The triumph of constitutionalism in Malawi

African democracy, history shows, is replete with instances of constitution with constitutionalism. But in 2012, Malawi—through managing quite a delicate succession in a peaceful way—at least, has proved to the world that history is not destiny. Ephraim Nyondo tells the story.

In 1998, Edge Kanyongolo, associate professor of constitutional law at Chancellor College, raised pertinent insights about the spirit of constitutionalism worldwide. This was barely three years after Malawi adopted a democratic constitution.

“The main cause of the various crises in constitutionalism is neither a lack of knowledge about the basic norms of the constitution nor the poor drafting of constitutions; rather, it is the failure to accept the constitution as the supreme arbiter in the definition of power relations, especially between the State and the people,” he wrote in an essay titled ‘The Limits of Liberal Democratic Constitutionalism in Malawi’.

The essay was published in a 1998 book titled Democratisation in Malawi: A Stocktaking edited by two erudite professors Kings Phiri and Kenneth Ross.

Kanyongolo’s sentiments were also echoed in an essay by the late law professor of Kenya’s Nairobi University, Hastings Okoth-Ogendo, titled ‘Constitution without constitutionalism’, written in 1991.

Okoth-Ogendo reasoned on the dilemma facing African constitutionalism: “No body of constitutional law or principles of constitutionalism appears to be developing in Africa, and might well fail to do so.

“The paradox lies in the simultaneous existence of what appears as a clear commitment by African political elites to the idea of the constitution and an equally clear rejection of the classical, or at any rate liberal, democratic notion of constitutionalism,” he wrote.

The views of both Kanyongolo and Okoth-Ogendo point to the fact that despite having clear constitutions, African countries have often fallen short of following their contents to the letter.

Constitutions, hence, have always turned out to be nothing but lifeless legal documents.

And Malawi is replete with such examples.

Take Section 65, for instance. Despite a wave of uncountable politicians violating it, the section has only been successful on very few occasions, such as Fred Nseula’s case in 1995.

Since then, it continues to be violated and the violators continue to go scot-free. Is this how democratic governance should be?

However, though Section 65 represents the dark side, one can argue that all is not lost about the spirit of constitutionalism in Malawi. There is always a silver lining that gives hope.

The way Malawi, in 2012, peacefully handled that delicate succession after the death of former president Bingu wa Mutharika, presents quite a symbol of the growth of constitutionalism in Malawi.

In an interview with The Nation last week, political scientist Michael Jana gave an interesting reason why this is the case.

“The demise of Bingu wa Mutharika brought a political power vacuum that some Democratic Progressive Party (DPP) elements wanted to selfishly exploit and rape the Constitution,” he said.

The media exposed how the DPP held clandestine illegal Cabinet meetings aimed at making Peter Mutharika State president, when the Constitution clearly states that the Vice-President, at that time Joyce Banda, is to take over the presidency in such circumstances. Of course, none—apart from the actors themselves, can exactly decode the depth of what was being discussed in those meetings.

However, through that midnight interview where the then government spokesperson Patricia Kaliati unashamedly said: “Joyce Banda cannot become president because she has her own party,” revealed to Malawians what was going on under the radar.

Apart from Kaliati, the others in the interview, dubbed the midnight six, included: Henry Mussa, Dr. Jean Kalirani, Symon Vuwa Kaunda, Nicholas Dausi, Kondwani Nakhumwa.

What DPP wanted to achieve, history shows, has had tragic consequences in other African democracies.

“We have observed in other countries where in such power vacuums, those holding the monopoly of violence, the army, launch coup d’etat and take over power in unconstitutional way,” continued Jana.

In Malawi, things did not end that way.

“During the period [when DPP was planning to rape the Constitution and make Peter president], the Malawi Army acted professionally and backed the then vice-president to take over power in line with the Constitution,” said Jana.

Of specific mention is the hand of the Commander of Malawi Defence Forces (MDF) General Henry Odillo. As someone who became a general during Bingu’s era, everybody expected him to lean towards DPP. But after Joyce Banda called him to ask for protection, he acted professionally.

His positive response to Banda, to a great extent, saved the country’s democracy. Surely, Odillo deserves a place in the country’s history.

Of course, apart from Odillo, the civil society, too, added a strong voice to safeguard the Constitution.

But it is also important to recognise the role of the citizenry in the process. The patience of the citizenry and the tacit support to Joyce Banda’s ascendancy to power was phenomenon.

“I think the manner in which presidential powers were transferred to Joyce Banda adds significantly to the culture of respecting the Constitution.

“For a long time, we have heard about complaints that in Malawi we have a Constitution without constitutionalism; that people do not respect constitutional provisions.

“April 5 to 7 2012 [the dates of power vacuum after Bingu’s death] will consciously and/or unconsciously pop in the minds of Malawi politicians and many Malawians, and will remind them that tampering with the Constitution is no longer an option,” said Jana.

Such a peaceful transition does not just signal constitutional democracy in Malawi as Jana argued, it also shows a nation correcting the wrongs of African history.