Chakwera’s pit trap

During his first 100 days in office, President Lazarus Chakwera has repeatedly restated his resolve to replace a culture of impunity with rule of law, transparency and improving accountability in government. Our News Analyst MERCY MALIKWA engages Associate Professor of Law Garton Kamchedzera, from the University of Malawi, to gauge the gains so far.

Has Chakwera really lived up to his word on restoring the rule of law?

It appears that the President and the Vice-President Saulos Chilima understand the principles that underlie the Constitution and what is expected of them. From their actions, accountability is one thing that requires their actions. Explaining to the people what they are doing and giving reasons seems to be happening. Secondly, they seem to want to respect the law. There is no question about what they want to do and why they should do it. I think there is an understanding between those two aspects. In the past 100 days, if one looks back, I think their major difficulty is how to do it. That’s where there are some difficulties.

Why do you feel this is the case?

I would attribute that to two reasons. Firstly, they are having to work with systems and processes that were not actually respecting the rule of law and accountability as well as some of the things that are expected of them. So, a lot of those systems, processes and people are still in place. That is likely to bring in some challenges.

Secondly, the system has not really been reformed. There is a need for a reform agenda even with regards to the law. A good example is the issue that people have been talking about: the Gender Equality Act, which requires that at least 40 percent of people employed in the public service should be of one sex and that the other sex should not exceed 60 percent.

What is wrong with the Gender Equality Law?

Firstly, that Act was originally intended to come out as a framework legislation, which is essentially a law that sets targets and benchmarks to which you must progress. However, the people who were drafting the act drafted it as if it is any other ordinary piece of legislation with no process envisaged.

Secondly, you have some Acts of Parliament, such as  the Public Service Act, which requires things that are contrary to the Gender Equality Act and those things have not been sorted out. So, there are these different expectations and it just illustrates the point I am making that how to do it has been the problem. If you have a situation where one law requires this and another law requires that—and the people are pushing you to change things quickly—that is where the problem is.

I think one big trap for Chakwera’s administration would be to try and run the government using the systems, the processes and maybe even some people who were running it like their fiefdom. I think there is a need for real reform, not just asking people what they want to change and how they are going to implement the change, but to actually say that because the Constitution requires this, then we need to change this and that and put that in law because with the present legal system intact, it is going to be difficult.

Does this mean there is a need to change the current legal system to make things work?

Yes, and most importantly, in the State of the Nation Address, for example, there should have been a legislative agenda that would have spelled out things that need to be changed in the law so that the rest of the other laws and systems can be truly compatible with the spirit of the Constitution. And also one is talking about the need to change structures and then trying to get the right people in those positions. Now I think the dilemma that the new administration is having is that if you have to take certain people out of their positions, you have to comply with the law because people cannot be dismissed without reasons. To me, I would say that they need to be clear on what needs to be changed in the law, how they are going to change it and how that is going to contribute to what they want to achieve.

How do you compare the ending of Peter Mutharika’s era to the beginning of Chakwera’s era in terms of the rule of law and accountability?

There is a big difference and it is manifesting from the perspective that a lot of people now feel like they own the government, which is why they are speaking up, calling on it to account and wanting to have a say. That is the approach that is required from the Constitution—that it is the people’s sovereignty that matters. There is a sense in which this government seems to understand this aspect that it is not about them, but the people.

Secondly, it is the political idea that they keep speaking which we did not get in Mutharika’s government: The idea that if you are in public office, then you are a servant. In other regimes, this was not there. You couldn’t really think of this in Mutharika’s era. He was Adadi as it were. The other thing is that this government says it wants to comply and advance the rule of law while the previous government was really driven by impunity—wanting to do as they please without facing any consequences.

Moving on to the next 100 days, what needs to change apart from the said law reform?

I think focusing more on the how in a wider sense. So, the things that you want to do, you have good reasons for wanting to do them, but you need the how. You need to put in place plans that you can start implementing so that people can be clear and guided. The legal reform is also going to be required in terms of reducing the presidential powers and achieving gender balance. However, if you look at the issue of one million jobs, everybody understands that and the reasons are good, but what they need to do now is to come up with a clear plan on how that is going to be done. The promises just came out without a clear plan. They should focus on the plans and roadmaps—the how stated earlier. On the other hand, they need to keep up what they have been doing, talking to the nation, explaining to the masses, staying with the idea of wanting to be servants and to comply with the rule of law. n