On government breaking its own laws

It is very common for the Executive arm of government to act as if there are no laws on the land. Quite often the Minister of Finance will ask Parliament to regularise spending that was not authorised by Parliament. The argument by the minister is that the laws of the land allow him to make such expenses in some cases. As a result many ministries spend or overspend and all that the minister does is take the abused budget lines to Parliament to be regularised during the Budget Review meetings.

The effect of this is dilution of the whole purpose of the Legislature scrutinizing budget lines before authorising Ministries, Departments and Agencies (MDAs) to spend. Parliament has the first line watchdog role on the Executive to ensure it does not act beyond its statutory mandate as doing so defeats the whole purpose of having laws. As a matter of fact, all the three branches of government—the other one being the Judiciary—have watchdog roles on one another and none is above the other.

But more often than not—when it comes to expenditures—what we see is the Executive’s penchant for circumventing the law or simply ignoring it altogether on the pretext that the law allows it to do so. This could be one of the roots of laxity, fraud and theft in government.

A case in point, we have seen elsewhere in this edition how the Ministry of Information spent on an activity that was not approved by Parliament and then just deflected the bill to Treasury to pay. Why does the Minister of Finance allow such things to happen? My view is that regardless of the importance of the activity, the best practice should be that whichever ministry wants to spend on unbudgeted for activities, should first seek the authority of the Minister of Finance, to make a commitment to pay.

But the tendency to ignore the law is not pandemic in the Ministry of Finance alone. Last month, we saw another section of the Executive arm of government—the Ministry of Justice and Constitutional Affairs—giving a moratorium on gays, apparently under pressure from donors. Government issued a statement on December 19 2015 that it would observe a moratorium on gays after police in Lilongwe arrested two men who were suspected of having carnal knowledge of each other. The moratorium meant that law enforcers would look away on same sex activities. With due respect to the pressure that the government is getting from donors on the matter, the Executive has no powers to break its own laws.

If the matter is or was an urgent one, government should have followed the right procedure, which was taking it to Parliament where the issue would have been tabled and the due process followed. Admitted convening Parliament is an expensive undertaking, but breaking the laws is worse. I know that that homosexuality is an emotive issue and many people have expressed their outrage over it either in support of government’s decision or against it. I do not want to be caught in the trap of being seen as either breaking the law or offending some sensibilities. The fact is that same-sex sexual activities are illegal in Malawi and the right thing government should do is to take it to the right authority, which is Parliament, to deal with it once and for all.

But as usual, the problem is that government first wants to understand the popular view on a matter to gauge whether it is politically correct or not. The authorities know that if put to a vote, the majority of Malawians will say no to homosexuality. And if the crucial decision is made close to an election, the ruling party will lose votes. Otherwise the issue of gays would long have been water under the bridge had politicians not been playing hide-and-seek on it.

The last time I checked, government said it had put the debate on homosexuals to the people to decide and then depending on what their verdict would be, government would take it to Parliament for a final decision. But there was no mechanism for measuring the said popular view. There cannot be two ways about dealing with the issue about gays. Government should simply take a bold stand and take it to the right authorities—Parliament.