidency or the Prime Minister’s office. Candidates elected on behalf of a party become part of the national political leadership and being a Member of Parliament (MP) is usually a first, necessary step in order to advance to future leadership positions, such as Cabinet membership or presidential candidature. A party organisation is more than an ad hoc grouping of individuals. In principle such a structure should be able to survive the individuals who participate in it at any given point in time. In such cases we talk of party institutionalisation. A central feature of parties in democracies is that the parties themselves should be democratic. That is, members of the party delegate authority to their elected leaders. In addition, the procedures for determining the party leadership and the nomination of candidates are decided by the organisation itself.

Key concept: nomination

The process by which a party selects its candidates to run in an election

As an organisation, a political party has a set of political objectives it seeks to implement in public policy. By joining a political party or by being nominated as one of its candidates, an individual is usually identified with the general policy aims of the party. A party’s representatives in Parliament and/or Government are assumed to pursue that party’s policies. In multiparty systems the parties are separated from each other because they have different political objectives. All of these characteristics have given political parties a special place in the modern conception of democracy. When a party takes part in several elections, voters will be able to assess how well the party has lived up to its promises since the last election. When a party has been around for a long time, voters will have a better understanding of the general orientation of the party. Although an individual voter may not know all the details about a party’s programme, the general inclination of the party will have become familiar. Consequently, when candidates run for office as nominees of a political party, the voter will assume that the candidates’ political objectives are closely identified with that of the party. In this respect, party candidates have an advantage over independent candidates, about whom little may be known.

208 Chapter 8: Political Parties in Malawi

In reality, these characteristics of a political party and the way they are supposed to work in a democracy take a number of different forms and deviate from what they ideally should be. As we shall see, although Malawi has a multiparty system, political parties do not necessarily correspond equally well to the definition of what a party is or how well it performs various functions. Only one party has a long history, the Malawi Congress Party (MCP). United Democratic Front (UDF) and Alliance for Democracy (AFORD) have both existed since the early 1990s, but many of the current parties were formed quite recently. Also, it is not clear if formal membership is an important criterion when parties nominate candidates, since registers of formal membership hardly exist. Nor is it clear that party members have a strong say over how the party organisation is run and how political decisions are made. One also has to consider the extent to which parties do in fact represent different ‘visions’ of how society is to be governed. We will look at this later in this chapter.

DEMOCRACY AND POLITICAL PARTIES

The existence of several parties is only a necessary, not a sufficient condition for characterising a political system as a democracy. In Malawi the right to form or join a political party is enshrined in the Constitution of Malawi Chapter IV (Human Rights): ‘(1) Every person shall have the right to freedom of association, which shall include the freedom to form associations. (2) No person may be compelled to belong to an association’ (Section 32) and ‘(1) subject to this Constitution, every person shall have the right – (a) to form, to join, to participate in the activities of, and to recruit members for, a political party; (b) to campaign for a political party or cause; (c) to participate in peaceful political activity intended to influence the composition and policies of the Government and (d) freely to make political choices’ (Section 40). In a democracy, the state as an institution should not favour any particular political party or candidate. All parties and candidates should be able to advocate freely for their policies. Citizens have the right to multiple sources of information and should be able to freely choose among different candidates and political parties.

Key concept: electoral manifesto This is a document that sets out a party’s intentions or policies for the next electoral period, explaining how different issues will be prioritised and resolved.

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Candidates competing for political offices do not necessarily have to belong to a political party, but the party as an institution has emerged as a valuable instrument in a democracy for the voters as well as for new candidates and incumbents. There are the following benefits: • Creating political leaders: One of the most important functions of political parties is recruiting people to stand for political office, and thereby creating political leaders. • Providing choice to the electorate: Political parties in a democracy are able to provide a choice to the electorate by developing and propagating alternative political programmes and different visions of how society should be developed. Such ideas and programmes are developed in each party’s electoral manifesto where the party outlines what and how policy issues should be addressed. • Mobilising the electorate to vote: As political parties want to win seats in Parliament, they have a vested interest in encouraging people to vote. This helps to encourage active participation of the electorate in elections. • Contributing to national integration: Political parties have the ability to contribute to national integration by promoting a national agenda rather than an agenda for a particular part of the country or a particular group of people. Also, by being a national organisation political parties are able to link different regions together. Later in the chapter we consider whether political parties perform this function in Malawi. • Legitimising the democratic process: Through their participation in elections, political parties contribute to the legitimisation of the democratic political system. • Playing an active role in Opposition: Party groups are the building-blocs in the formation of Parliament and the Cabinet. It is clear that a political party or parties which forms or form the Government has or have an important role, but the role of opposition parties is a crucial one too, as it provides a check on Government and presents alternatives to the Government of the day. • Providing a democratic structure: As organisations, political parties connect citizens to the political system. In addition to mobilising the electorate to vote in elections political parties seek to gain support on a more permanent basis in the form of party members. Party members constitute a group of people from whom the party can recruit internal office holders as well as future candidates. Party organisations therefore can function as ‘schools of democracy’.

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However, these benefits are not always apparent in reality. For example, In Malawi to what extent do parties actually differ from each other and to what extent is the electoral manifesto of the ruling party carried out in practice when party representatives vote in Parliament or make decisions in Government? Also, political parties do not always have an internal democratic structure. In Malawi, it is both disputed what internal party democracy means, and to what extent a party actually operates according to its formal statutes. We consider these aspects when we look at key political parties’ manifestos and their internal structure later on in this chapter.

THE CONCEPT OF ‘PARTY SYSTEM’

Key concept: party system The set of political parties that exists in any given political system at a particular point in time

While the concept of political party deals with the nature of each individual party, the concept of a party system deals with the political party set-up within a state and if more than one party exists how these individual parties relate to and interact with each other. A pre-requisite for calling a political system a democracy is that there are several political parties that exist independently of each other and of the state and that they are free to compete in elections, to critique the Government and to advocate for different policies. We can define what type of party system a state has by considering the following: a) the number of parties, b) the relative size of parties, c) the political objectives that separate parties from each other, and d) the interaction pattern between parties.

The number and size of parties

The concept of a party system helps us to distinguish between different political systems as well as to identify changes in party configurations within a political system across time. Initially we need to consider whether a party system is a one-party system (where only one party exists and is allowed to exist and governs the country) or a multiparty system (where more than one party exists and competes for Government). When several parties exist and they are about equal in size, or when

211 GOVERNMENT AND POLITICS IN MALAWI there is an alternation over time of the party that controls the Government we are dealing with a balanced party system. This type of party system could be either a two-party system, such as in the UK (where only the Conservative Party and the Labour Party have been in power in the post Second World War period) and the USA, or a moderate multiparty system as in the Scandinavian countries. If there are v many parties we have a fragmented party system. A highly fragmented party system is usually not considered favourable for democracy because of the problem of finding a workable majority for Government. Also a dominant party system is not considered favourable, but for the opposite reason. In a dominant party system one party is considerably larger than any other party and is therefore able to control the Government for a very long time and the opposition parties are in a ‘permanent’ minority. Botswana is the clearest example in Africa of a dominant party system where the same party, Botswana Democratic Party (BDP), has won all elections since independence. South Africa is frequently cited as another emerging dominant party system since the ANC (African National Congress) has won the first three democratic elections with overwhelming support. In Ethiopia EPDRF (Ethiopian People’s Democratic Revolutionary Front) has a similar dominating position. Thus, to speak of a dominant party system implies that one party controls the Government for a considerable period of time and that this party is considerably larger in terms of electoral support than any of the other parties in the party system. Botswana, due to the length of time that the BDP has been in power, is therefore a clearer case of a dominating party system than South Africa since the number of elections the ANC has won so far is limited to three. In Africa, Ghana seems to be emerging as an example of a balanced two-party system, while Malawi’s party system since independence has been changing between several forms. During the Banda regime Malawi had a one-party system. From 1994 to early 2004 the party system can be characterised as a balanced three- party system, with two large parties, UDF and MCP and a smaller one, AFORD, while the political developments before and after the 2004 elections led to a fragmentation of the party system.

The political objectives of parties

The idea of multiple parties in a democracy is that there should be different political alternatives that people may vote for, or join. In elections the various parties and their candidates compete for support because they represent different ideas about how society should be governed. It is common to understand the competition between parties in elections as being structured along political

212 Chapter 8: Political Parties in Malawi dimensions. These dimensions can refer to differences in economic policy (left–right), or to differences based on regional, ethnic, linguistic or religious issues. To what extent the parties differ from each other in terms of their political objectives depends on where they are positioned in terms of these dimensions. If the most important political parties have diametrically opposite views on, for example, economic policy, with one party favouring state control of the economy and the other favouring a completely liberalised economy, we speak of party system polarisation. If some parties are separated along the economic dimension, but other parties are separated along issues like religion, language and region, we talk about a multi-dimensional party system. When a party competes in elections it presents to the voters various reasons why the voters should vote for it, rather than any other party. Usually, the justification for the existence of a party, and for its candidates, is that it represents a political alternative that is different from other parties and this is expressed in an electoral manifesto. The association between a political party and a party programme is important and explains why candidates for publicly elected offices often prefer to run as party candidates rather than as independents. As a candidate for a party, the party label signals to the voters which group he or she is representing. An independent candidate, however, needs to explain to the voters what he or she is standing for. Once elected on a party ticket, the representatives of the party are supposed to work on implementing the party programme. The extent to which party representatives fulfil their electoral pledges as promised in the election campaign and in the party programme impacts on the chances for re-election in the future. However, in reality, it is problematic for voters to hold representatives to account in this way, because voters may have only rudimentary information of what the party manifesto contains and/or what their representatives do once elected to office. It may also not be clear how parties differ from each other in terms of the election manifesto. Quite apart from this, voters may vote for a particular candidate, not due to his/her party manifesto, but based on different criteria, such as preference for the candidate as a person.

Interaction between parties

The interaction between parties refers to how parties view each other. On the one hand, all parties are competitors in elections, but some parties may be competing more fiercely with some than with others depending on the type of voters they seek to mobilise. An example of an alliance between parties is when two or more parties nominate a joint candidate, for example, for presidency. This was the case with the NRC (National Rainbow Coalition) in Kenya in the 2002 elections and the

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Mgwirizano (meaning ‘unity’) Coalition in Malawi in 2004 where opposition parties formed a coalition in order to avoid splitting the vote between them. Another example of alliances between parties is when several parties form a coalition Government after the elections, such as that formed between the UDF and AFORD in 2002 and between UDF, NDA (National Democratic Alliance), NDC (New Democratic Congress) and RP (Republican Party) after the 2004 elections. This type of coalition is needed when none of the parties alone has a majority of the seats.

Key concept: coalition An agreement between two or more parties to form a Government, or a group of parties that have entered into an agreement to work together for a common objective, such as fielding joint candidates

Parties do not necessarily have to be large to be part of a coalition. Even a small number of MPs may be just what is needed to form a majority coalition. Such parties have what is called blackmail potential, because they can make or break coalitions. Party cooperation in the form of coalition agreements depends on the political differences between them. Thus, parties that are not too different from each other ideologically can more easily cooperate for a longer time than parties that occupy positions at the opposite extremes. A small centre party may have the opportunity to ally itself with parties both to its left and to its right. However, the idea that ideological placement influences coalition participation rests on two preconditions. It must be the case that firstly parties do differ from each other along one or more significant policy dimensions, and secondly parties are primarily motivated to take part in coalitions in order to promote their political programme. As we shall see, the alliances and competition between parties in Malawi indicate that other objectives may also be important.

THE DEVELOPMENT OF THE PARTY SYSTEM N MALAWI

First phase 1950–1966: multiparty system

When Malawi became an independent state in 1964 it had a multiparty system where the (UFP), the Christian Democratic Party (CDP) and the Congress Liberation Party (CLP) existed alongside the MCP. The MCP was founded in 1959, but its history goes back to 1944 when it was established as the

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Nyasaland African Congress. However, soon after independence in 1964 a conflict known as the Cabinet Crisis erupted. Among other things, the Cabinet Crisis was precipitated by ideological cold war differences (see Chapter 14), regionalism and internal power struggles. Dr Banda was more inclined to the West while some of his key ministers supported the Eastern bloc. In addition, there was tension within the Cabinet because of regionalism – Dr Banda being accused of neglecting the Northern and Southern Regions in favour of his home region in the Centre. These differences led to intra-party conflicts and power struggles in MCP. As a consequence of this, some senior Ministers fled into exile while others were detained in the country.

Second phase 1966–1994: one-party system

Phase two began in 1966 when Malawi was turned into a one-party state and MCP was declared as the only legitimate party. The need to foster national unity, expedite national development and consolidate the young state and nation were arguments in favour of abandoning the multiparty system. Thus, MCP enjoyed a monopoly for almost three decades until 1994.

Third phase 1994–2003: three-party system

From 1994 to the start of the so called ‘third term’ debate in 2003, Malawi’s party system can best be described as a three-party system, where UDF, AFORD and MCP dominated. Within Dr Banda’s MCP there emerged various pressure groups favouring a multiparty system of Government. One of these factions developed around former businessman and politician under the MCP regime, Bakili Muluzi, who formed the UDF and another fraction was led by Chakufwa Chihana, a trade union leader, who formed AFORD. Both of these parties emerged from pressure groups within the MCP and together with MCP, they shaped the three-party system that dominated Malawi until 2003. In the 1994 parliamentary election three political parties, MCP, UDF and AFORD, had candidates in all, or in almost all, of the 177 constituencies, while other parties were limited to a minority, and in some cases to only a few constituencies. In the 1999 and 2004 elections, AFORD’s number of candidates was reduced as the party concentrated on its stronghold in the Northern Region. The dominance of the three parties was also accentuated in the parliamentary results, reflecting a regional distribution of support. AFORD dominated in the North, the old state carrying party, MCP, in the Centre and UDF in the South

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(Table 1). In the 1994 elections, UDF won almost half of the seats, MCP slightly less than a third and AFORD a fifth of the seats. In 1999 AFORD’s share of the seats declined, but in terms of actual numbers it remained the same. The decline of the share was caused by the increase in the total number of seats from 177 to 193. All of the new seats were allocated to the Southern and Central Regions. The relationship between the three largest parties during this period shifted between competition and alliances. Thus, during the first Parliament, MCP and AFORD established a parliamentary alliance in opposition. The opposition MCP–AFORD coalition was so strong that the committees of Parliament were even chaired by opposition MPs and the UDF executive could not work because it had a very strong and confrontational Legislature. In September 1994, AFORD broke away from its coalition with the MCP and joined hands with the ruling UDF. Thus a UDF and AFORD coalition Government was formed. Although the position of Second Vice President was created to accommodate Chihana, the president of AFORD, and seven AFORD MPs were given ministerial positions, AFORD still felt it was not getting a fair share of the power cake and decided to pull out of the coalition. In spite of the party command to pull out of the coalition, the seven AFORD ministers refused and remained in the Government with the UDF. This was the first and serious casualty for AFORD as it lost seven of its promising candidates effectively to the UDF. In the 1999 election campaign AFORD aligned itself with the MCP, but UDF still remained in power. As the third term issue emerged in 2003 AFORD again joined the UDF Government. As we shall see, the fragmentation of the party system prior to and in the wake of the 2004 elections further changed the alliance and competition patterns. There were a number of other parties that formed after the ending of the Banda regime, such as the Social Democratic Party (SDP) formerly Christian Democratic Party of Eston Kakhome, the Malawi Democratic Party (MDP) of Kamlepo Kalua, and the Malawi Democratic Union (MDU) of Amunandife Mkumba, but none of these were unsuccessful in gaining seats during the elections. Between the 1994 and 1999 elections, the number of registered parties increased to 18. The five new parties that appeared on the ballot in 1999 were the Congress for National Unity (CONU) of Bishop Mnkhumbwe, the Mass Movement for Young Democrats (MMYD) of Christopher Chaima Banda, the Malawi National Democratic Party (MNDP) of Tim Mangwazu, the United Party (UP) of Bingu wa Mutharika, and the Sapitwa National Democratic Party (SNDP) of Mrs F. Chirwa. However, these new parties had only a limited number of parliamentary candidates, in contrast to the UDF and MCP which had candidates in most constituencies and

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AFORD which had a particularly strong regional base in the North. All of these newcomers were unsuccessful in gaining seats in Parliament. Only one independent candidate was successful in the 1999 elections.

Fourth phase late 2003–May 2004: fragmented party system

The fourth phase starts in the run-up to the 2004 election period and the immediate aftermath and is characterised by fragmentation and restructuring because of the party splits, mergers and alliances that took place. In the run-up to the 2004 elections the number of registered parties increased to 29, four times as many as at the start of the third phase. All of the established parties, MCP, UDF and AFORD, experienced breakaways, partly because of long-time internal conflict over leadership, partly because of conflicts over alliances and the third term issue.

MCP MCP inherited a legacy of internal divisions and factions when Dr Banda retired from politics in 1994. The front bench politicians who took over the party, Gwanda Chakuamba, , Loius Chimango, Kate Kainja and Hitherwick Ntaba, had all been key figures under Dr Banda. This meant that past political differences and fights for recognition were carried over into the new multiparty setting. Chakuamba, who was MCP president soon clashed with his vice president, John Tembo, over the party presidency. The party was divided over the third term issue, and the two sides each called a national convention, each electing a party president. The dispute over who was the party’s legitimate leader was in the end settled by the courts in favour of John Tembo. It was this background that led to the emergence of splinter parties during the run-up to the 2004 elections. In December 2003 the former MCP publicity secretary, Hetherwick Ntaba, registered his own party, New Congress for Democracy (NCD), followed by two other MCP MPs. A few days into 2004, the vice president of MCP, Gwanda Chakuamba, also left MCP and formed his own party, the Republican Party (RP), to which nine MPs switched from the MCP. Kate Kainja, finally, left the post of MCP secretary-general in 2005 and joined the Cabinet of Dr Bingu wa Mutharika’s administration that came to power in May 2004.

UDF Towards the end of the second electoral term of President Muluzi the issue of the presidential term limit emerged. The governing party, the UDF, was internally divided between people supporting and opposing the lifting of the term limitation rule in the Constitution. In the process, several people defected, or were excluded from the UDF and this led to the formation of other parties. Three parties may be

217 GOVERNMENT AND POLITICS IN MALAWI said to have originated from the UDF, although activists were recruited to these parties from elsewhere as well: NDA and PPM were formed prior to the 2004 elections and the DPP (Democratic Progressive Party) after the elections. The National Democratic Alliance (NDA), started as a pressure group within the UDF, but registered as a party in January 2003. Its leader, B.J. Mpinganjira, had been a Cabinet member but was opposed to the attempt by President Muluzi to alter the Constitution to allow for a third term. The People’s Progressive Movement (PPM) started as a political movement outside Parliament and was led by Korea Mpatsa and Mark Katsonga Phiri. However, several UDF members defected, or were forced out during the third term debate and so joined this party. One of these was Aleke Banda, a former Cabinet member in the UDF Government. He became president of PPM. In 2004 when President Muluzi realised that the bid to secure a third term was not going to be successful, he nominated Dr Bingu wa Mutharika as UDF presidential candidate through the party’s national convention, although Mutharika had no senior position in the party. As mentioned above he had contested the presidential elections in 1994 with his own party, the UP. The nomination of Mutharika triggered the resignation of the Malawian Vice President, Justin Malewezi, from the UDF. He later joined the PPM and became its vice president. However, he was later excluded from the party when he registered as an independent presidential candidate, running against the party’s coalition candidate.

AFORD and its splinters Divisions inside AFORD emerged as a consequence of the leadership’s decision in 2003 to join the UDF as a coalition partner. This was controversial in the AFORD party and spurred some of its MPs to oppose the coalition. The third term issue also played its part in splitting the party. AFORD’s convention had asked the party not to support UDF on the third term issue, but this resolution was ignored by the party leadership. This provided the seeds that germinated into the Movement for Genuine Multiparty Democracy (MGODE). At least three other AFORD MPs resigned from the party during the last year of the sitting Parliament, with one member joining the NDA and another joining the RP (see below).

Other political parties Malawi Forum for Unity and Development (MAFUNDE) was registered as a party in October 2002. It was initiated by a group of business people, but it also attracted people from other parties, including the former secretary-general of AFORD, Wallace Chiume. Another party alternative formed in December 2002 was the People’s Transformation Party (PETRA). Its main base is in the Northern Region where it won one parliamentary seat in the 2004 elections.

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Together the party splits and the newly formed parties changed the political landscape in the run-up to the 2004 elections. Splits in MCP and UDF reduced the number of seats these two parties contested. Of the new parties, NDA fielded candidates in all but six constituencies and PPM and RP in more than 100 constituencies. A third significant change was the increase in the number of independent candidates, which more than tripled from the 1999 figure. One of the main reasons for this increase was the conflicts within the parties over the nomination process. UDF was particularly affected by this conflict. Firstly, the primaries in which candidates had been selected had not been conducted consistently across the country. As a result, many of the loosing candidates challenged the results of the selection process. Reruns were organised in some constituencies, but in others the party leadership at different levels declared one of the candidates as duly selected. Several of the loosing candidates that challenged the nomination outcome decided to run as independents. Another reason for the increase in independent candidates was caused by the agreement between the leaderships of UDF and AFORD not to compete against each other in the parliamentary elections. Thus, the leadership of UDF agreed not to nominate candidates in most of the constituencies in the Northern Region; the stronghold of AFORD. However, within the UDF the agreement was challenged at the constituency level by prospective candidates. Denied nomination by the party, many of these decided to run as independents. The fragmentation of the party system became evident in the election results, particularly for UDF and AFORD (Table 1).

Table 1: Parliamentary Elections, % of Votes Gained

MCP UDF AFORD Ind. RP PPM NDA MGODE PETRA CONU

1994 31.6 48.0 20.3 0

1999 34.2 48.7 15.0 2.1

2004 31.5 26.7 3.2 20.9 8.0 3.7 4.3 1.6 0.5 0.5

For AFORD the election results were a major setback with its share of the MPs declining from a fifth of all MPs to just 3%. Also UDF suffered a setback, declining from almost half to one-fifth of all seats. Independent candidates won 39 seats. Although some of the new parties had fielded candidates in a majority of the constituencies, their electoral success was modest, particularly in the case of NDA which, in spite of having a candidate in almost all constituencies, only won

219 GOVERNMENT AND POLITICS IN MALAWI in eight of them. MCP was less affected by the splits it had suffered. Its share of the seats declined slightly from the 1999 elections, but remained at the same level as for 1994. Due to its stability and the fragmentation of UDF, MCP performed the best in the 2004 electoral results and therefore it became the largest party group in Parliament. In the presidential elections there have been far fewer parties nominating candidates than in the parliamentary elections. The costs of running a national campaign are much higher than for individual parliamentary constituencies where the parties can leave a lot of the campaigning to the individual candidates. Both the 1994 and the 1999 presidential election campaigns were a race between the candidates for UDF and MCP (Tables 2 and 3) while the votes were more evenly split between three of the candidates in the 2004 election (Table 4).

Table 2 Presidential Candidates for 1994, % of Votes Gained

Candidate Party Votes scored % of votes B. Muluzi UDF 1,404,754 47.2 Dr K. Banda MCP 996,353 33.5 C. Chihana AFORD 562,862 18.9 K. Kalua MDP 15,624 0.5 Total 2,978,885*

*The votes given under ‘Votes scored’ do not add up to the total figure given, however these are the official and gazetted electoral results Source: The Malawi Government Gazette 1994, Vol XXXI, No 40

Table 3: Presidential candidates for 1999, % of votes gained

Candidate Party Votes scored % of votes B. Muluzi UDF 2,442,685 52.4 G. Chakuamba MCP 2,106,790 45.2 K. Kalua MDP 67,856 1.5 D. K. Nkhumbwe CONU 24,347 0.5 B. wa Mutharika UP 22,073 0.5 Total 4,663,751

NB AFORD had been given the Second Vice President position in 1995, and in 1999 Chakufwa Chihana of AFORD ran as the running mate to MCP’s Chakuamba, so AFORD did not put forward a presidential candidate of its own. Source: The Malawi Electoral Commission, 1999

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Failure to win the presidential nomination of a party was a major motive behind the further fragmentation of the party system in the run-up to the 2004 elections as some politicians who had failed to be nominated for the presidency by one of the existing parties, formed new political parties in order to run for the presidency on the new parties’ tickets. While Muluzi won close to a majority of the votes in 1994, and a comfortable majority in 1999, none of the presidential candidates in 2004 were able to win a majority of the votes.

Table 4 Presidential Candidates for 2004, % of Votes Gained

CANDIDATE NOMINATED PARTY VOTES SCORED % OF VOTES

Bingu wa Mutharika UDF 1,195,586 35.9%

John Tembo MCP 937,965 28.2%

Gwanda Chakuamba RP/Coalition 836,118 25.1%

Brown Mpinganjira NDA 286,320 8.6%

Justin Chimera Malewezi Independent 67,812 2.4%

TOTAL 3,323,801

Source: The Malawi Electoral Commission 2004 (Vol XLI, No 34)

Thus, by 2004 the original three-party system had fragmented into a number of new parties, which subsequently went through a further process of coalition- building and fusions, triggering internal conflicts and adding newer fragmentation in the post-election period.

Phase 5 Post-May 2004: Restructuring of the multiparty system In the post-election period the party system was again restructured, partly as a result of internal UDF divisions, partly as a result of the need to build a majority support for the President in Parliament. Initially, it looked as if the 2004 elections had returned UDF to power: the party’s presidential candidate, Mutharika, had won the presidency and although the number of independents constituted the single largest ‘group’ in Parliament, UDF hoped – and were able – to build a majority of MPs to support it. However

221 GOVERNMENT AND POLITICS IN MALAWI problems soon emerged in the UDF. Although Mutharika was nominated and elected President on the UDF party ticket, the outgoing President, Bakili Muluzi, was still the UDF’s national chairman. When President Mutharika embarked on an anti-corruption campaign, in which several of Muluzi’s Cabinet members were arrested, conflicts between the Muluzi and the Mutharika factions within the UDF intensified. Mutharika pre-empted expulsion from UDF by resigning from the party in February 2005 and registered his own party, the DPP which became the 35th registered party. However, President Mutharika’s running-mate, Cassim Chilumpha, chose to remain a member of the UDF. Since the UDF did not win a majority of seats in Parliament, it became necessary for the party to form a coalition Government with other political parties. Thus, a memorandum of understanding was signed by the leaders of political parties lured by the UDF into Government. Under these agreements, the leaderships of RP, MGODE, NDA and MAFUNDE joined the UDF-led Government. However, within these parties this deal was controversial among some MPs and among some of the party activists. The formation of President Mutharika’s own party, DPP, complicated matters further. Party leaders of RP, MGODE, NDA and MAFUNDE were now forced to choose between supporting the new party DPP or leave the Government. For example, the president of RP, Chakuamba, was appointed vice president of the new DPP. In order to stop the criticism made by his own party in taking on this position, he decided to de-register his own party, which he finally succeeded in achieving after a series of court cases. However, during September 2005 his relationship with President Mutharika soured and he resigned from the Government but was then left with no party to go back to. He subsequently went on to re-register his original party under the name .

THE NATURE OF PARTIES AS ORGANISATIONS

The transition to a multiparty system necessitated a legal framework regulating the formation of political parties. This was worked out in The Political Parties Registration and Regulation Act, hereafter referred to as the PP-act, which was introduced in 1993. It stipulates that to be a registered a party must:

• Provide a list of names and addresses of no less than 100 registered members that are - citizens of Malawi - have attained voting age of voters in parliamentary election - may apply in writing to the Registrar for registration

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• The application for registration shall be signed by office bearers and be accompanied by - two copies of the party constitution, rules, and manifesto - list of names and addresses of office bearers of the party and no less than 100 • registered members of the party • The registrar may refuse to register a political party if: - the application is not in conformity with this Act - the name of the party is i) identical to the name of a registered party, ii) nearly resembles the name of registered party, iii) is provocative or offends public decency - if the purpose of party is unlawful.

Source: The Political Parties Registration and Regulation Act of 1993

Apolitical party is a formal organisation with a set of statutes which regulate how it is supposed to operate and spell out its main objectives. In Malawi, each party needs to have a party constitution to be registered, but the precise form of the party constitution is left to the individual party to decide (the PP-act only regulates how parties become registered – not how they are internally governed). In other countries, elements of the party constitutions may be regulated by law, such as in the United States. With respect to internal party organisation the following issues are of particular importance: 1) What is the structure of the party: what units or bodies are there in the party organisation, how are they linked together and what powers do they have? 2) How are leaders selected? 3) How are candidates nominated? 4) How are parties financed? 5) What are the roles of members in the party, particularly those of women and youth? 6) How do parties make policy decisions?

Structure

The purpose of a party organisation is to serve as a link between individuals and party organs through a web of organisational units – from the lowest level to the national leadership. In practice, the formal structure of a political party corresponds only partly to how parties operate in reality. Deviation from the formal party statutes may occur because the rules themselves are unclear or because in practice it is possible for office holders and party members to act differently without any consequences for their position in the party. Gradually, new practices therefore emerge. The formal rules for a party are therefore only a starting point for understanding how parties function in practice. In this section we will first outline what a formal party structure looks like, using the MCP as an example. Figure 1 below displays the formal organisational structure of the MCP.

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Figure 1: Organisational Structure of MCP

Chairs Party President

Elects National Executive Committee Elects Appoints Participates

Party MP’s, Ministers Sub- National Convention Committees and Mayors

Regional Executive Committee chairpersons Represented at participate National District Executive Committee Convention

Constituency Committee

Ward committee

Area Committee

Traditional Authority Area

Local Branch

The lower level units are connected to districts, regional and national party units through the election of officeholders. It is not possible for party officers to hold multiple offices. A person has to resign his/her office if elected to an office at a higher level. A key element in the structure is the constituency organisation, where the parliamentary candidates are nominated. The most common way of nominating candidates for the position of MP is primary elections, in which supporters of the candidate line up behind their preferred candidate or vote for him/her. The constituency unit rests on several lower level tiers. This unit rests on several lower level tiers. The base of the organisation is the local branch, which is the entry point to affiliation with the party. The local branch can be established in the villages or local communities, led by an elected committee. A minimum requirement of MCP’s statutes is that there should be ten party members in the local party branch. In addition, there are two affiliated ‘leagues’, one for women and one for youth, each of which must have ten members. In practice it is difficult to know how many

224 Chapter 8: Political Parties in Malawi members there are due to the lack of formal membership registers which have been given a bad name due to the practice by the MCP at the peak of its power during the one-party rule of forcing people to buy party membership. Indeed, this was one of the core grievances that led to the dismantling of the one-party state and the ousting of the MCP regime from power. Not surprisingly, therefore, both old and new parties have trodden carefully over the issue of dues paying party membership since then. All local branches within a traditional authority (TA) area meet every third year to elect an area committee. The wards within the constituency constitute the next level in the party organisation. The area and the local branch committees within each ward meet to elect a ward committee. The chairmen, secretaries and treasurers of all ward committees elect a constituency committee. Also, party representatives in the district town or city assemblies should also be members of this committee. Between the constituency level and the national level there are two additional levels: the district executive committee and the regional executive committee. The party statutes do not assign particular functions to these committees apart from to ‘...settle any differences of opinion or dispute…’ (MCP statutes; Articles 16–20). Failing to do so passes the issue on to the next level in the party hierarchy. The regional and district levels are not necessarily part of the party statutes, but ‘The National Executive Committee (NEC) may from time to time divide Malawi into regions or districts for the purposes of party administration’ (MCP statutes, Article 22). Where such organisations exist, they are responsible for promoting the interests of the party in the region, but also to make representation of issues to the NEC. At each level, these committees consist of representatives from the lower levels in the party organisation. At the national level, three party organs are particularly important: the NEC, the office of the party president, and the national convention. • NEC: The NEC has 24 members elected at the party convention together with all the regional chairpersons, who are automatically members of the NEC, for a period of five years. Each NEC member has a special function. In addition to the party president and two deputy presidents, there are the secretary-general, treasurer-general, publicity secretary, directors for political affairs, elections, research, women, youth, and that of legal advisor, all of them with a deputy position. Apart from facilitating the running of the party organisation, such as recruiting administrative staff, managing party finances, and overseeing lower level party units, it is also NEC’s task to publish a manifesto, dealing with the party’s plans for the national economy, public order, protection of the interests or the state and rights of citizens, domestic and external policies and to prepare the party’s political alternative for

225 GOVERNMENT AND POLITICS IN MALAWI

Government ministries (MCP Statutes, Article 31). There must be a standing committee on finance and a management committee. The latter ‘shall be delegated the powers of the National Executive Committee for the more effective and efficient execution of the aims and objects of the party’ (MCP statutes, Article 33) Other sub-committees may be appointed by the NEC. • National convention: The national convention consists of delegates from different units within the party, such as NEC members, any Government Ministers and Deputy Ministers from the party, the party’s MPs and representatives from various lower level units in the party hierarchy. Although the party statutes specify that the convention is the highest authority of the party, the convention itself has few powers, apart from electing the party president for a five year term (he/she may be re-elected once) and members of the NEC. It is the NEC that determines when and where the convention should meet, source funding for the convention and choose delegates who should attend the convention. No other decisions depend on the outcome of the convention. The convention may discuss policies and other issues but cannot impose decisions on the NEC or the party president. • Office of the president: The party president is chair of the NEC meetings. In this capacity he or she has an important influence on the agenda of the committee and also on the recruitment of the administrative staff for the party. No payment may be made by the party unless signed by the president (or deputy) and counter signed by the treasurer-general or his/her deputy. The party statutes are silent about how the party group in Parliament should function, but the party president is the de facto leader of the party also in that capacity.

The elaborate party organisational structure does not contain any specified functions for any of the other levels in the party hierarchy other than the NEC and its sub-committees. Lower level units in the party hierarchy may recommend issues to the NEC. The emphasis in the statutes is that each level should discuss issues and solve problems at its respective level, but it has no authority to make any decisions apart from electing its own office holders. Even in the case of the constituency organisation, there is no mention of its role in the nomination of candidates for Parliament.

Financing

The statutes of MCP describe an elaborate organisation with many different levels in a hierarchy and many participants as office holders. Although it is unclear to

226 Chapter 8: Political Parties in Malawi what extent all of these organisational units are operating in reality or whether many of them exist on paper only, running an organisation as described above requires considerable resources. The absence of dues paying membership means that political parties must be financed in different ways. Parties that obtain a minimum of 10% parliamentary representation are entitled to a share of state funding. This does not amount to much so the party leaders’ own financial resources therefore become very important for the operation of the party organisation. It is no accident that party leaders also tend to be successful businessmen. In Malawi party presidents virtually own the party as an institution, because they are the ones who finance its vehicles, offices, and personnel. This means the institution is under the control of the party president. This adds to the domination of the leadership within the party as no independent financial resources exist. A common allegation is that the incumbent party can enjoy the benefits of state resources, such as vehicles, hiring party supporters to various positions etc, thereby blurring the distinction between party functions and official state functions. This is of course a misuse of state funds. Other funds may come from international party foundations such as the Dutch Institute for Multiparty Democracy, as well as from individual parties, such as the Liberal Democrats in the UK. These organisations may contribute to parties through subsidising activities such as conventions, seminars and the development of party programmes. However, as mentioned above, political parties in Malawi rely most of all on the financial resources of their presidents.

Leadership selection

Political parties in Malawi elect their leaders at a national convention. Candidates aspiring for leadership positions as party presidents and members of NEC are first nominated at the convention and voted for by the entire congregation through a secret ballot. Anyone who already holds an elected office, however, has centralised leverage to control the process of leadership selection and, sometimes, to impose a leader on the party through their established social networks within the party structures. To be elected as party president is important because the party leader is also likely to become the party’s candidate in a presidential election. As we have seen in Chapter 3 the presidency is the most important political office to win. As a result of this several of the new parties have been initiated by politicians aspiring to that office. Thus, the leadership is often in place before any of the other party organs have been established. This process of party formation strengthens the centralising tendency in the parties. President Mutharika’s party, DPP, is a good

227 GOVERNMENT AND POLITICS IN MALAWI example of this. The party has not yet (by August 2006) held a convention. All of its leaders and officers have been appointed by the President.) In reality it is rare for annual conventions to be held. UDF for example had its first convention in 1994, but the second was not held until 2004. There may be several reasons for this. Conventions are expensive arrangements: delegates need transportation, housing, and food, and venues must be rented, papers printed etc. However, also political motivations may play a part. Conventions bring out into the open conflicts within the parties, such as if the leadership agrees to form a coalition with another party and some members within the party oppose this. Nomination of parliamentary candidates

The nomination of candidates is the most important function of political parties. In Malawi, the parties themselves decide how they select their candidates. Most parties select their parliamentary candidates in party primaries in each individual constituency. A primary is a contest in which supporters for individual candidates are mobilised for a selection meeting. The candidate with the most supporters is nominated. However, in practice this selection process is often highly contested because the parties themselves do not apply the selection method consistently. The nomination of parliamentary candidates for the 2004 election illustrated this, particularly in the case of the UDF. As a consequence, some of those that lost the primaries used the right of appeal to the High Court. The centralisation of power by party leaders has been the main source of discontent with the process of party primaries in many political parties. The tendency to impose candidates on party members is an important reason why political parties such as AFORD, MCP and UDF have suffered protests and splits. The result of this was the emergence of a large number of independent parliamentary candidates in the 2004 elections particularly in the Southern Region, stronghold to the UDF party. New parties too have demonstrated the same tendency since politicians who quit the old parties carry forward their political socialisation into the new parties. Thus, both old and new parties have experienced intra-party conflicts and protest. The role of women and the youth in political parties

Political parties in Malawi have women and youth wings. For example, the MCP has a women’s league, UDF and AFORD have the directorates of women. Similarly, youth wings exist in political parties. Women figure prominently during election rallies and party conventions, singing and dancing for the party leaders. Women feed delegates at party conventions, wear the party colours and give momentum to party leaders ranting on the podium, but they are rarely involved in regular party activities and occupy few leadership positions. Thus, in 2004 only 12.4% of all

228 Chapter 8: Political Parties in Malawi candidates running for Parliament were women. All of the nationwide parties, MCP, UDF and NDA had less than a fifth of their candidates being female. (Smiddy 2005). Women representation in Parliament is now at 14.4% of the total number of parliamentarians. In contrast, the Southern Africa Development Community (SADC) has 30% female MPs as a goal to be reached by 2015. Nevertheless, the 2004 election was an improvement compared to the elections of 1994 and 1999 where only 5% and 8% respectively of MPs were women. The relatively low representation of women has many causes. Politics is regarded as a game for men from which women are traditionally excluded except during voting. Furthermore, women are more vulnerable to poverty in Malawi because they rarely control the incomes of their families. Most of them are poorly trained and educated and are not employed in the formal economic sector to earn decent incomes. So, generally, they are disadvantaged in terms of getting involved in politics. In addition, the electoral system in Malawi with single-member constituencies, is generally not considered favourable to women representation. At the grassroots level women are frequently participating, but higher up in the party hierarchy they tend to be less represented. This is the case because most parties do not have gender quotas, affirmative policies and gender sensitive political and social ideologies. Furthermore, Malawi is a patriarchal society in which the role of women in politics is suppressed. This explains why party leaders hesitate to nominate women as candidates even when they have the power to do so. Political parties, in the main, include gender issues and ideas in their campaign manifestos but their commitment to gender mainstreaming is doubtful. As a consequence, few women are nominated as candidates and few are actually elected to Parliament. The number of women elected to Parliament has increased from 10 in 1994 to 16 in 1999 and 27 in 2004. In 2004 a total of 154 female candidates contested constituency seats; 46 of them as independents. In contrast, the two largest parties, MCP and UDF, nominated 11 and 32 candidates respectively. It appears therefore that the political parties are not particularly open to the nomination of women as candidates. While the youth movements of parties officially serve as a recruitment and mobilisation channel, they also serve as party paramilitary wings: harassing opponents of their leaders, instigating fear and intimidation in the people, and contributing to political and electoral apathy. Violence among supporters during the primary elections and in general elections are often blamed on the youth wings. The Young Pioneers of the MCP during the Banda era were used as a paramilitary force and the Young Democrats of the UDF were used for perpetuating terror and carrying out intimidation. In reality the youth is given no opportunities by the party leaders who keep recycling themselves or handpicking those from outside who they

229 GOVERNMENT AND POLITICS IN MALAWI think will remain loyal and committed to their boss. However, parties could use the youth in a positive way to help to build up the party by serving social functions, providing future leaders and sustaining the institutions of the parties beyond the lifespan of founder leaders.

How do parties make policy decisions?

In theory parties present their national conventions as the highest organ of the party, but in reality power in parties everywhere are more concentrated in smaller organs of the party that meet more frequently. The NEC of a party is a small organisational unit that includes the most powerful people in the party, or they may meet in an even smaller executive sub-committee. The party’s parliamentary group is another body that includes the most experienced politicians. The committees and the parliamentary group consist of people who are political professionals and they therefore have an enormous advantage in terms of information and control of the political agenda over other party institutions. Therefore, even if the convention ultimately votes on policy issues, the day-to-day political process means that most policy decisions originate elsewhere.

INTEGRATIVE ROLE OF POLITICAL PARTIES

Political parties can play an integrative role in society by integrating their members into the party and, most importantly, integrating different segments of the social and political order into a unified political corporate entity. This role is fundamental in regionally and ethnically divided countries like Malawi, where parties traditionally have regional strongholds. However, in order to build a majority they need either to reach out of their regional base or establish alliances with parties based in other regions. Yet, many political parties fail to integrate the country’s three regions into a unified order. Instead, AFORD exaggerates its presence in the North; MCP in the Centre; and UDF in the South, thereby maintaining their regional profile. The short lifespan of some parties has left members in a dilemma as leaders move from one party to another and from one coalition to another. At times, it is not easy to determine whether members of political parties are truly integrated into the structure of their own party or are under the control of a coalition partner; or indeed stand on their own. The case of the RP showcases this political dilemma. In July 2005, RP MPs and its members were caught in a crisis of identity. It was not clear whether they belonged to the RP since the party was declared disbanded and yet the party remained in a coalition Government as an entity. The party

230 Chapter 8: Political Parties in Malawi members did not know whether they belonged to a coalition Government but as a separate party or whether they in fact belonged to the DPP, the party of Dr Mutharika, where their former party president, Gwanda Chakuamba, was now vice president.

PARTY IDEOLOGY

An assumption in the literature on democracy and political parties is that parties represent different political priorities in terms of what kind of issues (saliency) they think should be addressed by the political system, and what kind of solutions to these issues they prefer (ideological direction). Saliency is a term used to identify which problems a party thinks are the most important, and therefore pays much attention to. Ideological direction refers to how the issues should be addressed. This is particularly the case in terms of the economy, although parties can also be separated along other dimensions, such as religion, ethnicity and languages. Traditionally, parties on the left would lean towards governmental involvement in the regulation of the economy, while more liberal and conservative parties would argue that free enterprise and deregulation of the economy would be better instruments for achieving this goal. We compare the official electoral manifestos for the 2004 elections of the UDF, Mgwirizano Coalition and the MCP in order to see if the parties differ in terms of which issues they think are the most important and what methods they advocate for dealing with these issues. It is also relevant to consider whether there is any connection between what a party says in its election manifesto and what a party’s representatives elected to public offices do in practice. However, the extent to which priorities in the party programme are reflected in the decisions made by MPs and by the governing party are beyond the scope of this chapter. Here we look at the theory, not the practice.

UDF manifesto for 2004 elections

The UDF prepared an extensive election manifesto, running to almost 100 pages. In this manifesto the party promises first of all continuity in terms of policies and spends considerable space outlining its achievements. Seven issues are highlighted in the programme, six of which deal with various aspects of economic development: (i) economic development in order to eradicate poverty, (ii) increasing employment by developing the private sector, (iii) agricultural development to guarantee food security, (iv) investment in rural areas, (v)

231 GOVERNMENT AND POLITICS IN MALAWI empowering women economically and politically, and (vi) similar objectives for youth, and finally (vii) consolidating democracy and human rights. The party’s overall ambition is to see an annual gross domestic product (GDP) growth rate of at least 6%. On the one hand, the manifesto envisages a massive investment programme. The programme promises increased or continuing investments in roads, bridges, hospitals, schools, equipment in the educational and health sectors and expansion of these services. While many of these investment plans are of a general nature, some are very specific: 1000 new auxiliary nurses are promised for a two-year educational programme, a new hospital is promised in Blantyre and two other hospitals are promised specific new specialised units. Three additional teacher training colleges are to be constructed by 2008. The programme is less clear about how the state will pay for all of this, although the main thread through the whole programme is that economic growth will be achieved through strengthening the private economic sector. The party promises ‘a favourable tax policy’ to encourage investments, particularly in agriculture. Private enterprises will be involved in managing public infrastructure and tax breaks will be provided for industry that provides educational scholarships and housing for their employees. Clearly, economic development constitutes the most salient issue for the party and in spite of the very ambitious Government investment programme, the party can be located ideologically towards the centre-right in terms of economic policy: the private sector is to be strengthened and tax incentives are the mechanisms to achieve this aim.

Mgwirizano Coalition manifesto for the 2004 elections

Compared to the UDF’s extensive election programme, the Mgwirizano Coalition’s manifesto is limited to 20 pages. As a new opposition group the Coalition had no previous policies to defend and as a coalition of several parties there may have been less that could be agreed upon. Moreover, a main part of the negotiations leading to the coalition was to select a joint presidential candidate. All of this may explain why their election manifesto is more limited. The Coalition’s manifesto puts more emphasis on governance issues than the UDF does. ‘Good governance’, in the Coalition’s view, has deteriorated under UDF. Among the governance issues are: reforming the Electoral Commission, insisting on greater transparency of the finances of individual politicians and political parties, limiting the size of the Cabinet to 25 ministries (as against 48 prior to the elections in 2004), putting more emphasis on merit for civil service

232 Chapter 8: Political Parties in Malawi appointments, and fighting corruption: ‘Fighting corruption is high on the Mgwirizano Coalition agenda’ (Mgwirizano Coalition election manifesto: 7). ‘Good governance’ is seen as the ‘prerequisite for sustainable Government’. It has similar aims to those of the UDF in terms of economic development and the way this is to be achieved (investments and stimulating the private sector), but promises to reverse the policies which they claim have caused decline. Ideologically the Coalition clearly leans more to the right than the UDF, ‘We will pursue a free market economy with minimal but strategic state intervention’ (Ibid: 2, 8). Stricter budgetary policies are seen as key to improve the national economy: reducing budget deficit through expenditure control, establishing targets and monitoring expenditure levels for various sectors and reducing tax avoidance through increasing the efficiency of the Malawi Revenue Authority. Subsidies of agricultural inputs will be used in the short run, but are to be phased out in favour of commercialisation. Like the UDF, the Coalition promises increased investments in education, health and infrastructure projects.

MCP manifesto for 2004 elections

MCP, had – like the UDF – a comprehensive electoral manifesto of 80 pages. It starts by reminding the voters that it was the MCP which brought an end to colonialism and its experience as a governing party makes it qualified to reverse ‘the declining trends experienced over the last 10 years under the rule of the UDF administration’ (MCP 2004 Manifesto: 5) Most of the manifesto is devoted to economic issues (45 pages), and within this sector agriculture has the primary priority. ‘Irrigation’ and ‘diversification’ are seen by the MCP as the keys to increasing agricultural production. Fifteen different proposals for increasing the production capacity of small-holders are presented. Other measures are proposed for larger estates. Some form of fertilizer subsidies are to be re-introduced. As is the case with the other parties, the MCP also promises expansions in the health and educational sectors, including allowing a role for private institutions. MCP favours the two-term limitation on the election of the President and ‘under no circumstances will the MCP succumb to pressure for amendment of this constitutional provision’(MCP 2004 Manifesto: 9). The party acknowledges the Executive and ceremonial powers of the President, but argues that ‘deliberate mechanisms will be specifically designed to ensure that both the President and Cabinet are duly accountable to the people through the National Assembly’ (MCP 2004 Manifesto: 9), but the programme does not specify or exemplify what mechanisms it has in mind. The autonomy of both Parliament and the Judiciary is to be improved by direct funding from the Reserve Bank of Malawi. This shall

233 GOVERNMENT AND POLITICS IN MALAWI ensure the institutions’ independence from the Executive. The party is also in favour of a constitutional amendment which would require MPs elected as representatives of a party to re-contest their election if they declare to be independents. (This rule now applies only to MPs switching from one party to another). The offices of the Attorney-General and the Minister of Justice should also be completely separated.

Comparison of manifestos

As we have seen there are some differences between the parties in terms of the kinds of issues addressed (saliency), but less in terms of the direction of policy. The opposition parties are more concerned with governance reforms than the UDF. All parties favour free market economic policies, although with more governmental involvement in agriculture than in other sectors. All parties promise significantly more investments in the health and educational sectors.

CONCLUSION

The party system in Malawi has developed through several phases: from a multiparty system at independence, to a single-party regime between 1966 and 1993 and back to a multiparty system in 1993. The multiparty period from 1993 can be sub-divided into three phases. From 1993 until 2002–2003 a three-party system dominated. In the run-up to the 2004 elections, however, the party system became increasingly fragmented. In the post-2004 election period, there has been a further restructuring of this fragmented party system. An explanation as to why fragmentation occurs and why there are so many shifting alliances could be because of leadership domination of political parties. Negotiations between parties are conducted within a small leadership group, which excludes most of the extra-parliamentary party organisation. This leads to dissatisfaction among the excluded members. Moreover, the party organisations are top heavy with few functions reserved for lower level units and the centralisation is reinforced by the practice of day-to-day politics. Nomination procedures are unclear if not non-existent and not consistently followed which causes internal conflicts. At the same time, the imbalance in the structure of the political system, in which the presidency is overwhelmingly the most important institution, means that the most ambitious politicians are motivated to seek that office. In order to do so, a person must be nominated, and if this does not happen the option is to form his/her own party. The ease with which it is possible to form parties and the need for only a plurality of the

234 Chapter 8: Political Parties in Malawi votes to win the presidency may encourage new party formations, while the limited ideological differences between the parties makes it easy for parties to shift alliances. The result is a weakly institutionalised party system subject to frequent alternations in the form of splits, mergers and new party formations.

Questions

1. What is the role of the party hierarchy in Malawian parties? 2. Why are so few women nominated as candidates for parties in Malawi? 3. What are the main political differences between the main Malawian parties? 4. What are the major causes of party fragmentation in Malawi? 5. How can the Malawian party system be made more stable? 6. To what extent do the political parties contribute to democratic consolidation in Malawi? 7. How can parties in Malawi be better connected to society? 8. How can the party organisations in Malawi be strengthened?

235 GOVERNMENT AND POLITICS IN MALAWI References and Further Reading

Africa Contemporary Record (2001) Vol XXV (1994–96) and (2002) Vol XXVI (1996– 98)

Ott, Martin, Bodo Immink, Bhatupe Mhango, Christian Peters-Berries (eds) (2004) The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, Zomba: Kachere Books No 14

MCP (2004) The Constitution of the Malawi Congress Party

Mgwirizano Coalition (2004) Mgwirizano Coalition Election Manifesto 2004: Governance for Sustainable Development

Bogaards, Matthijs (2004) ‘Counting parties and identifying dominant party systems in Africa’, European Journal of Political Research, 43, pp193–197

Meinhardt, Heiko and Nandini Patel (2003) Malawi’s Process of Democratic Transition. An Analysis of Political Developments between 1990 and 2003, Lilongwe: Konrad Adenauer Foundation

Salih, M.A. Mohamed (ed) (2003) African Political Parties, London: Pluto Press

Walle, Nicholas de (2003) ‘Presidentialism and clientelism in Africa’s emerging party systems’, Journal of Modern African Studies, 41, 2, pp 297–321

Legum, Colin (2001) Africa Contemporary Record: Teaneck, N.J., Holmes and Meier, Vol. B606–609

Giliomee, Hermann and Charles Simkins (eds) (1999) The Awkward Embrace. One- Party Dominance and Democracy, Amsterdam, Harwood Academic Publishers

Smiddy, Kimberly (2004) Table 9 Number of Candidates by Party and Gender, Table 10 Lady MPs Since 1961 in ‘Electoral Results in Statistics’ in Ott, Martin, Bodo Immink, Bhatupe Mhango, Christian Peters-Berries (eds) (2004) The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, Zomba: Kachere Books No 14

236 Chapter 8: Political Parties in Malawi

Khaspin, D. (1995) ‘The politics of ethnicity in Malawi’s democratic transition’, Journal of Modern African Studies, 33, 4, 595–620

MCP (2004) MCP 2004 Manifesto: Reconciliation, Reconstruction and Development

UDF (2004) UDF Manifesto 2004: Forging ahead with Social and Economic Transformation Website: www.politicalresources.net

237 GOVERNMENT AND POLITICS IN MALAWI

238 9 MEDIA

Levi Zeleza Manda

INTRODUCTION Ever since they were developed during the industrial revolution, mass media have played an important role in the political process. They have facilitated public participation in politics and formulation of public opinion. In the early 1990s, Malawi adopted a relatively democratic political system, which included constitutional guarantees of human rights and freedoms, such as the right to freedom of expression and the right to freedom of the press. Since then, there has been a significant increase in the number of newspapers and radio stations in the country. The mass media have played a role in the political process mainly by providing an open space for public debate and contributing to civic and political education through the provision of information. This has allowed for a great variety of voices to be heard and a more informed populace. As is the case elsewhere, the nature and extent of the role of the mass media in the political process is influenced by the economic, social and legal framework in which it operates. The issues discussed in this chapter are: • What are the mass media? • How have the mass media evolved in Malawi? • What role do the media play in society and politics? • Do the mass media influence voters? • What are the challenges facing mass media in Malawi? • How is the media regulated in Malawi? • What role have the media played in Malawi’s democracy?

WHAT ARE THE MASS MEDIA? Mass media are often referred to as the ‘fourth estate’ because, after the three branches of Government – the Executive, the Legislature, and the Judiciary – they have the next most influential role in politics and society.

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Key concept: mass media Channels of human communication which include newspapers, magazines, radio, television, the internet and the mobile phone

The term ‘mass media’ is closely associated with mass theory which dates back to the industrial revolution in Europe when large numbers of people from rural areas migrated to industrialising places for employment. The result was that people were ‘packed together’ into urban areas where lack of community left many alienated and lonely. It was at this time that people began to be referred to as the masses. Newspapers, pamphlets, and eventually films and television became a major source of information and entertainment to those masses, becoming what is now known as mass media. Although the concept of mass society is contested today, the term mass media still refers to those communication media catering to a wide audience whom the communicators never meet individually. Thus, mass media have become more and more powerful over the course of the 20th century as technology improves and owners design sophisticated programmes to appeal to a variety of consumers. The media are associated with facilitating or, indeed, thwarting public participation in politics and are partly responsible for the formulation of public opinion or political socialisation.

Key concept: hegemony This exists when the cultural, religious and/or political ideas of one group of people dominate a society.

Some now consider mass media to be an irresistible vehicle for spreading ideas, culture, and political and economic hegemony, particularly from the USA. This is so because traditional mass media – such as television, radio, and newspapers – did not have much space for the resistance of viewer or reader interaction. New media, such as the internet, and old media, such as drumming and song in some African societies, have provided more opportunities for exchange. Indeed, some critics have argued that the internet is the only hope for sustaining democracy in the 21st century because it enables people of all races, classes, and genders to participate (Thornton 1996). Mass media can be categorised into print and electronic media. The former is in a form that consists of paper and ink and reproduced in a printing process that is traditionally mechanical and photochemical. This form of media mainly includes newspapers, magazines and other periodicals. The latter requires electricity in order to operate, function or communicate messages and mainly includes radio, television, the internet and the mobile phone.

240 Chapter 9: Media

THE HISTORY OF MASS MEDIA IN MALAWI

Mass media in Malawi consists of both print and electronic media. The history of the country’s print media can be traced back to the colonial period. Among the country’s first publications after the imposition of colonialism in the early 1890s were the Life and Work in British Central Africa and the Central African Planter.The former was a missionary magazine politically supportive of African people’s rights and freedoms, while the latter circulated mainly among the country’s white settler farming community. In addition, the Blantyre Mission also published a Mang’anja journal called Kalilole which was targeted mainly at African converts to Christianity and advocated a certain measure of African freedom. The Livingstonia Mission at Khondowe, Rumphi, published a Chitumbuka newspaper Vyaro na Vyara (Here and Beyond) and the Livingstonia News. For its part, the colonial administration published the British Central Africa Gazette as its official publication. Coinciding with the agitation for the end of colonialism was the establishment by the nationalist Malawi Congress Party (MCP) of the Malawi News as one of the country’s major newspapers which advocated nationalist independence. When Malawi became a one-party state after independence, Malawi News was bought from the party by the country’s Life President, who also bought a controlling interest in The Times. Both papers defended the one-party political system and, from that period until the early 1990s, the publication or circulation of any newspaper or magazine critical of the political system was made illegal by numerous laws (Kondowe 1998). Among the laws were the Penal Code and Censorship and Control of Entertainments Act which empowered the Government to ban publications that were considered undesirable usually because they contained sexually explicit material, were critical of the ruling party and its leadership, or promoted communism. Publications that were banned included periodicals such as the World Marxist Review, Drum, New African and Focus on Africa and books including John Needham’s Iron Age to Independence – A History of Central Africa, Robert Rotberg’s The Rise of Nationalism: The Making of Malawi and Zambia, Carolyn MacMaster’s Malawi Foreign Policy and Development, George Orwell’s Animal Farm, and Leon Trotsky’s History of the Russian Revolution.

Key concept: propaganda The spreading of information and/or news to manipulate people’s ideas and feelings

In Malawi during the one-party era most mass circulation media, (the Malawi Broadcasting Corporation {MBC}, Malawi News Agency, The Daily Times and the

241 GOVERNMENT AND POLITICS IN MALAWI

Malawi News) were used as propaganda tools for the MCP and its Life President, Dr Hastings Kamuzu Banda. Like Mobutu Seseko of Zaire (Democratic Republic of the Congo), Kamuzu was portrayed as a messiah or saviour (mpulumutsi), an invincible warrior (ngwazi) and benevolent protector of women (nkhoswe ya Amai). Malawi was portrayed as a safe haven where people were united; where everyone was well dressed, had enough food and shelter but where enemies of the system would perish. The Youth League, the Women’s League, the Malawi Young Pioneers and specialised choirs like Kamenya of Dedza composed songs in praise of Dr Banda and the MCP. The MBC, mostly through its early morning radio programme, Kwacha Kwayera, was for 30 years the vehicle of propaganda songs. Ironically, since all ‘subversive’ books were banned, the praise songs were a constant reminder of people who lived in exile, notably Attati Mpakati, Kanyama Chiume and Orton Chirwa. During those years, it was difficult in Malawi for anyone to imagine life without Dr Banda as President as all his enemies would simply be meat for crocodiles. The situation was transformed radically in the early 1990s with the liberalisation of the political system which resulted in a virtual halt to censorship and a diversification of the print media. In addition to the daily newspapers: The Daily Times, The Nation and the Monitor, a number of regular weekly newspapers also emerged, which included the Malawi News, the Inquirer, the UDF News, the Democrat, the Herald, the Mirror, the Independent, Michiru Sun, the New Express, the New Voice, The Chronicle, the National Agenda, and the Statesman. By 2005, the main newspapers in the print media were as indicated in Table 1.

Table 1: Newspapers in Malawi as at December 2005

APPROXIMATE OWNER/POLITICAL Newspaper FREQUENCY CIRCULATION CONNECTION

The Daily Times Daily 12,000 Blantyre Print / Family of Former Life President

The Nation Daily 20,000 Nation Publications / Daughter of Prominent Opposition Mp

Boma Lathu Monthly 50,000 Ministry of Information And Tourism

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The Chronicle Bi-Weekly 6,000 Jameison Publications/No Known Political Connection

Dispatch Weekly 3,000 Dispatch/No Known Political Connection

Democratus Bi-Weekly Democratus/Former State House Chief of Staff

Malawi News Weekly 28,000 Blantyre Print/Family of Former Life President

Sunday Times Weekly 16,000 Blantyre Print/Family of Former Life President

Udf News Weekly United Democratic Front/Political Party

Weekend Nation Weekly 45,000 Nation Publications/ Daughter of Prominent Opposition Mp

Weekly News Weekly 2,000 Ministry of Information And Tourism

Source: Manda 2005

In comparison to the print media, the electronic media has a relatively short history. During the colonial period, there was no significant radio broadcasting that covered Malawi (then known as Nyasaland), except for that by the Federal Broadcasting Corporation which operated from 1958 to 1961, mainly to disseminate propaganda in favour of the colonial administration. In 1964, the newly-independent Government established MBC which operated as the country’s only radio station until the liberalisation of politics in the early 1990s. The country also had no television station until 1999, when Television Malawi (TVM) came on the scene. As with the print media, the political liberalisation of the early 1990s led to the diversification of the electronic media. By 2005, the country had one national terrestrial television station, one satellite television relay service, DSTV, owned by Multichoice of South Africa, one public radio network, four private commercial radio stations and a number of community radio stations. Table 2 provides the names of the electronic media stations and their coverage.

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Table 2 Electronic Media in Malawi as at October 2006

Radio/Television Station Type Geographic Coverage

MBC Radio 1 FM/AM Public National

MBC Radio 2 FM Public National

TVM Public 70% of national territory

Capital Radio FM Private (comm) National, mainly urban areas

Joy FM Private (comm) Around Blantyre city

Power FM 101 Private(comm) National, mainly urban areas

African Bible College Radio Community (rel) Lilongwe and Mzuzu cities

Calvary Family Church Radio Community (rel) Around Blantyre city

Channel for All Nations Community (rel) Around Lilongwe

Radio Alinafe Community (rel) Parts of the Central Region

Radio Islam Community (rel) National

Radio Maria Community (rel) National

Radio Tigabane Community (rel) Around Mzuzu city

Trans-World Radio Community (rel) National

Dzimwe Community Radio Community (gen) Part of Mangochi district

Malawi Institute of Journalism (MIJ) FM Community (gen) National, mainly urban areas

Nkhotakota Community Radio Community (gen) Around Nkhotakota

Mmudzi Mwathu Community (gen) Around Mchinji

Mzimba Community Radio Community (gen) Around Mzimba and Kasungu Comm = commercial, rel = religious, gen = general

In recent years electronic media have expanded beyond radio and television and have included the internet and mobile telephony. Although these are only accessible to a miniscule proportion of the population, for members of that small group, they are an important means by which they acquire information about the political process. It is worth noting that news on Malawi can be accessed via the internet, so that a person who has internet access in Chitipa, for example, can learn about a political event long before he or she can access that information from newspapers, the radio or television, which may not only be slow in reporting but may not reach such remote parts of the country due to reception problems.

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The internet also provides various fora for political debates such as Nyasanet and Malawitalk, some of whose debates are in fact used by the print media. The internet is therefore a source of information that may help people to make informed political choices. In addition to the internet, mobile telephone technology has also been used for disseminating political information. During the 2004 elections, for example, information about the various events in the electoral process was conveyed to thousands of people via mobile phone text messages. As has been pointed out, however, internet and mobile telephones are accessible to a very small number of people and therefore their impact on politics and the political process is likely to remain minor in comparison to radio, and to a lesser extent, television. Only broadcasting, telephony and postal service are regulated in Malawi. The newspaper industry, the internet, email and the mobile phone short message systems are not regulated.

THE ROLE OF MASS MEDIA IN SOCIETY AND POLITICS

Mass media can play a very important role in society in general and in the political process in particular. Here we consider their different roles and how far the media in Malawi today perform these roles, with particular emphasis on the political context.

Providing general information

In society, mass media are the main channels through which people are informed about news items: these could be social, political or cultural activities. They provide information about a wide range of situations, events and other phenomena that affect people’s day-to-day lives. For many people, mass media are also the only means by which they acquire information about educational and employment opportunities; social events; births, marriages and deaths; and numerous other occurrences of social significance. In Malawi all forms of media provide this role. Events such as births, deaths etc. appear mainly in newspapers; job advertisements appear mainly in newspapers; and consumer advertising appears on television, radio and in the print media. Since the mid 1990s, there have been attempts at MBC Radio 1 to provide content and linguistic diversity. For instance, there are news bulletins and short programmes in English (official language), Chichewa (national language), Chitumbuka, Kiyangonde, Chiyao, Chilomwe, Chisena and Chitonga. Chilomwe, Chitumbuka, Chitonga, Kiyangonde,

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Chiyao, and Chisena are Malawi’s other prominent linguistic groupings. TVM uses only English and Chichewa while other languages in interviews are voiced over or paraphrased. MBC Radio 1 broadcasts news and short programmes in these other languages. Broadcasting at MBC 1 allocates only 520 (6.4%) minutes per week to programmes in languages other than English and Chichewa, i.e. Kiyangonde (86 minutes/week), Chiyao (85 minutes/week), Chitumbuka (100 minutes/week), Chitonga (85 minutes/week), Chilomwe (90 minutes/week) and Chisena (70 minutes/week). Chisena, which is allotted the smallest quota, gets 0.9% of broadcast time, while Chitumbuka, the most privileged of the minority languages occupies 1.2%, Chilomwe gets 1.1% and Chitonga, Chiyao, and Kiyangonde get 1.0% each. This programming in local languages other than Chichewa leaves much to be desired, however, as linguistic diversity is not accompanied by cultural diversity. News items are constructed in English and translated into Malawian languages. There is virtually no news about the Sena, Tonga, Yao, Lomwe, Tumbuka; the content provided in these languages is simply a translation of the Chichewa and English programmes which focus on the main ethnic groups. In short, the beneficiary is the President, the Government and the ruling party. Providing entertainment

Mass media (particularly television and radio) also serve society by providing entertainment in various forms, including documentaries, films, plays, music and poetry and national and international sports events. Sometimes a mixture of entertainment and education (‘edutainment’ or ‘infotainment’) is used to get across a particular message, such as AIDS in programmes like Tikuferanji and Sewero la Sabata Ino on MBC 1. Providing news about politics

The mass media are the main channels for informing people about the activities of political events, institutions and processes. It is from radio and television broadcasts and articles in newspapers, magazines and other print media that many people in Malawi obtain information about issues being debated in the National Assembly; activities of the President, ministers, members of Parliament (MPs) and councillors; advocacy by civil society organisations (CSOs); and international political events. In addition to providing information on politics and the political process as part of the news, it is also common for TVM and the MBC to broadcast live important political activities such as parliamentary debates and state of the nation addresses by the President. Similarly, newspapers such as The Nation and The Daily Times also dedicate whole pages exclusively to the coverage of parliamentary sittings and regularly carry feature articles aimed at describing the activities of

246 Chapter 9: Media political actors and their significance. In the same way that media can be used to fully inform the public, so they can also be used to misinform the public by not providing all the facts, distorting the truth or simply lying about a situation or events. Unfortunately, this happens in Malawi for a variety of reasons: • Some media are operated as businesses and therefore ethical issues and politically charged topics are sometimes ignored in pursuit of business and profits. • Some media are politically polarised and therefore often present partisan political information. Media are mostly owned by politicians and are therefore vehicles of partisan information instead of providing a public sphere for all and thereby ensuring a level political playing field. • Some journalists are unethical, corrupt, or easy to bribe and are willing to twist stories or not cover issues which are in the public’s interest if they are given the right inducements. • Some journalists are ignorant or lack the necessary training to be good journalists. As a result, their coverage of issues can be shallow and distorted. Providing a ‘public sphere’

Key concept: public sphere An open space for all citizens to air their opinions and ideas, which is essential for a free and open society.

In politics the media provide what Habermas (1989) calls the ‘public sphere’, an open space for people to discuss their ideas freely and democratically. Habermas compares this space to an agora, an open space in the ancient city of Athens, Greece, where people gathered to debate social and political issues. In elections, the media can provide a forum for political debate among the candidates, parties and the electorate. This role of the media is also evident in Malawi. Radio phone-in programmes are the most obvious example of this. Some of the most popular of such programmes are broadcast regularly by Capital Radio, FM 101, and MBC which invite members of the general public to telephone and give their views live on air on subjects of immediate topical interest selected by the stations. Many radio stations and TVM have debates by panels of experts or lobbyists covering a wide variety of subjects, including matters of political significance such as the conduct of politicians, political institutions and the citizenry. Some print media also publish articles or letters by members of the

247 GOVERNMENT AND POLITICS IN MALAWI general public giving their views on issues of the day. By facilitating public debate and providing space or airtime for people to express their views, mass media in Malawi make a significant contribution to the forming, holding and expressing of public opinion, something that is important in any political process. It is also possible that the media help set political agendas by proposing what they consider worthwhile and popular when political parties fail to come up with tangible issues. The Politial Index weekly supplement in The Nation is a case in point.

Acting as a watchdog

The media can promote accountability in the same way as do pillars of integrity such as the Anti-Corruption Bureau, the Human Rights Commission, the Ombudsman and civil society. The media can help to prevent elected representatives and the executive Government from abusing their power by exposing misuse of office, incompetence and corruption, among other social ills. The media do so by providing information about Government affairs (including the views of the Opposition) to the public and thus linking citizens to their elected representatives. Because the media frequently expose dubious Government actions, Governments are compelled to explain their decisions and actions to the public. The media can also contribute to the accountability of civil society and the private sector. Civil society groups such as non-governmental organisations (NGOs) and private sector institutions such as corporations are inclined to conduct themselves more ethically and efficiently, if they feel the watchful eye of the media is on them. In elections, the media can play a vital part to play in ensuring that the electoral process is conducted in a free and democratic manner by denouncing electoral irregularities and by monitoring and reporting results. For this reason, the freedom of the media and expression during the electoral process is one of the conditions for free and fair elections. If mass media are allowed to perform their role effectively, they can contribute to ensuring accountability and good governance on the part of the Government and public sector, and sound business and economic activities on the part of the private sector, all of which are prerequisites for development. In Malawi, the potential is there for the mass media to provide this all-important watchdog role. However, legally not all mass media have an obligation to play this role. Private and community radios do not have specific legal obligations to contribute to the political process in any particular way. In contrast, the MBC, which is supposed to be a public service, has specific legal obligations that compel it to promote a democratic political culture and democratic political processes. Section 87(1) of the Communications Act (Act No 41 of 1998) requires MBC to

248 Chapter 9: Media provide public broadcasting services in accordance with a number of principles, including ‘the encouragement of free and informed opinion on all matters of public interest [and] respect for human rights, the rule of law and the Constitution of Malawi’. Section 87(2) of the same act expressly requires MBC to ‘function without any political bias and independently of any person or body of persons…support the democratic process…provide balanced coverage of any elections; and…have regard to the public interest’. The media played a commendable watchdog role in the open/third term issue by keeping the issue alive by constant coverage. There are many other critical issues, such as corruption, where media played a useful role leading, for example, to the arrest, prosecution and incarceration of the Education Minister, Yusuf Mwawa. With political liberalisation, political cartoonists and photojournalists have become outstanding commentators on social and political issues, often using satire to ridicule the ineffectiveness of the ruling elite and their vanity. In Malawian newspapers today, amusing cartoons are often used to criticise the ruling elite, as in this cartoon taken from Weekend Nation.

Amtchona, Weekend Nation 14–15 May 2005 In the cartoon, a politician who has just returned from a sitting of Parliament is asked whether parliamentarians discussed such important issues as water, schools, famine, and roads. His answer is that they discussed whether to confirm the appointment of an Inspector General of Police. He mockingly asks them if they have any more questions since he has to ride off in his Benz as he wishes to go and watch DVDs! The media’s exposure of corruption was more evident in the years just after political liberalisation. However, since then constraints, as will be discussed later, have had an impact on the media’s freedom to perform this role effectively.

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Providing civic education

In addition to promoting accountability through publicising actions and decisions by Government, civil society and the private sector, mass media also affect politics through their contribution to political socialisation of citizens. This is done mainly by educating the public on key aspects of politics and the political process, such as the responsibility of the state and the rights and duties of citizens. This civic education plays an important role in aiding the development of democracy because it empowers citizens to demand accountability by the state and to exercise their rights effectively and perform their obligations fully. The media also provide specific information related to particular aspects of the political process. For example, in elections, the media can serve as a key source of political information about specific candidates, political parties, policies and ideologies which enables voters to make informed choices. They can provide a forum for political debate among the candidates, parties, and the electorate. They can also encourage all citizens including the disadvantaged in society to take part in elections. Since Malawi revived genuinely competitive elections in 1993, mass media in Malawi have played a significant role in providing voters with information on various aspects of the electoral process, including the legal rights and duties of voters, policies of contesting parties, personalities of candidates, the conduct of campaign meetings and the general administration of the electoral process by the Malawi Electoral Commission (MEC). Manda (2005) notes that while public radio and television were clearly biased towards the ruling party, private media tried to offer objective voter education during the 2004 general elections. TVM and MBC ran profiles of presidential candidates. The short message system (SMS) on mobile phones was used by private individuals to urge people to vote for specific candidates. In their pullouts ‘Poll Alert’ and ‘Political Index’, the Daily Times and The Nation newspapers carried summaries or discussions of party manifestos or profiles of presidential candidates.

Mediating in conflicts

The mass media can be a useful tool in mediation, as when they aid conflict resolution and pacify belligerent communities. In Malawi this role has been minimal, although the phone-in programmes on most radio stations have been used to tackle burning issues and protagonists are invited to the studios to respond directly or face each other.

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Manipulating the public

Because of their potential to influence people’s knowledge and views, the media may not only be used to help citizens to make up their own minds on issues, but they may also be used in a negative way to deliberately shape the opinion of the public into accepting economic, political and social relations of power as normal which benefit the powerful. This use of the media is called propaganda. As Hilter’s propagandist Josef Goebels once put it, ‘When you tell a lie often enough, [people] will believe you’. In the same way, journalists and media owners may circulate oppressive ideas that they actually believe in. As a result, instead of educating the masses to throw off economic and social oppression, they subtly train the masses to accept their shackles and even to see them as normal. Thus, the media can become purveyors of ideas that benefit particular elites such as the rich, the ruling elite, and the educated to the detriment of the poorly educated. Propaganda can also be used to extreme and destructive effect by stirring up hatred against a particular race or ethnic group to benefit the ruling elite, as Hitler used in Nazi Germany against the Jews, and the Hutu extremists who used Radio- Télévision Libre des Mille Collines to demonise the Tutsis and even to incite Hutus to kill Tutsis. According to scholars, the environment in which the media and the public accept the oppressive ideas of the powerful is called hegemony. The mass media have been efficient and powerful apparatuses of public control which explains why elites (the Government, businesses, and politicians) often try to control the media through ownership and censorship. In Malawi’s history, propaganda has been used by all Governments to some extent, but it was mostly used during the one-party era of President Banda as we have already discussed in this chapter.

Do the media influence voting patterns?

Soon after the announcement of the results of the 2004 election, The Nation asked its readers whether the public media influenced their vote. The responses to the questions appeared in the newspaper’s ‘Political Index’ of 1 June 2004. It concluded that only one person out of ten doubted the influence of the MBC and TVM on the outcome of the 2004 vote. From the responses given by The Nation’s readers, one may be tempted to conclude that the mass media (MBC and TVM in the case of Malawi) influenced people’s choices during elections. However, if we consider the following facts, it is not clear that mass media in Malawi do have such considerable influence.

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• In 1993 MCP was in control of all public media and newspapers but still lost the referendum on whether the political system in Malawi ought to be changed to a multiparty system. (In fact, the Central Region was the only region to have a majority in favour of the one-party system advocated by the MCP). • In 1994 MCP was still in control of all public media but lost the general election (the Central Region voted for the MCP, the Northern Region for AFORD, and the Southern Region for UDF). • In 1999 UDF was in control of the media, but only won the elections in the Southern Region (not in the Northern or Central Regions). • In 2000 UDF was in control of the media and won Local Government elections but there was voter apathy particularly in the Northern and Central Regions. • In 2004 UDF was in control of the media and the UDF presidential candidate won but the MCP got more seats (despite lack of media support) and independent candidates won even where the UDF and public media dominated. The Northern and Central Regions still voted against the UDF. • In 2005 President Mutharika of the UDF party was in control of the public media but his official UDF candidates lost by-elections in his own constituency of Thyolo and in the Vice President’s constituency of Nkhota Kota. • In early 2006 President Mutharika formed the Democratic Progressive Party (DPP), which later contested in six by-elections and won all.

In short, incumbent presidents tend to use the state media for political purposes in general to build the image of their party as well as for electoral purposes in particular to win votes. However this does not always work in their favour.

Summary of media’s positive and negative role

Mass media can have both a positive and a negative influence in society and politics. • The media has the potential to have a positive role by: • Providing civic education on people’s rights and electoral processes; • Providing checks and balances, and playing the role of a pillar of integrity and whistle blower against abuse of power and corruption, thus helping promote good governance; • Helping in mediating and solving conflicts by giving the belligerents a voice and acting as a negotiation forum in times of politically motivated conflicts.

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The media has the potential to have MEDIA’S INFLUENCE ON VOTING a negative role by: • Misinforming or deliberately Contrary to what most people believe – that is distorting the truth out of that media influence voting by playing on the business, political reasons or psyche of voters – field research has because journalists are biased consistently shown the media to have only and lack journalistic skills and limited effects. In 1960, after an extensive education; review of the ‘effects’ research, Klapper wrote that the media could not have direct effects as • Being used as propa-ganda by there always were predisposing factors. He elites for a variety of reasons, said the media are not the sole cause of but often to ensure society as effects (see Kunczik 1988). Further, Klapper a whole accepts the status quo wrote, ‘Persuasive mass communication functions far more frequently as an agent of although it is not beneficial to reinforcement than as an agent of change. the masses, or, in extreme Reinforcement or at least constancy of cases, to incite division or opinion is typically found to be the dominant hatred between different effect.’ (1960, cited by Morley 1992: 48) ethnic groups, political parties, Schramm (1974) who, in the 1960s, or races. believed the media were information In terms of the media’s potential to multipliers and could change behaviour and influence voters, research indicates modernise poor societies, acknowledges that the audience is active and negotiates that their impact in this respect is the messages it confronts. He wrote, ‘The limited. They tend to reinforce social aegis under which the message rather than change the way people comes, the receiver’s social relationship to vote. the sender, the perceived social consequences of accepting it or acting upon it must be put together with an understanding of the symbolic and structural MEDIA ASSOCIATIONS nature of the message, the conditions under which it is received, the abilities of the It is also worth noting that the mass receiver and his innate and learned responses’ (Schramm 1974: 7) media in Malawi have affected politics through the activities of He later admitted that the ‘experts’ had ignored the fact that societies were more some of their various associations. complex than conceived earlier and urged Examples include the Journalists his colleagues to revisit their earlier Association of Malawi (JAMA) formulations. which, in the past, organised debates Thus, Klapper and Schramm’s observations among political contestants during could be helpful in understanding why there elections, and press clubs such as the seems to be no relationship between media Lilongwe Press Club which has been use and election results in Malawi since involved in civic education and 1993.

253 GOVERNMENT AND POLITICS IN MALAWI public debates on issues affecting the nation. Also active in directly promoting good governance are specialist journalism organisations such as the Forum for Environmental Communicators (FECO), the Media Association for Human Rights Advancement (MAHRA) and the Media and Aids Society Organisation (MASO) and the Journalists Association Against AIDS (JA AIDS). The Malawi Chapter of the Media Institute of Southern Africa (NAMISA) has been very active in the political process by promoting and defending freedom of the media and proposing bills to change laws unfavourable to free media practice in Malawi. It has defended journalists who have suffered harassment or arrest. Experience in Malawi has shown that media associations can make an important and direct contribution to the political process by actively engaging in civic education and promoting transparency and accountability.

CHALLENGES FACING MASS MEDIA IN MALAWI

Lack of access

If only a few people have access to radio, television, newspapers, magazines and other mass media, the majority will have limited knowledge about the activities of political actors, will not be able to fully participate in public debate, and will not be able to make political choices that are fully informed. In Malawi, this is likely to be the case since only a few people have access to electronic media because they cannot afford to buy radio and television sets. According to some estimates, 50% of the population in Malawi has access to radio sets while for television and newspapers, the figures are 0.2% and 0.3% respectively. Access to print media is hindered by not only the cost of newspapers, magazines and other publications but also low levels of literacy, particularly among women, only 54% of whom can read, compared to 75% of men. In addition, most mass circulation newspapers in Malawi are elitist because they are written in English which is understood by a relatively small sector of society (Hall & Ham 1994).

Political interference

Since mass media have the potential to be used to influence public opinion and the political choices that people make, their ownership and control are often sought by those who hold or aspire to have political power. The political views and opinions of those who own and/or control particular media will normally determine the manner in which the media will perform their various roles as described earlier in

254 Chapter 9: Media this chapter. The political inclination of the owners of any particular radio or television station, or newspaper, magazine or other print media is likely to influence or affect the way they report news and their degree of openness. In some cases, such bias may not be subtle. Most scholars of mass media agree that the political biases of owners and controllers of mass media limit the ability of the media to inform members of the public about the activities of political actors, provide the space for public debate, and assist the public to make informed political choices objectively. In relation to print media in Malawi, it is worth noting that both of the country’s daily newspapers are owned by companies that are associated with prominent politicians. The Nation is published by a company associated with one of the country’s longest serving opposition MPs, while the Daily Times is published by a company controlled by the family of the former Life President of Malawi. The two companies also publish the country’s widest circulating weekly newspapers, Weekend Nation and Malawi News respectively. Partisan ownership is also evident in relation to electronic media. Not only are most community radio stations, such as Radio Maria and Radio Islam, operated by religious groups that use them explicitly to promote their faiths, but a number of private radio stations are also owned by politicians, including a former President whose company operates Joy Radio FM and the son of a prominent opposition politician who has a controlling interest in Power FM 101 radio station. In Malawi, politics does not affect mass media only in the case of print media and private and community electronic media. Political interference also accounts for the well-documented breaches by the MBC of its legal obligations to encourage free and informed opinion on all matters of public interest, to function without any political bias and independently of any person or body of persons, and to provide balanced coverage of any elections. Political interference with the operations of the MBC is possible largely because it lacks sufficient structural and operational independence. By law, the President appoints members of the board of directors of MBC and decides on their chairperson. In turn, the board appoints the corporation’s director general. The operational independence of the MBC is limited in that it relies on Parliament for its core funding, which it supplements through the sale of air-time to advertisers. The MBC makes a valuable contribution to the political process in Malawi through various programmes that provide information and facilitate debate of matters of public interest. However, there is evidence that it tends to promote the partisan interests of the President and ruling party, particularly during elections. In the 2004 elections, for example, the observer mission of the European Union systematically monitored coverage of the elections by various media and concluded that MBC

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(Channel 1) had shown ‘overwhelming bias’ in favour of the ruling coalition, allocating 97.7% of its electoral coverage air-time to UDF/AFORD/NCD and 89.6% of air-time to the ruling party’s presidential candidate. As Manda (2005) points out, the private media were also biased against the Government. Another example of political interference was when MIJ Radio gave voice to the National Democratic Alliance (NDA). MACRA (Malawi Communications Regulatory Authority) threatened to close the station after it refused to obey an order to stop broadcasting political news (see Daily Times 20 June 2002). The station was finally closed on May 23, 2004 allegedly for broadcasting statements by Mgwirizano Coalition spokesperson, Kholiwe Mkandawire, which were claimed to be too inflammatory. A further constraint on media freedom has been the systematic harassment of journalists by political forces and other. Such harassment has included the detention of journalists – according to the Media Institute of Southern Africa, more than 10 journalists have been detained in the process of doing their work since 1994. In other cases, journalists have been assaulted or had their equipment damaged by political party activists who were unhappy with the coverage of their parties by particular media, and on at least one occasion a number of soldiers invaded the premises of a newspaper, intimidated staff and damaged equipment because the newspaper had published an article critical of the army.

Legal constraints and regulation

Chapter 4 of the Constitution of Malawi, which is usually referred to as the Bill of Rights, guarantees freedom of expression, freedom of the press and freedom of opinion. Every person in Malawi is free to express him- or herself and publish his or her opinions. In addition to having a Bill of Rights in its Constitution, Malawi has signed up to a number of treaties which guarantee freedom of expression. Such treaties include the 1948 Universal Declaration of Human Rights (UDHR), which, in Article 19, says, ‘Everyone has the right to freedom of opinion and expression; this includes freedom to hold opinions without interference and to seek, receive and impart information and ideas though any media and regardless of frontiers’. As a member of the African Union, Malawi is equally bound by Article 9 of the African Charter on Human and People’s Rights, adopted at Nairobi in 1981, which entitles every individual to receive information and to express and disseminate his or her opinions within the law. Despite the freedoms and rights guaranteed by the Constitution and various treaties, the freedom of mass media in Malawi is constrained by a number of laws and economic and other factors. Like all other former British colonies, Malawi inherited most of the laws in force today from the British. These laws have not

256 Chapter 9: Media changed much in the 40 years since independence, and include those that purport to restrict the freedom with which mass media may gather and publish information and opinions. Many of these laws seem to contradict the spirit of the Constitution regarding freedom of the press. It is true that the validity of any law which is inconsistent with the Constitution may be challenged in court. Nevertheless, laws such as that of libel and the penal code not only place limits on media freedom in order to legitimately protect the rights of others, but also have a chilling effect on the media by encouraging an undue amount of self-censorship. Indeed, the spirit of crusading journalism, which is characterised by investigation into corruption, has died away since the institutionalisation of multiparty politics due to Government fines. Several senior ministers were involved in shady deals during the first five years of UDF rule. The Democrat newspaper uncovered the Field York Scam regarding the purchase of notebooks for free primary school education introduced by the UDF in 1994. It also uncovered the alleged abuse of resources at the Reserve Bank, where huge sums of money were used to build brick fences for a staff house. The Chronicle has also tried to unearth a lot of dirt involving public servants. Unfortunately, the newspapers were sued for defamation and the result has been devastating for the media. The figures in the table below indicate how much the courts have punished the media for defamation:

Table 3: Defamation Costs to Newspapers

Newspaper Organisation YEAR FINE (MK)

Malawi News 1994 25,000.00

United Printers (Chronicle) 1994 15,000.00

The Tribute 1995 60,000.00

The Democrat 1995 200,000.00

Blantyre Newspapers 1995 15,000.00

Malawi News 1996 20,000.00

The Mirror 1997 30,000.00

The Democrat 1997 60,000.00

Moto Publications (Mirror) 1998 150,000.00

NB In 1994 MK15 = US $1; in 1998 MK 45 = US$1

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These sums are, by Malawian standards, very high and they have sent at least three newspapers – the Mirror, the Tribute, and the Democrat – into oblivion. The Malawi News and its publishers, Blantyre Newspapers, have survived because of their financial muscle. In addition to the presence of laws that restrict media freedom, there is an absence of laws to facilitate the gathering of information. Although the Constitution provides that every person has the right to have access to information which is held by the state or any of its organs, there is no legislation which provides for the mechanism and procedures for applying for such access. In general, the army, police, prisons, and most Government institutions have become less secretive and have public and media relations officers who speak on behalf of their organisations and periodically brief journalists. Nevertheless, journalists still experience delays in crosschecking information because only the appointed spokespersons, and no other officer, speak for their institutions. In any case, in the absence of access to information legislation, public officers may deny the media critical information and thereby limit the public’s right to be properly informed. The operation of mass media requires regulation in order to ensure that in playing their role in the political process, the media do not exceed the limits of their freedoms and act in accordance with legal, ethical and other applicable norms. In Malawi, there is a fundamental difference between the regulation of print and that of electronic media. The former is done largely through self-regulation which involves the media themselves formulating a code of ethics which is enforced by a body established by the media. This does not mean that journalists become immune from the laws of the country but that violations of professional ethics are primarily settled within the media. In practice, the foundations for self-regulation among print media in Malawi exist in the form of a code of conduct and the Media Council of Malawi which is mandated to enforce it. In contrast to the print media, the electronic media is heavily regulated by the state. The regulation of broadcasting in Malawi is the legal responsibility of the MACRA and is governed primarily by the Communications Act (Act No 41 of 1998). The act grants MACRA wide powers to regulate broadcasting, including that of planning the use of, and allocating radio frequencies. The act obliges MACRA to perform a wide range of related functions including licensing broadcasters; providing advice to the Minister of Information on broadcasting regulations or policies; and monitoring activities of broadcasting licensees to ensure their compliance with the terms and conditions of their licenses and applicable regulations. The board of directors of MACRA is appointed by the President who also chooses the board’s chairperson. The director general is appointed by the Minister

258 Chapter 9: Media of Information who also approves the appointment of the deputy director general. Although MPs, Government Ministers, and party functionaries are disqualified from appointment to the board, the Secretary to the President and Secretary for Information are ex officio members and the board is answerable to the Minister of Information who is answerable to the President. Legal experts have argued that this is likely to influence its decisions on who should be licensed or not or which license should be revoked or not. The stand-off with radio MIJ FM from 2002 to 2004 is a case in point. In addition, MACRA has failed in its responsibilities because it has not enforced the law against the MBC when the latter has failed to provide impartial broadcasting as required by its public service broadcasting obligations. This may be because MACRA itself is as vulnerable to political interference as is the MBC, since its board of directors and director general are appointed by the executive branch of Government and has among the members of the board senior civil servants, albeit in an ex officio capacity. This may limit its independence in relation to enforcing the Communications Act in cases of pro-Government and pro-ruling party bias by MBC. It may also explain why MACRA has permitted TVM, whose board of directors is also appointed by the President, to operate for over seven years without a license or statutory mandate. The regulatory framework for broadcasters in Malawi also includes a code of ethics which is appended to the Communications Act and lays down norms which would facilitate a positive contribution to the dissemination of information about the political process, facilitation of public debate and contribution to the making of informed political choice among the public. Among the relevant norms are those which require broadcasters to report news truthfully, accurately, objectively and in a balanced manner. During any election period, the media should ensure equitable treatment of political parties, election candidates and electoral issues; separate opinion, supposition, rumour or allegation from fact in reports; and to present differing points of view when broadcasting controversial issues. The code also entitles broadcasters to comment on and criticise any actions or events of public importance. However, for various reasons, this code of ethics has not always been adhered to and there is evidence of biased and inaccurate reporting.

Economic constraints

Harsh economic conditions have also constrained media operations. Advertising, which is the lifeline of newspaper printing in Malawi, is hard to come by. Most of the newspapers that have folded since 1994 could not survive because clients who had hitherto purchased advertising could no longer do so due to the poor

259 GOVERNMENT AND POLITICS IN MALAWI economic environment. In addition, as mentioned above, many forms of media cannot survive the heavy fines which may be imposed due to defamation claims.

Lack of professionalism

As mentioned previously in this chapter, biased, incorrect or poor reporting in mass media can be a result of journalists being poorly educated, trained or dishonest. In all their formal training journalists are taught to abide by a code of ethics and professional stands which demand that journalists be fair, objective and thorough in their reporting. However, some journalists do not adhere to this when they start working professionally.

THE ROLE OF THE MEDIA IN MALAWI’S DEMOCRACY

The USAID Centre for Democracy and Governance sums up the role of the media in politics and democracy, in particular, as follows:

‘Access to information is essential to the health of democracy… First it ensures that citizens make responsible, informed choices rather than acting out of ignorance or misinformation. Second, information serves a “checking function” by ensuring that elected representatives uphold their oaths of office and carry out the wishes of those who elected them’. (1999: 3)

Despite their many failings and weaknesses, the Malawi media have been generally instrumental in keeping the country’s democracy afloat by playing the function of an integrity pillar. Some mass media outlets play a more important role than others. For instance, the media owned by the Government has tended to be biased towards those in power. In contrast, despite difficult working conditions, private and community media (media established and run by local communities) have generally been diligent in contributing to the political process by facilitating transparency, accountability and the rule of law through the provision of information about the political process, providing a platform for public debate and helping people to make informed choices. The Government though thought some community radio stations (notably MIJ and Radio Maria) were biased towards opposition parties. Despite their contribution to the political process, mass media in Malawi have to improve. Critics point out that mass media in Malawi still display insufficient analysis of issues, failure to follow-up on stories, unethical behaviour among journalists and the occasional political bias. Others also point at the tendency during elections to focus on personalities rather than unifying issues of critical importance to the well- being of the population such as access to clean water, access to land, equity in

260 Chapter 9: Media development and good quality education. Some critics have even accused some media of being deliberately dishonest and wilfully failing to promote positive human values. The media in Malawi also face many problems as mentioned in this chapter, such as poor overall coverage, political interference, economic constraints and legal challenges. Despite the high expectations from the public, it must be acknowledged that democracy and independent media in Malawi are relatively young and therefore one should expect the media to have teething problems. In any case, media can never be free from criticism. Even in older democracies such as the USA, France, and India, many accuse the media of bias, arrogance, lack of education, sensationalism, and adversarial attitudes towards Government. What is important is that media in a democracy must observe objectively, explain issues exhaustively and avoid being politically partisan if they are to succeed in their role as guardians of democracy and holding the powerful accountable for all their decisions. In short, mass media play several vital roles in society and in the political process. If the media exercise their franchise responsibly, they provide critical information, contribute to civic and political education, and provide an open space for public debate.

CONCLUSION

It is clear that the mass media have been at the centre of political communication in Malawi since the colonial period. Mass media are a key part in the political process, whether playing a positive role or a negative one. Mass media in Malawi have a long history during which their freedom and diversity have been determined by the general political environment, such as the existence of a one party state and then its replacement by a liberal political dispensation. Currently mass media in Malawi provide information about the political process, afford people the platform for engaging in public debate and assist them to make informed political choices, including during elections. However, the political interests of those who own or control mass media do affect their ability to discharge their responsibilities properly, as is evident in the performance of the MBC. The Constitution guarantees media freedom but, in practice, its exercise is constrained by a number of restrictive laws, a harsh economic environment and a political culture of intolerance of dissenting views.

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Questions

1. Describe two critical roles of the media in Malawian society. 2. In what ways are the mass media important in elections? 3. Give Malawian examples or cases that support the view that the mass media are whistle blowers and pillars of integrity. 4. What constraints do mass media face in Malawi? 5. How important are media associations in the political process? 6. Explain in your own words, the following terms: mass media, fourth estate, agenda setting, public sphere, and community media. 7. Some accuse the media of fomenting political chaos in Malawi because of their failure to analyse issues properly and their ability to tell lies. In your view, could Government function without the media? 8. Some people believe courts have been too harsh towards the media by instituting high fines and punishing the media with laws in conflict with the republican Constitution. Explain whether you agree or disagree with the sentiment. 9. Do you believe that journalists are failing to present issues critically because of lack of proper training? If you were asked to develop a curriculum for journalism training, what would you recommend? 10. Discuss what effect mass media have had on voting during elections in Malawi.

262 Chapter 9: Media References and Further Reading

Article XIX (1994) ‘Freedom of Expression in Malawi: The Elections and the Need for Media Reform’, Issue No 135, London: Article XIX. Article XIX (2000) ‘At the Crossroads: Freedom of Expression in Malawi. The Final Report of the 1999 Article XIX Malawi Election Media Monitoring Project’ London: Article XIX. Benett, T. (1982) Theories of Media. Theories of Society in Gurevitch, M et al Culture, Society and Media, London: Methuen Chimombo, S. and M. Chimombo (1996) The Culture of Democracy, Zomba: WASI Publications Chirambo, R. (1998) ‘Politics in the Cartoon in Malawi: The Democrat Cartoons’ in K. Phiri, K and K. Ross, Democratization in Malawi: A Stocktaking, Blantyre: CLAIM Defleur, M. and E. Dennis (1988) Understanding Mass Communication, Boston: Houghton Mifflin Drew, D. and D. Weaver (1991), ‘Voter Learning in the 1988 Presidential Election’ in Journalism Quarterly Vol 68 No ? Spring/Summer, Columbia: University of South Carolina Hall, M. (1994) ‘Economics of Press Freedom and Media Development in Malawi in Media for Democracy in Malawi’, A report of a conference convened by the International Federation of Journalists’ Blantyre, Malawi, (pp 67–86) Herbamas, J. (1989) The Structural Transformation of the Public Sphere London: Macmillan. Kondowe, E. (1998) Media Legislation in Malawi Lilongwe: MISA-Malawi. Konrad Adenauer Stiftung (KAS) (2003) Political Communication, Lilongwe: Konrad Adenauer Foundation (TYP Series)

Malawi Electoral Commission (2004) Malawi Electoral Laws, Blantyre: Malawi Electoral Commission

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Malawi Government (1998) ‘Communications Act 1998’Lilongwe: Malawi Parliament.

Malawi Government (1998) ‘Communications Sector Policy Statement’, Lilongwe: Malawi Parliament; also available at http://sdnp.org.mw/~paulos/

Manda, L.Z. (2001) ‘The Role of the Media in Promoting Transparency and Accountability’ in Kondowe E. (ed) Training Modules for Parliamentarians on the Role of the Media in a Democracy, Lilongwe: UNESCO

Manda, L.Z. (2005) ‘Covering the Elections: the Role of the Media’ in M. Ott et al (eds) (2005) The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, Zomba: Kachere Series

Morley, D. (1992) Television, Audience and Cultural Studies, London: Routledge

Neale, T. (2005) ‘Malawi’s Media – 2004 and Beyond’ in M. Ott et al (eds) (2005) The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, Zomba: Kachere Series Nkhata, M. 2001, ‘The Media as the Fourth Estate’ in E. Kondowe (ed) Training Modules for Parliamentarians on the Role of the Media in a Democracy, Lilongwe: UNESCO O’Neil, M.J. (1989) ‘The Power of the Press’ in Agee, W. et al Main Currents in Mass Communications, New York: Harper & Row Ott, M. et al (eds) (2000) Malawi’s Second Democratic Elections: Process, Problems, and Prospects, Blantyre: CLAIM Ott, M. et al (eds) (2005) The Power of the Vote: Malawi’s 2004 Parliamentary and Presidential Elections, Zomba: Kachere Series Paliani, R. (1999) The Law of Defamation: A Guide to the Law of Libel and Slander, Lilongwe Press Club Patel, N. (2000) ‘Media in the Democratic and Electoral Process’ in M. Ott, et al Malawi’’s Second Democratic Elections: Process, Problems, and Prospects. Blantyre: CLAIM; pp 149–185

Reinhardt, H. and N. Patel (2003) Malawi’s Process of Democratic Transition, Lilongwe: KAS

264 Chapter 9: Media

Rotberg, R. (2002) Hero of the Nation: Chipembere of Malawi: An Autobiography, Zomba: Kachere Series

Schramm, W. (1974) ‘The Nature of Communication between Humans’ in Schramm, W & Roberts, D (eds) The Process and Effects of Mass Communication, Chicago: University of Illinois Press

Sembereka, G.M. (1980) ‘Early Newspapers and the Shaping Official Policy in Nyasaland 1884_1914’, Zomba: Chancellor College, (unpublished fourth year history research seminar paper)

Thornton, A. (1996) Does Internet Create Democracy? Sydney: University of Technology

United States Agency for International Development (USAID) (1999) The Role of the Media in Democracy: A Strategic Approach, Washington, DC: USAID Technical Publication Series

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266 10 CIVIL SOCIETY

Ollen Mwalubunju

INTRODUCTION

Politics does not operate in a vacuum; it is a product of social and economic conditions and forces. A number of formal and informal institutions of society, social values, traditions and customs play a role in shaping political systems and processes of a state. This chapter examines the role of civil society in Malawi: how it strengthens democracy, its potential to enhance democratic development, and the limitations and challenges which effect how it performs its role. The civil society organisations (CSOs) particularly focused on are non-governmental organisations (NGOs), faith-based organisations and traditional leaders. The central issues explored in this chapter are: • What is civil society? • What are the functions of civil society in a democracy? • What is the historical background of civil society in Malawi? • What role do faith-based organisations, NGOs and traditional leaders play in the democratisation process in Malawi? • What strategies do CSOs use to influence Government policies in the democratisation process in Malawi? • What are the challenges faced by CSOs in Malawi in performing their roles?

THE RELATIONSHIP BETWEEN SOCIETY AND STATE

A state is initially determined by its territory. The people living within a state’s boundaries make up society. Interactions between state and society are mutually transformative. Social institutions, norms and practices have a profound bearing on state activities. Social forces have an impact on the formation and workings of political institutions both in terms of policymaking at the governmental level and in terms of

267 GOVERNMENT AND POLITICS IN MALAWI political parties, electoral process etc. Thus state–society interactions are continually going on though they may not always be direct and visible and the outcomes of these interactions may not reflect what was intended by either the state or society. Thus such interactions cumulatively reshape either the state or society, or most commonly, both. In fact in African societies what we describe as the role of the state was originally performed by society. For example, in Senegal, the state itself came to be based on a system of patronage, in which chiefs and other local level authorities exercised a tremendous degree of discretion in local arenas. It is only after the formation of nation states in Africa that the state has assumed its role.

WHAT IS CIVIL SOCIETY? The concept of civil society

Civil society as a concept was used in the writings of 18th century liberal philosophers like De Tocqueville and was developed further in the 20th century. The celebrated work of Gabriel Almond and Sidney Verba, The Civic Culture (1963), gave this concept momentum and prominence. While there are many definitions and debates on what civil society is, what does emerge as a fundamental element behind civil society is the objective to restrict the element of force as the basis of state activity and widen the space for civic bodies to participate and contribute in the performance of state activity. Almond and Verba argue that the political element of many CSOs facilitates better awareness and a more informed citizenry, who make better voting choices, participate in politics, and hold Government more accountable as a result. Following this, it can be said that in a narrow sense civil society refers to those organisations that have a political element in that they address the state. However, there are others like Robert Putnam who argue that even those organisations that do not have a political bearing should also be included under the gamut of civil society because they build social capital, trust and confidence which are reflected in the political sphere. Civil society is the realm of organised social life, which lies between the individual and the state. It is the arena of social engagement which exists above the individual yet below the state. It is that part of society that connects individual citizens with the public realm and state.

Key concept: civil society The set of intermediate associations which are neither the state nor the (extended) family; civil society therefore includes voluntary associations and firms and other corporate bodies (Oxford Concise Dictionary of Politics 1996)

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Civil society includes formal and informal community organisations, faith-based organisations, voluntary associations, trade unions and guilds, cultural institutions, all non-Government and non-profit associations, community associations, research networks, professional bodies, social movements, pressure groups, interest groups of numerous occupational practices, the media, and advocacy groups. Formal social institutions such as faith-based organisations, trade unions etc are influenced directly or indirectly by racial, religious attitudes and the role they play in a society.

Democratic functions of civil society

The challenge of democratic governance confounding Africa’s development is largely due to a failure to form a visible symmetry between the power of the state and that of the people at the grassroots. In the early 1990s several African states held multiparty elections after decades of one-party authoritarian rule. Important as this was in the first step towards democracy, elections by themselves do not produce or sustain democracy. They do not institutionalise broad participation in political life. An active civil society is key for sustained political reform, and a viable state–society relationship. Law, order and security and providing for basic services like health, education, sanitation, etc are the duties and responsibilities of all modern states. However, owing to the growing complexity of these issues and the growing responsibilities of the state, civil society and the private sector come in as partners with the state in ensuring basic needs for the citizenry. For fledgling democracies in Africa with its scarce resources and limited technical capacity the challenges are enormous which demands that civil society plays an active participatory role in the governance process. Civil society plays a number of democratic functions in the democratisation process of a society, some of these include: • Stimulating political participation by citizens: In societies like Malawi where the gap between the Government and the people is wide and the level of trust on the part of the public towards the Government is low the chances for political apathy creeping in are high. In such a scenario the NGOs and faith-based organisations have a large role to play as conduits between the people and the Government by their being close to the communities. People at the grassroots look up to these institutions for information and guidance. • Keeping the power of state in check through public scrutiny: Emerging out of an authoritarian system for decades the tendency to possess and accumulate power among the ruling elite is high. This compels civil society with other watchdog partners such as the media to keep a constant vigil so that the system does not revert back to where it was.

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• Participating in policy formulation: CSOs need to perform a proactive role. In Malawi the civil society has been a reactive institution since 1992 and only now is it starting to play a more proactive role through NGOs forming networks in areas such as health and agriculture, and by engaging with policymakers. CSOs need to engage with the Government as much as possible in order to make Government responsive and responsible to the people. • Developing democratic norms and practices such as tolerance and accommodation: Lack of tolerance to dissenting voices is common among new democracies. Governments generally do not like to be criticised and tend to limit the space for dialogue by, for example, monopolising airwaves. It becomes imperative for CSOs to find ways to make Government listen to voices of dissent in a non-confrontational manner through seminars, conferences. workshops and other channels. • Creating and utilising means of articulating, aggregating and representing interests beyond political party interests: There is a need to identify and define a common national agenda to which all parties can agree but for which each party has its own specific programmes and implementation policies. Civil society should uphold the national needs and aspirations, and remind politicians from time to time not to derail from the national goals. • Mitigating conflict: There is a lack of conflict mitigation mechanisms at all levels of society so there is a need to build that strength especially to deal effectively with political deadlocks at the top level. • Facilitating development of political parties through education and training: Political parties in Africa in general and in Malawi in particular face several structural and ideological challenges. Although parties acknowledge some weaknesses, they ignore others. In both scenarios CSOs should know how to intervene so that they do not become partisan or become antagonistic to any party. In Malawi CSOs often engage in dialogue for political parties and work with them during elections for training of monitors and similar issues. • Monitoring and reforming existing democratic institutions and procedures: Democracy is a dynamic system, whose institutions need to keep pace with changing conditions and demands. The changes should be consistent and relevant. Here again CSOs need to play a watchdog role so that the basic fabric is not disturbed or destroyed and at the same time help towards ensuring necessary reforms are made and advising how to do that. • Disseminating information on policies and other topical issues to all sectors of society: A constant flow of information is vital for public opinion which

270 Chapter 10: Civil Society

should be the responsibility of not only the media but all institutions of democracy. Civil society should generate lively debate on issues of national importance and involve society as much as possible.

THE HISTORY OF CIVIL SOCIETY IN MALAWI

Malawi has a long and rich history of civil society development. Here we look at how civil society and CSOs developed through the colonial, one-party and democratic eras and their role in the democratisation process.

Colonial era

After the declaration of the Nyasaland protectorate by the British towards the close of the 19th century, the ‘new men of Nyasaland’ comprising clerks, teachers, Church leaders and small businessmen were making economic, social and political demands through the medium of organisations that were ostensibly tribal in structure, but were in fact early pressure groups advancing non-tribal objectives. These included native and tribal associations located across the country, with a particular concentration in the Northern Region of the protectorate. At the beginning of the 20th century, about 15 associations of educated Africans were created with the objective of representing the political, social and cultural interests of their members in the face of the colonial regime. The pressures exerted on the colonial state by these native associations and the African independent churches, which were churches established by African not by Christian missionaries from Europe, resulted in substantial legal reforms in the 1940s and 1950s. Unionisation – the formation of cooperatives and other forms of organisations became permissible. The aim of these cooperatives was to serve the interests of its members in areas around which they were established, such as agriculture. Later, the objective of these early pressure groups was not only social and economic betterment for the workers but political independence for the country. This culminated in the formation of a broader political movement, the Nyasaland African Congress in 1943/44, a movement that subsequently lobbied for the granting of independence to Nyasaland.

One-party and the transition eras

1964 to 1989 With independence one might have expected that the environment would have been more conducive to the setting up and expanding of civil society groups.

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However, the one-party state became suspicious of the potential influence that CSOs had on society. With the dominance of Malawi Congress Party (MCP) structures, there was very little room for the involvement of CSOs in the newly independent Malawi. Dr , Malawi’s President between 1964 and 1994, made it abundantly clear that his vision of Malawi did not have any space for CSOs’ involvement in the development process. As a result of this, the totalitarian regime resorted to violence and repression in order to keep the population in line and to prevent any form of self-organisation. In its bid to keep a tight rein on the public, the Government resorted to imposing very strict regulations and tight controls on CSOs. This meant that CSO activities were primarily directed towards charity work in health, education, rural development and social welfare. This so restricted the possibilities for political operations of CSOs that one commentator observed that ‘in the period between 1964 and 1990, Malawi’s civil society had invariably been an insignificant factor in the country’s political process’ (Chipeta 1992). Among the worst affected were advocacy CSOs which were not able to advocate on human rights issues, and trade unions and were banned throughout the period of 1964 to 1992. International NGOs were also sent out of the country during this time. Although service delivery CSOs were allowed to operate, they could only function in a very tightly controlled context. For example, the Christian Service Committee (CSC), an umbrella ecumenical civil society movement, was banned and refused permission to work during this period. During this period, CSOs were seen as opposition agents, and Government policy consisted of deliberate spying on, monitoring and controlling them. The tight control of CSOs notwithstanding, relief organisations made significant contributions in assisting Government to cope with the influx of Mozambican refugees into the country at the height of the civil war in Mozambique in the 1980s. Although this exercise was led predominantly by international relief organisations, it presented a lead to local initiatives, so that relief organisations were among the most active CSOs to emerge in the country.

1989 to 1994 It is important to note that Malawi’s process of democratisation started as a popular movement; a social protest against a political regime that failed to meet the expectations of its people. The struggle for a free society with an equitable socio- economic order was at the centre of the calls for democracy in the country. Due to their popular orientation, the institutions of civil society acted as vanguard forums and avenues for articulating and expressing this call for democracy. The political change that took place in Malawi can be understood within the framework of the wind of political change that was taking place in Africa after the

272 Chapter 10: Civil Society collapse of the Soviet Union and the end of the Cold War in 1989. Most countries were changing from one-party systems to multiparty democratic ones. So, Malawi was not exceptional. This period saw the emergence of the political movements presaging a multiparty regime. This can be called the transformation of public concerns into political protest. The following activities by civil society were crucial in facilitating the transition to a new system of Government: • Advocacy activities by the Church: e.g. the historical pastoral letter issued by the Catholic Bishops in 1992 criticised ‘the growing gap between the rich and the poor’, the authoritarianism of Banda, and violations of human rights under the Banda regime; • Strike action: unorganised strikes during 1992 and 1993 which reflected workers’ frustration and forced Government and Dr Banda to accept political change. • Protests and strikes on Chancellor College campus by students and staff demanding for change; • Condemnation by international human rights organisations such as for human rights abuses and a call for improvement in human rights; Pressure by the local and international media amplified voices calling for political change. Some of the local media that emerged included the Monitor and Financial Post among others; 1993 to 1994 This period between the referendum in 1993 and the general elections in 1994 saw CSOs become the co-managers of the process of political transition. CSOs were gearing up to impart civil and voter education, participate in stakeholders’ workshops with the donors and the Electoral Commission, the media and other institutions towards the first ever multiparty elections in three decades. The National Constitutional Conference (NCC) set up to draft the new liberal Constitution involved extensive civil society participation. They engaged both the state and society in a dialogue on the country’s political future, and acted as a conduit for grassroots articulation of political demands. Democratic era

1994 to 1999 Following the momentous political changes of the early 1990s in Malawi when one-party rule came to an end and people voted in favour of multiparty democracy, the internal and external political framework provided a new landscape for the mushrooming of a variety of CSOs in the country. The formation of an elected

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Government and the adoption of a liberal Constitution in 1995 by Parliament gave civil society the space it needed to perform its role. For the first time in Malawi’s post-independence history, CSOs could work in areas beyond charity and service delivery and begin to be active in the social and political arenas. Trade unions, banned for nearly 30 years, emerged once again and workers regained the power of collective bargaining. However, this opportunity for civil society to perform its proper role in society was also daunting for CSOs and particularly for NGOs as they had no experience and had to start from scratch. Yet the challenge was taken up by NGOs like Malawi Institute for Democratic and Economic Affairs (MIDEA) which made significant strides in the first five years along with others such as Centre for Human Rights and Rehabilitation (CHRR) and Malawi Centre for Education and Rights (CARER). While these NGOs were developing, PAC (Public Affairs Committee), the umbrella organisation of churches, was the lead force and NGOs and PAC worked hand in hand. However, they lacked both human and financial resources. While some were lucky to get donor support others were not and this remains a problem for CSOs. The inter-election period was characterised by the waning of political influence of CSOs. Due to their institutional weakness, poor strategies and the intransigence of the state, CSOs were relegated to the position of civic education providers, rather than partners in the governance process. Though CSOs acknowledged the social and economic plight of the majority, they failed to effectively engage the state and society in a dialogue leading to the pursuit and/or establishment of an equitable distributive socio-economic order. Thus, civil society though present on the ground had not yet emerged as a partner in the governance process. It was reactive rather than proactive, happy to play a watchdog role rather than an active force in the governance process. For instance, it raised its voice against the enlargement of the Cabinet, extravagant spending by Presidents, and criticised Government’s failure to hold Local Government elections that were due in 1998. This has had the effect of Government perceiving civil society as another opposition body rather than as a partner. 1999 to 2004 This period was characterised by an increased tension and mistrust between CSOs and the state. The state visibly intimidated those CSOs and the media which were engaged in advocacy for good governance and made attempts to silence them. A vibrant civil society was emerging in Malawi, which was exemplified through its success in blocking the infamous presidential third/open term amendment bill being passed into law. Yet, it was also a period when the state enacted the repressive NGO Act of 2001 which meant to control the activities of NGOs.

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In the context of the country’s rampant poverty, CSOs responded to the need for reducing poverty and began to provide a complementary structure to the Government’s approach to solving problems. This period was thus characterised by increasing CSO activity in key areas such as direct poverty reduction and advocacy campaigns for debt relief and by the emergence of community-based organisations (CBOs) which are informal groupings which undertake a particular activity or activities for the benefit of the community, such as a village group planting trees, or assistance in the areas of agriculture, orphans, HIV/AIDS. Thus, advocacy institutions such as the CHRR, the Economic Association of Malawi (ECAMA), the Malawi Economic Justice Network (MEJN), the Human Rights Consultative Committee (HRCC) and others were either born, or they expanded their activities considerably. Much of the emerging economic advocacy came from the Jubilee 2000 Action for Debt Relief started in 1996/1997 by the Catholic Commission for Justice and Peace (CCJP). The emergence and expansion of advocacy CSOs was a reflection of the fact that the Malawian public wanted to play a more active role in the design and implementation of programmes for policy reform, poverty reduction and economic growth. CSO growth and diversification in this period was stimulated by the emergence of ‘new’ national and international concerns such as human rights, gender equality, HIV/AIDS epidemic, and protection of the environment. Funding for appropriate advocacy programmes in these areas was readily available from international NGOs or donors. While there was a high birth rate of CSOs (they numbered over 275 in 2004) and hundreds of CBOs, there was also the demise of numerous CSOs which had hoped to attract external funds but were unable to demonstrate their effectiveness or appropriate financial management. The high rate of CSO expansion and diversification created a need for inter- CSO coordination, which, in this period, was met through the creation of numerous networks or umbrella organisations covering most areas of civic and development concern. These networks initiated advocacy work in areas such as economic justice, consumers’ rights, the right to health and education, constitutionalism and good governance. Examples of such networks are the MEJN, Civil Society Coalition for Healthy Equity, the Civil Society Coalition for Quality Basic Education, HRCC, and PAC etc.

CIVIL SOCIETY ORGANISATIONS (CSOS)

Here we look at the main types of CSOs: NGOs, faith-based organisations and traditional leaders.

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NGOs

Key concept: non-governmental organisations (NGOs)

Non-profit, private or voluntary organisations that pursue activities to relieve suffering, promote the interests of the poor, protect the environment or undertake community development. (Glasgow et al 1993)

It is widely accepted that ‘NGOs have an essential role to play in the development process and that they can do something Government “cannot or will not do”’. This is because NGOs tend to have a ‘people-centred’ approach to development. They have a greater capacity to mobilise and organise human resources than Governments, and most of them tend to ‘operate effectively at grassroots level and reach the poorer segments of the population’ (Glasgow 1993).

The table below provides examples of NGOs and their main area of activity.

Table 1: NGOs and their Areas of Concern

Examples of NGOs Concentration Sector

Malawi Centre for Advice and Education on Rights (Malawi Governance and Human CARER), Centre for Human Rights and Rehabilitation (CHRR) Rights Malawi Human Rights Resource Centre (MHRCC) Civil Liberties Committee (CILIC), Institute for Policy Interaction (IPI)

Centre for Youth and Children Affairs, Active Youth Initiative Children’s Rights for Social Enhancement (AYISE), Youth Net and Counselling Services (YONECO), Eye of the Child

Women’s Voice (WV), CILIC, Association of Progressive Women’s Rights Women (APW), Women in Law in Southern Africa (WLSA) National Association of Business Women (NABW)

Federation of Disability Organisations in Malawi (FEDOMA) Rights of People Living with Disabilities

National Association of People Living with HIV and AIDS Rights of People Living (NAPHAM). CHRR, YONECO with HIV and AIDS

Malawi CARER Legal Rights CILIC Society for the Advancement of Women (SAW), CHRR

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Registration Most NGOs in Malawi are registered under the Trustees Incorporation Act of 1962 through the office of the Registrar-General. Others are registered through the Company Act, limited by guarantee through the registrar of companies. (Limited by guarantee: usually means registration of a non-profit making company that has no share capital but is formed by guarantee from its partners. This method is used to bypass the bottleneck and cost of registering as a trust.) Both the registrar of companies and Registrar-General fall under the Ministry of Justice and Constitutional Affairs. In addition to this, the Government enacted the NGO Act in 2001 relating to the regulation and monitoring of NGO activities in Malawi, despite the existence of The Council of Non-Governmental Organisations in Malawi (CONGOMA) which could have performed the regulatory functions in addition to facilitating the flow and exchange of information and capacity building amongst NGOs which comprised its membership. The NGO Act stipulated that all bona fide NGOs must be registered with the NGO Board and CONGOMA. The NGO Board is a regulatory body that is supposed to maintain a database of all NGOs operating in Malawi; it receives their audited accounts and a list of all their activities on an annual basis. It is seen by civil society as an attempt by the Government to control NGOs but has, thus far, failed to do so. It does very little else and is largely overshadowed by CONGOMA. The various steps needed to register and the costs involved are summarised below:

Step One Register as a company limited by guarantee Cost: approximately MK10,000 or Register as a trust under the Trustees Incorporation Act Cost: approximately MK15,000 Step Two Register as an NGO with CONGOMA Cost: MK12,000 per annum

Step Three Register as an NGO with the NGO Board Cost: MK18,000 per annum

The above steps illustrate the fact that any embryonic local NGO has to find a minimum of MK40,000 just for formalising its existence before it even starts any

277 GOVERNMENT AND POLITICS IN MALAWI work. And, one year after commencing work, it must find an additional MK40,000 minimum for auditors’ fees to prepare audited accounts as well as paying accountants at least MK10,000 per month for the preparation of accounts acceptable to audit standards. Thus, the first year in the life of an NGO requires a minimum income of MK200,000 just to meet the statutory requirements set out in the NGO Act. It is no wonder then that the NGO Act has been met with considerable suspicion and resistance from the NGO fraternity, who view it as draconian, unnecessarily costly and tortuous, and an outright violation of the constitutional right to freedom of association. Moves to review and amend the NGO Act in order to make it more ‘user friendly’ are currently afoot and may well result in the much needed overhaul of the NGO regulatory framework. Relationship between NGOs and the state Relations between the state and civil society in Malawi can be described as a roller coaster ride with more low points than high. The Government has not yet learnt how to accommodate civil society as a partner in the governance process. The United Democratic Front (UDF) made no secret of its intolerance for its critics, especially NGOs involved in governance issues, and unsuccessfully attempted several times to silence them through restrictive laws which it pushed through Parliament. To this end, no one was surprised when the Government tabled a bill in 2001 to control NGO activities, especially governance and human rights activism (this became the NGOs Act of 2001). It is pertinent to note that negotiations with Government over an NGO bill had been going on for several years. However, in 2001, without consultation with the NGOs, the Government suddenly rushed through the NGO bill through Parliament and succeeded in passing it despite vehement protest from civil society. The enactment of this law came notably in the wake of allegations by the ruling party that, during the general elections of 1999, members of the Church/NGO Consortium, a network of human rights NGOs and Church groups, which was involved in voter education and election monitoring, had, in fact, campaigned against the ruling party. Among others, one of the provisions critical to NGOs states that an NGO that is ‘involved in politicking and electioneering could result in an NGO’s permit to operate being withdrawn and the organisation concerned being de-registered by the NGO Board. Under the NGO law, the minister responsible for NGO affairs is empowered to have any NGO de-registered. In 2004, the NGO board demonstrated a level of intolerance to NGOs by issuing an ultimatum to organisations that had not yet done so, to register with the board by the end of December or face action – despite the fact that the NGO Act does not, in fact, empower the NGO Board to issue such decrees.

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Civic education A number of NGOs are engaged in civic education, whereby issues of democratic governance, human rights and other such areas are discussed with the intention of developing a vibrant democratic culture within an informed and empowered citizenry. Most civic education initiatives are aimed at empowering the people, with a special focus on vulnerable groups in society, so that they are able to claim their rights and accept their responsibilities in order to influence Government policies in a more equitable fashion.

Key concept: civic education An interactive process which strives to stimulate and enlighten people on their entitlements in a democratic society on matters of Government and governance, and effective participation in civic and political life; the ultimate goal of civic education is empowerment

Voter education and election monitoring Since the advent of multiparty democracy, NGOs have played a significant role in the area of voter education and election monitoring. During the 1999 presidential and parliamentary elections, NGOs were in the forefront in providing voter education and election monitoring alongside faith-based organisations. Among the NGOs that were instrumental were the CHRR, the defunct MIDEA, and Malawi Centre for Advice, Research and Education on Rights (Malawi CARER) which together worked with the CCJP in a network called the Church–NGOs Consortium. Other organisations that were also involved included the Civil Liberties Committee (CILIC), Association of Progressive Women (APW) and Women’s Voice (WV) which mainly focused on gender issues in the electoral process. Most of these NGOs also played an important role in the 2004 elections. NGOs came together with other voter education providers that were accredited by the Malawi Electoral Commission (MEC) to carry out voter education and election monitoring through a network called Malawi Electoral Support Network (MESN). Apart from voter education, NGOs and other actors monitored the elections in an attempt to ensure that the electoral process was free from manipulation. However, though the civil society’s role may have acted as a deterrent to outright electoral manipulation, it failed to address the serious flaws in the management aspect of the electoral process which resulted in contentious results emanating from both the 1999 and 2004 general elections.

Legal aid A number of NGOs have been involved in providing legal aid services which cover the incapacities within the Government legal aid department. There is an extremely

279 GOVERNMENT AND POLITICS IN MALAWI high demand for these services which include: counselling, litigation and mediation among others, provided by NGOs such as; Malawi CARER, CHRR, CILIC, Eye of the Child, SAW (the Society for Advancement of Women) to mention but a few. Some NGOs formed a group called the Paralegal Advisory Services (PAS) to provide paralegal services to sectors of society that have no access to such facilities. For example, PAS obtained Government permission to visit prisons where child offenders are being held to view first hand the deplorable conditions under which children are kept, and to discuss issues and problems with children. This initiative has contributed to a reduction of the juvenile population in the prisons, whilst a number of those remaining have been assisted through legal advice. The subsequent interaction with Government departments has provided opportunities for lobbying, gathering information and attaining understanding on how the Government operates.

Public policy – formulation and implementation NGOs have, over the years, played a role in policy formulation and implementation and, notwithstanding a visceral reluctance, Government now invites NGO participation in the design of its sector policies though not all inputs are taken on board. Thus, several NGOs are full members of sectoral working groups: e.g. CQBE (Coalition for Quality Basic Education) in education, MEJN in economic governance, HRCC in good governance and human rights. Much of the NGOs’ contributions to the design and implementation of Government policies and programmes have come through the groundwork undertaken by key NGOs’ network organisations listed in the following table.

Table 11.2: NGOs’ Umbrella Organisations

Umbrella Organisation Sector

NGO Gender Coordination Network Advocacy and gender (women in politics and development): participated in the development of gender policy.

Malawi Economic Justice Network (MEJN) Economic advocacy: participated in the Malawi Poverty Reduction Strategy Paper (MPRSP)

Malawi Forum for People with Advocacy for Advocacy for disability: contributed towards Disability (FEDOMA) Government policy for the disabled

Coordination Unit for the Rehabilitation of the Environment policy advocacy: contributed to Environment (CURE) the national forestry policy.

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However, the current inclusive attitude that seems to have developed has not been achieved without considerable struggle and perseverance by NGOs who continued to voice opposition to Government policies despite facing harassment, intimidation and sheer obduracy from upper echelons in the Government. Some contentious issues that were hotly debated between NGOs in conjunction with other CSOs and the Government were: • Repeal of the constitutional recall provision in 1995; • Repeal of the section on the Senate; • NGO Act 2001; • Attempted impeachment of judges; • Open and third term bills. Some of these issues have already been discussed, while the others will be covered elsewhere in this chapter. Despite the above issues, relations with Government appeared to have improved slightly following the change of administration in May 2004. Soon after the inauguration, the new President called on members of NGOs and other members of civil society to discuss how their relationship should lead to a continuous dialogue on critical national issues. This was seen by NGOs and other members of civil society as a positive move and gave rise to expectations that the relationship would develop into an ongoing constructive dialogue between the Executive and civil society on issues of common concern. However, since then relations have soured and become tense in the face of the Government’s propensity to rule by decree and take unilateral action without proper consultation.

Table 3 Faith-based Organisations and their Areas of Concern

Faith-based organisation Representing Main areas of support/interest

Church and Society of Blantyre Presbyterians Civic education, advocacy, election Synod monitoring, policy formulation

Church and Society of Presbyterians Civic education, advocacy, election Livingstonia Synod monitoring, policy formulation

Nkhoma Synod Presbyterians Policy formulation and implementation Catholic Commission for Justice Catholics Civic education, advocacy, election & Peace monitoring , policy formulation and implementation Seventh Day Adventists Seventh Day Policy formulation and implementation Adventists Sunni Relief and development projects such Association of Sunni Madrassahs as distribution of treadle pumps in Madrassahs (ASUM rural areas

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Umbrella bodies:

Public Affairs Committee Christian and Civic education, mediation, (PAC) Muslim advocacy, election monitoring, policy organisations formulation and implementation

Muslim Association of Muslims Advocacy, mediation, policy Malawi (MAM) formulation and implementation

Episcopal Conference of Catholic dioceses Mediation, advocacy, policy Malawi formulation

Faith-based organisations in Malawi command great respect and acceptance by the people and political leaders because they have played a crucial role in the political changes that have occurred in the country. Between 1992 and 1994, they were the driving force of political change. Of these, the Christian missions were the most forceful in raising awareness of political oppression and calling for the plurality of views. Of great significance were the pastoral letters of the Catholic bishops, the intervention of the World Alliance of Reformed Churches and the leading role of the PAC in establishing the new political order in Malawi. The Lenten letter, in addition to making a passionate plea for civil rights such as freedom of expression and the right to participate in the affairs of the country, also covered most aspects of human development, and emphasised the need for political, economic, social and cultural of empowerment. Therefore, faith-based organisations play various roles in Malawian society. These roles include: moral guidance, counselling and mentoring on various social issues, agents of development by mobilising their members to participate in development projects, and communicators and civic educators. In many African countries, outstanding Church leaders pushed the transition movement from dictatorship to democracy in the 1990s. Research into the public role of the Christian churches in Africa reveals that although the context and the problems are different, the channels of lobbying are limited and comparable throughout the continent.

PAC Against this background, it is worth stressing that in no other country has an institution such as PAC been established to channel the Church’s impact towards the political scene. In spite of its weaknesses such as divided loyalties among its leadership in political matters, which has made it difficult to be accepted in the area of mediation, it is a remarkable institution that includes other denominations in a unique ecclesiological experience.

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Malawian churches consider PAC as their main tool for influencing politics in Malawi. Undoubtedly the formation of PAC was the most important decision of the Malawian churches in the transformation of their public role from the prophetic to the institutional. The activities of PAC can be found in these three main fields: • Advocacy and mediation; • Civic education and election monitoring; • Policy formulation.

Advocacy and mediation From 1992 to 1994 the advocacy and mediation roles were dominant. For example, the Presidential Committee on Dialogue, which was called by Dr Banda owing to pressures from within and outside, comprised PAC and representatives of civil society and Ministers. After the referendum this committee was transformed into the National Consultative Committee (NCC) which drove the constitution-making process. After the first democratic elections in 1994, a round table with the representatives of the Government, political parties and CSOs was organised (at national and regional levels) to address issues such as tolerance, reconciliation, accountability and transparency. In 1997 the parliamentary boycott and civil service strike absorbed a lot of energy of the Church in engaging parties for dialogue. However, the Church’s mediation role has not always been a success story. Since 1999 there have been more complex political and constitutional challenges and the Church’s role in mediation has been losing its effectiveness and vigour and also its neutrality and objectivity have come under scrutiny. A critical issue has been whether the Church should have mediated the process of the formation of the coalition of opposition parties – the Mgwirizano Coalition. The Church even campaigned for the Coalition’s presidential candidate which provoked controversy and raised the question as to what extent the Church should get involved in politics and elections?

Civic education From 1995 PAC tackled the themes of political parties’ and civic education. They organised workshops on good governance and these took place in five districts. In 1996 this was followed by seminars on local democracy for religious leaders from different denominations from each district. Finally, in 1998 traditional leaders, members of Parliament (MPs), and officials had undergone training in civic education in all districts. From 1997 onwards, the programmes focused on voter education. Altogether, 35 seminars were held in the 26 districts, using and distributing training manuals on democracy and good governance.

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Apart from PAC there are also faith-based organisations that are involved in civic education activities, for example, the Church and Society of Livingstonia and Blantyre Synods as well as the CCJP. In addition, a number of faith-based organisations have established radio stations which are providing useful information on rights, governance, health and cultural issues among others. Some of these stations include: TransWorld, ABC Bible College, Radio Maria and ALINAFE, and Radio Muslim.

Voter education and election monitoring PAC, CCJP, Church and Society of Livingstonia and Blantyre Synods are also important in providing voter education and election monitoring during national and by-elections. They deploy community-based civic educators and monitors. Monitors are deployed after organisations involved in election monitoring have got an accreditation from the MEC.

Policy formulation and implementation Faith-based organisations have also played a crucial role in public policy by participating in policy formulation (i.e. MPRSP policy implementation in areas such as education, governance and constitutionalism and health etc). Their participation has been through their network bodies such as PAC, Christian Service Committee (CSC), MAM, Christian Health Association of Malawi (CHAM), and Association of Christian Educators in Malawi (ACEM). During the MPRSP these organisations were involved through MPRSP policy formulation structures that were formed such as the technical and thematic committees by the Ministry of Economic and Planning. There were a number of thematic committees, such as governance for example, where relevant CSOs were members. They contributed through provision of information as an input into policy. Some CSOs have taken an active role in policy implementation. For example, ACEM’s contribution to the implementation of education policy has been demonstrated by operating primary schools in rural areas which account for 3,000 out of 4,000 primary schools. At secondary school level, it operates 200 out of 400 schools. It also operates two teacher training colleges, two special teachers’ colleges, five technical colleges (GOM/EU Report 2005: 55) among others. Similarly, CHAM plays a very significant role in making contributions towards the implementation of the health policy. It operates in all . It provides the largest services in rural areas. Of the 622 health facilities available in Malawi, CHAM operates 167 facilities in the form of hospitals, clinics, dispensaries, health centres, maternity and rehabilitation centres.

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Traditional leaders Civil society does not only consist of formal associations of individuals but also includes other actors that link individuals and local communities to the national system. In Malawi chiefs, the council of elders and traditional leaders have always played such a role, for instance in settling disputes, allocation of land rights and so on. The position of influential leaders in local communities is illustrated by the findings from an Afrobarometer study. In Malawi only 9% of respondents said they had contacted a political official for help to solve a problem, while 24% said they had contacted an influential leader, including chiefs and other community leaders (Bratton et al). Traditional leaders play a significant role in the democratisation process through their participation in the decentralisation process, and the maintenance of peace, law and order in the areas under their jurisdiction. They are key in mobilising the people in their areas in development activities; and they act as custodians of cultural and traditional values. They also perform quasi-judicial functions. In modern administrative (Government) structures, traditional leaders act as a link between their subjects and Central Government, through the office of the District Commissioner (DC). The role of traditional institutions in the democratic process is important and it is imperative to find ways to modernise traditional institutions to suit the changing conditions. TAs are not formally represented in Parliament. However in most cases, MPs whose constituencies fall within or across respective TAs are considered representatives of the TAs in Parliament. Usually the MPs consult the chiefs before a sitting of Parliament and give feedback after the sitting. Failure to do so is likely to attract serious repercussions from the chiefs who can easily tell his/her people not to vote for the said MP in future parliamentary elections. There was a provision for a second chamber of Parliament called the Senate. This chamber was to include TAs among other representatives of society. However, this section of the Constitution was amended so as to repeal the section on Senate. In addition, attempts to put in place a Chief ’s Council that would comprise TAs and work as an advisory arm of Government on traditional matters also failed. It was felt that the Council would be abused by politicians especially during elections. In conclusion, it can be said that traditional leaders still retain their influence, command respect and enjoy the confidence of the ordinary people. The reason is that these leaders are more visible and accessible than the leaders at the top. They have continued to resolve local level disputes over issues such as inheritance, land and family affairs, to play a role in enforcement of the law, as well as development initiatives. However, the greatest challenge is that the TAs are often manipulated by

285 GOVERNMENT AND POLITICS IN MALAWI the Governments in power to serve their own political interests. There is a tendency to lure the chiefs with material incentives to publicly support a particular party’s agenda. A case in point is the open/third term constitutional amendment bill in 2003 where traditional leaders were given incentives to say on TV and radio that their subjects in their areas of jurisdiction supported the Third/Open Term Bill. It is essential for the chiefs to unite and overcome such pressures and inducements in order to serve the people better in a democratic setting.

UPHOLDING DEMOCRACY AND CONSTITUTIONALISM

Civil society in Malawi has played more of a watchdog role in the democratisation process than an initiator of policies or activities, and has thus been labelled as ‘reactive’ rather than ‘proactive’. There have been several attempts in the last decade to enhance the power of the Executive and thereby undermine the power of Parliament and other constitutionally established bodies. There were repeated attempts to amend vital sections of the Constitution to serve short-term personal gains at the risk of endangering democracy. Furthermore, attempts have been made to undermine the electoral process which thereby undermine the democratisation process. At such times CSOs have come out in the open and used all possible avenues to generate public awareness and support. Such instances are given below.

Repeal of the recall provision

Section 64 was unilaterally repealed in 1995 by Parliament. It was one of the earliest serious amendments to the Constitution as it curtailed people’s ability to hold MPs to account. According to supporters of the provision it would also have checked reckless ‘crossing the floor’ (changing parties) by MPs. Civil society kept the issue alive by repeatedly raising it every time MPs shifted loyalties or put national interests to one side for personal gains. The Church and Society Programme of the Livingstonia Synod carried out a programme to sensitise people to demand reinstatement of the provision into the Constitution but it was unsuccessful.

Repeal of the Senate provision

After repealing Section 64, Parliament again unilaterally repealed the section providing for the Senate in the Constitution. This provision was meant to ensure checks and balances on the legislative process in that bills passed by Parliament

286 Chapter 10: Civil Society would have to go to the Senate for scrutiny before becoming laws. This provision would also have allowed representatives of various interest groups such as women, youth etc to be represented in the Senate to articulate their special concerns and needs, and, above all, enable them to participate in the democratisation process. Civil society including the chiefs attempted to lobby Parliament for its retention but they were unsuccessful.

Impeachment attempt of judges

During the period of the second term of multiparty democracy, attempts were made to impeach three judges of the High Court for alleged incompetence and partisanship. However, popular feeling was that there were no grounds to these allegations and the attempts to impeach the judges were made because at times their rulings, though independent, were not in favour of the Government. The ruling party in Government was behind the move to impeach them and tried to get this passed by Parliament. But due to pressure from civil society, the impeachment motion was unsuccessful. Efforts employed by civil society included media advocacy, lobbying influential MPs, the donor community and the state President as the party leader of the UDF which was the architect of the motion to impeach the judges.

Third/open term amendment

‘…Allow me also to thank church leaders in the country; the Catholic Bishops and the leaders of other religious organisations for the role they played in the democratisation of this country.

The Bishops started it. The other religious organisations supported them. To them I want to say this: thank you for leading the way but your job continues. If we do slacken do not hesitate to correct us whether privately, or publicly.’ (President Bakili Muluzi)

If there is anything that lacked national consensus and really shocked the fabric of Malawi society, it was the question of the third/open term constitutional amendment. The present Malawi Constitution stipulates in Article 83(3), that the President and Vice President shall serve a maximum of two consecutive terms. However, during the second term of Bakili Muluzi’s presidency, arguments were advanced in support of and opposing the constitutional amendment which would allow for a third or open term of office. It was hardly ten years since the country had gained its new political dispensation. Having lived for 30 years under the dictatorship led by Dr Kamuzu

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Banda who served as ‘Life President’, Malawians had good reason to fear that the term extension might lead them back along the same road they had been forced to follow in the past. With that in mind, civil society mobilised itself to campaign against the amendment. Professional organisations, Christian churches, the Muslim clergy and other religious groups, students, trade unions, the academia and many others opposed the amendment. For example, PAC and MCC (Malawi Council of Churches) came out with a series of press releases taking a firm stand against the third term. Under the initiative of CCAP, the Forum for the Defence of the Constitution was formed which endeavoured to take up issues pertaining to the defence of the Constitution in general and in particular regarding the extension of the presidential term. This received the support of many civil society bodies. Ordinary people also showed their opposition through street demonstrations and intensive lobbying. Two attempts were made in Parliament to amend the article, but both attempts proved unsuccessful. This was largely due to the strong opposition to the amendment by civil society.

Levelling the electoral playing field

CSOs play an important role in the electoral process by ensuring that the process is managed in a fair way and in accordance with the law. For example, in both the 1999 and 2004 elections, the electoral process playing field was not level; NGOs together with the Church exposed a number of electoral irregularities and fraud. Because of the flouting of procedures by the former ruling party, the UDF, and the bias of the Malawi Electoral Commission (MEC), NGOs were involved in lobbying and advocacy in order to ensure that the political playing field was levelled. As a result of successful lobbying in 1999, the presidential and parliamentary elections were extended for two weeks from the prescribed constitutional date in May. Similarly, the 2004 elections were also extended for 2 days following a court injunction by the Opposition that the voter’s roll inspection period of 21 days was not fulfilled as per the legal requirements. Following the ineffectiveness of the MEC to ensure a free and fair electoral process, in 1999 NGOs, the Church and political parties in opposition mobilised themselves through the National Consultative Group (NCG) that was facilitated by the defunct MIDEA, and successfully forced the Government to remove the then Chairperson of the Commission and its Chief Elections Officer. A replacement was made immediately before the polls in May 1999 of a new chairperson and a temporary Chief Elections Officer was appointed to finish the process, who was the Clerk of Parliament. Similarly, in 2004 after the polls, stakeholders including

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NGOs managed to pressurise Government to remove the Chairperson of MEC for failure to run the polls in a professional manner and a new Chairperson was appointed.

DONORS IN THE DEMOCRATISATION PROCESS

The impact of donors on CSOs

It is generally accepted in development work today that a country cannot be developed from the outside. The development of any society is the responsibility of the country itself and its leadership. However, Malawi, with its high level of poverty and weak economic base, is heavily dependent on donor support. So the Malawian Government is heavily dependent on donor funding, and so is civil society. Almost 100% of CSOs’ funding comes from donors which means that if donors stop funding CSOs, most of them will collapse and cease to operate. This situation has meant that some donors have taken advantage of their power and imposed their own agendas in terms of their approach to project implementation and contents. Furthermore, some donors have refused to invest in institutional support and a sustainable programme for CSOs. Emphasis by donors has been on project approach rather than programme approach. Less and less CSOs are involved in activities which are sustainable. Those that are, are mainly from the ecumenical related organisations. Although it is difficult for CSOs to carry out effective sustainability programmes because of their weak economic base and lack of Government support, attempts towards this direction in future would reduce the current situation of overdependence.

CHALLENGES CONFRONTING CSOS

Many CSOs are still young and weak in capacity, especially in terms of manpower, management, structure and financial resources. Also, many of them do not have a clear vision, direction, principles and structures that would ensure professionalism, integrity, transparency and accountability. This has meant that many CSOs have not been able to attract long term donor funding in order to sustain their activities. Some of the specific challenges faced by CSOs include the following. Resources

CSOs have limited financial and human resources for them to participate effectively in the democratisation process because most of them exist at subsistence level. Many CSO employees lack sufficient academic qualifications and

289 GOVERNMENT AND POLITICS IN MALAWI professional skills to carry out their work effectively. This means that sometimes personnel have very little or no deep understanding of the complexities of some of the issues that their organisations might be tackling.

Interference

The Government in the past has attempted to interfere with civil society activities. For example during the third term campaign, the Government sponsored some CSOs to act against those which were against the third term by giving them free airtime on TV and radio. It also used some CSOs to undermine the activities of other CSOs that had been involved in advocacy against some unjust policies and programmes. For example, soon after the 1999 general elections, CSOs that had monitored the electoral process, exposed malpractices and fraud, and advocated for a transparent and level political playing field were perceived to be anti- Government and supporting the Opposition. This resulted in the ruling party in 2000 moving a motion against the Church/NGO Consortium, that it had conducted its activities in a partisan manner and that it abused donor funding. The motion was aimed at getting the Consortium to conduct an audit on how funds had been utilised despite the fact that the audit element was part of the contractual agreement with the donors. This was not only interference but also intimidation in that in most donor funding agreements, conducting an audit after the funded activity is a must. During the deliberations, a number of MPs, most of whom were UDF, insulted members of the Consortium. Participation

Participation in the policy process has been to some extent a challenge. It has tended to be kept very limited as a result of, among other things, a mistrustful Government attitude, resource constraints and inadequate capacity. Despite these challenges civil society has participated to some extent in the policymaking and policy-shaping processes. Indeed, the evolution of the MPRSP is a landmark in civil society participation in policy formulation and implementation process as CSOs were instrumental in areas of governance, health and education among others. Ignorance, illiteracy and poverty

In Malawi, multiparty democracy is still very young, and the majority of Malawians have limited knowledge about issues of politics and democracy. Coupled with this, there is a high level of ignorance, illiteracy and poverty and most people are preoccupied with issues of survival. In such a situation conducting human rights and governance awareness campaigns becomes a challenge.

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Poor economic situation

The desperate economic situation prevailing in Malawi and the country’s dependency on aid compel the Government to be more responsive to donor pressure. There is also increased financial insecurity which, in turn, has a major influence on CSO coalitions. At an organisational level, this pecuniary insecurity promotes a sense of competition amongst CSOs for the limited amounts of financial resources as may be available. Due to economic insecurity, short-term demands induced by the need to ensure individual survival have often taken precedence over attaining medium-term collective success on a particular issue. For example, some CSOs are not proactive in networks if there are not tangible gains for them. There have also been conflicts between different CSOs for management of the funds for the network.

Inadequate coordination and networking

Civil society in Malawi has to some extent networked considerably well, as indicated above. However, despite these successes, there have been numerous challenges such as selfishness, ineffective communication, hidden agendas, gossiping and unnecessarily internal politicking among the leadership compounded by lack of maturity, principles and vision. These and many other challenges have undermined the capabilities of NGOs to effectively influence policies. For instance, the Church–NGO Consortium, which had been formed before the 1999 elections and had been a positive move by the Church and NGOs in terms of institutions joining hands and establishing a visible presence at the grassroots level all over the country, disintegrated after the CCJP, the sole Church component in the Consortium, withdrew from the body. The reason for the break-up was that the Consortium had departed from its original objective of implementing a community-based civic education plan using Church structures: (Ott, Phiri, Patel 2000).

Reactionary and event driven

CSOs have on several occasions been reactive and event driven rather than proactive in their approach. This has been to some extent because of lack of clear vision, ideology and poor planning. This has meant that Government has not taken them seriously. In most cases, there have been poor mechanisms in engaging Government in a more constructive and systematic way. Instead CSOs have dealt with Government in an ad hoc manner on isolated cases rather than taking a more

291 GOVERNMENT AND POLITICS IN MALAWI holistic approach to policy issues. For CSOs to be taken seriously by the Government they should be more organised and provide systematic inputs in policy issues, sometimes providing alternative policies.

STRATEGIES OF CIVIL SOCIETY

Civil society has at its disposal a broad range of tactics and political strategies. No group should confine itself to a single strategy or try to exert influence through just one channel. The methods used should be determined by the internal structure and the nature of the group concerned, and the resources at its disposal. The resources can include public sympathy for the group and its aims, the size of its membership, financial strength and organisational capabilities, and the personal links it may have with political parties and Government. Some of the tactics they can use are advocacy and lobbying. Lobbying should be directed at the executive and legislative levels. It has been found that the most effective lobbying techniques involve direct personal communication with decision-makers. This could be done through a personal presentation at legislative public hearings or one-to-one talks, social get- togethers etc. Other means of lobbying and advocacy employed by CSOs that seek to influence Government indirectly are by using the mass media and and/or public opinion – tactics here range from petitions, protests, strikes, and demonstrations to civil disobedience. In Malawi, lobbying and advocacy on issues of national importance should be directed at the Executive (Cabinet and bureaucracy) as well as the Legislature. Government has provided various opportunities for people to participate in decision-making processes. Such opportunities include public hearings and invitations to make oral or written submissions to Parliamentary committees. On Local Government issues, the focus of CSOs should be the municipal and district assemblies in which legislative and executive authority is invested. CSOs that claim to be doing advocacy and lobbying work are required to be in touch and to represent the views of those on whose behalf they speak. Therefore, advocacy CSOs need to be rooted in society in order to speak effectively for those that do not have a voice.

CONCLUSION

In Malawi, civil society has played an important role in the democratisation process in such areas as holding Government accountable on issues of good governance,

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(e.g. elections and fiscal discipline), civic education, legal aid, mediation, training, preventing Government from making certain constitutional amendments, and also in getting Government to accept civil society as a partner in executing policies, such as in the development of the MPRSP. Despite these successes, there are many challenges that CSOs face in promoting the democratisation process. To begin with, in Malawi, there still exists very considerable respect for, and even submissiveness to, authority and power. Inadequate skills, lack of vision and direction and lack of adequate resources are problems challenging their effectiveness, and in some cases civil society’s relationship with the state is more adversarial than cooperative. In order for CSOs to make a meaningful contribution towards the democratisation process of the country, it is necessary for them to be well focused, to strengthen their capacity, and to demand for a better operational environment to conduct their activities. They can only achieve this if there is a unity of purpose for making a better Malawi.

Questions

1. Name the categories of civil society and give examples of each? 2. What are the democratic functions of civil society? 3. What strategies do CSOs use to influence policies in Malawi? 4. Which civil society group in Malawi is powerful and why? 5. What factors hindered the historical development and current growth of civil society? 6. To what extent has civil society contributed towards the democratisation process in Malawi? 7. Is it possible for civil society to bring about a vibrant democratic culture in Malawi? Discuss

293 GOVERNMENT AND POLITICS IN MALAWI Glossary

Advocacy: Speaking or pleading on behalf of another person in order to bring about justice. An advocate is therefore someone who speaks on behalf of someone else. It also means proposing or recommending something or someone.

Civic education: An interactive process by means of which efforts are made to stimulate, raise or sustain people’s consciousness about their rights in a democratic society, matters of Government and governance, and effective participation in the civic and political life of society

Democracy: A form of Government under which the power to alter the laws and structures lies, ultimately, with the citizenry. Under such a system, legislative decisions are made by the people themselves or by representatives who act on their behalf. Election monitoring: The processes of overseeing/observing each stage of the electoral process in order to ensure that the process is free and fair and is being conducted in accordance to the Constitution, electoral laws, norms and standards. Limited by guarantee: Registration of a non-profit making company that has no share capital but is formed by guarantee from its partners; this method is used to bypass the bottleneck and cost of registering as a trust.

Lobbying: Attempts to exert influence on the formation or implementation of public policy. A lobbyist is therefore a person who takes up the problems or issues of those he/she is speaking for directly to those who are supposed to make decisions in order to bring about change.

State: A geographic political entity possessing political sovereignty, i.e. not being subject to any higher political authority.

294 Chapter 10: Civil Society References

Bratton, Michael, Robert Mattes and E. Gyimah-Boadi (2005) Public Opinion, Democracy and Market Reform in Africa, Cambridge: Cambridge University Press, p 151

Cairns, J. and G. Dambula (1996) Gwira Mpini Kwacha 1 Civic Education to Build Local Democracy, PAC training manual, Balaka: Montfort Press

Chirwa, W.C. and N. Nqwira (1998) Civil Society and Poverty Reduction in Malawi; A State of the Art Review, Dakar: Codesria

Episcopal Conference of Malawi (1992) Living our Faith: A Pastoral Letter of the Catholic Bishop of Malawi, Balaka: Montfort Media

Glasgow, M et al (eds) (1993) Non-Governmental Organizations in Malawi, Societal Self- guidance in the Process of Democratization and Development, Escbora: GTZ

Government of Malawi/European Union (2005), Strategy to Associate Non-State Actors in the Development and Implementation of European Development Fund (EDF), Lilongwe

Konrad Adenauer Foundation and University of Malawi (2003) Civil Society and Democracy, Training of Young Politicians Series, Konrad-Adenauer-Foundation e.v., Balaka: Montfort Media

Mhone, G. et al (eds) (1987), Malawi at the Cross-Roads: The Post Colonial Political Economy, Harare: SAPES Trust

Nation Publications Limited (1999), 25 November, Blantyre

Ott, M., K.M. Phiri and N. Patel (2000), Malawi’s Second Democratic Elections, Process, Problems, and Prospects, Kachere Book No. 10, Blantyre: CLAIM

Phiri, K.M. and K.R. Ross (eds) (1998) Democratization in Malawi; A Stock taking, Kachere Books, No 4, Blantyre: CLAIM

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Poeschke, R. and W. Chirwa (1998) The Challenge of Democracy in Malawi: 1998, Social- Anthropological Conditions, Lilongwe: GTZ Publications

Ross, K.R. (2004) Worrisome Trends: The Voice of the Churches in Malawi’s Third Term Debates, Royal African Society

296 11 TRADE UNIONS

Lewis Dzimbiri

INTRODUCTION

The trade union movement in Malawi dates as far back as the end of the Second World War. It has undergone a process of growth, decline and growth again over the past six decades. To understand how trade unionism has developed in any country, we need to consider the political, economic and social context. In Malawi, the political context has been the most influential factor in the way trade unionism has developed. This chapter examines the impact of politics on the growth and development of trade unions in Malawi from colonial times up to the present-day era of multiparty politics. It begins by defining what trade unions are, how politics impacts on their development and then looks in detail how the different political regimes in Malawi’s history have shaped the growth and development of trade unions. The chapter then looks at the structure of trade unions and how they operate.

This chapter discusses the following issues:

• What are trade unions and how do they achieve their goals or objectives? • How do political systems influence trade unions and vice versa? • How did trade unions develop in Malawi during the different political regimes? • How has trade unionism grown since 1994? • How are trade unions structured? • What effect has multiparty politics had on the relationship between trade unions and the state in Malawi?

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WHAT ARE TRADE UNIONS?

Background

The roots of what we now consider to be trade unions generally date back to the advent of industrialisation in many parts of the world. With industrialisation came the need for a large workforce particularly in factories. The workforce changed from a rural one to an urban one and people came in their droves to cities in search of jobs. Many of them worked as part of the production line in factories. Conditions were often bad and exploitation of workers was rampant. Employers had the prerogative to ‘hire and fire’ which left many workers little option but to accept their meagre pay and poor conditions. Workers realised that individually they had no power but if they were united they would be able to face up to their employer and demand better wages and conditions. That is how unions came into being although they were initially called combinations. Many Governments declared combinations illegal. Workers were beaten up, tortured, and jailed. But the struggle went on.

Key concept: trade union An association set up by a body of wage earners for the purpose of maintaining and improving the conditions of their working lives through collective bargaining and unified action

Trade unions used collective bargaining, whereby the trade union itself negotiated the terms and conditions of all workers belonging to the trade union. This made a stronger and more powerful force than if workers negotiated individually, particularly as they were able to enforce membership and use the ‘strike weapon’, whereby workers would agree to refuse to work until their conditions were met.

Key concept: collective bargaining A process of agreeing terms and conditions of employment through representatives of employers and employees; It is the major social invention for discussing and resolving conflicts between employees and employers.

Key concept: strike A concerted withdrawal from work by a part or all employees unless the employer meets the employees’ demands

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Classifying unionism

One way to classify unionism is by viewing it either as an interest or an ideology. Interest unions are those that represent the economic interests of their members, so called ‘bread and butter unionism’. Individuals join trade unions because they want to improve their wages and conditions of employment through collective bargaining. Ideological unions are class-oriented unions which view contemporary capitalist society as exploitative and aspire to promote overall workers’ interests in the long term rather than to defend narrow economic interests only. They interpret their role as being one of heightening the consciousness and awareness of the workforce, moulding perceptions, and mobilising workers ideologically towards a far-reaching structural transformation of society for the benefit of everyone (Bean 1994: 20). Thus, ideological trade unions have a slightly different objective – to change the way society is set up or the economy is run, or even to get into power.

Objectives of trade unions

The original objective of trade unions was to improve the wages and working conditions of workers. Today workers expect to receive a fair living wage and certain benefits such as free healthcare, paid holidays, leave and job security in return for their labour. Trade unions represent these interests and negotiate on a variety of work- related issues such as bonuses, overtime payments, working hours, shift duty allowances, gratuities, uniforms, transport allowances and loans with the employer. As mentioned above they use collective bargaining. Some employers have come to see the benefit of negotiating with one body rather than with several individuals, but many employers are not keen on collective bargaining and are suspicious or anti trade unions.

Obligations of members to their union

Every member of an organisation like a trade union has both rights as well as obligations. While the trade union has the obligation to protect the employment rights of its members, those members in turn have obligations such as taking an active part in discussions, paying membership dues, adhering to trade union rules, regulations, procedures and decisions.

THE IMPACT OF POLITICS ON TRADE UNIONS IN MALAWI

Introduction

Trade unionists and workers are concerned about politics because political decisions affect their working lives (privatisation, health and safety legislation) and

299 GOVERNMENT AND POLITICS IN MALAWI their lives outside work (the health service, pensions, education). If workers and their unions stay out of politics, then it is more likely that their interests will be ignored. Despite what many politicians claim, they cannot represent both employers and workers. Workers’ organisations in many countries align themselves with political parties which are committed to social justice, democracy, freedom, peace and the emancipation of working people. Most workers are fully aware that without involvement in politics, their aspirations can never be satisfactorily realised. In Africa, the relationship of trade unions with political parties can be traced to pre-independence days when nationalist politicians used unions to stage strikes to speed up the transfer of power. Since employers in colonial Africa were foreigners, workers viewed poor wages and conditions of work as a problem of foreign colonial domination. So trade unions became associated with the fight for independence as a means of improving the lot of their workers. Politics also plays a role in how trade unions can operate in a society. What kind of political system a state has can influence the relationship between the Government and trade unions. A liberal democratic system allows pressure groups to influence Government decisions. In such an environment, associations such as trade unions and voluntary organisations such as women groups, youth clubs, business or professional associations are independent organisations. In this context trade unions can flourish and form open alliances with political parties and even form their own political parties. It is also quite possible in such a non-authoritarian regime that there may be competing unions. On the other hand a totalitarian political system limits open political competition; is ready to use force and coercion to achieve its ends, thereby reducing civil liberties; controls mass media and lacks judicial independence. In such contexts, trade unions are usually controlled by the authorities and have monopolies. They tend to convey state economic policy to their members and maintain discipline. Now we look at how trade unions developed during the different political regimes in Malawi, in terms of the establishment’s attitudes and legal framework.

Colonial period

The British did not permit trade unions to function in their colonies until after the end of the Second World War. The development of trade unions in Malawi came about as a product of a series of strikes against poor wages and working conditions by teachers, night soil workers, domestic servants, and rail workers during the 1940s in Blantyre (McCracken, 1998). The Nyasaland Teachers Association protested against the high cost of living in 1945. Domestic servants,

300 Chapter 11: Trade Unions council employees, and transport workers organised further protests in 1947. Night soil workers went on strike, demanding increased wages, protective clothing, and additional soap rations. The Transport and General Workers Union (TGWU) became the first registered trade union in 1949 followed by the Commercial African Trade Union (CATU) in 1952, the Nyasaland Railways Workers Union in 1954 and the Nyasaland Workers Union in 1956. Between 1956 and 1963, several other unions were formed including the Building Construction Civil Engineering and Allied Workers Union (BCCEAWU); the Plantation and Agricultural Workers Union (PAWU); Teachers Association of Malawi (TUM) which evolved out of the Nyasaland Teachers Association (formed in 1945); National Union of Health and General Hospital Workers (NUHGHW), Hotel and Catering Workers Union (HCWU); Printers, Journalists and Newspapers Workers Union (PJNWU); Asian Railway Workers Union (ARWU); European Staff Railway Council (ESRC); and the Blantyre Municipal Pension Staff Association (BMPSA) (Ministry of Labour 1969). At independence in 1964, there were 19 trade unions with 4,763 members out of a potential membership of 116,000 (Ananaba 1977). According to Ananaba (1977), although colonial authorities discouraged trade unions from participating in politics, trade unionists saw the struggle for independence as a national issue deserving the support of every organised group. Workers organised strikes in the 1930s through to the 1950s which, though purely economic, had political overtones. They echoed Kwame Nkrumah’s slogan ‘seek ye first the political kingdom and everything else would be added unto you thereafter’. When trade unions were allowed to operate in former British colonies after the end of the Second World War, a few key legislations were enacted as a framework for employer–employee relationships. It should be noted that the legal framework provided during the colonial period was used by the independent state for three decades with just minor modifications until they were radically changed during the multiparty period in the 1990s. As a provider of the legal framework, the colonial state enacted the Trade Disputes (Arbitration and Settlement) Act 1952, the Trade Unions Act 1958, and the Regulation of Minimum Wages and Conditions of Employment Act 1958. However, the colonial Government limited trade unions through The Trade Union Act 1958 which enhanced Government power to control the formation, registration, and financial management of unions. The act empowered the Registrar of Trade Unions, an official in the Ministry of Labour, to refuse or cancel registration and to determine international financial assistance or affiliation. The Trades Disputes (Arbitration and Settlement) Act 1952 was also restrictive in terms of the right to strike. It restricted strikes in essential services and it was left to the Minister of Labour to decide which services were essential.

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The act did not say anything about strikes in non-essential services. The Regulation of Minimum Wages and Conditions of Employment Act 1958 protected workers by providing minimum terms and conditions of employment to avoid exploitation of workers by employers. The one problem was that most employers treated the minimum wage as the maximum wage, so that for a long time, workers continued to receive low wages. The prevalence of a unilateral system of wage and salary determination and conditions of employment in public and private sector organisations and Government’s reliance on the Wages Advisory Councils (WACs) and Wages Advisory Board (WAB) undermined the growth of collective bargaining. WACs were tripartite bodies in specific industries and were composed of workers’ representatives, employers representatives and the state (represented by the Ministry of Labour officials) to determine terms and conditions of employment for recommendation to the Minister of Labour. WAB, which functioned like WACs, was used in industries that had no WACs. Both WACs and WAB were constituted under the Regulation of Minimum Wages and Conditions of Employment Act 1958.

Post-independence: 1964–1992

Closer to independence the trade union movement experienced a number of challenges. The Malawi Congress Party (MCP) changed its position vis-à-vis workers’ interests. With evidence of impending independence from Britain, MCP shifted its attention to unity and socio-economic development. Trade union leaders who refused to ‘dance to the tune’ of the party were removed from office. MCP’s change of direction widened the gulf between the trade unions and Government. of the Nyasaland Trade Union Congress (NTUC) further divided trade unionism. Following the 1959 anti-colonial protests, NTUC leaders had aligned themselves to nationalist interests and those of capital rather than with members of the working class. Political stability and the need to spearhead economic development shaped trade unionism after independence. Malawi became independent from Britain in 1964, and adopted a one-party constitution between 1966 and 1993. It was during the one-party period that an authoritarian state emerged as a response to demands for political stability and socio-economic development. The Government was forced to lead the way to economic and social development in the absence of an indigenous entrepreneurial class. The Cabinet Crisis six weeks after the 6 July 1964 independence celebrations was an urgent factor that called for political stability. The consequence of the crisis and its influence on Banda’s political strategies

302 Chapter 11: Trade Unions impacted on trade unionism. The expulsion from office and imprisonment of ‘rebel’ Cabinet ministers triggered a wave of harassment of their friends and supporters, most of whom were trade union leaders (Ananaba 1977). In 1965, the MCP called for compulsory affiliation of the NTUC to the party, thereby giving the party power to intervene in union affairs, to restrict trade union activities and co-opt union leadership into policymaking bodies. Party loyalists were employed in companies to spy on ‘dissident’ employees. Employers refused entry of unionists to the workplace and reported activists to the Malawian Young Pioneers who brutalised them which further undermined trade unions (Chiume 1982). The party also recruited key personnel in state-owned organisations and inculcated worker discipline. It created party branches at workplaces and functioned as mediator and arbiter of industrial disputes. At public rallies politicians called for vigilance against all forms of subversion. Dr Banda’s speeches below give a flavour of the political and working climate at the time.

‘Until our people in Chikwawa, Nsanje, Karonga, Nkhotakota and Kasupe…learn to work hard and drink less, the Government must use trained and disciplined young pioneers in its campaign to increase the production of cotton, rice and other crops in the country’ (MCP 1967: 5).

‘My desire is to maintain political stability, an efficient, incorruptible and honest administration and if I have to detain up to 100,000 to achieve these goals, I will do it.’ (Department of Information 1965: 7)

And as described by the Secretary-General of the Organisation of African Trade Union Unity independence did not promote the trade union cause:

‘As a trade unionist, the question that worries me most is why trade unions which fought side by side with political parties to dislodge colonialists…are not now accepted by African Governments… trade unionists are in jail or in detention…some under investigation, splits are being encouraged to weaken trade union leadership…some unions are facing threats of dissolution. There are trade unionists living in exile because they have displeased home Governments’ (Ananaba 1977: 175).

The colonial legal framework inherited at independence which had undermined freedom of association and freedom to strike through the Trade Disputes (Settlement and Arbitration) Act 1952 and The Trade Union Act 1958 remained in force during the one-party era. Thus, the political, administrative and legal environment made it difficult for the growth and effective functioning of trade unions in Malawi during this period. By the end of the one-party rule in 1994, there were only five docile and pro-Government trade unions.

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Transition period: 1992–1993

The 1990s will go down as the decade when Malawi experienced a new twist in state–trade union relations due to a major transformation in the political landscape. The transition period led to the reawakening of the trade union movement and a new relationship between trade unions and Government. The one-party Government’s poor human rights’ record created pressure to change to a multiparty democratic Government. The role of the workers in the process of change is significant in illustrating the extent to which workers felt they had been repressed. As Banda (1995: 45) noted, the 1992–1993 strike wave was a spontaneous reaction from a labour movement that was denied a grievance mechanism. Workers saw political elites as obstacles to the betterment of their standard of living.

Strike action An increase in strike activity characterised the transition period. A major strike, which later spread to nearby companies, broke out at David Whitehead & Sons on 5 May 1992. Before the wave of strikes a pastoral letter publicly criticised the Banda regime for, among other things, exploiting workers and suppressing human rights. This was followed by the arrest of former trade unionist, Chakufwa Chihana then Secretary-General of the Southern African Trade Union Coordination Conference, for calling for political reforms. The strike broke after Chihana’s visit to the company earlier. Within the first two weeks of the start of the strikes, 68 organisations were involved. By the close of 1992, the Ministry of Labour recorded 88 strikes involving around 68,000 employees and the loss of 220,000 labour-days (Manda 1994: 47). The cities of Blantyre, Lilongwe, and Mzuzu and other places experienced strikes. All the following organisations staged strikes: Southern Bottlers, Encor Products, Plumbing and Engineering Works, Universal Industries, SABLE Farming, Malawi Housing Corporation, Malawi Broadcasting Corporation, Sugar Corporation of Malawi, Dwangwa Corporation of Malawi, Blantyre City Council, Lilongwe City Council, Electricity Supply Commission of Malawi, New Building Society, Malawi Railways, Queen Elizabeth Central Hospital, Kamuzu Central Hospital, Private Hospital Association institutions, Malawi Dairy Industries, University of Malawi and the civil service. It should be noted that there were no trade unions involved in these strikes as they were too docile and afraid to organise a strike. Workers organised themselves through informal leaders and, because the climate for change was rife, there was a general feeling among workers to go on strike. ‘David Whitehead employees boycotted work, asking for higher salaries. Staff switched off machines at 1.00 A.M. and gathered at the gate until late morning. They blocked all other

304 Chapter 11: Trade Unions members of staff from entering the premises …joined by their colleagues of the morning shift, factory employees – many of whom are junior employees – swarmed the company’s premises up to Brown and Clapperton company across Makata Road, causing traffic jam. They kept on chanting: we want money … higher salaries with their hands raised up … At Manica and Brown and Clapperton, protesting employees marched up to Kamuzu Highway blocking traffic in the process; they later went back to the industrial premises, where they continued to block traffic … according to the eye witness, Brown and Clapperton employees went into discussion while the Manica employees went with their protest. City of Blantyre employees congregated at the Engineering and Fire Brigade offices from where they marched to the Civic Centre near the Stadium to present their grievances. On their way, they upset rubbish bins, emptying the contents on the road and throwing stones and tree branches, making traffic flow difficult. Employees at Securicor mounted similar protests and vandalism reached other parts of Blantyre City Centre where some shops were broken into by unidentified mobs who claimed to be employees of Blantyre City Council’ (The Daily Times, 6 May 1992) Strikes took the country by surprise. Many observers deplored the manner in which strikers behaved; they felt that workers had genuine grievances but that they were not properly channelled. The 1992–93 strike wave had wider ramifications and to a large degree shaped labour policy. This is one example whereby workers were able to influence policy formulation through pressure on the regime or through tripartite negotiations at the initial stages of policy consultations.

Reaction to strikes Problems in disputes’ settlement during the 1992–93 strikes revealed a communication gap between employers and employees. The civil service, public corporations and local authority sectors, and the private sector were characterised by top–down approaches to employment relations. As strikes took the nation by surprise and refused to ‘wither away’, President Banda was the first person to make a national address on the night of Thursday 7 May 1992 after the David Whitehead strike and the others it triggered. He acknowledged the wave of strikes when he stated, ‘I have heard that since yesterday there have been grievances on wages at David Whitehead & Sons and at the Blantyre City Council, among other several organisations. I have also heard that no satisfactory agreement was reached yesterday and that thereafter there were demonstrations in Blantyre which later degenerated into looting.’ In a very brief speech, the President appealed to all companies and employees ‘to stay calm and continue to be peaceful’ and to look into grievances expeditiously and with speed to avoid ‘tainting Malawi’s good reputation of a peaceful nation’ (Malawi News 9–15 May 1992). Political leaders travelled to different places to address employees and managers on the need to resolve problems amicably and not by strikes.

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For instance on 5 May 1992 the MCP district chairman accompanied by other party officials addressed employees at David Whitehead. He deplored the use of the strike and asked workers to discuss problems through the proper channels. The district party chairman in the Central Region asked civil servants at Capital Hill to refrain from violent means to express their grievances. The Labour Minister appealed to personnel managers to solve workers’ grievances promptly at Mbayani in Blantyre. At Kachere market, the regional MCP treasurer called on workers to resolve their differences with employers through contact and dialogue (The Daily Times 12 May 1992). Similarly, the district party chairman for Nkhotakota warned Dwangwa employees against staging strikes and advised them to raise grievances through the appropriate channels (ibid). In the tea estates of Thyolo the deputy chairman for the South advised MCP leaders to be on the watch lest political dissidents might take advantage of the labour unrest. He emphasised that there was nothing wrong with raising grievances over wages but that workers should use the proper channels to resolve grievances peacefully. Interestingly, trade unions were not active and there were no channels known to workers apart from going to their supervisor to complain. The problem here was that due to the dictatorial manner with which managers/supervisors handled their workers’ issues (a reflection of the one-party dictatorial political system), grievances went without outlets. ‘The strikes in our firms and industries are with us again … and the country seems helpless. Today it is Blantyre City Council workers, tomorrow it is Securicor and teachers refusing to mark examinations for one reason or another…another day we hear of threats of strikes yet elsewhere … we wonder why this should be the order rather than the exception’ (The Nation 4 August 1993) While the Trade Union Congress of Malawi (TUCM), formed in 1964 as a successor of the NTUC and the most representative worker organisation, made no statement, the Employers Association of Malawi (ECAM), which was formed in 1964 as a successor to the Nyasaland Employers Consultative Association, called its members to resolve workers’ grievances through negotiations in the interest of the country (The Daily Times 14 May 1992). Top Government officials from the Office of the President and Cabinet, Ministry of Finance, Trade and Industry, Economic Planning and Development, Department of Human Resource Management and Development, and Controller of Statutory Bodies organised a round table conference where they expressed Government’s concern over strikes and appealed to companies and organisations to form joint consultative committees (JCCs) for resolving grievances. They also asked employers to be transparent so that workers might know their organisations’ capacity to increase salaries/wages and cautioned workers of the impact of huge wage demands on the already fragile economy. Although employees in some private sector companies expressed satisfaction with JCCs, and believed that in-roads had been made on wages and improved conditions of employment, many viewed JCCs as a

306 Chapter 11: Trade Unions top–down, toothless mechanism, which were set up by the Government as a panic reaction to unprecedented strike waves. Employers, on the other hand, saw JCCs as invaluable due to low unionisation and inexperience on the part of both the unions and employers in trade union issues (Dzimbiri 1995). Unionist leaders protested over the idea of establishing these committees and asked the Government to withdraw JCCs in favour of trade unions (Dzimbiri 2002). As noted above, the weakness of the trade union movement to function during the one-party period created a huge vacuum in terms of communication between workers and their employers. JCCs were recommended by Government to fill this communication gap which was felt during the 1992–93 strike wave. On the other, hand workers were not happy with the idea of forming JCCs. New political dispensation: 1993 and beyond

Policy on trade unions and collective bargaining It is interesting to note that changes in the labour policy started with the one-party MCP Government in 1993. Strikes forced the state to realise the strangling effect that excessive reliance on statutory wage fixing machinery had on voluntary collective bargaining. By voluntary collective bargaining we mean negotiations between employers and trade unions that have been set up voluntarily by the workers themselves rather than WACs or WAB which were created by the law. The state was not in favour of this, but pressure for change created a formidable force from workers who could not be managed within the framework of WACs and WAB. The state was further forced by the donor community to give more room for voluntary collective bargaining mechanisms as opposed to statutory mechanisms through WACs. The MCP Government was therefore forced to encourage decentralised dialogue, negotiations and collective bargaining between employers and employees and/or employers’ associations and trade unions. The Government announced a policy on trade union and collective bargaining as a way of reforming the hitherto docile Trade Union Act of 1958 by reinforcing some of the positive provisions and introducing new worker-friendly provisions. In the statement made public through a press release in The Daily Times the MCP Government promised the following: ‘The right to organise; the right for parties to engage in collective bargaining; international affiliation, support for employers’ and workers’ education programmes; training of the leadership and negotiators; freedom of association and non-victimisation in employment and providing the necessary legal framework and administrative arrangement for the implementation of the above. It promised to review the Trade Union Act and other relevant labour legislation; to initiate tripartite consultations on possible ratification and to adopt international labour standards; to encourage the enactment of new legislation and to provide for the establishment and administration of labour tribunals; to create an industrial relations court; and to regulate the relationship between

307 GOVERNMENT AND POLITICS IN MALAWI employers and workers and their organisations. There was also commitment to strengthen and support the duties of the Registrar of Trade Unions and staff under this office; to provide orientation and training to existing field staff as conciliators in settling labour disputes in collaboration with the representatives of trade unions and employers’ organisations; to provide necessary physical infrastructure and equipment for effective labour administration; and to encourage the formation of industrial trade unions and staff associations (for managerial and professional staff) for the purpose of collective bargaining’. Although it was a Ministry of Labour document which was not necessarily legislated in Parliament, this policy acted as a framework for all subsequent labour legislation and shaped the development of trade unions in Malawi.

Labour law reform after 1994 Workers’ rights, including the fundamental right to strike, were not mentioned in the 1966 national Constitution, although Malawi had ratified 23 international labour conventions by 1994. Thus, laws which had formed the labour legislation up until 1994 such as the Trade Dispute (Arbitration and Settlement) Act 1952; Trade Union Act 1958; Regulation of Minimum Wages and Conditions of Employment Act 1958; Employment Act 1964; Apprenticeship Act 1962; Labour Legislation (Miscellaneous Provisions) Act 1964 (Manda 1994) had no constitutional guarantee. However, the 1995 democratic Constitution stressed the centrality of the Constitution as the primary law for interpreting all laws. It enshrined human rights’ provisions that supported independent trade unions. Section 13(l) provided for the peaceful settlement of disputes through negotiation, good offices, mediation, conciliation and arbitration. Section 31 provided for the right to fair and safe labour practices, fair remuneration, the right to form and join trade unions or not to form or join trade unions, fair wages and equal remuneration for work of equal value and the right to withdraw labour. The development of trade unionism was heralded by the enactment of the Labour Relations Act (LRA) 1996 ‘to promote sound labour relations through the protection and promotion of freedom of association, the encouragement of effective collective bargaining and the promotion of orderly and expeditious dispute settlement conducive to social justice and economic development’. The right to strike which was guaranteed in the 1994 Constitution of the Republic of Malawi (31{4}) was operationalised in the LRA. The establishment of the Industrial Relations Court (IRC) to hear and determine labour disputes (Section 64 of the LRA) added more credence to the development of dispute settlement procedures in Malawi. The Employment Act 2000 (EA) whose object was ‘to establish, reinforce and regulate minimum standards of employment with the purpose of ensuring equity necessary for enhancing industrial peace, accelerated economic growth and social justice’, provided individual employment rights. It incorporated employment principles enshrined in the 1994 Constitution.

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THE GROWTH OF TRADE UNIONS IN MALAWI AFTER 1994

The renewal of the labour movement in Malawi needs to be understood within the wider impact of the 1992–93 strike waves and the deliberate though panic response by the Government to fill the communication vacuum created by the anti-union attitude at independence. Against this background, the number of workers joining trade unions and the number of trade unions increased. On 27 June 1995, the TUCM registered as national labour centre under the name: Malawi Congress of Trade Unions (MCTU) as the most representative federation of trade unions. The Civil Service Trade Union (CSTU), Customs Workers Union (CWU) and Teachers Union of Malawi (TUM) were formed in 1994. By the end of 1994 12 trade unions had registered and union membership increased from 56,000 in 1990 to 63,270 in 1994. By the year 2005 there were 25 registered trade unions with a total membership of 117,000 plus two labour federations: MCTU and Congress of Malawi Trade Unions (COMATU). Table 1 shows the position of trade union membership in 2005.

Table 1: Trade Unions and Membership Position 2005

NAME ACRONYM ACTUAL POTENTIAL DENSITY %

Building Construction and Civil BCCEWU 7,500 35,000 21.4 Engineering Workers Union

Carlsberg and Southern Bottlers CSBTU 200 1,500 13.3 Trade Union Blantyre

Chancellor College Academic Staff CCASU 94 1,500 6.2 Union

Civil Service Trade Union CSTU 12,000 45,000 26.7

Commercial Industrial and Allied CIWU 1,038 10,000 10.4 Workers Union

Communications Workers Union CWU 1,632 5,000 32.6

Electronic Media Workers Union EMWU 250 600 41.7

Escom Staff Union ESCOMSU 1,530 3,000 51.0

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Hotels Food Processing and Catering HFCWU 2,100 80,000 2.6 Workers Union

Malawi Housing Cooperation Workers Union MHCWU 129 300 43.0

Malawi Telecommunications Workers Union MTWU 1,200 2,400 50.0

Malawi Union For Informal Sector MUIS 5,000 500,000 1.0

Municipal Workers Union MWU 1,000 6,000 16.7

Plantation and Agriculture Workers Union PAWU 1,915 10,000 19.2

Private School Employees Union PSEU 921 21,000 4.4

Quarries, Mines and Informal Workers QMIWU 921 21,000 4.4 Union

Railways Workers Union RWU 431 800 53.9

Sugar Plantation and Allied Workers Union, SPAW 5,000 6,000 83.3

Tea, , Macadamia and General TCMGWU 5,000 87,000 5.7 Workers Union

Teachers Union Of Malawi TUM 47,413 54,000 87.0

Textile, Garments, Leather and Security TGLSWU 4,130 25,000 16.5 Service Workers Union

Tobacco Tenants Workers Union TTAWU 14,172 500,000 2.8

Transport and General Workers Union TGWU 2,600 25,000 10.4

University Workers Union UWU 1,460 2,500 58.4

Water Employee Trade Union Of Malawi WETU 1,600 2,500 64.0

TOTAL 119,236 1,445,100 8.3

Source: Ministry of Labour 2005

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The reasons why union densities differ, sometimes very dramatically, from one trade union are the following: • Firstly, public sector unions tend to face less draconian policies from Government than private sector unions do from their ‘employers’. The reason could be that the Government, afraid of being accused of having dictatorial tendencies, has an interest in being seen to be democratic, whereas the private sector does not see promoting democracy as being part of their agenda. In fact, some private companies actively discourage or get rid of want-to-be trade unionists (although this is illegal according to the LRA and the Malawi Constitution which provides for freedom of association), and this is why union membership in private companies tends to be small. • Secondly, the reasons why some unions like TUM have high union membership might be due to the recruitment skills of union officials and the direct benefits members get from their trade unions. Overall, union density was low: by the close of 2005, it was estimated to be at 8% .That is, out of the potential union membership in the various unions throughout the country, only 8% were registered members. According to the LRA which requires 20% recognition threshold for collective bargaining purposes, 12 out of the 25 trade unions in 2005 qualified for the recognition threshold. Recognition threshold is a percentage of union membership that automatically qualifies the union for employer recognition for purposes of worker representation and collective bargaining with the employer. In other words, employers in all unions which have a union density of 19% and below are not under an obligation to recognise trade unions in the organisations for purposes of collective bargaining. In such cases Section 27 (1) of the LRA provides for the formation of an industrial council. However, most employers including those in Government tend to conduct collective bargaining with their employees even if the union membership is below 20% and no industrial council has been formed.

TRADE UNION FEDERATIONS

Before 2000, there was only one federation of trade unions which functioned as the most representative worker organisation mandated to hold consultations with employers or Government or even to represent trade unions at the International Labour Organisation annual conference in Geneva. During the colonial period this was the NTUC, which became TUCM during the one-party system and MCTU from 1994. However, due to inter-union differences and what others have labelled as power struggles, one of the affiliated trade union organisations, the CSTU, broke away to form COMATU in 2000. Consequently, there are now two federations in

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Malawi: MCTU and COMATU. Each trade union has to be a member of one of the two federations to which it pays membership fees. Each federation represents its member organisation and participates in tripartite meetings with the Government (Ministry of Labour), and the Employers Consultative Association of Malawi to discuss critical issues affecting employment conditions such as minimum wages, gratuities, public sector reforms, ratification of labour conventions, review of workman’s compensation etc. Apart from representation of its members at both national and international meetings MCTU and COMATU intervene when trade unions and employers have reached a deadlock and handle disputes within and among unions. They also organise training of union officials as well as conducting elections in their member organisations.

STRUCTURE OF TRADE UNIONS

How are trade unions categorised?

Trade unions fall into different categories, depending on their membership and the way they are able to recruit members. A trade union can be described as being based on an exclusive or inclusive principle. Recruitment of members based on an exclusive principle means that a person must have a particular profession or a particular position within an organisation. Thus, in order to become a member of the TUM you need to be a teacher at a primary or secondary school. Again, for one to be a member of the Chancellor College Academic Staff Union, one must be a lecturer. On the other hand, unions such as the TGWU and BCCEAW can be viewed as having been organised in a more inclusive manner. They are more general in that all workers such as engineers, builders, drivers and carpenters in the construction industry irrespective of which profession or trade can become members. Another categorisation is whether a trade union is industrial or general. Industrial unions cut across craft lines, drawing membership from within the industry such as the PAWU which recruits anyone from the agricultural sector. In this way both TGWU and BCCEAW could also be described as industrial unions if we used this classification.. On the other hand, general unions would include TGLSSU as they recruit beyond one industry. It is important to note that these categories are not exclusive. The same union can be inclusive or general and exclusive or industrial. In other words a union can be both industrial and inclusive. Trade unions can be set up in the public sector as well as the private sector. There are fewer civil service unions compared to parastatal and private sector

312 Chapter 11: Trade Unions unions. CSTU and TUM are the two big civil service unions. LGEU is the only union for district, town and city assemblies. MPTCWU, ESCOMWU, MHCWU, and the University Workers Union are examples of parastatal unions. Parastatal organisations are those semi-Government institutions operating in a commercial manner although they are answerable to Government. PAWU, CIWU, BCCWU, TGSSWU are examples of private sector unions. However, in terms of objectives, there is no difference between the private sector, civil service and parastatal trade unions. They all aspire to improve the conditions of service for their members.

Positions within a trade union

A trade union cannot operate without people officially set up to run it. There are two types of union officials. There are full-time officers appointed through an open competitive selection process. These are employees of the trade union and they receive a salary. There is also a group of elected officials, such as the president of the trade union. As democratic institutions, trade unions are hierarchically structured through a committee system from the lowest branch level to the highest level called the general assembly. Union constitutions spell out who the key office bearers are at each level such as president, vice president, general secretary, vice secretary general, treasurer, organising secretary, women’s coordinator, vice women’s coordinator, and at least three committee members. For example, in the case of CSTU, there are three regional chairpersons. In the initial stages of union formation in 1994, there were deputies for each position, and a publicity secretary. Such positions were later dropped on the advice of the International Confederation of Free Trade Union (ICFTU) as these positions gave the impression that unions were following political party structures. All positions are elected at a congress every four years by trade union membership. The number of committee members varies from one union to another – it may be three committee members or more. In CSTU the three regional chairpersons are also members of the national executive. The nature and role of union officials, how they are elected, tenure of office, procedures governing the functioning of trade unions are stipulated in a trade union’s constitution. As democratic institutions, elections to the various offices of a trade union are supposed to be done in an open and competitive manner, with nominations, campaigns and secret ballot system. The need to consult the electorate (members) is a critical aspect of union democracy. Most unions want leaders to serve only two terms. However, when the duration of their office has elapsed incumbent leaders tend to delay elections in order to hold on to their positions. Sometimes they delay elections for up to a year or more. The reason

313 GOVERNMENT AND POLITICS IN MALAWI given for the delay is lack of funding, yet unions are readily assisted by parent international confederations in this respect. Such organisations as ICFTU have been very supportive. There have been attempts by presidents and secretary- generals to change constitutions in MCTU to enable them stand for a third term. In other words, trade union leaders wanting to remain in power, have tried to influence changes to their constitutions to allow them to stand for a third term, as has happened with ruling parties in parts of Southern Africa and indeed in Malawi. The CSTU and COMATU have experienced these manoeuvres. Some leaders of federations and trade unions have held positions for more than eight years. While they were not successful in changing their constitutions, they were able to delay the holding of elections.

Funding

Unions cannot function properly without money. To maintain their independence, they should not be funded by their employer(s). Like elsewhere in the world, trade unions in Malawi depend on union fees which members pay monthly. However, the fees received are insufficient to allow them to operate effectively. Not only are membership fees generally low, but some union members are reluctant to pay them and most unions have a low membership base. Therefore, it is not surprising that many unions do not have offices to operate from. Some unions rely on funding from well-wishers for operational costs, training, transport and even wages for full- time officers like secretary-generals and other secretariat staff. In general the public sector is better organised compared to the private sector. Since public sector (including parastatal-based) trade unions follow the structure of public sector organisations they tend to have better organised structures, e.g. having national, regional, district and workplace committees, than private sector unions where such structures may exist only on paper.

FACTORS AFFECTING TRADE UNIONISM SINCE 1994

As we have already shown, the political climate affects the ability of trade unionism to develop but there are other factors too. Generally, trade unions are affected by the nature of the labour market. In Malawi employment in the formal sector is only about 800,000 (13%) of the slightly over 5,000,000 of the economically active. This suggests that over 4,000,000 are in the informal sector. This means that there are simply less trade unions formed because the informal sector does not have the capacity to form unions although there is a trade union for the informal sector

314 Chapter 11: Trade Unions called the Malawi Union for the Informal Sector (MUIS). One possible explanation is that people associate trade unions with stable paid employment where workers have a hierarchy of managers from whom they receive instructions and to whom they report. The absence of structures of modern organisations in this sector creates the impression that unions are not necessary for the informal sector. If unemployment levels are high, this affects wage levels as employers are more able to hire at the lowest wages. As employers know that employees are fearful of loosing their jobs, they are in a stronger position to resist the high demands made by unions. Some employees are even afraid to stage strikes fearing they might be dismissed. This means the power of collective bargaining and the strike weapon are diminished especially in the private sector in times of high unemployment. In such economic conditions, there is also the problem that workers are more easily manipulated by anti-union employers not to join unions than at times when there is low unemployment. Public sector (civil service, parastatal and Local Government) unions have in recent years suffered from the effect of public sector reforms that have led to privatisation and subsequent retrenchment of workers. Retrenchment of workers has contributed to the weakening of trade unions. This is even worsened by anti-union attitudes among private sector employers who target union activists when deciding whom to retrench. In spite of the low membership figures on aggregate, trade unions have made some gains in influencing both the employer and the state in pursuit of their goals in the multiparty period. Since 1994, housing allowances, professional allowances, risk allowances, chalk allowances for teachers and an increase in salaries and wages have been affected positively because of the active involvement of trade unions in collective bargaining as well as strike activity. Conditions of employment like maternity leave for subordinate class employees, assistance with funerals among other benefits have also been introduced following successful collective bargaining between unions and employers or at times, threats of strikes. Trade unions have emerged as a powerful pressure group which Government cannot ignore. They have been consulted and have fully participated in national policy formulation such as poverty alleviation, the national Constitution, the Labour Relations Act 1996, Employment Act 2000, Workman’s Compensation Act 2000, and Vision 2020, etc. While the entire three decades of the one-party period have seen five dormant trade unions registered and 182 minor strikes, the past 11 years have seen 25 trade unions registered and over 350 strikes in private and public sector organisations. Trade unions have been influential in leading workers to challenge their employers both within the private sector and Government in decisions that affect their rights negatively. They have also demonstrated their collective determination by defying threats of dismissal from employers. They have

315 GOVERNMENT AND POLITICS IN MALAWI successfully demanded the removal of general managers or hospital matrons or heads of institutions for being arrogant and inimical to workers’ interests. They have at times demanded to meet ministers or the President – something that would have been unheard of during the one-party period. Thus, while the situation is tough for individual trade unions in times of high unemployment, over the last decade trade unions have collectively made some gains in terms of benefits to workers and being able to participate at the top level in tripartite meetings. This can be explained in terms of the favourable political environment created by the democratisation process in the 1990s which in turn created a legal and institutional framework conducive to trade unions. The international community is also keeping an eye on Malawi in the area of good governance and human rights which was not the case during the one-party period.

TRADE UNION RELATIONSHIPS

Just as political parties in Malawi experience internal conflicts as well as inter-party conflict, trade unions in Malawi are no exception. And as we shall see below, their relationship with the Government is also at times rather uneasy.

Intra-trade union relationships

Within unions, issues such as favouritism by the leadership (for example in the selection process for training workshops), personality clashes, power struggles, and differences in individual perspectives or ideologies are sources of conflict.

Inter-trade union relationships

Party orientation, ethnic-linguistic or tribal origins and religious faith of union leaders or members are potential sources of conflict between different trade unions. For example, there is a tendency of union leaders to make sure that their particular union follows the ideals of the political party that they favour. There are cases where unions become vulnerable to manipulation by the employer because of disunity between trade unions. There have been several occasions where strikes in the private sector have been thwarted due to the employer being able to manipulate leaders on religious or regional/tribal lines. Nation-wide strikes have been organised with active involvement of opposition politicians for their own private ambitions/interests and have at times threatened Ministry of Labour officials for frustrating their plans. There are also cases where discussions among union

316 Chapter 11: Trade Unions members have been secretly communicated to the employer by union officials loyal to the employer. This can be an advantage to the employer who can be forearmed to frustrate the plans agreed by employees. The CSTU, BCCEAWU among others have at one time or another ‘cried foul’ of their employers’ tendency to create splinter unions. There are some who believe that the creation of the second federation, COMATU in 2000, was a Government-sponsored split. That is why the relationship between COMATU and MCTU might not be very cordial. This does not mean that unity between different trade unions is absent in Malawi. There are occasions when MCTU has organised its member unions for a nation-wide protest against Government policy on minimum wages, the price of maize or petrol even if these attempts have failed due to other factors beyond union unity.

Trade union–Government relations

Some trade union leaders have political leanings which can affect how the trade union’s relationship with the Government. Union leaders who favour the ruling party, for example, might want to suppress strikes aimed at pressurising Government even if strike action might be warranted. In the same way, those favouring the Opposition might want to frustrate the Government through massive and protracted strikes. Union growth, legal reforms, and the increasing toleration of strike activity are indicators of the Government’s positive attitude towards trade unions during the multiparty period. This is in sharp contrast to open hostility to trade unions during the one-party period. However, in spite of this positive image, many unionists still regard the post-1994 Government as being anti-unionism because it employs several means to restrict freedom of association. These include the following examples: • Government-sponsored splinter unions and bribing union leadership: The breakaway faction from MCTU which formed the COMATU in 2000 was viewed as the Government’s attempt to weaken trade unions. Why the Government registered COMATU against Section 11 (3c) of the LRA raised suspicion. This is so because the said section stipulates that the Government shall not register any union whose name can create confusion with another existing union Also, the fact that the Government allowed the registration of additional enterprise-based unions in the building, civil engineering, quarrying and mining industries contrary to the sectorisation agreement, which provides that not more than one union within a sector can be registered to avoid fragmentation, caused anti-Government feeling. For unionists, the deliberate violation by Government of the sectorisaton agreement was an attempt to fragment union strength.

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• Manipulation of union leaders: the CSTU president was given a car loan and allocated a house above his entitlement following threats of mass action in 1998. This coincided with his withdrawal from a planned mass action to force the Government to reduce maize and fuel prices and to raise the minimum wage in 1998. The MCTU president decided not to proceed with the 1995 mass demonstration against Government’s price for the staple food crop (maize) soon after visiting the Sanjika Palace- ‘we did not know what we were doing’ (Manda 2000:6). For Manda (ibid) union leaders are interested in reaping personal benefits: ‘personal poverty alleviation’. Posting trade union leaders to remote areas and victimisation through lawsuits are other ways the Government has weakened trade unions. • Treating union leaders as opposition political party agents: The Government views union leaders as agents of opposition politicians bent on inciting the masses against it. Trade union leaders and Government accuse each other of meddling in labour relations through underground manoeuvres. When the MCTU president visited the state President in 1998, he lamented the strong anti-union elements within the Government as a problem facing trade unions. Government officials, on the other hand, blamed MCTU’s poor leadership and alliance with opposition politicians as the source of trade unions’ problems (ibid). • Delay in implementing collective agreements: The 1995 salary recommendation that the Government failed to implement is an example. A series of strikes forced the Government in 1995 to appoint a commission of inquiry on salaries and conditions of service in the civil service. The Government agreed to implement the recommendations from April 1995. However, the Government dragged its feet. Later it announced that it would start implementing the new salary structure in phases from April 1996. Then it called for a study to establish the exact number of civil servants as rumours of ‘ghost’ employees intensified. After the study, the new salaries were never implemented. • The Government using the police and the law to undermine strike action: As in many other strikes, the police were present to disrupt the nurses’ strike at Queen Elizabeth Hospital and the 1998 MCTU mass strike. • The Government using the Ministry of Labour as a tool to weaken the solidarity of the labour movement: The ministry uses the national radio to intimidate workers by invoking certain provisions of the LRA to label a planned strike illegal. Union leaders do not have the opportunity to communicate to members using the same means. The consequence is poor turn-out at mass rallies, failed strikes and loss of confidence by workers in union leaders and strikes in general.

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A human rights report published in 1997 noted ‘increasing resistance from Government and public sector employers’ in relation to recognition of trade unions, leave for trade union activities and implementation of collective agreements (Daily Times 11 February 1998: 2). Another study commissioned by the Ministry of Labour in 2000 was aimed at assessing the extent to which workers enjoyed freedom of association and collective bargaining since the new labour policy was introduced in 1993.The study noted that although structures and laws were present, the Government (among other employers) constrained the achievement of freedom of association because it ‘took with one hand what the other gave’ (ibid). In other words, Government created a favourable legal framework for the enjoyment of trade union rights at the official level but in practice restricts these rights through some of the means listed above. Thus, though the multiparty Government has demonstrated an official policy of being positive towards trade unions, it is ‘diplomatically’ hostile. In fact, both the one-party and the politically democratic systems have had similar anti-union attitudes but they have used different means to thwart their influence. The main reason for the Government’s desire to control trade unions can, according to Sharma (1985), be explained in terms of the involvement of the state in economic development. He argues that countries at different stages of industrialisation have different types of requirements of capital accumulation which determine the contrasting pattern of industrial relations. Governments in the third world believe that industrial relations have a direct bearing on the development process since unions are consumptionist in function and would therefore impede the rate of capital formation. Furthermore, industrial conflict may adversely affect productivity and exports especially in fragile economies. Strikes may also not provide a good climate for foreign investors. In Ghana before 1957, for example, labour unrest was, as in many African states, an invaluable tool in the struggle for independence, but thereafter it was perceived as a threat to domestic order, productivity, and the willingness of foreign Governments and companies to invest in Ghana (Gray 1980). As with other developing countries the need for economic development in Malawi is a major priority. However, foreign development aid in third world countries has strings attached, such as the need for good governance involving the observance of human rights, and labour rights are part of human rights. Governments are afraid to be openly hostile to trade unionism as was the case during the Cold War period because then development aid might not be forthcoming. During the one-party period, Malawi was an ally of the western capitalist nations because of its pro-capitalist stance. Western capitalist nations and donors did not want to antagonise Malawi because it was afraid to lose its alliance

319 GOVERNMENT AND POLITICS IN MALAWI in the Cold War. After the collapse of communism in Eastern Europe, western countries and donors began to emphasise good governance as a precondition for aid. That is why donors’ withholding of non-humanitarian aid to Malawi became a powerful force for the collapse of the authoritarian one-party Government and the advent of democracy in Malawi. The dilemma with developing countries is how to handle both development imperatives and human rights simultaneously.

TRADE UNIONS’ INVOLVEMENT IN POLITICS

The political elite in Malawi as elsewhere in Africa are scared of strong trade unions because the latter has the potential to take over Government especially where trade unions form a political party. Ruling parties are also uncomfortable about encouraging alliances between unions and opposition political parties as this would pose a formidable threat. In Africa, the Zambian Trade Union Congress (ZTUC) began a campaign of strikes and politicisation in 1991. Teachers, communication workers, university teachers, hotel and catering workers, and health workers demanded good governance, transparency, accountability, and democracy besides pay and conditions of employment (Mihyo 1995:210–211). When Chiluba, ZTUC leader, led the Movement for Multiparty Democracy, he defeated Kaunda in the 1991 multiparty presidential elections. Thus, strong trade unions are potential Governments in waiting. The Zambian labour movement maintained its strength during 27 years of Kaunda’s rule. On the other hand, trade unions in Malawi were extremely weak throughout the authoritarian one-party Banda regime. Consequently, although informal collections of workers were able to stage protracted political and economic strikes and in a way were determined to unseat the Banda regime during the transition, trade unions in Malawi focused on ‘bread and butter’ issues. They did not form a political party to take over Government in order to improve the welfare of the working class. They have continued to suffer the effect of harsh economic realities and political choices determined by political elites as well as their international counterparts. The International Monetary Foundation (IMF)’s sponsored public sector reforms have led to massive job losses and swelling unemployment. Moreover, trade unions continue to weaken as factors within and outside the union governance erode their bargaining power. This situation is further aggravated by Government diplomatic tactics aimed at weakening trade unions in view of the need for broader economic considerations and overall political stability. Trade unions in Malawi lack a strong ideological framework for developing worker consciousness bent to transform fundamentally the social, economic, and

320 Chapter 11: Trade Unions political landscape. As a result, they have remained apolitical although as individuals union leaders have political leanings which as noted above are able to create disunity and squabbles within and between unions. However, as noted earlier, trade unions have been able to influence various policy directions through strikes, collective bargaining and official participation in Government policy formulation processes.

CONCLUSION

This chapter has examined the influence of politics on trade unions in Malawi. The need for economic development and political stability during the one-party authoritarian political system and the multiparty democratic system shaped labour relations in different directions. Faced with resource shortages, development imbalances, and a post-independence political crisis, the early state repressed labour rights through political, legal, institutional, and administrative means to ensure political stability and economic transformation. The outcome was a docile trade union movement. The transition to a democratic political system in the 1990s weakened Government power vis-à-vis civil society, and workers waged protracted political and economic strikes which forced the state to review its labour policy. This led to the reform of the legal framework for employment relations and the growth of trade unions and other CSOs. However, unions today face many problems such as dwindling union membership, anti-union attitudes of employers, lack of knowledge and skills in union leadership, poor funding, ineffective communication with members, and problems of internal democracy within unions. Despite these obstacles, trade unions also remain a powerful pressure group which Government cannot ignore in policy formulation and implementation.

Questions

1. What are the man objectives of trade unions? Have unions in Malawi achieved their objectives? 2. In what ways did the one-party Government control the growth and functioning of trade unions in Malawi? 3. To what extent has the introduction of multiparty democracy created an enabling environment for the growth and development of trade unions in Malawi?

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4. The relationship between the Government and trade unions in Malawi is characterised by some form of diplomatic hostility in spite of the favourable legal environment. Discuss.

Glossary

Federation: an umbrella trade union organisation which functions as the mother body of other unions. It represents other unions at national or international fora

Formal sector: modern formal organisation in public, private and non governmental organisations that employs both skilled and unskilled workers

Informal sector: unorganised sector like street vending whereby individuals are mostly self-employed

Parastatal: a public enterprise or Government-controlled enterprise created and regulated by statute

Ratification: a process of approval or acceptance, adoption or legitimatising a particular policy, proposal or labour convention

Recognition threshold: a percentage of union membership that automatically qualifies the union for employer recognition for purposes of worker representation and collective bargaining with the employer

Tripartite: involving three parties; here meaning Government, employers and unions

Tripartite negotiations: these are periodic negotiations between trade unions, employers and Government on matters related to employment relations like wages and amendment of labour laws

322 Chapter 11: Trade Unions References and Further Reading

Ananaba, W. (1977) The Trade Union Movement in Africa, London: C. Horst

Banda, G. (1995) ‘A Raging Calm? The Impact of Labour Relations on Politics in Malawi’, in M. Nzunda, and K. Ross, (1995) (eds) Church, Law and Political Transition in Malawi 1992-94, Gweru: Mambo Press & University of Malawi

Bean, R. (1994) Comparative Industrial Relations: An Introduction to Cross-national Perspective, London: Routledge

Chiume, K. (1982) PANAF Great Lives: An Autobiography of Kanyama Chiume, London: PANAF

CONGOMA (1995) Council for Non-governmental Organisation of Malawi: Directory of Non-governmental Organisation in Malawi, Blantyre

Davies, I. (1966) African Trade Unions, Harmondsworth: Penguin.

Department of Information, (1964) The Prime Minister Explains Reasons Leading to the Dismissal of Ministers, Zomba

Department of Information (1965) Prime Minister Speaks on the Situation at Fort Johnstone September 1964 – April 1965, Zomba

Dzimbiri, L. (2002) ‘Industrial Relations, the State and Strike Activity in Malawi’, PhD Thesis, Keele University, UK

Dzimbiri, L. (1999) ‘The role of Civil Society in Political and Economic Development in Malawi’ in Nyang’oro, J. (ed) Civil Society and Political and Economic Development in Eastern and Southern Africa, Harare: Mwengo, pp 66–71

Dzimbiri, L. (1995) ‘Workers and Joint Consultative Committees in Malawi: Practices, Problems and Prospects’, paper presented to the Labour Law Reform Seminar, Nkopola Lodge, Mangochi, Malawi, June 17–18

Government of Malawi (1987) Malawi Government Statement of Development Policies, 1987-1996, Lilongwe

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Government of Malawi (1993) Malawi Government New Policy on Trade Unions and Collective Bargaining, Lilongwe

Government of Malawi (1995) The Constitution of the Republic of Malawi, Government Printer: Zomba Gray, P.S. (1980) Collective Bargaining in Ghana, Industrial Relations, 19; pp175–191 Lwanda, J. (1993) Kamuzu Banda of Malawi: A Study in Promise, Power and Paralysis: Malawi under Dr Banda 1961-1993. Glasgow: Dudu Nsomba Publications

Manda, C. (1994) ‘Labour Relations in Malawi,’ paper presented to the Tripartite Seminar for the Promotion of Sound Labour Relations in Malawi, Club Makokola, Malawi, November 28–30

Manda, M. A. (2000) The State and the Labour in Malawi, Glasgow: Dudu Nsomba Publications

Malawi Congress Party (1961) Malawi Congress Party Manifesto, General Election 1961, Limbe

McCracken, J (1998) ‘Blantyre Transformed: Class Conflict and Nationalism in Urban Malawi’. Journal of African History, 39, pp 247–269

Ministry of Labour (2000) ‘Human Rights and Employment Report’, Lilongwe

Ministry of Labour (1969) ‘Ministry of Labour Report 1963–1967’, Zomba

Phiri, K. and K. Ross (1998) (eds) Democratization of Malawi- A Stocktaking. Blantyre: CLAIM

Sharma, B (1985) Aspects of Industrial Relations in the ASEAN, Singapore: Institute of Southeast Asian Studies

Short, P. (1974) Banda, London: Routledge

Shorter, E. and Tilly, C. (1974) Strikes in France, 1830–1968, Cambridge: Cambridge University Press

Thomas, S. (1975) ‘Economic Developments in Malawi since Independence’ Journal of Southern African Studies 2, pp 30–51

Tordoff, W. (1997) Government and Politics in Africa, London: Macmillan

324 12 PUBLIC SECTOR REFORMS

Richard Tambulasi and Happy Kayuni

INTRODUCTION

The public sector is one of the most common institutions of the state Malawians encounter. For this reason it is sometimes described as an entity that ‘we can’t do without’. As the ‘face of the state’, however, it is necessary that the public sector should be reformed periodically when need arises so as to better serve the needs of the state. Public sector reforms are popularly referred to as civil service reforms, Government reforms, or administrative reforms.

This chapter discusses the following issues:

• What is the state and what are its major functions? • What is the public sector? • What does the Malawi public sector do? • What problems does the Malawi public sector face? • What public sector reforms have been attempted in Malawi? • How does politics shape public sector reforms in Malawi?

THE STATE

A state is a self-governing political entity. It is comprised of those permanent institutions within a country through which supreme authority is exercised. Before the industrial revolution in Europe, the state was not very critical to meeting the needs of its citizenry. Its three main functions were defence from external attacks, internal security and control, and revenue collection. However, after the industrial revolution the state grew and demands pressed upon it increased. It was now necessary to embrace new functions, as the population soon demanded more from the state. Citizens required the state to carry our functions that would directly have

325 GOVERNMENT AND POLITICS IN MALAWI a beneficial impact on them. Most states therefore were facing daunting tasks of building an economy geared to the needs of the people. A new feeling of citizenship had emerged as well as a sense of identification with the state, which in turn placed pressure on the state to deliver more in the way of services to the people. Most people felt that the capacity of the state to deliver goods and services was limitless. In many cases the state engaged in direct production under strong ministerial control (often with monopoly) to cater for the needs of the weak. The scope of state functions therefore increased over time and can be categorised as follows. The first category is that of providing ‘pure public goods’. Some of these public goods include defence, law and order, macroeconomic management, public health, improving equity, protecting the poor. The second category is that of carrying out intermediate functions. These include addressing externalities in the areas of education, environment, regulating monopoly, overcoming imperfect competition, financial regulation, and social insurance. With these new functions, the state was divided into institutions specialised to carry out each function. As a result the state has come to be defined as a set of governmental institutions. The institutions that make up the state comprise many that are quite visible, such as Parliament and similar assemblies whose members have been elected by popular vote. They also include the offices of formal heads of state, such as presidents or monarchs, who often undertake dignified responsibilities, such as opening new sessions of Parliament and other ceremonies, and who may or may not have real or substantive political power. State institutions also include Government departments and ministries. These are all encompassing and among others range from education, agriculture, health, the police, governmental administrative structures, to the intelligence services and the Judiciary. Most of the positions in such agencies are filled on an appointed basis, in some cases appointed directly by the Head of Government. State authority can extend further than this, and include a range of bodies, such as occupational or sector associations. Most of these are regulatory authorities who may be said to function with powers that have been delegated by more official state bodies, such as governmental departments. Examples of these include the Malawi Communication Regulatory Authority (MACRA) and those bodies which determine the qualifications that need to be obtained in order to practice a profession, as with medicine. All these institutions function legally, within rules and practices found in formal constitutions, or as contained in a variety of statutes and precedents. Taking all these functions into consideration, the modern state needs to have the machinery for devising, monitoring and implementing public policy. The public sector is the instrument of the state which has the mandate of implementing the

326 Chapter 12: Public Sector Reforms aspirations and views of the state in general. Below we discuss what the public sector is.

THE PUBLIC SECTOR

Definition

The word ‘public’ when used in the context of public sector means ‘Government’. The public sector is the implementing agency of the state or it is an institution that is responsible for the delivery of goods and services by and for the state. In this case, it comprises the central and local institutions of the state as well as public corporations, because public corporations are established by an act of Parliament as specialised agencies of the state. The central and local institutions of state including the army, police and other institutions operating under the executive branch of Government are also referred to as the ‘Government bureaucracy’ and its workers are known as civil servants (see Chapter 3 for more details on the civil service).

In general, the public sector is described as any institution and organisation that: • is accountable and responsible to a political authority (e.g., the Cabinet or Parliament) • functions within the three branches of Government (i.e., the Legislature, the Executive and the Judiciary) Political neutrality

In an ideal situation the public sector is supposed to be politically neutral, have no specific interests of its own and not exercise any significant powers of its own. In short, it is meant to be the ‘obedient servant’ of the state or Government of the day. However this ideal picture is not always achieved.

How the public sector operates

In general, as explained below, the public sector takes several forms because there are different ways how the public sector conducts its responsibilities. The public sector can deliver its goods and services through direct administration and in this case the state has more control on its operations. On the other hand, the state can deliver more like a commercial entity through parastatals (or state-owned corporations). In this case, the state does not really control its day-to-day activities but only sets its goals. Although internationally the public sector has numerous

327 GOVERNMENT AND POLITICS IN MALAWI similarities, the important parts of the public sector are greatly defined and shaped by the social, economic and political history of the state. More importantly, the public sector is also profoundly shaped by the culture and needs of the community or the public it serves. Public sector institutions Specifically, the public sector in Malawi includes all institutions that fall within the three different branches of Government, namely; the Legislature, Judiciary and the Executive as illustrated below: • National state departments and ministries (e.g., the Ministry of Education, Ministry of Health, Ministry of Justice, The National Assembly, The Department of Wildlife and Natural Resources, The Department of Economic Planning and Development) • Local Government authorities (e.g. Zomba Municipal Assembly, Salima District Assembly, Blantyre City Assembly, Karonga Town Assembly) • Public enterprises (e.g. Agricultural Development and Marketing Corporation {ADMARC}, University of Malawi, Electrical Supply Commission of Malawi {ESCOM}). This sector is unique. It does not share most of the general characteristics and attributes of the public sector covered in this chapter. This is the case as it operates more like a private entity and generates profits in the process. • Regulatory departments (e.g. Malawi Pharmaceutical Board, Malawi Communications Regulatory Authority {MACRA}) Stakeholders The public sector has a large number of stakeholders; that is many individuals and groups have a great interest in what it does. Moreover, the public sector has enormous control over its stakeholders. The principal stakeholders are not only the public sector employees, but also the beneficiaries of public sector services (especially those who pay for such services through taxation), as well as politicians, local communities, and the donor community. Since the public sector is distinguished from other sectors by its large number of stakeholders, each of which has its own interest in this sector, this sometimes leads to conflicting stakeholders’ interests. Though the interests may conflict, what is common is that each of these stakeholders has a justifiable interest in how the public sector is run. For example, the donor community is interested in the performance of the Malawi public sector because it funds most of its activities. On the other hand, politicians in Malawi, especially members of Parliament (MPs), are equally interested because constitutionally they have to hold the public sector accountable to the people of

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Malawi. Civil society organisations (CSOs) are currently becoming more visible in showing interest in the public sector operations because they often represent particular interest groups. Thus, various individuals and groups frequently seek to put pressure on and influence policies, programmes and changes that occur in Malawi’s public sector to ensure that they also benefit from development plans and processes. Such influences and pressures in many ways determine what the public sector will or will not do. Structure Just as in other countries, another feature of the public sector in Malawi is its complex and long hierarchical structures. The structure depicted in Figure 1 in Chapter 3 indicates that the public sector comprises many organisations that essentially rely on hierarchical links and operations, owing to the size of the individual components involved. Size The public sector is very large and it accounts for more than 70% of all employees in the country. The civil service alone (thus excluding the public corporations) has about 135,000 employees. The total figure of the whole public service has not yet been officially established. The Ministry of Education Science and Technology is so far the largest ministry. The comparison of the percentage shares of various selected ministries in the total recurrent budget for the 2003/2004 budget gives a good idea of the size of these Government ministries and departments. This is illustrated in the table below:

Table 1: % Shares of Ministries/Departments 2003/04

Ministry/Department Amount % of 2003/04 (MK millions) budget Ministry of Education Science and Technology 6,412.2 22.0 Ministry of Health and Population 3,654.3 12.5 Ministry of Agriculture and Irrigation 1,507.1 5.6 Ministry of Foreign Affairs and International 1,228.6 4.2 Cooperation Malawi Defence Forces 1,098 3.8 Police 1,084.5 3.7 Office of the President and Cabinet 868.7 3.0 Ministry of Transport and Public Works 456.4 1.6 The Judiciary 292.7 1.0 Source: Budget and Finance Committee of Parliament Report 2003

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WHAT DOES THE MALAWI PUBLIC SECTOR DO?

The political party (or parties which form a coalition) in power plays (play) a role in determining as well as prioritising policy objectives. The assumption is that the ruling political party (or parties) has (have) the political mandate granted by the electorate to draw up public policy. The Malawi public sector designs and implements policies and programmes that aim to fulfil the Government’s broad social and economic development objectives. Specifically, the Malawi public sector’s role is to serve the public and it does the following in order to carry out this function. Collecting taxes and raising revenue No Government can operate without funds. The Government must raise funds in order to implement its programmes and projects. The public sector collects the taxes and user fees levied on the citizenry, companies, and public utilities. The Malawi Revenue Authority (MRA) normally carries out this function, although Local Government institutions are also vested with the power to collect taxes and fees. Government uses tax policy as a means to pursue social and economic goals. Tax provisions are also used to encourage certain forms of investment or industrial development. In addition, Governments may raise revenue through the sale of public assets and privatisation of public enterprises. Examples in this regard include the sale of public enterprises such as David Whitehead & Sons Malawi Limited, a textile manufacturing company, by ADMARC Investments. Formulates social and economic policies

Some key departments of the public sector are involved in formulation as well as enforcement of policies that encompass practically everything the Government does. These policies promote the political objectives and ideologies of the Government of the day, reflecting its social and economic goals. The Department of Economic Planning and Development normally carries out this task.

Implements public programmes

Policies are realised through the design and delivery of public programmes, projects, or transfer of resources to individuals, organisations or other sphere of Government. Government also uses regulation (in areas such as workplace standards, consumer protection, the environment, foreign investment, and transportation safety) as a way of achieving policy goals that mirror the political objectives and ideology of the ruling party/ies.

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Provides mechanisms for accountability

The Government raises funds not necessarily to benefit individuals but the public in general. Consequently, the public demands accountability in return for the powers granted to the Executive to raise and spend revenue. The public sector responds by enforcing internal accountability measures and by reporting to the public on how money is spent and on the successes (and failures) of public programmes. Key institutions of accountability in Malawi include the Auditor- General, Public Accounts Committee (PAC), the Judiciary, the Malawi Human Rights Commission (MHRC), the Ombudsman, and the Anti-Corruption Bureau (ACB).

Regime change and its effect on the public sector

Unlike other institutions, one of the most important attributes of the civil service is its relative continuity. Malawi had been a one-party state up to 1994 when multiparty politics was introduced. Although there was this regime change, there has not been any profound change in the manner the public sector operates. During the one-party state, the Malawi Congress Party (MCP) was the ruling party. After 1994, it was the UDF that was in power up to 2005 when the Democratic Progressive Party (DPP), which broke away from United Democratic Front (UDF), took over the reigns of Government. Each ruling party had its own preferences that were advocated for as highlighted in their manifestos. However these manifestos were not really different from each other in terms of public sector reforms. Therefore not much has changed in terms of what the civil service does or is expected to do.

Recruitment, promotion, and disciplining of staff

Government departments have independent commissions that are responsible for the recruitment, promotion as well as firing of its staff. These commissions are basically responsible for different Government departments or ministries. Originally, there was only the Civil Service Commission that had the responsibility of recruitment, disciplining and promotion of civil servants. Due to the growth of Government departments and ministries, the commission was divided into several parts, each responsible for different sectors of the public service. The following are some of the existing commissions: • Civil Service Commission is responsible for all civil servants apart from those working in the Judiciary, health, education and Local Government;

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• Judicial Service Commission is responsible for the Judiciary; • Local Government Service Commission oversees employees in Local Government; • Health Service Commission is responsible for civil servants in the health sector; • Teacher Service Commission has responsibility over all Government- employed teachers.

All of these commissions follow prescribed procedures when recruiting staff. Every position in Government (referred to as a post) is described in terms of qualifications, experience and other skills needed. For example, the Teacher’s Service Commission has minimum qualifications and entry points for primary school and secondary school teachers as follows.

Table 2 Minimum qualifications for primary school teachers

Grade Qualifications

Junior Certificate of Education and successful completion of a professional A course or a Higher National Diploma without Malawi School Certificate of Education On promotion from A or with a High National Diploma with Malawi School B Certificate of Education

C On promotion from B

D On promotion from C

Source: Government Teaching Service Commission 2001

Table 3 Minimum qualifications for secondary school teachers

Grade Qualifications

E1 Diploma or its equivalent

E2 Basic Degree without Certificate in Education

E3 Bachelor of Education (BEd) or Basic Degree and Certificate Education

Source: Government Teaching Service Commission 2001

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However despite having these minimum requirements, in practice it is difficult to find a sufficient number of qualified personnel to fit the positions due to high demands in public service provision. As a result, a compromise is made where people with lesser qualifications but having some experience are recruited. For instance, a minimum qualification for secondary school teachers is a Diploma but it is common to find that many teachers with only the Malawi School Certificate of Education are working in secondary schools.

PROBLEMS FACING THE MALAWI PUBLIC SECTOR

Several studies have revealed that the Malawi public sector has been encountering numerous problems. Some of the major problems cited are as follows:

Rigidity

Having a long-term hierarchical structure has problems. Some accuse the Malawian public sector of being too rigid. An ever-changing environment demands changes of every organisation, as does the ever-changing needs of the public, which the public sector is meant to serve. The Malawi public sector is not immune to this problem of rigidity. Although it may be argued that the public sector has done a lot to improve on this, it is still not flexible enough to accommodate changes in its environment. For instance, despite the increased demand for drivers’ licences and passports, these can only be obtained from offices in Blantyre and Lilongwe. This creates a lot of delays and congestion at these offices.

Corruption

Civil servants have been implicated in many cases of corruption. This affects the operations of the institution because it undermines its objective. One of the commonest types of corrupt activity is when public servants demand payment for services that are meant to be free. The ACB has often reported cases of corruption in the award of contracts, both in Central Government and in local assemblies. In 2004 Malawi was rated as being among the 60 most corrupt countries in the world by Transparency International (TI) and ranked number 87 out of 146 countries covered by TI, scoring 2.8 points out of 10 on the corruption perception index scale, whereby 0 is highly corrupt and 10 incorruptible. Its rating in 2003 was number 83. Table 4 below is a depiction of citizens’ perception of corruption in Malawi based on a 2005 Afrobarometer study:

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Table 4 Perceptions of Corruption in Malawi

% of officials perceived to be corrupt Do not None Some Most All know Boarder officials (e.g. customs and 8 18 27 21 26 immigration) Police 13 24 28 20 16 Foreign businessmen 12 25 21 17 25 Local businessmen 14 33 24 14 15 Judges and magistrates 14 31 23 13 19 The President and officials in his office 15 29 20 15 20

Elected leaders such as parliamentarians 17 29 23 12 18

Teachers and school administrators 24 35 17 10 14

Leaders of NGOs or community organisations 16 30 18 9 26

Religious leaders 36 30 13 6 14 Source: S. Khaila and C. Chibwana 2005

There are many examples of corrupt activities taking place in the Malawi’s public sector. One of these is the case of the Blantyre city mayor being convicted of theft by a public servant and sentenced to 38 months custodial sentence without an option of fine for stealing a K400,000 worth donation given to Blantyre City Assembly from Bakhressa Grain and Milling Company for the rehabilitation of Nanjiriri Road. The PAC of Parliament exposed the K187 million scam perpetrated by the Ministry of Education, Science and Technology in February 2000 in which huge sums were lost through improper accounting procedures, award contracts to ghost constructing companies, overpayments etc. In addition, the Danish embassy in 2002 announced Denmark’s withdrawal of development aid to Malawi due mainly to corruption on the part of the Government. In 2003 Malawi failed to qualify for a share in the US$ 15 billion aid package from the USA for developing countries due to high levels of corruption in Government institutions.

Overstaffing Some say that public servants are employed not for what they are supposed to do but in order to fill a vacant post. There is no proper assessment of the number of

334 Chapter 12: Public Sector Reforms employees in the public sector. Various studies have come up with conflicting figures. However, except in certain specialised fields such as medicine, law, and education, the public sector is said to be overstaffed. According to a study conducted by Msosa (1998), the Malawi public sector is overstaffed in the lower ranks of the hierarchy and there are too few technical and professional employees in the top levels. Although a retrenchment exercise was implemented in 1995, there has been an increase in recruiting public sector employees over the years since. Inefficiency

The study conducted by Malawi Economic Justice Network (MEJN) in 2004 indicated that many people were not satisfied with the service delivery of the public sector as compared to the private sector. For instance, people have to wait for months or even years to have their applications or specific demands processed – something that could have been done in a matter of days. Inefficiency in the processing of driving licenses and passports is just one example. It is often alleged that one of the reasons for this inefficiency is the culture or mindset of Malawi Government employees. Their mindset is not geared towards service, and they treat the citizen not as a customer but as a ‘help-seeker’. Finances

Principally, the public sector is not meant to be a profit-making entity but resources and finances should be put to the best use to avoid waste. For several years, the Finance Minister has announced a budget deficit during budget sitting in Parliament. The causes for these deficits are i) inefficient use of finances: running an overstaffed and inefficient institution inevitably leads to high costs and ii) the increasing burden on the Government to provide more and better services to the citizenry. For example, in most cases, parastatals end up with losses at the end of the year, and these are absorbed by the Government. Due to public demand for better services, the Malawi public sector is always expanding and more resources are required, which in turn leads to greater costs. In addition, it is common to hear political leaders promising to build hospitals and other related public institutions, despite the fact that these were not provided for in the budget. This has a direct bearing on the cost of running the public sector.

PUBLIC SECTOR REFORMS IN MALAWI Public sector reform is a common process in many countries and can be defined as planned systematic changes to the structure, processes, and operation of the public sector with the aim of improving it. Examples of public sector reforms

335 GOVERNMENT AND POLITICS IN MALAWI include privatisation, deregulation, changes in recruitment and performance management, salary restructuring, merging or splitting of institutions, decentralisation, and public financial management. Reforms in the public sector are implemented to ensure increased effectiveness, efficiency, sustainability, and affordability. Thus, public sector reforms attempt to raise the quality of public services delivered to citizens and enhance its capacity to carry out core Government functions. However, sometimes this ideal scenario does not materialise because, as different stakeholders and actors are involved in the reform process, motives for reforms may be heterogeneous; the consequences of reforms may be difficult to predict; there may be contradictions within reform proposals; circumstances change once reforms have been decided; and those with vested interests may try to avoid reforms. Generally, public sector reforms are implemented on the assumption that public services were not being delivered adequately, with the reform aiming at finding a solution. In the case of Malawi, the reforms have been put in place to remedy the problems outlined in the section above. Specifically, the Malawi Poverty Reduction Strategy (MPRSP) paper argues that the Malawi public sector reform will ensure efficiency and effectiveness in service delivery, which is crucial for poverty reduction. In this regard, the Malawi public sector is reforming in order to develop the capacity of the public sector so that in the long run it can become the national instrument for the attainment of MPRS objectives. Public sector reforms in Malawi can be categorised into two: The first- generation reforms and the second-generation reforms. The first-generation reforms refer to those reforms implemented in the Banda era while the second- generation reforms are those implemented in the democratic era.

First generation reforms

The first set of reforms of Malawi’s public sector took place in the immediate post- independence days in 1964. At this time, the new Malawian leaders sought for ways and means to manage the postcolonial civil service more effectively and efficiently. The issues at stake were mainly two: firstly, there was the quest to abandon the British oriented civil service and create one that would be used to obtain and achieve local aspirations. Second was the will to ensure that the civil service be nationalised so that Africans would dominate it. To this effect, Thomas Skinner was commissioned to analyse the public sector and propose recommendations to improve it. The Skinner Commission recommended a new salary structure and job redefinition that meant a reduction in the salaries of civil servants. The reasoning was that the country could not afford the high pay and conditions of service that

336 Chapter 12: Public Sector Reforms were applicable to expatriates. In addition, it also recommended the introduction of fees in public hospitals. Although the Banda administration implemented the Skinner Commission’s recommendations, the deductions and hospital fees were resented, and Ministers objected to them, leading to what is commonly referred to as ‘the Cabinet crisis’ (the massive expulsions and resignations of ministers that took place two months after independence in 1964). The Malawi Government realised that the Skinner Commission only concentrated on recommendations that would ensure a cost effective postcolonial civil service and did not regard the reform of the public sector institutional structure and design. The Government saw that there was a need to put in a new public organisational structure and design that would adequately work in the pursuit of independent Malawi’s development agenda. In this regard, Malawi commissioned a review by the Economic Commission of Africa (ECA) in 1966. The review championed for the employment of effective leadership and institutional arrangements for the service. These measures were aimed at improving public sector efficiency as well as developing administrative staff in the public sector. Further, the Civil Service Review Commission (also called the Herbecq Review Commission) was instituted in 1985. Its mandates were twofold. Firstly, it was to examine how to modify staff structure, career development, and job grading and personnel management in order to improve the civil service and make use of the human and financial resources available. Secondly, it was to analyse the capacity of Malawi’s educational and training institutions to provide for the needs of the public corporations and the civil service. The Herbecq Review’s recommendations involved human resources management and financial management. However, these reforms were not fully implemented and the civil service grew from 10,745 in 1964 to 50,008 in 1987 (Msosa 1998:24).

Second generation reforms

Many forces contributed to the reform of the Malawi civil service in the democratic era. These can be categorised as socioeconomic, political, and administrative, as discussed below.

Socio-economic forces The democratic leaders saw the old social-economic policies of the Banda regime as regressive and poverty perpetuating. Therefore, they developed new national socio-economic policies to achieve good governance, democratic values while alleviating poverty. In this regard, they instituted poverty reduction policies and

337 GOVERNMENT AND POLITICS IN MALAWI programmes tuned to meet the new realities and challenges. These included the Vision 2020 and the Poverty Alleviation Programme as operational policies. The implementation of these policies necessitated the reform of the public service so that it could efficiently and effectively deliver and realise these aspirations. Examples of these reforms include privatisation, decentralisation, public sector performance management, financial management and salary restructuring.

Globalisation Global forces also contributed much to the reform of the Malawi public sector in the democratic era. Malawi started implementing these reforms when the Cold War had just ended symbolising the triumph of capitalist economic ideology over communism. This initiated major changes in the way the public sector around the world was to operate. Key here was the implementation of market principles in the running of the public sector. To this effect, the World Bank, the IMF, and other donor institutions played fundamental roles by implementing a series of economic stabilisation policies. As in other African countries, these institutions funded a number of feasibility studies for civil service reform programmes in Malawi to make it more efficient, effective and transparent.

Political system The public sector reforms in Malawi were also a product of political forces. As noted earlier, Malawi had its first democratic elections in 1994, which saw the end of 33 years of dictatorial rule by Hastings Kamuzu Banda and the MCP and the coming to power of the UDF under the leadership of Bakili Muluzi. The new democratic leaders considered the Banda civil service structures and motivational instruments as tools for the advancement of tyranny. Civil service reform was therefore necessary for democracy to be entrenched. It is not therefore by coincidence that much of the study reviews for the reforms took place in 1993 (after the multiparty referendum in 1993) and their implementation begun in 1994 after the new Government was sworn into office. Reforms that were envisaged as a result of the transition include decentralisation, downsizing, public sector performance management, and public sector financial management.

Inefficiencies in the administrative system The World Bank study of 1991, the Public Sector Management Review (PSMR) documented many administrative system deficiencies that hampered service delivery. The PSMR found that the performance of the civil service had deteriorated due to poor definition of responsibilities, inadequate and poorly targeted training, failure to undertake programme evaluation, and poor financial

338 Chapter 12: Public Sector Reforms management. In addition, it found that, on the one hand, pay levels in the private sector were high enough to attract professional and technical staff, thereby creating public sector vacancy rates of about 35%, and, on the other hand, pay levels in the private sector were low enough that there was overstaffing in the junior ranks of the public sector. Moreover, ‘inappropriate incentive structures have been identified as the fundamental cause of low productivity and poor work ethic, particularly in the civil service… These include low salaries, poor monitoring, no punishment for poor performance’ (Mathews Chikaonda, Malawi Minister of Finance, in Cross & Kutengule 2001:12). Thus, these administrative system shortfalls necessitated the reform of the Malawi public sector in terms of salary restructuring and the introduction of performance management measures. Another study conducted by the World Bank was the Civil Service Pay and Employment Study (World Bank 1994). This study found that the civil service wage bill had grown due to the inability of Government to maintain control of the wage bill and a creeping imbalance between the wage bill and non-wage expenditures with the former crowding out expenditures on operations and maintenance. In addition, the study found that the distortions identified in the salary structure since the mid-1980s had remained largely uncorrected, that there was a notably excessive number of grades, and inconsistencies in the grading structure and an absence of schemes of service. The actual reform process commenced after the issuance of the ‘Policy Statement on Civil Service Reform and Institutional Development’ in 1994. This policy statement made it clear that it was Government’s policy to periodically subject public sector organisation including the civil service, parastatal companies and Local Government institutions to external reviews of their operations, responsibilities, functions, structures and establishment levels. When the Civil Service Action Plan (CSAP) was launched in 1996 it aimed to improve the efficiency and effectiveness of the civil service and financial management. The CSAP recommended the following reforms: • Rationalisation of institutional mandates and their realignment with policy objectives; • Improvement in governance and public sector ethics, by establishing an ACB with oversight and investigative powers; • Improvements in civil service performance, through reforms in personnel management and public sector pay; • Decentralisation of service delivery and development management functions through the creation of representative Local Government in rural areas; • Strengthening public expenditure management focusing on improvements in resource allocation and expenditure control through the implementation of

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the Medium Term Expenditure Framework (MTEF) where the budget becomes outcome oriented; • Contracting out some services such as security, cleaning office equipment, and maintenance to the private sector.

Based on the above policy background, individual ministries, Government departments and parastatals have formulated action plans to implement these reforms and others that are particular to their working environment. By the year 2000, the Government had begun implementing some tasks laid down in the CSAP as follows:

Downsizing and rationalisation One of the public sector reform initiatives was the downsizing of the public sector which had grown from 10,000 at independence to 110,000 in 1995 (Cross and Kutengule 2001:12). To achieve this, the Government instituted a census of the civil service. This led to the downsizing of the civil service which saw the retrenchment of 20,000 employees. The retrenched employees comprised workers in non-established positions in non-priority areas. In addition, the census initiative exposed and helped to remove ‘ghost workers’ and ‘ghost pensioners’ from the payroll. Downsizing also entailed the rationalisation of the Central Government, which resulted into a reduction in the number of ministries from 27 to 19. However by 2003 the Cabinet grew to 46. In the same manner, different autonomous agencies were created to carry out some tasks that were deemed crucial. Examples of these agencies are the MRA, the National Roads Authority, the Food Reserve Agency, and the ACB.

Contracting out The Government considers contracting out of some of its services as one of the mechanisms to promote efficient and effective delivery of services. To meet this end, the Contracting Out Unit has been put in place in the Office of President and Cabinet to oversee the contracting out of services to the public. In addition, sectoral departments and agencies are encouraged to contract out services that the private sector can best carry out. In order to identify potential services and functions to contract out, departments must question whether it is essential that this function/service (which is the responsibility of the department) be performed in-house. In this regard, services that are usual candidates for contracting out include office cleaning services, security services, laundry, catering, copy-typing services, legal services, building and ground maintenance, messenger services, audit services and secretarial services.

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Privatisation Privatisation refers to the selling out of public enterprises to the private sector. It incorporates many policy themes including deregulation, commercialisation, charging for public services, and transferring ownership of assets from the public to the private sector. The assumption is that privatisation eliminates inefficient public monopolies and promotes the development of the private sector. It is claimed that privatisation brings in perfect competition that fosters efficiency, encourages investment and frees public resources for investment in infrastructure and social programmes.

The reform package in Malawi has also included the privatisation of public enterprises to stimulate the growth of the private sector. In this area, the privatisation law was passed in 1996 giving mandate to the Privatisation Commission to carry out the privatisation of public enterprises. The Privatisation Act stipulates that the main objectives of the privatisation programme are the following (Malawi Government 1996b): • To foster increased efficiency in the economy; • To increase competition and reduce monopoly in the economy; • To promote participation by the Malawian public in enterprises; • To raise revenue for the Government.

In addition, the Public Enterprise Reform and Monitoring Unit (PERMU) was established in the Department of Statutory Corporations of the Ministry of Finance and Economic Planning to carry out continuous scrutiny of the financial performance of public enterprises and coordinate the reform efforts. Since its establishment, the Privatisation Commission has privatised 60 public companies. Some of the examples of public companies that were privatised include: David Whitehead & Sons Malawi Limited, Grain and Milling Company Limited, Malawi Dairy Industries, Malawi Railways (1994) Limited, Malawi National Bank, Mchenga Coal Mines, and Packaging Industries Malawi Limited. (See the end of the chapter for a full list of public enterprises which have been privatised).

User fees/cost recovery The public sector reform prescription also included the introduction of user fees for public goods and services. This includes services that were previously provided for free. The general feeling was that the Government was having inadequate financial resources and increasing demands so that it could no longer provide services free of charge. Examples of these include the processing of birth and death certificates, marriage certificates, licences and permits, produce market fees,

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Government rest houses, maternity clinics, and dispensaries and other hospital amenities.

Performance management The Government developed a performance-based system of management handbook in 2000. One of the issues highlighted was that senior civil servants should be given the option of signing performance based three-year contracts in which employment was conditional to the achievement of performance targets with pay levels of about 500% above current ones and 50% increase in compensation net allowances. At its inception, only those nearing retirement preferred the performance-based contracts while those in their early career stages were reluctant, as they feared unjust performance appraisals and anxiety about the sustainability of the system itself. However, in recent times more employees have chosen the new scheme and the Government has made it compulsory for senior public managers. Secondly, these contract-based performance management schemes have meant that public managers are responsible and accountable for outcomes and outputs rather than inputs and processes. In this way, performance agreements and expectations are made with public managers based on criteria and instruments for an objective assessment of those on performance contract. Politicians then assess public managers on how close they are to these agreed performance standards and their contracts are renewed or not based on these. To some degree, this has increased the efficiency of the Malawi public sector as public managers take advantage of better incentives in return for greater accountability in terms of agreed upon results.

Salary structure reforms Malawi public sector has the history of poor incentive systems. This has resulted in staff retention and work ethics problems. Therefore, the reform programme also sought to establish an effective incentive structure that would improve work ethic and productivity. Consequently, the reforms seek to put in place realistic and equitable remuneration systems that will see many benefits and allowances integrated into basic salaries. In the same manner, regulations on allowances will be revised so as to be equitable. In addition, the reform package included a comprehensive wage policy to allow for appropriate and equitable remuneration across the civil service. Key to this reform is a measure to provide on-the-ground service providers (for example, nurses and teachers) remuneration packages equivalent to those working at Central Government headquarters. Moreover, the reforms seek to revise the current

342 Chapter 12: Public Sector Reforms outdated pension scheme. The key is to develop a public pensions system that will link pensions to the cost of living, making them have a fixed and predictable impact on the national budget.

Financial management The Malawi public sector has also undergone reforms designed to control public spending and improve the effectiveness of expenditure management. The Government has therefore put in place an outcome-based performance related budget and improved accounting procedures in the name of the Medium Term Expenditure Framework (MTEF). This tool ensures that budgets are programme- or activity-based and ceilings are set to sectors based on priority. Money is spent to produce results and performance is used as a criterion for annual budget allocations to ministries and departments. In order to ensure accountability for achieving the targets and milestones set by different programme activities, the Government plans that disbursement of funds and supplies to these levels will be linked with results. To ensure discipline in spending within the set ceilings the Government uses the cash budgeting system where Government facilities can only spend available funds. This means no overdrafts or credits.

Decentralisation The Decentralisation Policy and Local Government Act were approved in 1998. Both stipulated the transfer of managerial and financial authority from Central Government to the district assemblies to ensure efficient and effective service delivery. According to the Decentralisation Policy, the assemblies are charged with the overall development of the district. It must be mentioned that all the local assemblies are seen as a ‘corporate body’ and are ‘districts in their own rights’. Accordingly, the district assembly is empowered to employ its own staff, enter into contracts, and operate like any public organisation. Against this background, the above mentioned public sector reforms have also been implemented in the decentralised structures with the aim of creating and strengthening institutional capacities for Local Government and development. Assembly managers are under contract, have managerial autonomy, and are responsible to the local managers for their outputs rather than inputs and processes; there is activity-based accounting and budgetary procedures and most of the services they deliver have a fee. In addition, service delivery is done through private contractors, in most instances. However, at the time of writing local assemblies have not been operational. This is the case as assemblies are running without councillors. The councillors’ mandate ended in April 2005 and they have not yet been replaced (January 2007). (For further information on decentralisation refer to Chapter 6.)

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THE POLITICS OF PUBLIC SECTOR REFORMS IN MALAWI

Public sector reform is a highly political process with high demands and expectations. For MPs the improvement in public service delivery is important as they are representatives of the people and feel they are responsible for quality service. They may therefore deliberately encourage public sector reform as a means of increasing their electoral support. However, there may be some aspects of public sector reforms that may not be popular with the people, and therefore this may have a negative impact on MPs’ popularity with their constituents. In Malawi, there have been conflicting political pressures in the area of public sector reforms to the extent that in some cases the implementation of reforms has been delayed. One problem with the reform implementation process in Malawi was that the reforms only enjoyed minimum political leadership and commitment. Adamolekun, Kulemeka and Laleye (1997: 213) agree that there was no political champion for public sector reforms in Malawi. Malawian politics is characterised by patronage and regionalistic relations rather than ideological or policy commitment. This tendency reduced political will and commitment to make and implement the hard prioritisation reform decisions that would adversely affect patronage or ethnic relations. This was more apparent in the case where the reform package involved retrenchments. Political leaders did not want to associate themselves directly with reforms whose consequences would lead to the loss of jobs of many in a country where job opportunities are scarce and poverty levels are very high. Moreover, the new political leaders promised people reduced poverty and increased job opportunities. They therefore feared that retrenchments would make them unpopular. Compounding this was the fact between 1994 to 1995 labour unions took to the streets to fight against the downsizing of the public sector. In addition, the role of the donors needs to be highlighted. In most third world countries, donors supplement Government budget. This gives them the power to call for reforms in order to encourage prudence and efficiency in the use of these resources. In this case, reforms come as a precondition for donor funding. The IMF and the World Bank are the best examples in this regard. Malawi has a high level of donor dependence. As a result, reforms have been led by donors without necessarily having the support of the country. This has negatively affected a broad political commitment to their full implementation. Often the Malawi Government has shown a willingness to commit to the reform programme long enough to receive the associated aid, only to abandon the reform programme once the aid is received. Where these donor-driven reforms have in fact been implemented, these reforms faced capacity problems due to a shortage of skilled employees and they resulted in massive unemployment.

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Too many donors were willing to fund the reforms when the administrative capacity was not strong enough to adequately contain and coordinate them. For instance, in June 1996 these following donors provided public sector reform related assistance to the Ministry of Finance: IMF, United Nations Development Fund (UNDP), Department for International Development (DFID), United States AID (USAID), European Union, Canadian International Development Agency (CIDA) and the World Bank. Because of capacity overload and the absence of efficient Government machinery for harmonising external assistance, these interventions were not well synchronised, resulting either in duplication or in retarded implementation.

CONCLUSION

This chapter has shown that the public sector in Malawi is critical to formulating and implementing policy. However, the public sector has been encountering numerous problems and many have called for a new wave of reform beyond that attempted in the past (referred to as the first generation reforms and second generation reforms). This chapter has also shown that public sector reform in Malawi is both complicated and challenging due to the process being a highly political one with great demands and expectations.

Questions

1. Describe the Malawi public sector. 2. Explain what is meant by ‘rationalisation’. 3. Which forces have significantly pushed for Government reforms in Malawi? 4. What is Malawi’s public sector reform experience?

Glossary

Contract out: This is when an organisation purchases products or services from an outside supplier, rather than performing the same work within its own facilities, in order to cut costs.

Downsizing: This is a public sector restructuring process aimed at making the entity smaller, more efficient and effective through permanently eliminating non strategic jobs.

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Globalisation: This is the process of increasing international integration in economic, political, social and cultural spheres, whereby actions beyond national boundaries constrain and influence national outcomes. Performance management: The process of basing organisation actions and decisions on actual measured results and tracking performance against targets and identifying opportunities for improvement

Rationalisation: This is the reorganisation of the public sector in order to achieve greater efficiency according to a prescribed system or rationale.

Parastatal: This is a corporation which is wholly or partially Government-owned and managed.

346 Chapter 12: Public Sector Reforms References and Further Reading

Adamolekun, L., N. Kulemeka, and M. Laleye (1997) ‘Political Transition, Economic Liberalization and Civil Service Reform in Malawi’, Public Administration and Development, Vol 17, pp. 209–222. Cross, S. and M. Kutengule (2001) ‘Decentralisation and Rural Livelihoods in Malawi’, LADDER Working Paper No 4, September, at http://www.uea.ac.uk/dev/odg/ladder/ retrieved on 4 February 2005 Durevall, D. (2001) ‘Reform of the Malawian Public Sector: Incentives, Governance and Accountability’, Discussion Paper No 2001/109, UNU/WIDER, Helsinki Fozzard A. and C. Simwaka (2002) ‘How, When and Why Does Poverty Get Budget Priority?’ Poverty Reduction Strategy and Public Expenditure in Malawi, Oversees Development Institute Working Paper No 166, London Oversees Development Institute Ihonvbere, J.O. (1997) ‘From Despotism to Democracy: The Rise of Multiparty Politics in Malawi’ Third World Quarterly, Vol 18, No 2, pp 223?247 Kalemba E. (1997) ‘Anti Poverty Policies in Malawi: A Critique’ in Chilowa, Bwalo: A Forum for Social Development, Issue 1, Zomba: Centre for Social Research, University of Malawi, pp 21?37 Khaila S and C. Chibwana (2005), Ten Years of Democracy in Malawi: Are Malawians Getting What They Voted For?, Afro Barometer, Working Paper no 46 Malawi Government (2002) Malawi Poverty Reduction Strategy Paper, Zomba: Government Printer Malawi Government (1995) The Constitution of the Republic of Malawi, Zomba: Government Printer Malawi Government (1996a) Civil Service Action Plan, Zomba: Government Printer Malawi Government (1996b) The Malawi Privatisation Act, Zomba: Government Printer

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Malawi Government (1998a) Malawi Decentralisation Policy, Zomba: Government Printer Malawi Government (1998b) Local Government Act, Zomba: Government Printer Msosa, C.P. (1998), ‘Public Sector Reform: Malawi as a Case Study’, Paper Presented at the Eastern and Southern Africa Consultative Workshop, Arusha, Tanzania at http://www.essentialaction.org/labor_report/malawi.html retrieved on 8 February 2005 World Bank (1994) ‘The Republic of Malawi Institutional Development Project II, Staff Appraisal Report’, Washington: World Bank

List of Privatised Companies by October 2006 According to Sector

Banking Agriculture Insurance Travel and Manufacturing Other Hospitality Service Industries

Commercial Bwemba Malawi Blantyre Rest Brick and Tile Import and Bank of Malawi Dairy Farm Insurance House Company Export Ltd Brokers

Finance Central Government Chemicals and Malawi Corporation Hostels Marketing Ltd Book Ltd Properties Service Ltd

National Bank of Chiphazi Kasungu Inn Chillington Malawi Farm Agrimal Ltd Services Ltd

National Choma Likhubula, David Whitehead Malawi Insurance Co Ranch Chigumukire, & Sons (Malawi) Railways Ltd Kachere, Limited (1994) Ltd Dzalanyama, Ntchisi Lodges

National Cold Storage Limbe Rest Dwangwa Sugar Mpwepwe Investment Co Ltd House Corporation Boatyard Trust Limited (DSC) Company Limited

Kaombe Mangochi Encor Products Farm Lodge Ltd

Kuti Ranch Ngabu Inn Grain & Milling Ltd

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Malawi Dairy Industries

Mchenga Coal Lifidzi Farm Mine

Mining & Smallholder Investment Sugar Development Authority Corporation

Zomba Trout Optichem Farm (Malawi) Ltd

Packaging Industries (MW) Ltd

Portland Cement Co (1974) Ltd

VIPCOR

VIPLY Ltd

349 GOVERNMENT AND POLITICS IN MALAWI

350 13 PUBLIC POLICYMAKING

Blessings Chinsinga

INTRODUCTION Governments make decisions that affect the welfare of their citizens. These decisions which are implemented in the form of laws, regulations, executive orders, court decisions and even the Government budget are called public policy. Shaping the form and substance of public policies are the set of rules, norms, and practices embodied in a country’s political system. Public policies may be affected, for example, by financial pressure, economic status, elite consensus, party behaviour, party representation in the Legislature, and civic activism. The study of public policy involves finding out what courses of action Governments take, why they take these, and what difference these courses of action make to the welfare of their citizens. This chapter discusses the following issues: • What is the meaning of public policy and how are policies made? • Who are the key actors in the public policymaking process? • What are the stages in policymaking? • What are the roles of the economy and budget in the policymaking process? • How has the policymaking process changed in Malawi since independence? • Who are the current stakeholders in the policymaking process? • What kinds of input can citizens have in the policymaking process?

DEFINITION OF PUBLIC POLICY Public policy refers to a relatively stable, purposeful course of action taken by Government or public actors in addressing a social problem. These social problems or issues could be unemployment, inflation, housing, land reforms, welfare, education, and so on. These sorts of problems are referred to as public policy problems.

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Key concept: public policy problems Public policy problems are conditions that produce dissatisfaction among people who then seek redress through Government action. For social conditions to qualify as public policy problems there must be: 1) widespread public awareness of the problem; 2) widespread public demand that some type of action be taken; and 3) a widespread public perception that action by some governmental unit is appropriate and falls within the bounds of its authority.

A policy is making a decision and then acting upon it by ensuring that the decision is carried out as desired. This means that a policy includes both the decision to adopt a law or make a rule on some issue and the subsequent decisions that are intended to enforce or implement the law or rule.

Key concept: public policymaking Public policymaking involves developing pertinent courses of action for dealing with some matter of public concern.

Public policies do not always involve action. Inaction can constitute policy as well – what is not done or deliberate attempts not to act. This should not be surprising because much of political activity is concerned with maintaining the status quo. Nevertheless, policy as inaction is much more difficult to identify and analyse than policy as action. To provide an example, a Member of Parliament (MP) may decide to put a bill before the National Assembly to make abortion legal, as, under the current legislation, abortion is illegal. If, after debate, the final decision in the House is that abortion should be illegal, then the decision is reaffirming the status quo and a sort of policy of inaction has been implemented. There are three categories of public policies which are determined by their effects on society and the relationship among those involved in policy formation. These policies include distributive, regulatory, and redistributive policies. Distributive policies are those that involve allocation of services or benefits to particular segments of society, be they individuals, groups, corporations, or communities. These policies typically involve using public funds to assist the nation as a whole, particular groups, communities, or industries. Examples of policies in this category include defence procurement, rural development, projects, research and development (e.g. in education, health, agriculture). Regulatory policies involve imposing restrictions on the behaviour of individuals or groups. This means that policies in this category reduce the freedom or discretion to act of those regulated.

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Policies such as business licensing, traffic rules and abortion control fall under this category. Redistributive policies can best be described as Government’s deliberate efforts to shift the allocation of wealth, income, property, or rights between broad classes or groups of the population. Examples of policies in this category would include minority protection, land redistribution, welfare and tax legislation. These policies are, however, extremely difficult to implement because they involve the reallocation of money, property rights or power.

POLICYMAKING CYCLE

In order to make policy there are various stages which need to be gone through. These stages are collectively called the policymaking cycle. The policymaking cycle includes five distinct stages of consecutive and interconnected sets of activities in making policy decisions. These stages, as presented in Figure 13.1 below, include problem definition, agenda setting, policy formulation, policy implementation, and either policy restatement or policy termination. The policymaking cycle is thus based on an understanding that a distinction can normally be made between the different stages in the policymaking process.

Figure1: The Policymaking Cycle

1. Problem Definition 5b. Policy Restatement 2 Agenda Setting

4. Policy 3. Policy Implementation fornulation

5a. Policy Temination

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The policymaking cycle goes through these phases: (1) A problem emerges as an issue in a political system, often accompanied by various interest groups’ demands for action to resolve the problem, i.e. problem definition. (2) This problem then becomes a part of the decision-making agenda (agenda setting). This means that Government must make a decision as to when and who will deal with the problem and in what form. (3) Policy formulation: the process of taking a position on the problem is done within the set of rules laid down by the prevailing political system. This process ends with a law, a provision, or a programme, i.e. policy formulation. (4) The resulting policy decisions attain their final structure during the implementation process often involving the bureaucracy, i.e. policy implementation. (In practice the bureaucratic machinery may make some changes to the proposed policy in the course of implementation.) The result of this policy implementation is reactions to it of either a positive or negative nature, which, in turn, leads to the continuation, i.e. policy termination (5a), or change or end of the policy, i.e. policy restatement (5b). The policymaking process does not however practically happen in neat distinct stages as suggested by the policymaking cycle except perhaps in a minimal sense that a policy has to be proposed, legislated, and The policy to alleviate hunger though fertiliser implemented. The reality of coupons the policymaking process is In the first stage of the process, (1) the that its stages are not a linear problem of widespread hunger was raised, (2) In sequence from policy the 2005/2006 budget sitting of Parliament the formulation through to policy Government proposed to issue fertiliser coupons as a viable strategy for combating hunger, (3) The implementation. It is a very fertiliser subsidy as a solution was debated heavily complex, repetitive, and cyclic between the Opposition and pro-Government MPs. process with neither a clear Both essentially agreed about the need for the beginning nor end. It is a subsidy but disagreed on how it should be seamless, complex mesh of implemented. The concern of the donors led by the interactions and ramifications World Bank was mainly about the fiscal sustainability of the programme and its distorting between policymakers effects on the economy. The pro-Government (parliamentarians) and supporters for a programme of issuing fertiliser implementers (civil service coupons got a majority vote. (4) The programme bureaucracy). The was then implemented by the Ministry of policymaking cycle is Agriculture bureaucracy. (5b) In the 2006/2007 nevertheless quite useful in budget session of Parliament the Opposition proposed the review of the mode of implementation structuring empirical analyses. (coupon system) because they claimed it provided It can thus make a valuable opportunities for corruption on behalf of the ruling contribution when comparing party and chiefs. Other proposals were discussed different systems in that it but, at the time of writing, a final decision has still helps to identify and work out not been made.

354 Chapter 13: Public Policymaking a system’s decision-making processes in a more differentiated and precise way. One can gain a comprehensive understanding of how policies are actually made by turning to models and theories of policymaking. Policy models, generally defined as the conceptual lenses through which we view our world in order to make sense of it, are mainly used to help clarify our thinking about politics and public policy. They help identify important aspects of policy problems; differentiate between important and unimportant events in the policymaking process; and suggest explanations for public policy and predict its consequences. Examples include the rational model, the incremental model, and the mixed scanning model. The limitation of these models is, however, that they merely explain how policy decisions are made without necessarily illustrating who is involved, their relative influence and the nature and pattern of their relationships in the policymaking process. Theories of policymaking fill this particular gap. They identify the various actors in the policy process, their relative influence, their roles, as well as the pattern of their relationships. Examples include the political systems theory; group or pluralist theory; the elite theory; Marxism; and corporatism.

THE ROLE OF THE ECONOMY AND BUDGET

Public policymaking is essentially about allocating resources to competing issues and demands in society. How Government sets its priorities is determined to some extent by the strategic influence of competing groups but it is also determined by the resources that a Government has at its disposal. The amount of resources that a Government has for its policymaking processes is largely dependent on the overall performance of the economy in that country. If a country’s economy grows substantially, the country’s resources for policymaking are far more than if the economy remains the same or regresses. The resource portfolio for policymaking is also determined by the amount of domestic and foreign debt a Government has to service. If a Government has enormous amounts of foreign and domestic debt then most of its resources are committed to servicing that debt leaving inadequate resources for policymaking. Countries in this position usually depend on donors for a fair share of the resources that they use in the policymaking process. Some argue that a country’s excessive dependence on donors for financial assistance in this area means that donors have too much influence on policies in that country.

The national budget is the main mechanism for allocating resources among the competing policy priorities of a Government. The national budget also fosters and institutionalises democracy through debates in Parliament that ensures

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Government accountability. The budget has to be approved by Parliament and as a result of this, citizens have control through their elected representatives over the amount of funds to be expended, over the ability to tax, and over the actual policy objectives. Therefore, the budget is often the basis for policymaking, since budget institutions (e.g. in Malawi this would be the Ministry of Finance, Parliament, the budget and finance committee of Parliament) enable a system of checks and balances that forces executives to negotiate with members of the administration, with other levels of Government, and with representatives of civil society. This should ensure the Executive’s compliance with prescribed budgetary priorities.

Key concept: budget A budget is a key fundraising and management tool. It brings together the aspirations of a country (policy options), the cost of realising those aspirations, and the means of meeting those costs.

PUBLIC POLICYMAKING IN MALAWI The saying about public policymaking is that it cannot be adequately studied and understood without taking into account its environment or context. This is the case because the context both limits and directs what policymakers as well as the public at large can or cannot effectively do. The overall status of a country’s economy, as already pointed out above, is very critical in this respect. Equally important is a country’s institutional framework for public policymaking, especially with regard to its political system. The rules, norms, and procedures as laid out by the political system are particularly important in identifying the critical clusters of actors or stakeholders in the policymaking processes. The economy Malawi’s economy has experienced two broad yet distinct phases since independence in 1964. The period between 1964 and 1979 was a phase of prosperity. All sectors of the economy registered significant growth rates, attributed to favourable world demand; favourable climatic conditions; rapid expansion of large-scale agriculture; high levels of gross domestic investment; and low and declining real wages and labour costs. In the second phase, from 1979 to date, the economy has been characterised by a boom and burst type of growth performance. The growth rates of the economy have been consistently considerably lower than those which the economy achieved in the pre-1979 phase. The dramatic downturn in the pattern of economic growth after

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1979 was due to the aftermath effects of the 1978/1979 oil shock; the sharp decline in the terms of trade (i.e. less favourable trade terms); the rise in interest rates on the international financial markets; the influx of refugees from Mozambique; and the declining levels of aid. Aid to Malawi declined significantly because it lost its geopolitical importance following the end of the Cold War in 1989. Malawi could no longer get unconditional donor assistance simply because of its pro-Western policies. Malawi became under pressure to reform its governance and human rights record as a condition for continued donor aid in the post-Cold War era. These demands coupled with the adverse effects of the International Monetary Fund (IMF) and World Bank sponsored structural adjustment programmes (SAPs) have had a significant impact on the overall performance of the economy in the 1990s and beyond. This is reflected, for example, in the growth performance of the real gross domestic product (GDP) and the overall Government’s deficit during the period from 1990 to 2003.

Gross Domestic Product The performance of the economy in terms of GDP between 1990 and 2003 is captured in Figure 2 below.

Figure 2: Real GDP Growth Rates between 1990 and 2003

1990/1 1991/2 1992/3 1993/4 1994/5 1995/6 1996/7 1997/8

Real GDP Growth 4.8 7.8 -7.9 10.8 -12.4 9 9.5 5.2 Rate

REAL GDP GROWTH RATE 15 10 • • • • 5 • • • • • 0 •

Rate • -5 -10 • -15 • Fiscal Year Source: Yearly Economic Reports of the Ministry of Economic Planning and Development 1990–2003

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[NB Designer can you redraw this graph as it is very unclear as it is, data is on sheet 1 & 2?]

This graph shows that the economy has been very unstable since the 1990s. It experienced substantial shocks between 1992 and 1996 and steadily declined between 1997 and 2001. The economy experienced a substantial downturn during the 1992/1993 fiscal year as it slumped from a record 7.8% real GDP growth to –7.9%. The dramatic fall registered during this period was largely caused by the reduction in agricultural production due to drought, political upheavals, and the freezing of all non-humanitarian aid to Malawi by donor agencies. The post transition phase however saw a dramatic resurgence in the flow of donor aid. The substantial donor inflows combined with favourable conditions in the 1993/1994 cropping season saw the economy register a dramatic 10.8% growth in real GDP. This recovery process could not however be sustained mainly because of poor agricultural performance and serious macroeconomic imbalances which led to –12.4% downturn in the real GDP growth rate during the 1994/1995 fiscal year. In the subsequent year, the economy recorded a 9% real GDP growth but has since then been on a declining trend. In the 2001/2002 fiscal year, the GDP growth rate plunged to –1.5% largely due to the freeze of donor aid inflows because of: 1) unbudgeted for expenditures, notably external travel; 2) the disbursement of resources to the poor without a viable bureaucratic mechanism for accountability; and 3) a dramatic increase in corruption and patronage.

Government’s deficit Government has always incurred large deficits since the 1990s. Figure 13.3 below clearly shows that Malawi is a highly donor dependent country. For example, in 1992 western donor aid accounted for 22.6% of GDP and contributed to at least 40% of the Government’s total budget. The level of donor aid to the budget has more or less remained the same over the last few years. Without donor grants, the magnitude of the Government’s expenditure is quite overwhelming.

Figure 3: Overall Deficit versus Deficit Excluding Grants 1990–2003

1990/1 1991/2 1992/3 1993/4 1994/5 1995/6 1996/7 1997/8

Health 9.8 11.1 17.7 14.8 14.7 16.4 16.9 23.2

Education 15.3 13.7 19.1 15.8 16 20.6 21.6 25.7

Transport 4.1 23.1 20.5 22.1 8 12 16.6 15.3

Community Dvpt 3.5 19,2 3.7 3.4 4.2 5.3 6.9

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0 -2 –•– Budget Deficit –

Excluding Grants -4 (% of GDP -6 • –– Overall Deficit -8 • • • • (% of GDP) -10 • • -12 • -14 • • Rate (% of GDP) -16 • -18 • • -20

1990/1 1991/2 1992/3 1993/4 1994/5 1995/6 1996/7 1997/8 1998/9 2000/1 2000/2 2000/3

Fiscal Year 1999/2000

Source: Yearly Economic Reports of the Ministry of Economic Planning and Development 1990–2003

The flow of donor aid was at its peak during the 1994/1995 fiscal year reaching 44.4% of the total budget expenditure as donors resumed their aid and several new donors emerged following the successful transition to democracy. When donor grants are not forthcoming, the Government usually resorts to domestic borrowing in order to narrow the gap between expenditure and revenue. Government’s domestic borrowing shot to a record high in the 2002/2003 fiscal year. The net domestic credit increased from –4% to 30.3% mainly because donors withheld their support in 2001, forcing the Government to resort to domestic borrowing to finance the budget. The total public debt stock is estimated at US$ 2.6 billion with the debt export revenue ratio staggering at 236%. This is much higher than the threshold of qualifying for a Highly Indebted Poor Country (HIPC) scheme pegged at 150% of GDP. A debt sustainability study undertaken in 2000 showed a debt service ratio at 19% as compared to the sustainable threshold of 15%; the net present value of debt to exports ratio stood at 267% against the sustainable threshold of 150%; and the net present value of debt to domestic revenue was at 472% compared to the sustainable threshold of 250%. The state of Malawi’s economy means that there are several constraints on Government’s actions particularly in the form of huge foreign as well as domestic debt. For instance, the International Monetary Fund (IMF) and World Bank are major determinants of public economic policy since without their support the Government cannot effectively function. Therefore, those issues that receive sustained attention are largely influenced by donor agencies and multilateral financial and development institutions. This has ensured that, for example, such matters as corruption, privatisation, and poverty reduction attain high profiles as

359 GOVERNMENT AND POLITICS IN MALAWI items of national importance. This however distorts structures of accountability as the Government becomes more answerable to donor agencies than to representative institutions and the public at large. Aid dependence and the strong influence of multilateral financial institutions have imposed limits on the extent to which the Government can pursue its social programme. The excerpts from the 2005 Minister of Finance’s budget speech below are illustrative of Malawi’s donor dependency in its policymaking process. The House will be called upon to oversee a huge public investment programme that could have an immediate positive impact on the welfare of the people. The question that is continuously posed and is being posed now is whether we will continue to be guided by the public interests as has been the case so far, or whether we will put parochial interests above those of our people. In my view, we are being challenged by the availability of resources, which donors have dangled before us. This money could prevent the prevalence of hunger, it could permit the rehabilitation of our roads, the construction of schools and hospitals and the creation of employment opportunities for our people. Therefore, I hope as we have done throughout the year, we could rally round this development programme and emerge with a consensus to move ahead in the interest of our people. The House will wish to join me in thanking donors who contribute to the balance of payments support who have made this largely possible. These include the EU, DFID of the United Kingdom, the Governments of Norway and Sweden. I look forward to welcoming Germany to this group. If, therefore, the budget is implemented as planned, the financial year could represent a watershed for the domestic debt. We will have started to achieve the twin goals of our fiscal policy to progressively reduce budgetary deficit so as to contribute towards the reversal of declining domestic savings and to reduce the domestic debt and restructure its composition.

NB: text underlined for emphasis by the author Minister of Finance’s Budget Speech 10th June 2005

The institutional framework for public policy

It is very difficult to pinpoint the institutional framework for public policymaking in Malawi. This particular challenge is in fact recognised and acknowledged in the Public Sector Management Reform Programme (PSMRP) 2002–2006. The problem with the public policymaking process in Malawi is that there is no central agency responsible for providing leadership and creating public support for policy initiatives and reforms. The PSMRP proposes that the Office of the President and Cabinet (OPC) anchor the policymaking process but does not clearly specify how the policymaking process could be adequately institutionalised to ensure that inputs at various levels of Government and society are taken into account. In other words, the public policymaking process in Malawi is not institutionalised adequately and effectively. This, among other things, suggests that it may be extremely difficult to

360 Chapter 13: Public Policymaking identify the main actors who are involved in the various stages of the policy process. In this case, it becomes imperative to turn to a political system’s rules, norms, and procedures to understand the nature and pattern of policymaking. Malawi has, since independence, experienced two major political systems: one-party authoritarian rule between 1964 and 1994 and multiparty democracy from 1994 to date.

Policymaking between 1964 and 1994

Presidency The policymaking process during this period was highly centralised. The President almost entirely dominated the policymaking process due to the centralisation of decision-making in both the party and Government. As such, the OPC was effectively the centre for all public policies, planning, and implementation. The President provided the vision, direction, and pace of policy outcomes especially in terms of defining the core ideas, framing issues, and defining measures of success for policy initiatives. This in turn raised the overall profile of the bureaucracy in the policymaking process. It became extremely vital because the President relied almost entirely on it to organise and direct the policymaking process under his own control because of the subordinate role of Parliament. It is important to note, however, that, in principle, the Cabinet chaired by the President was mandated to determine and formulate public policies. The striking feature of this arrangement however was that Cabinet ministers were required to resign if they failed to cooperate in the fulfilment of the President’s decision on any important issue. Cabinet ministers were not allowed to make policy statements unless the President authorised them. The extent to which the policymaking process was centralised was illustrated, for example, by the fact that Dr Kamuzu Banda was until 1993 the minister responsible for foreign affairs, justice, works, supplies and agriculture. He held these portfolios immediately after the Cabinet crisis in October 1964.

Public participation Attempts were made to create a semblance of democratic traditions and practices in the public policymaking process. This was primarily through the Malawi Congress Party’s (MCP) annual convention, described as Parliament number one. The convention brought together party delegates at various levels from all over the country to deliberate on policy proposals for possible legislation. The convention’s decision-making process was such that once the President introduced the proposed policies during the opening speech, the delegates discussed them throughout the week but without any critical debate. Delegates had to simply affirm their loyalty to the party and its leadership and support the proposed policies, which would be introduced later to Parliament for legislation. The MCP was, in this regard, an

361 GOVERNMENT AND POLITICS IN MALAWI efficient and well-organised political party but not a channel for meaningful representation of society in the policymaking process but largely as an executive arm of the regime. The major role of the party was merely to mobilise the masses to support centrally determined decisions. This means that participation was only possible under the tight control of the regime. The heavily restricted access to information under the auspices of the Censorship and Entertainment Control Act made the development of a robust civil society even more difficult. This act empowered the Government to decide what people could hear, watch and listen to. Moreover, there was only one radio station which was state owned and controlled, and Dr. Kamuzu Banda personally owned the only daily newspaper. The political atmosphere that prevailed during this time hence curtailed fundamental freedoms and human rights, created a political culture of fear, secrecy, suspicion, silence, and obedience to authority. An environment of open dialogue and free discussion did not exist at all, and Malawians did not see themselves as participants in the political system.

Parliament The role of Parliament in policymaking was virtually non-existent. Some argue, in fact, that the role of Parliament was merely to approve and legitimise the President’s policies with perhaps some input from the bureaucracy. It ratified policy proposals tabled by the President without attempting at all to alter the content of those policies. The main purpose of the parliamentary process was therefore simply to establish the legitimacy and the legal standards required for policy implementation. The marginal role of Parliament in the policymaking process was particularly apparent in the preparation of the budget. The manner in which Parliament dealt with its business meant that political leaders merely passed a budget that had already been negotiated and compromised by top bureaucrats and already approved by the President. The budgeting process was not subjected to any political bargaining, negotiations, or compromise. Bureaucratic competition between expenditure demands and restrictions as well as the availability of donor funding entirely dictated and governed the process. This amounted to a technocratic style of policymaking, which poses a threat to democracy because the public cannot scrutinise decisions or the dynamic of bargaining – a scrutiny that is at the heart of democratic politics.

Policymaking between 1994 to date

Transition to democracy The transition to democracy in May 1994 represented a huge opportunity for the renewal of the policymaking process in Malawi. It presented opportunities for

362 Chapter 13: Public Policymaking possible significant transformation of the policymaking process from the exclusive domain of the President and the bureaucracy to an activity subjected to a wide range of influences from actors at different levels of society. The transition to political democracy thus heralded the reconstitution and restructuring state–society relations especially within the sphere of policymaking since the one-party system had virtually wiped out the structures of civilian representation, oversight, and participation in the political process. Unlike in the one-party regime, the policymaking process in the new era was set up to be subjected to the influence of a multitude of actors at various levels of society so that it would be a substantively more democratic process. Among other things, the aim was that it would be procedurally more open and inclusive, with potentially qualitatively different policy outcomes. Some considerable changes were therefore generally expected in the policymaking process from the new party at the helm of Government, the United Democratic Front (UDF), who campaigned on a poverty reduction platform. It pronounced poverty reduction as its central operative development philosophy and committed itself to establishing participatory decision-making processes and development structures in order to effectively deal with the acute depth and breadth of poverty in the country. Poverty reduction initiatives since 1994 have included the Poverty Alleviation Programme (PAP); the Vision 2020; the Malawi Poverty Reduction Strategy Paper (MPRSP); and the One Village One Product (OVOP). In addition, the Constitution through Section 13, espouses the principles of national policy, which urges the state to adopt and implement policies and legislation that shall promote the welfare and development of the people of Malawi. In particular, Section 13(o) calls upon the state ‘to introduce measures which will guarantee accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and transparency will strengthen confidence in public institutions’. However, the policymaking process still needs to be improved and consolidated.

Stakeholders in the policymaking process One of the underlying assumptions about policymaking in democratic systems of governance as stated above is that it is an open process involving a wide range of actors or stakeholders. These stakeholders have thus considerable influence and impact not only on the policy process but also on the final policy outcomes. Who are then these stakeholders in the policymaking process in Malawi since 1994? Several actors can be identified since policymaking is at least no longer an exclusive domain of the President as was the case between 1964 and 1994. These stakeholders, among others, include political parties, civil society (the church, citizen groups, NGOs, and professional associations), the media (print and electronic), international organisations (international financial institutions and donor agencies), the three branches of

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Government (Legislature, Executive and Judiciary) and the public at large. The potential roles of these actors in the policymaking process are summarised in Table 1 below.

Table 1: Stakeholders in the Policymaking Process

Stakeholder Role in the Policymaking Process

Media Act as a sounding board in their interactive relationship with public opinion. The media often call attention to issues on which political action and policymaking are required.

Political parties Put forward interests, aspirations, and beliefs of their members into coherent ideological platforms, policy initiatives, and programmes. They therefore provide a forum through which the grassroots can offer inputs and exert influence over the policymaking process

Civil society: the church, Offers the grassroots alternative channels of participation and interest organisations or influence in the policymaking process in their respective spheres pressure groups or of influence. They operate in the fields of empowerment, human specific NGOs rights, gender equality, poverty reduction, political participation, sustainable development, economic governance etc.

Judiciary Determines and specifies not only what Government cannot do but also what it must do in order to meet legal and constitutional requirements for policy decisions. Initiates and implements policies to be legislated on by Executive Parliament.

Parliament (Legislature) Legislates policies and provide oversight in the implementation of those policies. It is thus expected to aggregate and articulate citizen’s choices, scrutinise policy proposals, and provide legitimacy for policy decisions.

Public (citizens) Exerts influence over the policy process through various channels at their disposal, for example, through representation in the Legislature, media, civil society, political parties, mass mobilisation and demonstrations etc.

International Influences the realm of economic policies by playing a key role organisations since the country’s economy is heavily donor dependent. The allocation of resources to competing policy priorities is dependent primarily on donors’ preferences. The national budget without donor support is hardly viable

How have some of these potential stakeholders in the policymaking process performed since 1999? Let us consider, for example, Parliament, civil society and the media. Parliament is often weak and marginalised in terms of its legislative and

364 Chapter 13: Public Policymaking oversight functions. Parliament, for instance, played almost no part in the development of the MPRSP and yet the MPRSP is supposed to serve as the overriding framework for the country’s development policy and planning. It was sidelined on the pretext of its lack of skills and expertise to undertake such a demanding and challenging task. Most of Parliament’s committees were non- functional until at least 2000 when the work of the Public Accounts and Public Appointments Committees hit the headlines. This non-functionality of most of the committees is attributed to lack of funding although there is some evidence that funds allocated for committees were routinely diverted for other purposes. The situation has changed somewhat recently. Some donors have come forth to support six of the 13 committees at least on a consistent basis in their respective activities. As a result of this intervention, the Public Accounts Committee instigated investigations into the massive corruption scandal in the Ministry of Education; the Agriculture and Food Security Committee played a critical role in the investigations on corruption and mismanagement by Agricultural Development and Marketing Corporation (ADMARC) and the Strategic Grain Reserves; and the Budget and Finance Committee has been very vocal about the legality of funds procurement for President Bingu wa Mutharika’s proposed five billion Kwacha rural credit scheme. The problem however is that the activities of these committees can hardly go beyond donors’ interests since they are almost entirely donor dependent – both financially and technically. Civil society organisations (CSOs) have been fairly active in the policy process but their main constraints are: 1) they do not always enjoy a cordial relationship with the Government since the Government views them as dissident political forces rather than as partners in development policy planning and implementation; 2) they are highly fragmented; and 3) they are often elitist in nature and urban based. This means that they only speak for a minority of the population, however active and influential in the policy process. The excessive fragmentation of CSOs has meant that their activities tend to be reactive instead of proactive. A further implication of this fragmentation is that most CSOs have merely used the openness in the political system to lobby for policy decisions that directly affect domains of their interests. NGOs such as the Consumer Association of Malawi (CAMA) and the Malawi Economic Justice Network (MEJN) and professional associations such as the Society of Accountants of Malawi (SOCAM); the Law Society of Malawi (LSM); and the Economics Association of Malawi (ECAMA) have been quite prominent in this regard. The influence of the media in the policy process is limited mainly because the Government exercises tight control over the state owned radio and television stations, which have nationwide coverage. The state tightly controls the public

365 GOVERNMENT AND POLITICS IN MALAWI broadcasters despite the communications sector being formally deregulated by the Communications Act No 41 of 1998. The public broadcasters are essentially mouthpieces of the Government, functioning more or less in the same way the radio station did under Dr Banda. Private print and electronic media have emerged but their coverage is very limited. Most private radio stations have very limited coverage and they are not by law allowed to broadcast detailed news bulletins. The bureaucratic licensing procedures are a huge constraint to entry into the electronic media industry. Newspapers are relatively expensive and predominantly in English, so are read almost exclusively in urban areas. Rural people, who ironically constitute a majority, are therefore excluded. They only listen to and watch what the Government would like them to hear and watch, since it is only the public broadcasters that have nationwide coverage. Furthermore, the ownership structure of private media adversely affects them. Ownership of the private media is concentrated in the hands of politicians or people who have very strong political leanings or inclinations. The result of this ownership structure is that the media is predominantly used as a propaganda tool.

POLICY CASE STUDIES IN MALAWI

By looking at examples of policy processes which lead to actual, implemented policy decisions, we are able to evaluate the roles played by the stakeholders in the policy process as specified in Table 1. Case studies in this regard provide the opportunity not only to identify the various stakeholders involved in the policy process but also to assess their relative influence as well as the nature and pattern of their relationships. An equally key question in examining policy case studies is to consider whether the policy processes reflect or correspond to the various stages in the policymaking cycle as specified above. The policy case studies examined below are the MPRSP and Medium Term Expenditure Framework (MTEF) budgetary reforms.

The Malawi Poverty Reduction Strategy Paper (MPRSP)

The MPRSP is a policy initiative for debt relief under the HIPC agreement managed by both the IMF and World Bank. The prerequisite for a country’s eligibility for the HIPC scheme was to come up with the Poverty Reduction Strategy Paper (PRSP) which would show how the twin goals of sustainable growth and poverty reduction are to be achieved using resources freed from debt service. The underlying objective of the PRSP approach is to change the nature of the donor recipient relationship, and encourage local responsibility and commitment towards a poverty reduction

366 Chapter 13: Public Policymaking policy. Potentially, therefore, the PRSP initiative opens up policy and planning processes to extensive participation by ordinary people and civil society groups to ensure ownership of the poverty reduction policies. It thus promises a new kind of relationship between Governments, donors, and local people in which donor conditionality is replaced with partnership. Malawi qualified for the HIPC scheme because of its huge foreign debt as shown above. This resulted in the MPRSP whose main theme is to achieve sustainable poverty reduction through the empowerment of the poor. With four programme intervention pillars, the MPRSP intends to achieve sustainable poverty reduction through: • Changing perceptions of the poor from helpless victims of poverty to active participants in the economy; • Changing people’s motivation from short-term personal enrichment to long- term national benefit; • Emphasising implementation by making sure plans are translated into action through budgets; and • Making implementation transparent and participatory.

The MPRSP was formulated in two stages. The first stage involved developing an Interim PRSP (IPRSP) towards the end of 2000. This stage involved neither consultations nor participation but the preparation of the IPRSP benefited from the technical assistance of an IMF consultant. The second stage of formulating the MPRSP took off in January 2001. The Ministry of Finance and Economic Planning assumed a leading role in the preparation of the MPRSP. Up to 21 thematic working groups (TWGs) covering the major sectors of the economy were formed. The TWGs developed thematic papers based on consultations with stakeholders at various levels of Government and society. These thematic papers were in turn summarised and synthesised into the MPRSP by a drafting team supported by an IMF consultant. The drafting team reported to the PRSP Technical Committee. This served as the main technical decision-making body for the process and content of the PRSP. It was also responsible for organising meetings and consultations and preparing the final MPRSP document. The National Steering Committee of Principal Secretaries and a Ministerial Committee supported the Technical Committee. The former provided policy advice and the overall management of the process whilst the latter provided political and policy direction to the PRSP process. The striking feature of the composition of these committees was that the economic and financial sectors of Government heavily dominated it. Members of these committees were from the Ministry of Finance and Economic Planning, the Ministry of Agriculture and

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Irrigation, the Ministry of Health and Population, the Ministry of Transport and Public Works, the Ministry of Education, Science and Technology, the National Economic Council and the Central Bank. Most reviews of the PRSP process however indicate that the participation of the civil society groups and the public at large was quite problematic. The partnership advocated by the PRSP approach between Government, donors and civil society proved extremely difficult to translate into practice. To begin with, the Government was initially against the participation of other stakeholders in the PRSP process. This was justified on the basis that Vision 2020 process consultations were sufficient to provide inputs for the preparation and development of the MPRSP. Following concerted campaign efforts of CSOs under the leadership of MEJN, civil society representatives were eventually included in the TWGs, Drafting Team, and the Technical Committee. They had however no representation in the National Steering and Ministerial Committees. The process of selecting civil society representatives into the TWGs, Drafting Team, and Technical Committee was problematic, however. It was not done in a fair and transparent way. Government screened names suggested by MEJN and rejected most of them. In some instances, Government officials nominated alternative civil society representatives whom CSOs had not suggested. Their treatment, accorded to CSO representatives, was further discouraging. Most of them were not invited in time for meetings and had to meet their own expenses while their Government colleagues had their expenses covered. The major achievement of CSOs, however, was to manage to persuade Government to extend the time for the PRSP process from two to ten months in order to allow for meaningful consultation and analysis. CSOs had no representation on the higher-level committees, apparently because of the Government’s and IMF’s distrust toward CSOs. They were perceived as self- appointed people’s representatives, exclusively based in urban areas (or more crudely IN Lilongwe clubs), and supported by donors with ulterior motives. The relationship between Government and CSOs is distrustful, as reflected in the sentiments below: We learn that on Monday NGOs appealed to donors to assist in persuading the government to account for its use of HIPC resources. This is jumping the gun. There is no denying that greater transparency and accountability on the part of the government can be achieved if NGOs and the civil society at large are involved in the planning and execution of social and development objectives. But this presupposes a partnership built on mutual trust and shared responsibility to serve Malawians. Where one party is not playing according to rules, why not discuss the problem first and chart the way forward amicably? Reporting on each other to the donor community at the earliest opportunity can only be lack of trust – if not outright animosity – making future cooperation difficult.

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[NGOs] said government was not providing the public with information and in most cases they have had to use unethical means to get information that is supposed to be public. It is pathetic that we have to fight just to be told what is supposed to be public information. Do we really have to be unethical to get information? At times we get surprised at the way our colleagues in government behave. One gets questions like: “What do you want to do with that information, are you government?” The Weekend Nation, 19–20 January 2002 The district level consultations were equally if not more problematic. These were very critical in ensuring national participation in the PRSP process since they provided the most direct link to the public. These meetings were however too short, often lasting less than half a day and held at very short notice. There was no prior information and no clear agenda in the invitations to allow those invited to consult their constituencies before the consultation sessions. No ordinary people were consulted. In addition Parliament which is at least a representative body of the people was sidelined altogether even though some MPs were included in the TWGs, and yet the MPRSP is supposed to serve as the overriding framework for the country’s development policy and planning. The role of Parliament in the MPRSP was vital since its job is to articulate citizen’s choices, scrutinise policy proposals and provide legitimacy to policy outcomes. The major criticism of the PRSP process therefore is that it merely facilitated approval of preconceived plans rather than building national consensus around an appropriate poverty reduction strategy. Even though CSOs were involved in the PRSP process, they still have huge misgivings about it. They have characterised the consultative process as mere window dressing for decisions which the Government would have made any way. The basis of CSOs’ position is that the Government anxiously sought to control the consultative process and discouraged independent analysis that would have led to tremendous public criticisms. For instance, the Government refused an independent CSO working group to review the draft thematic papers prior to the finalisation of the MPRSP. The CSO working group argued that the Government was oddly determined to minimise the influence of CSOs to shape the MPRSP because the macro-economic framework of the MPRSP relied on agreements made beforehand with IMF and the World Bank. The feeling of the CSOs is that the IMF and World Bank dictated priority areas, for which HIPC resources were earmarked, at the expense of the genuine priorities of Malawians.

Medium Term Expenditure Framework (MTEF) Budgetary Reforms

The MTEF budgetary reforms were initiated in 1995 in order to democratise the budgeting process in line with the prevailing political dispensation. This was necessary because the budget in the one-party era was prepared behind closed

369 GOVERNMENT AND POLITICS IN MALAWI doors without being subjected to any political bargaining, negotiations, or compromise, as noted above. The budget information was made available to Parliament and the public only after the Executive had made policy decisions. The MTEF budgetary reforms were intended to achieve the following goals: • Resource planning and budgeting aimed at stabilising the budget deficit and improving strategic prioritisation in resource allocation; • Controls on public spending in order to ensure adequate oversight and compliance to prescribed budgetary priorities; and • Aid and debt management.

These reforms were imperative because many of the problems in resource management stemmed from the failure to reconcile needs with available resources. Thus, the MTEF reforms intended to change the role of the budget from a centralised inventory of inputs adjusted on an incremental basis to an output focused approach based on costing of priority activities and projections of available inputs. The main objective of the MTEF is to ensure that there is a systematic linkage between inputs, outputs and outcomes within a framework that ensures consistency of sectoral expenditure levels with the overall resource constraints. These budgetary reforms have become even more important following the adoption of the MPRSP. The MPRSP is supposed to be the guiding principle for development planning with a particular focus on Priority Poverty Expenditures (PPEs). These are the specific MPRSP features that guard against diverting expenditures that could build human capital, which is critical for poverty reduction and social development. There are however several problems with these reforms. There seems to be consensus among the three main groups of stakeholders – the public actors, civil society and the donors – that interact both formally and informally at various stages of the budget process that their actions have little bearing on the actual distribution of resources reflected in the budget. This is due to two main constraints. First, even before the budget process begins one third of the resources is already allocated to debt service. Second, technocrats do not take budgeting procedures as outlined in the MTEF budgetary reforms seriously. This is the case because they know that even if they work to make sound technical proposals, the President and Cabinet will alter them to suit their own strategic interests and political considerations. This means that the final budget allocations are based on neither the technical proposals submitted by departments or ministries nor on the MPRSP prescribed allocations. Criteria based on strategic political interests thus influences the budgetary allocations. Controlling officers are, for example, often under pressure to allocate funds for political objectives such as distributing gifts like blankets or food at political and social functions, visits to hospitals etc. Funds are moved from

370 Chapter 13: Public Policymaking operational expenses to administrative functions affecting the planned activities of departments and ministries as indicated in their budget allocations. Pre-budget consultations were introduced in the 2000/2001 fiscal year in an attempt to open up the budgeting process to the public. Sometimes even post budget consultations were held. However, the major criticism of the consultations is that they tend to be too unstructured to ensure that their outputs are taken into account in formulating the budget. The consultations are ad hoc and not based on shared objectives among the stakeholders involved. Furthermore, very few CSOs are involved in these consultations since not many of them have the requisite expertise to tackle issues of economic governance and accountability. Three NGOs have been particularly active in the budget consultations. These include Economics Association of Malawi (ECAMA), MEJN, and Society of Accountants of Malawi (SOCAM). The main problem with these NGOs however is that they are not only exclusively urban based but they are also very much elitist in nature. As such, the majority of the people both in urban and rural areas are excluded from the budgetary consultative process. This defeats the idea of participatory budgeting altogether. These consultations have been described, therefore, as merely a public relations platform for the Ministry of Finance and Economic Planning and not necessarily a mechanism for ensuring wider public participation in the budgeting process. The nature of the budget is further affected by how Parliament deliberates and passes it. Parliament often passes the budget without any substantive amendment. The main reason for this is the often late presentation of the budget, about two weeks before it is tabled for debate, forcing the Budget and Finance Committee to carry out a very superficial review of the detailed budget documentation. Additionally there is usually a very brief plenary debate on the Minister of Finance’s budget speech. The Budget and Finance Committee is further constrained in its mandate by lack of adequate administrative support and access to technical specialists. It does not have adequate funding either. Parliament’s budget for 2000/2001, for instance, made provision for only 42 days of committee meetings. Furthermore, the Ministry of Finance and Economic Planning induces MPs to pass the budget uncritically by including allowances and benefits that accrue to them once the budget is passed. Donors have also greatly contributed to the problematic track record of the MTEF budgetary policy reforms. This is mainly the case because they have used the threat of withholding aid to influence policies in the form of performance benchmarks or targets, or demands for action. In some cases, donors have even circumvented democratic processes and institutions in order to get the right things done. As a result, donors initiate changes to Government systems which often result in lack of ownership and hence contribute to making the budget largely a work of fiction.

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CONCLUSION

Policymaking is one of the fundamental functions of Governments all over the world. Yet, the nature of policymaking depends very much on the rules, norms, and procedures of the country’s particular political system. Malawi exemplifies how a change in the political system – to political democracy in May 1994 – can influence the policymaking process, especially in terms of who is involved and who is not. In addition to the critical role of a nation’s political system in defining the overall institutional framework for a nation’s policymaking, a nation’s economic performance is also critical because public policymaking involves resource allocation among competing priorities, which is mediated through the national budget. Finally, the international context also makes a difference. Since Malawi is heavily donor dependent, donors tend to have considerable influence in the country’s policymaking processes. As the case studies have demonstrated, policymaking is a messy process. It hardly follows the stages prescribed in the scholars’ model policymaking cycle. In both case studies, for example, the policies did not originate from society but rather from donors, since it is they who tend to have considerable leverage over the resources committed to the policymaking processes in Malawi. In Malawi, the Executive, the Government bureaucracy, and international donors dominate the policymaking process, especially in setting the tone of public discourse and the overall policy agenda. Thus, policymaking is increasingly being restricted to technocrats or those with highly technical expertise and is unconstrained by political processes. The challenge for Malawi is ensuring that citizens do not lose confidence in the democratic process, which can only be gained by ensuring that their votes are relevant and can shape the momentous decisions that affect their lives.

Questions

1. What is a public policy and how does a public policy differ from a decision? 2. When do problems become public policy problems? 3. Who are the major players in policymaking in Malawi? 4. Which of the policy actors are the most influential in affecting public policy in Malawi? 5. To what extent is public policymaking a political process? 6. In what respects do public policy processes in post-1994 Malawi differ from those of pre-1994?

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7. What do you think could be done to institutionalise an inclusive and responsive policymaking process in Malawi? 8. What can be done to strengthen processes of transparency and accountability in policymaking in Malawi?

373 GOVERNMENT AND POLITICS IN MALAWI References and Further Reading

Anderson, J. (1997), Public Policymaking, 2nd Edition, New York: Holt, Rinehart and Winston Chinsinga, B. (2002), ‘The Politics of Poverty Alleviation in Malawi: A Critical Review’ in H Englund, (ed.) A Democracy of Chameleons, Politics and Culture in the New Malawi, Stockholm: Nordiska Afrika Institutet Chirwa, W. (2000) ‘Civil Society in Malawi’s Democratic Transition’ in Ott, M. et al (eds), Malawi’s Second Democratic Elections, Blantyre: CLAIM Chirwa, W. and M. Nyirenda, (2003), ‘Consultation by Helicopter: People’s Participation in Policymaking in Malawi’, Christian Aid Policy Briefing (unpublished) Dunn, W. (1994), Public Policy Analysis: An Introduction, 2nd Edition, Prentice-Hall Inc Fozzard, A. and C. Simwaka (2002) How, When and Why does Poverty get Budget Priority: Poverty Reduction Strategy and Public Expenditure in Malawi, London: Overseas Development Institute Government of Malawi/UNDP (2002), ‘Public Sector Management Reform Programme 2002–2006’, Programme Support Document, Lilongwe Grindle, M. and J. Thomas (1991), Public Choices and Policy Change: The Political Economy of Reforms in Developing Countries, USA: The John Hopkins University Press Ham, C. and M. Hill (1984) The Policy Process in the Modern Capitalist State, Brighton: Harvester Wheatsheaf Hogwood, B. and L. Gunn (1984), Policy Analysis for Real World, Oxford: Oxford University Press Jenkins, R. and M. Tsoka (2003), ‘Chapter 4: Malawi’ in Booth, D. (ed.) Fighting Poverty in Africa: Are PRSPs Making a Difference?, London: Overseas Development Institute John, P. (1998) Analyzing Public Policy, UK: Continuum Kaunda, J. (1992) ‘The Administrative Organization of National Development Planning in Malawi’in G. Mhone. (ed), Malawi at the Crossroads: The Postcolonial Economy, Harare: SAPES Books Meinhardt, H. and N. Patel (2003) Malawi’s Process of Democratic Transition: Analysis of Political Developments Between 1990 and 2003, Malawi: Konrad Adenauer Stiftung, Montfort Press

374 14 FOREIGN POLICY AND INTERNATIONAL RELATIONS

Nandini Patel and Rafiq Hajat

INTRODUCTION

In today’s interdependent world, all nations – big and small, rich and poor – are caught in a web of complex relations touching on all aspects of human life. Growing economic interdependence coupled with a revolution in information technology have made the world a smaller place more closely bound together than ever before. The end of the Cold War has had a profound impact on international relations, giving new momentum to the process of globalisation which compels states to reformulate their foreign policies. These factors have narrowed the demarcation between ‘foreign’ and ‘domestic’ spheres. This has both positive and negative aspects. On the positive side, states are more responsive and supportive to each other in times of crises such as natural disasters and wars, whilst on the negative side there is the widening gap between the developed states and the developing states which feel their sovereignty is under threat. For Malawi, the change to a democratic system has certainly had a profound impact on relations with her neighbours and the rest of the world. This chapter examines how Malawi‘s foreign policy has changed over time and during different regimes and political systems. The chapter explores the following issues: • What is the global context today in which international relations are carried out? • What is foreign policy and what are its aims and objectives? • What has determined Malawi’s foreign policy since independence? • What were the principles of Malawi’s foreign policy under the one-party era and what changes have come about since democratisation? • How is Malawi participating in regional organisations?

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THE GLOBAL CONTEXT

The global environment is a crucial factor in determining the foreign policy of any state. Therefore, an analysis of the global context is necessary to appreciate the dynamics of Malawi’s foreign policy and international relations. The superpower rivalry called the Cold War that dominated world politics for more than four decades came to an end in the early 1990s. The collapse of the Berlin Wall dividing Germany in 1989 and the subsequent disintegration of the Soviet Union in December 1991 represented a turning point in global politics. It represented an end of a bipolar world structure that was broadly defined by the USA–USSR rivalry which emerged soon after Second World War. The disintegration of the Soviet Union and communist regimes in Eastern Europe also had profound ramifications for the rest of the world. Dictatorial regimes that had been propped up by one side or the other, virtually collapsed and democracy re- emerged as the only supposedly viable form of Government across the globe, including Malawi where democracy replaced decades of autocratic rule. The rapid expansion of global communications (the internet and cellular telephony), the increasing connectivity of world financial systems have enhanced interaction between nation states, which can commonly be labelled as ‘globalisation’.

Key concept: globalisation Globalisation refers to the integration of economic, cultural, political, and social systems worldwide. This integration has the effect of making people and places ‘closer’ to one another and thereby more influenced by actions and events occurring within the global system. This also increases their economic, cultural, demographic, political and environmental interdependence.

Globalisation has certain identifiable characteristics such as: • A growing consciousness of the world as a single place, which is reflected in phrases such as the ‘global village’ and the ‘global economy’. • New information and communication technology improving access to overseas markets. • Increasing dependency of human beings in confronting challenges such as drug trafficking and terrorist movements which can be checked by enhanced cooperation across borders. • Weakened state sovereignty especially in the case of smaller/weaker states.

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The term has been defined in many ways from numerous angles and over the past decade, it has generated many passionate debates between those who see it as a boon and those who see it as a curse.

WHAT IS FOREIGN POLICY?

Key concept: foreign policy A plan of action developed by a state towards other states – reduced to its fundamental ingredients, foreign policy consists of two elements: national objectives to be achieved and the means of achieving them through international relations

‘Foreign policy is a Government activity: the Government acts as the representative of the state and people in international relations. Within the Government the activity is mainly, but not exclusively, in the hands of the Executive…Foreign policy is shaped both by the country’s domestic and international settings, and acts like a bridge between the two. Outwards across the bridge the Government projects its interest and values, while inwards come pressures and support from the international setting’ (South African book)

Objectives of foreign policy

These are the main objectives of foreign policy. • National security – It is a fundamental responsibility of a sovereign state to guard its territorial integrity and preserve its sovereign status. • Economic growth and development – Nations pursue economic growth and development through mutually beneficial trade relations on the principles of interdependence and respect for national sovereignty. • Safeguarding or augmenting national power in relation to other states – the power factor plays a fundamental role in foreign relations: it is the ability to influence the behaviour of others and can be due not only to military strength, but also to economic prowess or even personal authority of a state’s leader. • International prestige – Power and prestige often go together. States tend to participate in international forums, hold summits, sports events and so on – even if it means a pressure on their resources – in order to be seen and heard. Both large and small states have varying motives which might be beneficial to the state in the short or long term.

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The interface between domestic and foreign policy Domestic and foreign policies do not operate in exclusive domains. The two are inextricably intertwined and each one has a direct effect and consequence on the other. With the expansion of globalisation, the line separating domestic from foreign, or internal affairs from external affairs, has become blurred and almost nonexistent. The role of large multinationals and international lending institutions such as the Bretton Woods Institutions has had profound ramifications on the sovereignty of nation states.

THE PROCESS OF FORMULATING FOREIGN POLICY A range of external and internal factors influences the foreign policymaking process as shown in the following diagram. Figure 14.1: Variables Affecting Foreign Policy

External factors Structure of the international system (bipolar / global) Interests and actions of other state actors Character of world economy International/regional issues International law and organisations Other international non-state actors (e.g. multinational corporations)

Influences

Decision- making process

Influences National goals Internal factors and interests Geographic and topographic features Government structure and ideology Economic conditions Socio-cultural factors Public opinion Actions Leadership perceptions

Foreign Feedback Policy

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The above diagram illustrates the dynamics of foreign policy formulation, whereby the interplay between foreign and domestic influences are brought to bear in the decision-making process which is translated into national interests and goals. This process involves several stages such as: 1. Determining the international and domestic situational factors related to its goals; 2. Analysing the state’s capabilities for achieving the desired results; 3. Developing a plan or strategy for utilising the state’s capabilities to deal with the variables in pursuit of the goals; 4. Undertaking the requisite action; 5. Periodically reviewing and evaluating the progress made towards the achievement of the desired results.

Determinants of Malawi’s foreign policy: external factors

International system Most African states including Malawi attained independence in the 1960s when the global setting was that of a bipolar world created by the Cold War. The newly independent states came under the influence of either one of the super powers. Malawi, under Dr Banda, adopted a strong pro-western stance and thus was under the influence of the western bloc. This stance was in the name of realism. At the end of the 1980s with the end of the Cold War, Malawi’s foreign policy became more flexible and open. The collapse of communist regimes in Eastern Europe and the resurgence of democracy across the globe during the 1980s and 1990s catalysed events in the African continent in general and the Southern African region in particular. Neighbouring states, such as Zimbabwe and South Africa, underwent regime change and radical transition, whilst others such as Zambia, Mozambique and Tanzania were undergoing political change. All these external changes coupled with internal pressures influenced a regime change in Malawi and effected significant changes in domestic and foreign policies that irrevocably altered Malawi’s stance towards regional, continental and global actors.

Character of world economy The collapse of communist regimes implied decline of the relevance of communism as an ideology and the subsequent triumph of capitalism which redefined the world economy along the precepts of the free market economy, which was buttressed by greater connectivity and integration of global financial systems. Free market forces exerted irresistible influence that impelled countries like Malawi to shed their insularity and join the global financial community. This

379 GOVERNMENT AND POLITICS IN MALAWI called for fundamental changes and reformulations in the domestic economy such as the drive for privatisation that Malawi has implemented since 1995. Although privatisation was not a new concept in Malawi, this period saw it being pursued with renewed vigour.

International/regional groupings Malawi’s emergence from insularity can be gauged by its membership of, and increasing participation in international and regional groups such as the United Nations (UN), the African Union (AU), Southern African Development Community (SADC), the Common Market of East and Southern Africa (COMESA), amongst others, and subsequent ratification of numerous agreements, charters and covenants. Membership and participation in these bodies was important from two angles: • To enhance the pace of economic and social development through new partnerships and collaborations between the state and non-state actors; and • To guide and promote the democratic governance process as democracy was a new phenomenon in the region. The influence of international legal instruments on national constitutions is quite visible. For instance, Malawi’s Constitution like most other democratic Constitutions incorporates a section on human rights that is guided by the Universal Declaration of Human Rights as well as other international legal instruments such as the Convention against Genocide, Convention on the Status of Women, Refugees, etc.

Multilateral organisations and international non-governmental organisations (NGOs) The increasing presence of the Bretton Woods Institutions (International Monetary Fund {IMF} and the World Bank) has demanded more fiscal discipline and accountability on the part of the Government. These institutions also keep a vigil on democratic governance. For instance, during the open/third term debate for the presidency in 2002/2003, these institutions suspended financial support, thereby strengthening democracy. The expansion of the United Nations agencies over the years in areas of economic and social development has been significant and Malawi has benefited substantially from institutions such as the United Nations Development Programme (UNDP), the World Food Programme (WFP) and others.

Determinants of Malawi’s foreign policy: internal factors

Geography Location and resources play an important role in international relations. For instance, Afghanistan has, historically and currently, held strategic importance due

380 Chapter 14: Foreign Policy and International Relations to its location, and the Democratic Republic of Congo (DRC) has been of strategic importance because of its resources. Dr Banda considered Malawi’s location as a land-locked country to be the decisive factor in defining Malawi’s foreign relations. He believed that the location did not leave many options for Malawi to pursue stands like other countries in the region. This position is questionable because there were also other land-locked countries like Botswana (albeit resource rich) which pursued a more open policy. Dr Banda was keen in maintaining relations with the white regimes of Rhodesia, Mozambique, and South Africa due to economic necessity since these countries held the key to the trade routes and he counted on white support to perpetuate his rule.

Ideology and types of Government Ideology plays an important role in international relations. During the Cold War era, the ideology factor was the main determinant of a state’s global identity and economic status. Though authoritarian Governments such as China have freely engaged in relations with other states, the re-emergence of democracy today has created a preferential system whereby democratic states prefer to support each other in the knowledge that they will enjoy more stability and continuity than their autocratic counterparts. Malawi therefore enjoys greater support from its ‘democratic’ partners such as Britain, the EU, and the USA by virtue of being a new democracy in Africa.

Economy Malawi has, historically, relied on foreign aid to combat endemic poverty and low levels of human development. This reliance has curtailed its independence and flexibility in formulating its own foreign policy. It is therefore imperative to develop its capacity to attract Foreign Direct Investment (FDI), demand ‘fair trade’ terms through the World Trade Organisation (WTO) and explore other avenues of economic growth such as developing the tourism industry etc. in order to attain flexibility in pursuing an independent international relations policy.

Socio-cultural factors Factors such as ethnicity, religion, language etc also play a role either in fostering unity or causing divisions between states. For example, Tanzania, Kenya and Uganda enjoy a common language and ethnic links which have enhanced their homogeneity and interaction. Social factors can also be a divisive force especially where an ethnic group, which constitutes a minority community in one state, is in the majority in another, neighbouring state, e.g. Rwanda and Burundi.

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Public opinion The recent wave of democracy has necessitated greater sensitivity to public opinion in many areas, such as service delivery, governmental performance, fiscal probity and international relations which were once held to be the exclusive domains of autocratic heads of state. For example, the Malawi Government adopted and presented position papers prepared by civil society groups in readiness for the WTO meeting in Hong Kong in 2005 – which would have been unthinkable in the past.

Leadership perceptions Dr Banda’s fervent anglophilia was translated into a perception that ‘white equals might equals right’. This was demonstrated by his staunch allegiance to pro- Western interests – to the exclusion of all else, whilst under Bakili Muluzi, doors were opened to a wider spectrum – both within the region and without, including countries such as Kuwait, Egypt, Saudi Arabia and Libya.

MALAWI’S FOREIGN RELATIONS – INTERESTS AND CHALLENGES

The era of Kamuzu Banda has been described as one of realism in striving for the economic security of Malawi. Dr Banda described his approach as discretional alignment and neutralism – an approach that he felt would secure what was right or good for Malawi. The basic tool of Malawi’s foreign relations, according to the leader, was that of ‘contact and dialogue’ and not of using force and sanctions.

Territorial security and gain

Malawi’s borders were fairly secure, as she shared her borders with Tanzania, Mozambique and Zambia. In other words, Malawi was surrounded by black African states and not by any white dominated states such as South Africa, Namibia or Southern Rhodesia, and therefore did not have to contend with guerrillas seeking refuge or setting up bases in her territory with the intention of pursuing their liberation struggle. For trade and economy, Malawi was more dependent on Mozambique, as Dr Banda stated that he regarded the Indian Ocean, and not Lake Malawi, as his country’s natural eastern border (Saxena 1982). There were other reasons for Dr Banda’s friendliness to white regimes and the Western powers, which went beyond mere national interest and security factors. One such reason emanates from the assurances of Salazar and the Portuguese settlers to Dr Banda, that they would give him the northern part of Mozambique in return for not allowing Frelimo

382 Chapter 14: Foreign Policy and International Relations freedom fighters to pass through Malawi. There were wrangles with Tanzania over ownership of the northernmost part of Lake Malawi and Mozambique’s Samora Machel placed SAM missiles on borders common to Malawi.

Economic security

The economic security of Malawi was seen as attainable only via the pathways of capitalism and, upon attaining independence in 1964, this ideology was already deeply rooted in the mindset of the political and economic elites. This ideological bent was an important factor in promoting friendship with Taiwan and South Africa and these countries responded by assisting with agricultural projects such as the rice growing scheme at Lake Chirwa and the construction of the new Capital City in Lilongwe. The ideology and policies of Dr Banda could thus be argued to have yielded good results – at least in the first decade of his rule. Malawi’s dependence on South Africa for her economic survival was Dr Banda’s justification for making Malawi a virtual satellite of the Republic of South Africa in the face of open disapproval from Members of the Organisation of African Unity (OAU), who frowned upon Malawi’s strenuously pro-Western, anti-communist position and her virtually deaf ear to the UN resolutions against apartheid. In his opening address to the Malawi Congress Party (MCP) convention in 1967, he explained his position on foreign policy as, ‘I have refused to jump on the band- wagon or to join the orchestra of hatred against such countries as South Africa, Rhodesia, , or Mozambique. My foreign policy has been, from the very beginning and all along, friendship and co-operation with all our neighbours and, for that matter, with all countries which are willing to be friends and cooperate with us. This is why I have constantly refused at the Summit meetings of the Organization of African Unity in Addis Ababa, or the conferences of Commonwealth leaders in London and at the General Assembly of the United Nations in New York, to boycott or isolate South Africa, Rhodesia, Portugal or Mozambique’. Dr Banda, proclaimed in one of the OAU summits that, while Malawi was as sincere in her dislike of colonialism and apartheid as any other member, her position made it impossible for her to comply with those OAU resolutions which called for a severance of economic and political ties with the white regimes in Southern Africa (McMaster 1974).

Inconsistencies in Malawi’s foreign relations under Dr Banda’s regime

Independent Malawi could not escape from the reality that it was surrounded by states in the region like South Africa, Namibia, Southern Rhodesia, and Portuguese

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Mozambique, where nationalist movements were still waging fierce armed liberation struggles. Dr Banda made a policy statement on the issue of colonialism at the Conference of Heads of State and Government in Cairo in July 1964 which read as follows, ‘The independence of Malawi will be meaningless as long as there is an inch of African soil under colonialism and imperialism. I share the views already expressed in this conference and elsewhere that all independent African states and all African leaders must do everything possible in their power to help those countries which are still under the colonial yoke.’ In August 1965, Emperor Haile Selassie of Ethiopia visited Malawi where he issued a joint statement with Dr Banda on the need for the liberation of Southern Rhodesia and their support for OAU efforts to that end. The statement was clearly a determination to take vigorous and immediate steps against any unilateral declaration of independence of Southern Rhodesia by a white dominated Government, and to take appropriate measures, including the recognition and support of an African nationalist Government-in-exile, should such an eventuality arise. However, by the OAU summit meeting in October 1965, Dr Banda had changed his position and was no longer willing to endorse the anti-Rhodesian resolutions of the OAU. Dr Banda opposed NIBMAR (‘No Independence before Majority Rule’) in Southern Rhodesia. This was a demand made by four African leaders, Nyerere, Kaunda, Obote, and Murumbi, not to grant independence to Southern Rhodesia before the achievement of majority rule. According to Dr Banda, NIBMAR was ‘an empty and idle slogan’. This stance of Dr Banda was not only at variance with other African leaders, but also with Britain because Britain, largely due to pressure from Commonwealth countries, finally endorsed ‘NIBMAR’. The contradiction in Dr Banda’s approach was evident in his relations with the newly formed Southern African Development Coordination Conference (SADCC), in which he agreed to share the principles and aims of the forum while, at the same time, allowing South African backed Renamo dissidents to sabotage rail routes through Mozambique which were crucial to Zimbabwe, Zambia, Zaire, Botswana and Malawi itself. Dr Banda proclaimed that he was willing to be friendly and cooperate with any country as long it was of benefit to Malawi. However, this again was not true, because he flatly refused to accept any assistance from communist countries – no matter how soft the terms and conditions they offered – preferring to take loans from the West in spite of less favourable terms and conditions. An example of this is manifest in Malawi’s exclusion from the Tazara railway connecting Dar Es Salaam (Tanzania) to (Zambia), built by the People’s Republic of China, despite the fact that connection to this railway line would have provided Malawi with another link to the sea, which would have proven crucial with the destabilisation of existing rail links through Mozambique.

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All the aforementioned issues vividly demonstrate the often paradoxical twists and turns that were created by the attempted merging of Dr Banda’s personal preferences and aspirations with Malawi’s national interests in its foreign policy.

Malawi’s trade and development

Malawi’s main foreign policy objectives were to achieve maximum developmental benefits through loans and grants, technical assistance, private investment, and assured markets for her agricultural produce. These objectives were to be pursued through three principles, namely, • Non-interference in the affairs of other countries; • Assessment of individual situations on their merits rather than by the alignments of the countries involved, and • Willingness to accept the aid of any country prepared to help Malawi.

In practice, however, her trade and aid partners were, without exception, non- communist countries. Malawi’s stand on international issues has generally been strongly anti-communist and financial assistance extended by the People’s Republic of China was spurned. In the years immediately following independence, Malawi’s consumption was 6% higher than GDP (gross domestic product) whilst investment comprised 20% of GDP. Overseas development aid (ODA) largely financed the excess of total expenditure over GDP. This scenario prevailed until the mid-1970s. During this period, the average rate of savings rose rapidly due to the Government’s economic policy, which combined a strong emphasis on capital formation with a determined effort to reduce dependence on foreign (mainly British) aid. Apparently, Dr Banda was bent on weaning Malawi off British aid in order to prove to the world that tiny, landlocked Malawi could be a sustainable independent country. This dream floundered when the terms of trade for Malawi declined sharply in 1979 and 1980, the volume of investment fell sharply, and the volume of consumption grew at a much slower pace. In 1975 outstanding external debt was only US$39 million and debt service payments absorbed less than 8% of exports. However, the balance of payments situation changed dramatically, partly as a result of President Banda’s decision in 1974 not to allow Malawians to work in South African mines after a piston-engine aircraft carrying Malawian workers crashed. Remittances from these workers subsequently declined by US$28 million in 1976 (14% of goods and services exports) thereby necessitating increased dependence on ODA, which did rise appreciably, but the current account deficit continued to spiral even more steeply

385 GOVERNMENT AND POLITICS IN MALAWI and Malawi was forced to borrow funds on hard terms to augment the deepening deficit. Despite the ban being lifted in June 1977 after an agreement that Malawian workers would be flown to South Africa on Air Malawi or South African Airways jets (Legum 1980: B306), the balance of payments deficit continued to climb to 22% of GDP in 1980, outstanding debt rose to US$229 million and the debt service ratio increased to 20% in 1980 because the volumes of fund inflows that were previously experienced were never regained. Foreign trade comprised the pivotal part of Malawi’s economy, whereby exports and imports accounted for approximately 50% of GDP. This scenario made Malawi extremely susceptible to fluctuations in the terms of trade. Figure 1 below demonstrates that, though the terms of trade were relatively favourable during 1970–71, this situation declined in the ensuing years due to increases in oil prices globally. Thus, despite a peak position in the terms of trade index in 1977, the next two years’ decline led to a loss in gross domestic income (GDI) of approximately 9%. This heralded the beginning of the downslide.

Figure 2: Malawi Terms of Trade 1960–1986

250

200

150 Terms of Trade

100 (Index 1980 – 100

Export Price Index

50

Import Pric Index

0 1960 1962 1964 1966 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986

YEAR

Source: Ravi Gulhati Malawi; Promising Reforms – Bad Luck, Edi Development Policy Case Series No 3

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To finance its development plans and other objectives, Malawi had resorted to borrowing huge sums of money on the international money markets on a floating rate basis, which decreed that interest rates would fluctuate in line with global trends. Thus, Malawi’s debt service burden escalated steeply as international interest rates abruptly shot up and total interest payments on public debt rose from US$7 million in 1977 to US$24 million in 1979; about 11% of this increase was the result of the hike in rates. Droughts in 1980 and 1981, which adversely affected maize output, further exacerbated this situation, necessitating the import of 11,000 tonnes of maize in the first year and 56,000 tonnes in the second year. Though Food Aid financed 43% and 30% of these imports respectively, the balance of 25% had to be borne by Malawi’s meagre foreign exchange earnings, which placed further strain on rapidly shrinking foreign exchange reserves. This extraneous shock trend continued into the 1980s, when Malawi was earnestly trying to stabilise its somewhat battered economy. The terms of trade improved marginally in 1981 and 1982, but subsequent years saw more reversals (see Figure 2). To cap it all, Malawi suffered a major setback in its access routes to the sea, which were essential for the flow of imports and exports traditionally routed to the sea by rail through Mozambique (SADC Protocol on Trade). These routes, through the ports of Beira and Nacala, accounted for more than 90% of Malawi’s foreign trade (Figure 2) but became unreliable, partly because of insurgency and partly because of the deterioration of Mozambique’s railway system. By 1984, the routes were virtually closed and cargo had to be re-routed via Durban, which was much more expensive thereby affecting adversely, yet again, Malawi’s terms of trade. Thus, importing fuel increased by seven times, and the cost of exporting tobacco and tea tripled. The cost of transporting imports increased from 16%–25% in 1980, to 35% by 1982, and over 40% by 1985. All these divergent routes cost an additional US$41 million in 1985, or 15% of exports of goods and services, excluding the extra cost of pilferage, spoilage, and storage. The situation was stabilised somewhat when Malawi established diplomatic relations with Mozambique in 1981, six years after Frelimo’s victory. According to Legum (1983: B643), ‘there had been frequent rumours about Malawian support for anti-Frelimo groups’. In 1984, there was an agreement between the two Governments, but it did not last long and accusations about rebel bases in Malawi persisted. Meanwhile, Malawi joined SADCC, established diplomatic relations with Tanzania in 1985, and in 1986 signed another agreement with Mozambique on matters concerning defence, security, and public order (See Africa Research Bulletin 1987). The above facts highlight Malawi’s dependency on its neighbours for access to

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Figure 2 Malawi: Trade Flows by Transport Routes 1976–85

800

700 Mozambican Ports Beira and Nacala 600

500

400

(Thousands of tons) 300

Durban Port 200

100

0 1976 – 78 1979 1980 1981 1982 1983 1984 1985 YEAR Source: Ravi Gulhati, Malawi; Promising Reforms – Bad Luck trade routes and on fair (not free) trade for its main exports, such as tobacco and tea, to enable any kind of sustainable economic survival and growth.

Malawi’s trade relations

During the colonial era, Malawi’s or Nyasaland’s (as it was called then) trade relations were historically bound to its erstwhile colonial master, Britain, who bought most of the tea, tobacco, coffee and cotton that was grown on estates owned mainly by white colonial settlers, and exported finished goods in return. Due to the lack of mineral resources, the only other ‘commodity’ which the UK saw as profitable was providing cheap labour to the other, more dynamic and well- endowed colonies that comprised the Federation of Rhodesia and Nyasaland, and further abroad, to the fabled gold mines of South Africa. Thus, a major export was providing cheap labour in the South African mines, which contributed as much as 25% at the peak of that period. Today, South Africa is Malawi’s major trading partner and has now proceeded to invest in Malawi. However, such investments are usually in areas that promote consumerism of South African goods and are not necessarily to Malawi’s advantage due to the fact that they do not develop or enhance Malawi’s industrial/productive capacity and

388 Chapter 14: Foreign Policy and International Relations thus create foreign exchange outflows to South Africa without commensurate inflows. Antipathy is growing toward South African firms’ alleged economic imperialism, as they can call upon capacities and resources beyond the reach of most Malawian firms. Zimbabwe (in colonial times called Southern Rhodesia) was historically the main trading partner since the days of the Federation of Rhodesia and Nyasaland and still enjoys much importance in that respect, but Malawi has always suffered a disadvantage in view of Zimbabwe’s superior economic base and manufacturing capacity, which perennially creates imbalances in the trading account between the two countries. Bilateral Preferential Trading Agreements (PTAs), which commenced in the 1980s and are still in effect today, exacerbated this imbalance. The PTAs created a situation where Zimbabwe’s exports to Malawi tripled over a period of ten years, whilst Malawi’s exports to Zimbabwe halved during the same period. The agreements were so lopsided that Zimbabwe imported broken rice from North Korea, but used non-tariff barriers (such as denying permits to import rice from Malawi, preventing Malawi transporters to ferry rice etc.) to impede the importation of rice from Malawi, while, at the same time, deluging Malawi with consumer goods and even chickens, eggs, and potatoes. However, the current political instability and consequent decline of Zimbabwe’s economy has impelled Malawi to look for other, viable sources of vital imports and Mozambique seems to be taking its rightful place as a logical favourite trading partner. The table below gives an overview of Malawi’s current trading partners and the volume of trade conducted in 2004. The table on page 390 illustrates that countries in Europe are Malawi’s largest export markets, closely followed by the USA, which is rapidly growing in importance as a trading partner through bilateral initiatives such as African Growth Opportunity Account (AGOA) which grants Malawi tariff exemptions on certain exports.

Foreign aid

Key concept: foreign aid Foreign aid refers to support in a variety of forms and for a variety of purposes, including grants and ‘soft’ loans and/or technical expertise. Foreign aid can be bilateral or multilateral aid. Foreign aid usually comes with conditions set down by its provider.

There are broadly two categories of foreign aid coming into Malawi: democracy aid (i.e. to strengthen institutions of democracy such as Parliament, elections) and

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Table 1: Malawi’s International Trade as at December 2004

Imports Exports Re-exports Country K million K million K million South Africa 31,901 7,595 111 Mozambique 13,693 1,792 1,253 UK 5,175 5,195 2 Zimbabwe 4,805 962 112 Japan 3,921 1,049 3 Zambia 3,662 757 348 USA 2,740 5,933 1 Kenya 1,946 187 1 Tanzania 1,840 527 Germany 1,111 3,847 127 Switzerland 117 2,030 23 Ethiopia 11 2,250 Burundi 7 3,126

NB exports applies to goods/services that were exported from, or imported into Malawi and subsequently re-routed elsewhere developmental aid (such as projects in health, education, or for infrastructure such as roads). Aid comes in the form of grants that need never be paid back or soft loans that need to be repaid (with interest at concessional rates) at some point in time often by future generations who had no say in their predecessors’ incurrence of such liabilities. Malawi’s key donors are: The UK, Norway, Denmark, Germany, the USA, The European Union, Japan, and The Republic of China. These countries have been Malawi’s principal sources of foreign aid outside Africa. Malawi has, in addition, received technical assistance in the form of personnel, equipment, supplies, from a number of other countries such as Libya and Egypt. Generally, foreign aid is bilateral, meaning that it flows directly from one country to another. If it is channelled through international institutions, it is called multilateral aid. Unfortunately, recent studies show that Malawi has not realised the maximum benefit from the amount of aid that it has received over the years. This may be because donors did not understand, or attempt to come to grips with, the social, traditional, and political culture that permeates the national mindset, including the political leadership. Thus, instead of coming to grips with factors on the ground and working gradually to achieve development within those parameters, the donor

390 Chapter 14: Foreign Policy and International Relations community and Bretton Woods Institutions have relied on quick fix, ‘one size fits all’ solutions to achieve short term results, ignoring the larger, long-term picture. Despite an increasingly negative trade balance, Malawi has still been able to register a marginal growth in GDP, partly due to the large quantities of development aid which has come into the country in the form of grants and loans. The Malawi budget was, and continues to be, balanced primarily through grants-in- aid, largely from the UK Government. From 1964 to 1969, MK 98,842 million of the Malawi Government’s total expenditure of MK 311,691 million on current and capital accounts came from the UK (McMaster 1974). In 2003/2004, the IMF withheld over MK 3.5 billion (US$ 47 million) of its Poverty Reduction Growth Facility (PRGF) funds after Malawi ‘off-tracked’ from its economic management commitments. In the same period, the UK’s DFID (Department for International Development), the biggest bilateral donor, withheld over MK 900 million (US$ 12.5 million) and DANIDA (Danish International Development Aid) withdrew from the country after an acrimonious, well- publicised exchange of words on the Government of Malawi’s lack of accountability and misuse of funds. Numerous IMF delegations have since highlighted serious problems of non- compliance with conditions and have declined thus far to enter into any new agreements until the anomalies have been corrected. This resulted in little or no donor budgetary support during 2002–2004 thereby forcing the Government to borrow heavily from the domestic financial markets (MK 40 billion as at January 2003), which in turn hiked up interest rates to levels (peaked at 90%) where local firms can no longer survive. Over 40 firms or industries have closed down or relocated to other countries during the last half of 2004 and first half of 2005. Government expenditure shows no sign of declining and the budget deficit continues to grow. (At the time of writing the local debt burden now stands at over MK 70bn at 30% rates of interest.) The development budget has remained virtually the same but recurrent expenditure has risen steeply. Another possible reason why Malawi has not benefited as much from foreign aid is the focus of many donors on privatisation, the keystone in World Bank supported policies for economic restructuring in Malawi. Privatisation involves selling state- owned assets – sometimes at give-away prices to South Africans – to investors who then proceed to use their superior expertise and resource base to revitalise the decrepit companies and dominate the local market. For instance, in January 2004, an extraordinary session of Parliament was held to discuss a US$ 64 million loan from the World Bank and the ADMARC (Agricultural Development and Marketing Board) Commercialisation Bill. The two bills were interconnected. On the one hand, Malawi desperately needed funds. Due to the virtual cessation of aid inflows for the

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18 months following the ‘open term’ and ‘third term’ sagas and, in view of the fact that presidential and parliamentary general elections were due to be held in May 2004, the Government was thus very receptive to offers of support – regardless of the conditions that applied. On the other hand, the World Bank saw an opportunity in Malawi’s financial paucity and pushed its privatisation agenda by recommending the commercialising of ADMARC as a step towards eventual privatisation. The World Bank knew that it had to approach privatisation gradually, due to the public outrage and grassroots pressure that would inevitably ensue upon the mere suggestion of privatising ADMARC – no matter how desperately Malawi needed aid. The public uproar and outrage was anticipated because ADMARC has played an essential role in the lives of ordinary people by providing a social safety net for disadvantaged sections of the populace in the absence of other social security provisions, and the envisaged ‘commercialisation’ would, inevitably, strip away any social element and leave only the profit motive behind. This quandary between providing social services and instilling performance and efficiency in the public sector is still a hotly debated topic, as many other state- owned companies, such as the Water Board that has a direct impact on the lives of ordinary people, are still officially scheduled for future privatisation. Suffice to say that such unilateral actions are made possible by the fact that Malawi is so dependent on foreign aid that it can be pushed into adopting policies which may, in fact, not be what the country wants or is ready for. The following table offers some basic statistics on Malawi’s aid dependency syndrome.

Table 2: Malawi’s Dependency on Foreign Aid

Description 1990 2001 2002

Value of debt (US$ millions) – – 876.00

Total debt service (% of exports) 29.30 8.00 7.60

Short term debt (US$ millions) 58.00 48.00 130.00

Aid per capita (US$ millions) 59.00 38.00 35.00 The World Bank, Little Data Book 2004

1. The above table shows some interesting developments: 2. Short term debt is rapidly growing; 3. Per capita debt (amount of aid divided by the population of Malawi) is declining; 4. The debt service burden is declining (due to such World Bank initiatives such as the HIPC {Heavily Indebted Poor Countries}).

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In conclusion, it would not be amiss MALAWI’S ECONOMIC to opine that Malawi will never shake off POTENTIAL the shackles of the ‘aid dependency syndrome’ unless it utilises aid in • Malawi has the third largest lake in responsible and productive ways that Africa full of fresh water, which could generate the means to pay back the be used to serve the 1.6 billion loans. In other words, unlike in the past people globally who do not have when Malawi used foreign aid mainly to access to clean potable water. fund consumption without reckoning • One third of Malawi comprises water sources, this combined with her on the need to generate future wealth to fertile land, could, if utilised pay back the debt, it is imperative to use optimally, make Malawi the ‘bread donor support to invest in productive basket’ of Central and Southern sectors such as irrigation, tertiary Africa. education, vocational development, • The ‘Nyasa’ rubies in Ntcheu fetch US$20,000 per carat on the global manufacturing and utilising comparative market; advantages to fuel and direct future • A uranium concession in Karonga growth to create the positive economic has recently been granted development and growth that will (opaquely) to an Australian firm, empower all Malawians to generate the which should, under equitable circumstances, boost Malawi’s requisite wealth to pay back future debt. foreign exchange earnings. This could be achieved by optimally utilising available resources. Notwithstanding the above, Malawi must receive fair terms of trade for its produce in order to attain a level of development that will enable it to participate on an equal footing in the global market, otherwise it will not be able to pull itself out of the ‘LDC’ (Least Developed Countries) bracket for some time to come. Some believe that Malawi would not have needed aid at all if it had enjoyed fair terms of trade from developed countries.

MALAWI’S FOREIGN POLICY – CONTINUITY AND CHANGE

The ushering in of multiparty democracy brought a certain element of change while maintaining a certain degree of continuity. The change was particularly in the direction of trying to build good neighbourly relations in the region. Thus, the new President Bakili Muluzi in the first few months after taking over Government embarked on a series of goodwill missions to neighbouring countries and assured them of Malawi’s commitment and wholehearted participation in the regional foras. Further Malawi stretched out its hand of friendship to countries like Libya and Kuwait in order to widen prospects for economic collaboration and

393 GOVERNMENT AND POLITICS IN MALAWI partnership. This was a major departure from the staunch pro-Western stand of the past. The new regime was keen to build new relations and partnerships in keeping with the changed times. External assistance and support for democratic institutions such as elections, Parliament, legal institutions, constitutional bodies (e.g. the Human Rights Commission) and reforming the police force increased. The usual development aid for projects such as roads, hospitals etc. gained further momentum.

New factors influencing Malawi’s foreign policy

There are three important factors worth mentioning: democracy, security and regional integration. The mechanisms of democracy such as governmental accountability and transparency also extend to external affairs. Although public opinion about foreign policy in Malawi may not be as vocal as in developed countries, people do raise concerns on some issues such as the size of presidential entourages and the budget allocation for foreign trips which was unthinkable under the past regime. AN EXAMPLE OF Furthermore, there is now more interest and FOREIGN EARNINGS concern on utilisation of aid and the impact of conditionalities. E.G. Tobacco generates Contrary to the threats that existed during the 76% of Malawi’s forex past years, the recent demise of the Cold War and earnings. A US farmer gets a the emergence of democratic systems of subsidised US$4.15 per kg of a politically incorrect crop Government in Africa and parts of Asia have (tobacco) from M/s Phillip widened the scope of the concept of security to Morris who, in turn, pay include environmental and social security, in Malawi farmers US$0.70c for addition to external aggression or war and internal the same product when the strife and anarchy. cost of production is US$ 1.20. An equitable price of Security in the region has been sought by trying US$2.50 would create a to achieve political stability through consolidating surplus in Malawi’s Balance democracy and by preventing escalation of of Payments – and conflicts. This common aim has helped towards strengthen the buying power regional integration and cooperation through of the Kwacha. Therefore, just one simple equitable membership of SADC and the AU. The regime adjustment would create a change in Malawi in 1994 not only facilitated the disproportionately huge process of Malawi’s closer integration with the impact on Malawi’s new regimes in the region, but also encouraged it economic scenario. This is to play a role in some of the regional conflicts such something that Malawi Civil Society is striving for in the as Burundi and the Democratic Republic of WTO talks.

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Congo (DRC) to foster the reputation of Malawi as a peaceful country and in order to show Malawi’s willinginess to play a more active role in regional politics. However, high levels of illiteracy, decimation of the workforce by HIV/AIDS, threats of food shortages and related issues have been enormous challenges confronting the internal security of the state. The emergence of the AU and New Partnership for Africa’s Development (NEPAD) initiatives along with increased cooperation in SADC and other regional bodies like COMESA play an important role in the foreign relations of all nations in the region. These bodies cover a wide range of issues dealing with internal and external security of nations; in other words, they deal with issues of security and peace in the region as well those involving governance and sustainable development.

Formulation of foreign policy of Malawi

In 2000 the Government of the Republic of Malawi published its foreign policy for the first time, outlining the following principles and objectives: Principles • Belief in sovereign equality of states; • Support towards promotion of equal rights and justice for all and the right of all peoples to self-determination; • Subscription to, and continued guidance by, the principles and ideals of the OAU and the UN in the conduct of international affairs; • Belief in the promotion and maintenance of international peace and security and in the pursuit of good neighbourly relations; • Belief in the reform of the international economic order, support and promotion of efforts towards a fair and equitable international trading system; • Commitment to the promotion of economic cooperation and regional integration, particularly among the countries of the Southern African region; • Belief in the importance of the AU and African Economic Community for accelerated development and maintenance of peace and security; • Maintaining Malawi’s territorial integrity, security, and sovereignty.

Objectives • Pursue socio-economic development, prosperity, and the well-being of the people of Malawi; • Achieve economic growth and sustainable development through the promotion of trade, investment and tourism;

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• Protect human rights, democracy and fundamental freedoms; • Enhance economic cooperation and integration; • Pursue an open door policy by extending friendship to one and all.

MALAWI’S PARTICIPATION IN REGIONAL ORGANISATIONS

From SADCC to SADC

Regional integration in Southern Africa started in 1980 with the formation of Southern African Development Coordination Conference (SADCC) comprising nine independent states of Southern Africa, namely Angola, Botswana, Lesotho, Malawi, Mozambique, Swaziland, Tanzania, Zambia and Zimbabwe. The SADCC or the ‘Conference’ as it was called, was formed with four principal objectives, namely: •To reduce member state dependence, particularly, but not only, on apartheid South Africa; • To implement programmes and projects with national and regional impact; • To mobilise member states’ resources, in the quest for collective self-reliance; and • To secure international understanding and support. The aim of SADCC was to foster economic cooperation in the region through sectoral co-ordination in the four major areas namely: • Transport and communication; • Food and agriculture; • Labour development; and • Industrial cooperation.

The Lagos Plan of Action (LPA) of the OAU encouraged the principle of sub- regional economic cooperation as a step towards creating a continental economic union. SADCC adopted a structure that was termed ‘sectoral programming’ which would focus on specific sectors of the economy and gradually deepen cooperation sector-wise instead of adopting a wide integration movement. Malawi joined SADCC and coordinated one of the sectors as indicated in the table below.

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Table 3: Sectoral Coordination in SADCC

Country Sector

Angola Energy

Botswana Animal diseases and agricultural research

Lesotho Land utilisation and soil conservation

Malawi Wildlife forestry and soil conservation Transport, communication, information Mozambique and culture Namibia Sea fisheries

Swaziland Manpower development

Tanzania Industry and trade

Zambia Mining

Zimbabwe Agriculture and food security

The SADCC leaders realised that although the coordination conference had demonstrated the crucial need to cooperate in their development efforts, the time had come to give the organisation a legal and more formal status. There was also a need to shift the focus of the organisation from ‘coordination’ of development projects to a more complex task of ‘integrating’ the economies of member states. Hence SADCC was transformed into SADC in August 1992, when the heads of state and Government of SADCC met in Windhoek, Namibia, to sign a declaration and treaty establishing the new SADC (the Southern African Development Community).

Southern African Development Community (SADC)

SADC objectives The objectives of SADC are to: • Achieve development and economic growth; • Alleviate poverty; • Enhance the standard and quality of life of the people of Southern Africa and support the socially disadvantaged through regional integration; • Evolve common political values, systems and institutions; • Promote and defend peace and security; • Promote self-sustaining development on the basis of collective self-reliance, and the interdependence of member states;

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• Achieve complementarity between national and regional strategies and programmes; • Promote and maximise productive employment and utilisation of resources of the region; • Achieve sustainable utilisation of natural resources and effective protection of the environment; • Strengthen and consolidate the long standing historical, social and cultural affinities and links among the people of the region.

The above objectives indicate that SADC goes well beyond sectoral coordination. It includes areas such as political values, defence and security. This was in response to global and regional political changes and particularly the wars in the region in DRC and Angola. The membership widened when South Africa joined in 1994, followed by in 1995, in 1996, and the DRC in 1997. These new members contributed towards: a more powerful voice in negotiating international trade and aid deals; mutual support in technical matters; improved border security; and joint efforts to develop infrastructure and deal with environmental questions (South African book).

Institutional framework of SADC SADC has, since inception, evolved into a fairly complex structure that encourages linkages and interaction within member states at all levels – from the Heads of State who meet annually at the summit to the secretariat which implements policies. The SADC national committees (SNCs) provide essential linkages between member states and SADC on the one hand, and also serve to provide a conduit for inputs from stakeholders such as ministers, civil servants and civil society within member states. Malawi launched its SNC in 2002 and has since been instrumental in coming up with Malawi’s positions in major SADC meetings including the summit and the council of ministers, and providing input for the formulation and implementation of the Regional Indicative Strategic Development Plan (RISDP). Malawi’s SNC includes Cabinet ministers, members of Parliament (MPs), representatives of the business community, chiefs and the leaders of civil society. One of the major challenges that the Malawi SNC faces is inadequate financial resources. The activities of the committee depend on the Ministry of Foreign Affairs’ budgetary allocation and at times it becomes difficult to prioritise the activities of the committee over the ministry’s overall priorities.

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Advantages to Malawi The SADC trade protocol aims at liberalising intra-regional trade and services on the basis of fair, mutually equitable and beneficial trade arrangements complemented by agreements in a number of areas. The protocol seeks to establish a free trade area in the SADC region. Malawi ratified this protocol in September 1999. Malawi, has, over the years, benefited from projects and programmes in various sectors namely:

Agro-forestry: • Improvement and strengthening of forestry colleges in the SADC region, including the Malawi College of Forestry in Dedza; • Management of indigenous forests; • Blantyre city fuel wood projects; • Improvement and strengthening of forestry products research institutions in the SADC region, including the forestry research in Zomba; • Southern African Biodiversity Programme, including the establishment of a Plant Resource Network in the SADC region which provides technical information and expertise on environmental conservation.

Malawi has also benefited from a number of infrastructure projects, such as the rehabilitation of roads, railway lines and airports. Some of these projects include the Northern Corridor Project, the Beira and Nacala transport corridors, the rehabilitation of the Nacala port; upgrading of the Blantyre–Milange–Mocuba road, road link from Balaka to Uyole in Tanzania via Salima and Karonga; feasibility study on upgrading of Karonga–Chitipa–Nakonde–Mpulungu road, which will benefit both Malawi and Zambia; improvement of transport systems, development of navigation on Lake Malawi/Nyasa/Niassa, a project covering Malawi, Mozambique and Tanzania; and supply of digital equipment for the expansion of telephone exchanges in Blantyre, Lilongwe and Zomba. Malawi has also benefited from various capacity building training such as training of customs officers, central bank officials and training in other sectors. Malawian citizens also held key positions in various SADC institutions and have acquired a Commissioner (Dr Maxwell Mkwezalamba is Commissioner of Economics at the AU) through regional lobbying. These are just few of the benefits that Malawi has accrued as a result of its cooperation with SADC. The costs to Malawi of belonging to SADC are not significant in terms of the national budget but the benefits are significant in terms of knowledge transfer and expertise, capacity development, increase in trade, access to trade routes and national prestige. One of the major challenges that Malawi faces in intra-regional trade (as well as

399 GOVERNMENT AND POLITICS IN MALAWI in international trade) is transport bottlenecks. Malawi has the highest transport costs compared that of most of the other member states which has resulted in a lack of competitiveness of Malawian exports. In addition to this, in the SADC region, the major constraint is non-tariff barriers comprised of bureaucratic impedances which cause delays in export and import flows within the region. This problem can only be resolved through accelerated implementation of the SADC trade protocol and implementation of the infrastructural projects that would benefit landlocked Malawi. However, progress has been slow due to the SADC restructuring process that took longer than expected.

Malawi’s role in strengthening peace and security

The Malawi army participated in the UN peacekeeping training exercises named ‘Blue Crane’ in South Africa and in ‘Blue Hungwe’ in Zimbabwe which aimed at improving SADC peacekeeping forces. Lt Col Mclloyd Chidzalo expressed the need for regional forces to undertake such exercises, pointing out the prevalence of intra-state wars over inter-state wars, which has intensified the need for speedy regional integration in order to avert the outbreak of interstate conflict. The Malawi Army participated, for the first time, in a peacekeeping exercise in Rwanda under UNAMIR (United Nations Assistance Mission for Rwanda) and their performance was generally commended. Operation ‘Chithandizo’ (‘Help’) was recently carried out by the Malawi Army in Mozambique to extend assistance to this neighbouring country devastated by floods and cyclone. A 15-man Malawi Army contingent went on a rescue mission with two helicopters and evacuated about 2000 victims besides airlifting thousands of tonnes of relief food, medical and temporary building supplies. This is in distinct contrast with the Banda years when Malawi was accused of harbouring Renamo guerrillas, tensions were heightened to the extent that the Mozambican Government placed SAM missiles on the common border with Malawi and the border areas were engulfed by a flood of refugees escaping from the Mozambican civil war. This new policy has improved Malawi’s standing internationally in terms of peace and security.

Refugees

The Malawi Government had acceded to the 1951 UN convention and the 1967 protocol relating to the status of refugees. It ratified the 1969 OAU convention on refugees, and went further to enact the Refugee Act in 1989. These instruments provided the legal framework for the protection of refugees in the country. The

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1989 act adopted the definition of a refugee found in the OAU convention (Kanyongolo 1992: 5) and incorporated sections of the 1951 UN convention and the 1967 protocol. The internal strife in Mozambique caused an inflow of refugees into Malawi that exceeded 860,000 by 1990. In 1994, repatriation of refugees began with the return to normalcy in Mozambique, but the war in DRC and genocide in Rwanda brought in new groups of refugees into Malawi, though not in the magnitude experienced in the Mozambican civil war. As of 2004 there were about 9,000 refugees mainly from Rwanda, the DRC, and Burundi and some from other countries such as Somalia and Uganda.

COMESA

In December 1994, soon after setting up the multiparty democratic Government, Malawi hosted the first meeting of COMESA summit for Heads of State and Governments. President Muluzi took over as the Chairman of the forum from the President of Ethiopia. During this summit, the Heads of State consented to the ratification of the COMESA Treaty, which aimed at restructuring the economies of member states. In this meeting, Malawi sent a clear message of its reliance on regional integration as the only viable option to accelerate economic growth.

AU and NEPAD

The spirit of pan-Africanism of the 1950s resurfaced in the 1990s in the context of the new global order following the unprecedented global events. The dreams of a unified Africa found expression in the ‘African Renaissance’ vision of President Mbeki and the ‘United States of Africa’ concept of General Gaddafi. The AU was subsequently launched in July 2002 in Durban with a vision of a united and strong Africa in order to strengthen solidarity and cohesion amongst the peoples of Africa.

The objectives of the AU are: • To achieve greater unity and solidarity between African countries and the peoples of Africa; • To defend the sovereignty, territorial integration and independence of its member states; • To accelerate the political and socio-economic integration of the continent; • To encourage international cooperation, taking due account of the Charter

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of the UN and the Universal Declaration of Human Rights; • To promote democratic principles and institutions, popular participation and good governance; • To promote peace, security, and stability on the continent.

Making the AU operational is dependent on implementing the programmes of NEPAD whose general aim is to consolidate and accelerate the gains of development. It is a call for a new partnership between Africa and the international community, especially the highly industrialised countries, to overcome the development chasm that has widened over centuries of unequal relations (NEPAD 2001).

African Peer Review Mechanism (APRM)

African leaders agreed on a framework for a peer-review mechanism aimed at tackling obstacles to growth and development on the continent. The framework aimed at encouraging and building responsible leadership within the continent, involving voluntary self-assessment, constructive peer dialogue and the sharing of common experiences. The intention is not just to expose under-achievers, but to identify problems and help provide corrective measures and support. The APRM examines the following areas of governance: • Democracy and good political governance; • Economic governance and management; • Corporate and socio-economic governance based on a variety of international codes and standards.

In addition, it identifies corruption as a significant cross-cutting issue. In 2004 the Ministry of Economic Planning in Malawi commissioned a report for assisting Malawi in preparing for peer review. It stated that, in the field of economic management and governance, Malawi had serious gaps with APRM standards. It reported how the Government had been living well beyond its means for several years bringing the country to a chasm of unstoppable debt and deficit- spending spiral. The report further noted that the Government had developed an internal culture of impunity in which regulations, laws, and the Constitution itself were routinely ignored and violations were rarely punished. Finally, it noted that in terms of political governance, Malawi needed to strengthen key checks on executive power by shoring up parliamentary independence, electoral fairness, and fiscal oversight. Self-evaluation exercises like the APRM can be effective as they are not seen as donor or external interference in the internal affairs of a country. Their aim is, in

402 Chapter 14: Foreign Policy and International Relations fact, to illustrate the similarity of circumstances and conditions prevailing in the continent and facilitate mutual support and cooperation to face challenges identified by objective self diagnosis.

INTERNATIONAL/REGIONAL CONVENTIONS

Malawi has acceded to a number of treaties and conventions which guarantee civil and political as well as social and economic rights. Among the key conventions which Malawi has acceded to (with the dates of that accession) are:

Convention on the Elimination of All Forms of Discrimination Against Women (12 March 1987); • Convention on the Rights of the Child (2 January 1991); • The International Covenant on Civil and Political Rights (22 December 1993); • International Covenant on Social, Economic and Cultural Rights (22 December 1993); • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (11 June 1996).

Since these treaties are now part of Malawian law, the rights and obligations which they create are enforceable in Malawian courts. On the other hand, there are treaties which have not been incorporated into domestic law, but which impose international obligations on Malawi because it has ratified them. Such treaties include: • The International Covenant on Civil and Political Rights; • International Covenant on Economic, Social and Cultural Rights; • African Charter of Human and People’s Rights; • Three of the ‘core conventions’ of the International Labour Organisation (ILO).

With respect to the ILO conventions not ratified by Malawi, Malawi has pleaded ‘economic difficulties’ as obstacles to their ratification. Economic difficulties have also been pleaded as justification for the failure to ratify the convention aimed at the elimination of child labour. The Supreme Court of Appeal has underlined the importance of international human rights law in Malawi by stating that the Universal Declaration of Human Rights is part of the law of Malawi (Chihana v Rep Crim App {1993}). The High Court has also taken the same position (Mhone v Attorney-General, Banda v Dimon).

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It is fair to say that Malawi supports UN human rights treaties and respects international law to a substantial degree. Malawi’s commitment to, and undertaking of, the many relevant treaty obligations is evidence of this. However, Malawi has yet to incorporate into domestic law such key treaties as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights and submit regular reports to the human rights committee of the UN. Its retention of some statutory laws which violate international human rights standards detracts from the apparent commitment of the state to human rights treaties and international human rights law in general. The importance of protocols, conventions etc. is that they provide a legal framework from which subsequent pieces of domestic legislation and programmes follow. Signing protocols are of course not an end in itself but only a step. When a country signs a protocol and does not comply with its requirements it gives a chance for civil society and other legal bodies to question the state.

CONCLUSION

Recent years have witnessed some important changes towards independence in Malawi’s foreign affairs. Malawi has opened up relations with many countries with whom it did not have any links in the past and it is trying to respond to the challenges such as globalisation by greater participation in regional integration bodies. This participation could be improved by greater adherence to regional and international treaties that Malawi has acceded to. Due to lack of information, sensitisation and awareness on issues of foreign affairs – even those that affect basic domestic issues – do not draw the requisite public attention and response that they deserve. Therefore, Malawian initiatives towards regional integration have yet to yield optimal results at the grassroots level in Malawi. Malawi’s foreign relations continue to be guided by its dependency on foreign aid support from such bilateral agencies as the DFID and multilateral agencies as the World Bank and IMF. Malawi has to find ways and means to wean itself from aid dependency in order to win recognition in the global arena as a self-respecting, sovereign state rather than a so-called banana republic that must be propped up to prevent total collapse. The road towards self-sufficiency, though difficult, is not impossible. However, it will need indomitable political will, stern financial discipline, and an undaunted commitment from all the people towards such a vision.

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Questions

1. What are the factors that influence Malawi’s foreign policy? 2. What have been the major changes in Malawi’s foreign policy since the dawn of multiparty democracy? 3. Has foreign aid been a curse or boon to Malawi? Why? 4. What would you define as equitable terms of ‘fair trade’ for LDCs such as Malawi? 5. Why is the level of awareness about regional and global issues and their impact on Malawi’s economy and polity still alarmingly low in spite of the blurring lines between foreign and domestic policy? 6. A small and developing country like Malawi with hunger and other grave economic problems still maintains diplomatic relations with a host of countries at considerable expense. Is this really necessary? Explain your answer.

405 GOVERNMENT AND POLITICS IN MALAWI References and Further Reading

Baylis, John & Steve Smith (2001) The Globalization of World Politics: An Introduction to International Relations, New York: Oxford University Press

Department of Foreign Affairs South Africa, ‘The Operationalisation of the AU and the Implementation of NEPAD Programmes’

Government of Malawi, The Foreign Policy of the Government of the Republic of Malawi December 2000

Griffiths, Martin & Terry O’Callaghan (2004), Key Concepts in International Relations, New York: Routledge

Kegley, Charles W. Jr, & Eugene R. Witkopf (1995) World Politics: Trends & Transformation, 5th edition, New York: St. Martin’s Press

Mazrui, Ali A. (1979) Africa’s International Relations: The Diplomacy of Dependency and Change, Boulders, Colorado: Westview Press

McMaster, Carolyn (1974) Malawi’s Foreign Policy & Development, England: Julian Freidmann Publishers Ltd

Saxena, S.C. (1982) Foreign Policy of African States: Politics of Dependence and Confrontation, New Delhi: Deep & Deep Publications

Southern African Regional Poverty Network (2004) ‘Malawi and the African Peer Review Mechanism: a Review of National Readiness and Recommendations for Participation’, South African Institute of International Affairs, 23 August 2004

Thomas, Caroline (1987) In Search of Security: The Third World in International Relations, Brighton:Wheat Sheaf

Venter, Albert (ed) (1984) Government & Politics in the New South Africa, Pretoria: Van Schaik

406 Chapter 14: Foreign Policy and International Relations Glossary

African Renaissance: An attempt driven by and led by Africans themselves in defining who Africans are and where they are going in the global community, and to formulate practical strategies and solutions for future action that would benefit the African masses. South African President Thabo Mbeki, along with a number of African leaders and intellectuals, has led the initiative.

Bipolar(ity): Having two extremities, e.g. during the Cold War The USA and the Soviet Union were the two opposing power centres with a number of smaller and weaker states as satellites around them.

Cold War: The ideological confrontation between the two super powers: the USA and the Soviet Union after the Second World War.

Convention: When a country has signed a convention, this means that the country has openly declared that it subscribes to the views of a particular convention in question.

Diplomatic relations: Diplomacy in a broad sense is the entire process through which states conduct their foreign relations. States communicate, bargain, influence one another, and adjust their differences through diplomacy. In a narrow sense, diplomacy is the implementation of foreign policy, as distinct from the process of policy formulation.

Gross Domestic Product: The sum of all goods and services produced by a state in a financial year.

National interest: The interest of a state is usually defined by its Government. National interest is used as a tool for analysing foreign policy where it is interpreted as a version of public interest, indicating what is best for the nation in its relations with other states. National interest includes a wide range of interests such as security ranging from external aggression to securing economic interests and protecting its national identity.

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Pan-Africanism: Pan-Africanism has evolved to mean a philosophical and political linkage of not only African countries, but all Third World descendants whose goals are unity and solidarity between continental Africa and those of the diaspora. Protocol: International agreement signed between countries in specific areas such as trade, security etc. which guides and governs their relations therein.

Realism: Those adhering to realism view nation-states as the principal actors in world politics, and they answer to no higher political authority. Conflicts of interests among states are assumed to be inevitable. Realists view the game of international politics as revolving around the pursuit of power.

408 LIST OF CONTRIBUTORS

Mette Bakken is a PhD student at the European University Institute in Florence (Italy). Her main focus of research is how political institutions evolve and shape political outcomes in democratising countries. In particular, she is working on the origins and effects of electoral systems in Africa and Eastern Europe. Blessings Chinsinga is Senior Lecturer at the Department of Political and Administrative Studies, Chancellor College, University of Malawi specialising in public policy analysis, development administration, governance and democracy, and local level politics. Asiyati Chiweza is a Lecturer at the Department of Political and Administrative Studies, Chancellor College, University of Malawi with expertise in decentralisation and local governance. Boniface Dulani is a Lecturer at the Department of Political and Administrative Studies, Chancellor College, University of Malawi, currently pursuing PhD studies at the Department of Political Science at Michigan State University in the USA. He undertakes research and consultancy in various fields, and has been published in a number of books and journals. Dr Lewis B. Dzimbiri is Associate Professor of Public Administration, Chancellor College, University of Malawi and is currently on leave of absence teaching as Senior Lecturer at the University of Botswana. He has published two books and several of his papers and articles have appeared in both books and journals. Siri Gloppen is Associate Professor of Comparative Politics at the University of Bergen, Norway and Research Director for Rights and Development at the Christian Michelsen Institute (CMI), Bergen, Norway. Gloppen’s main research focus is on the role of African courts in processes of democratisation and social transformation. Rafiq Hajat has served as Vice President of The Chambers of Commerce, Chairperson of SEDOM and DEMATT, and Executive Member of the UDF amongst others. He is currently Executive Director of The

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Institute for Policy Interaction and regularly features as a commentator on issues of governance in local and international media.

Edge Kanyongolo is Senior Lecturer at the University of Malawi, Faculty of Law. Happy Kayuni is a Lecturer at the Department of Political and Administrative Studies, Chancellor College, University of Malawi. He is a specialist in public governance. Nixon S. Khembo was a Lecturer at the Department of Political and Administrative Studies, Chancellor College, University of Malawi. He was also the democracy and governance expert and Acting Deputy Director of the Centre for Social Research, University of Malawi during 2004 to 2005. Before his death, he was pursuing his Doctoral Degree in political science at the University of Bergen, Norway. He died on 8 December 2005. Augustine Magolowondo currently works as a governance expert with the German Agency for Technical Cooperation (GTZ) in Malawi. Levi Zeleza Manda is a journalist, media trainer and researcher. He has taught at The Malawi Institute of Journalism, and at the Polytechnic, University of Malawi. Ollen Mwalubunju is currently a Commissioner of the Malawi Human Rights Commission (MHRC). He was the founder member of the Centre for Human Rights and Rehabilitation (CHRR) in Malawi. Nandini Patel is a Political Scientist with 20 years of teaching experience in India and in Malawi and has published numerous articles and papers on political institutions in Malawi in particular and in SADC in general. She is a co-founder and past coordinator of the Conflict Resolution Centre at Chancellor College and Chairperson of The Institute for Policy Interaction. Lise Rakner is a Senior Researcher at CMI, Bergen, Norway and a Professor of comparative politics at the University of Bergen. Her research interests concern the relationship between political and economic processes of reform, democratic accountability, and the development of political institutions. She has published several articles on electoral administration and party system development in Malawi and Zambia. Lars Svåsand is Professor of Comparative Politics at the University of Bergen, Norway. He has published articles in journals, book chapters and co- authored and co-edited books on political parties.

410 List of Contributors

Richard Tambulasi is a Lecturer at the Department of Political and Administrative Studies, Chancellor College, University of Malawi. His area of interest is in the field of public sector management.

Arne Tostensen

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