Minister of Agriculture George Chaponda has been making the headlines because of his involvement in the now popularly dubbed “Maizegate” scandal. The high court sitting in Mzuzu ruled that because of Chaponda’s alleged involvement in this infamous scandal; his ministerial duties should be suspended, as there are ongoing investigations into the matter via a commission of inquiry instituted by the president.As a matter of clarity, the proper reading of that ruling really addresses President Mutharika. The court injunction in essence ordered president Mutharika to suspend George Chaponda, pending judicial review of the way he constituted that commission of enquiry, which according to the plaintiffs in the matters, flouted the rules of natural justice and breached some written laws of the republic.
Both Chaponda and the president have been defiant. First through refusing to obey the court order at the outset and applying for an inter-partes hearing challenging the injunction, and secondly, continuing to disobey the court order even after the inter-partes hearing came out with a ruling that affirmed the original injunction.
Through the government spokesperson, Chaponda and the president claim that the courts and members of the public are motivated by jealousy in their demands for transparency and accountability, and in insisting that the president and George Chaponda should obey the law. According to Nicolas Dausi, Malawian citizens are filled with jealousy for their own president. I suppose this must be the advice he gives to the president when he asks him why his people are unhappy and demanding accountability.
As a cabinet minister, George cannot be fired by anyone else in the government except the President. And the president himself cannot be fired by anyone. He can only be removed through impeachment in parliament.
This is where the administration of justice hits the wall when the leadership of a country is determined to pervert it.
The government is in control of the law enforcement machinery, which is supposed to help enforce the judgments of the courts. George Chaponda and the President are virtually in control of that machinery. This is the reason they can defy the courts with impunity and ensure that the Charles Kajoloweka & Co.’s courtroom victory is only a moral one, but with no efficacy in the practical realm.
As the matter stands therefore, both George Chaponda and the president are in contempt of court, and yet nothing is likely to happen to follow through this contempt as would happen if the offender were any other citizen.
For those that need a bit of explanation, contempt of court generally refers to conduct that defies, disrespects or insults the authority or dignity of a court. Often, contempt takes the form of actions that are seen as detrimental to the court’s ability to administer justice. Defying a court order to suspend a minister, or disobeying a court order to temporarily stop functioning as minister falls into this category.
The rottenness of our governance framework, beginning with the constitution, is therefore once again exposed.
Most of the time, when the law or a court orders a government official, or anyone for that matter, to do something, they comply. When the order involves money owed, often the cooperation of the person subject to the order isn’t necessary. The court can authorize someone to seize the assets and earnings of the subject of the order with or without that person’s cooperation.
But, when the power to do something is vested in a particular person and only that person, either by virtue of holding a public office, or having knowledge or authority that no one else does, refuses to comply with this kind of court order (called an “injunction”), the primary remedy to enforce that violation is to jail or fine that person until they comply.
And who has the power to arrest the President or George Chaponda for failing to comply with an injunction? The answer in Malawi seems to be: No one!
Now, George Chaponda has a choice available to him that can immediately free him from embarrassing the president and appearing callous and self-seeking as is now. If he resigns from office or even temporarily as the courts have ordered, he will appear noble and honourable. If the commission of inquiry clears him, he can resume his duties and laugh at his so-called jealous detractors. After all, this country being what it is, his being cleared by that commission is already a foregone conclusion. So what is he worried about? That the president will have no chief puppet master? That the commission may take too long to finalise its work during which time he will miss out on opportunities to loot some more?
In the fact that all the court can do with the likes of George chaponda is make a toothless declaration, and all we can do as citizens is talk on social media and create mocking cartoons about him demonstrates that our governance framework needs some serious surgery, and that our justice systems needs some better means of ensuring that no one is above the law.
A better solution would be to offer judges more power to enforce their court orders when someone legally required to do so defies those court orders.
In the case of a public official, like George Chaponda, who defies a court order, it would probably be better if the court were given the authority to order the police to arrest the offender and monitor his activities until such time as the matter were concluded and the situation required his reinstatement. This power might even extend to the power to remove someone from office entirely if the suspension remained in force for a sufficient length of time without winning repentance from the offending public official.
In conjunction with this, or in the alternative, the court could vest someone else with the authority to carry out the public acts that the defiant public official is supposed to carry out. As in other legal matters, when a property owner with a mortgage or business subject to secured debt fails to pay as agreed, a court will often appoint a receiver or trustee to manage the property or business in lieu of the true owner of the property.
These solutions would pretty much always work in the case of public officials, because unlike witnesses or private individuals with the sole authority over foreign assets protection trusts or secret passwords or safe combinations, public officials can pretty much always be replaced by someone else who can perform their tasks for the country while the original post-holder is on a court ordered suspension.
Surely the fact that Nicolas Dausi is a full cabinet minister has demonstrated to us that a ministerial job can be performed by virtually anyone!
Obviously, the remedies I have suggested here are forward looking, waiting for the day a sober-minded politician takes over the reigns of power and revamps our governance framework to fill these seriously gaping holes.
In the meantime, I do not believe that mocking and making jokes at Chaponda’s defiance of the administration of justice in this country is funny. Chaponda is not above the law. He must be made to comply with the court order.
President Peter Mutharika, please comply with the courts and suspend your minister, or you are definitely an accessory to his crimes. You are perilously treading on impeachment territory, sir.