The State and the constitution

The difference between the State as an association and other associations is that it is what in German sociology is called gemeiinschaft or community. A person born within the bounds of the State automatically belongs to it without applying for membership.

The Executive arm of the State is called government. A State without a government may exist. After the overthrow of President Siad Barre in the 1990s, Somalia spanned nearly ten years with no government worth the name. The evitable result was security breakdown.

Where there is government, citizens recognise someone as the sovereign deserving obedience. Where there is no recognised authority or ruler, as 17th century English philosopher and Leviathan author Thomas Hobbes wrote,  life is nasty, brutal and short.

Because of this, people agreed to renounce individual independence by accepting the lordship of someone who would exercise power over everyone else. This person would make sure that the strong citizen does not bully or kill the weak one.

“Man is born free and everywhere he is in chains,” wrote French-Swiss Jean-Jacques Rousseau.

After people had surrendered some of their rights to a King, they discovered they had become enslaved.

They decided to sign a revised social contract or constitution which stipulated the condition on which the ruler would rule them. If he broke those conditions, the people reserved the right to withdraw their allegiance from him.

To ensure that government was accompanied by freedom or liberty, there should be a body of lawmakers called Legislature and the laws should be administered by the Executive headed by a president, king or prime minister. When there is a dispute about the law, the interpretations should be handled by the courts.

This principle is known as the separation of powers.

People obey the sovereign or ruler because they recognise the legitimacy of his power. People once believed that a ruler was appointed by God and disobedience would mean defying God Himself.

These days’ people obey a ruler if he has obtained his power according to the Constitution. Most constitutions prescribe free and fair elections. If some people suspect electoral irregularities, they will question the results and revert to disorder.

One of the unsolved issues in the country’s electoral system is whether a winner of the presidential race should be the one with a simple majority or one whose votes outnumber those of his rivals combined.

If someone gets 40 percent, should he be declared a winner even though 60 percent of the voters rejected him or her?

The constitutional review of 2008 recommended that a candidate must score 50 or more votes to be declared a winner. If none of the candidates has done this, the top two candidates should re-run or compete again.

The constitutions of Zimbabwe, Zambia, Kenya, Ghana, Senegal and other African countries have made provisions for re-runs.

In Malawi, neither the ruling party nor those in opposition have shown will to implement the revised constitutions. The reason is not difficult to discern. They fear losing the privilege of belonging either to a large tribe or large region.

Lovers of public affairs are acquainted with political histories of other countries, particularly why there have been revolutions and why people there continue to kill one another. Law, order and peace cannot last if they are founded on privilege and injustice.

If some people are resisting the 50-plus recommendation because they want to ensure themselves perpetual victory, they are planting seeds of unhappiness.

Malawi is a republic whose official positions both political and administrative should be open to everyone regardless of tribe, region, religion or race.

Let us make Malawi a country of all its citizens not just in theory but practice. As in the France of 1789 let us together chant: Liberty, equality fraternity.