At least 19 000 victims of the one-party State, whose cases of abuse government duly verified, including that of former president Bingu wa Mutharika, have been ignored.
Analysts have since attributed the development to lack of political will and double standards by the authorities.
The analysts argue that government goofed in prioritising payment to ex-MYP officials, who they believe were perpetrators of the abuses at the expense of genuine victims.
The 19 000 cases are those that were registered and verified by the National Compensation Tribunal (NCT) before its 10–year mandate expired in 2004, with some of the victims receiving part-payment or nothing at all out of the constitutionally established fund, which largely benefited politically-connected individuals during the United Democratic Front (UDF) regime.
Last November, Ombudsman Martha Chizuma released a report which showed how victims of the Dr Kamuzu Banda one-party era have been left to suffer despite registering genuine claims to the NCT before it wound up operations.
The report, titled ‘Unhealed Wounds’, directs the current administration to take responsibility and offer an apology to all victims and also compensate those who had their complaints lodged with NCT, for either loss of property, detention without trial or any other form of abuse.
“The government, through the Office of the Attorney General [AG] should initiate a negotiated settlement with the claimants’ representatives. This process should be commenced and an agreement reached within three months from the date of this report. For avoidance of doubt, I shall expect a report of the negotiations by January 31 2018. Failing which, I shall make further directives,” reads in part recommendations in the report.
But six months down the line, nothing has taken place and the January 31 deadline has been defied to the frustration of Chizuma, whose office government commissioned to investigate the issue.
“The blackout of response from government is quite frustrating for us as an office, but in my view, even more horrendous for the victims. Because what basically this is saying is that we do not take [their] suffering seriously. And that is wrong, whichever way you want to look at it. We have a number of options that we are looking at under the law,” explained Chizuma in an e-mailed response, where she also indicated that she had tried hard to engage the AG on several occasions, but without success.
Government’s inaction on the matter is backed by a legal opinion authored by the then AG Kalekeni Kaphale in 2016, where he contended that there was no legal basis to compensate the victims after the tribunal’s mandate expired as per the Constitution.
Kaphale argued that compensations could only be paid out of the fund charged by the tribunal itself.
But the Ombudsman faults the AG’s opinion, describing it as both faulty and a case of hypocrisy.
She observes that the spirit behind creation of the tribunal was to help victims, a goal which was never realised; hence, the responsibility lies in the current administration to correct the wrong—where the fund was abused.
“The Attorney General himself is fully aware that the fund was never established and, as such, there was no fund
to be charged by the tribunal. Therefore, his argument does not hold as it is merely theoretical. The government relied on the need to adhere to the intents of the Constitution in justifying closure of the tribunal after the 10-year period. However, as it can be clearly observed, they failed to stand on the same principles when it came to the operation of the tribunal during its lifespan. This was pure hypocrisy,” she said.
A constitutional law expert at the University of Malawi, Edge Kanyongolo, said government should not act as if there is a dead end on the matter.
“I don’t think there is a dead end, it is just lack of political will. If there was political will, there was a legal way. If they wanted people to be compensated, then there is always a legal way and that is to have another law which will make the Tribunal functional again, specifically to deal with these remaining cases,” he said.
Kanyongolo said while dragging the AG to court is another option, the better way was to have a legal framework which would allow the victims access justice even if it means resuscitating the Tribunal Fund, specifically to deal with these cases so that victims do not survive at the mercy of courts.
Another legal scholar, who is also president of the Malawi Law Society (MLS), Mwiza Nkhata, said despite that the mandate of the tribunal expired under the law, government would not be committing a crime if it honoured compensation to deserving claimants.
“The best way was to have the tribunal shut down after dealing with all registered and verified cases. We needed to extend its mandate to meet its intended purpose,” Nkhata observed.
He lashed out at government for rushing to pay former members of the defunct Malawi Young Pioneers (MYP), who he thinks were perpetrators of the abuses, adding that this is a mockery of justice.
Efforts to talk to current AG Charles Mhango proved futile as he neither picked our calls nor responded to our questionnaire.
But spokesperson for Ministry of Justice Pilirani Masanjala declined to comment, saying the Attorney General was better placed to do so.
The lack of willingness to resolve this issue by the current Democratic Progressive Party (DPP) administration is even more ironic as our findings show that the late Bingu wa Mutharika is among the people who had lodged a complaint with the NCT, seeking compensation for suffering during Kamuzu Banda’s time.
The Ombudsman corroborated our findings and confirmed that Bingu’s file is among the 19 000 cases left out of the compensation list which was dominated by politically-connected individuals during the UDF regime who got huge sums at the expense of the voiceless.
Interestingly, when Bingu was President, he remained quiet about it—despite his usual claims on political podiums that he and the family suffered in the brutal one-party rule.
But in 2003, President Peter Mutharika, then a law lecturer in the United States, authored an article—where he bemoaned government’s failure to take responsibility and address abuses Malawians suffered during the one-party State.
It was in Mutharika’s view in his article titled ‘Of Abuses in Pre-Democratic Malawi: Primacy of Truth’ where he criticised the management of the fund for favouring some prominent members of the then UDF government at the expense of actual victims.
He argued: “There are many reasons a successor government may not want to accept responsibility for the actions of a previous regime. The incentives to avoid responsibility include the high cost of reparations, a reluctance to be associated with the past, and a desire to move forward”.
Added Mutharika: “There are several forms of reparations that governments may make. They include discovery and dissemination of truth, punishment of perpetrators, symbolic compensation, and actual compensation”.
Surprisingly, all these suggestions are part of the Ombudsman’s recent report, which the current administration has out-rightly ignored.
A questionnaire Nation on Sunday submitted two weeks ago to Presidential Press Secretary Mgeme Kalirani on why Mutharika is failing to live by what he advocated for, had not been responded to as we went to press.
In an interview, veteran rights defender Undule Mwakasungula urged Mutharika and his government to live by the obligation, saying the issue of compensation to the victims was a matter of responsibility.
Mwakasungula also faulted government for rushing to pay former MYP officials and not the victims, of the alleged attrocities.
He also took a swipe at human rights defenders for what he called selective justice.
“This is a human rights issue. Why are the human rights defenders quiet? Why are they not pushing for this? We are setting a bad precedence that a regime can abuse its own people without facing consequences.”.
In an interview, one of the victims, Leonard Gondwe, appealed to government to consider their plight because they have waited for so long. According to files, Gondwe’s father was wrongly imprisoned and had property confiscated purely out of malice. The case file indicates that Mr. Gondwe, in 1981, in celebrating his son’s wedding, bought many crates of drinks from Southern Bottlers leading to shortage of the drinks in Mzuzu.
“Driven by jealousy and malice, Dad was branded by his critics as a showy person and a ‘rebel’ who bought out the Mzuzu quota of the drinks to make people blame the scarcity of the drinks on the leadership,” reads one of the files under the Ombudsman, a version which is well corroborated by the claimant, who said among the property confiscated were four houses and plots which still stand in Mzuzu
However, unlike others, the Gondwes were paid K750 000 in 2001 for wrongful arrest and detention following a court’s ruling and were also given K20 000 in 1995 by the NCT as part payment for loss of property currently valued at K200 million.
Considering the economic situation of the country, the victims, over 19 000 in total, are demanding between K600 000 to K20 000 000, according to the group’s chairperson Sangwani Mkandawire.