Is it too surprising that for the Mutharika government democratic governance only means one thing—the powers and privileges President Mutharika enjoys, as Head of State? The President has never struck me as someone who understands or is sober about issues of governance, much less takes seriously his responsibility for the observance of the provisions of the Constitution, his responsibility to defend and uphold the Constitution as the supreme law of the Republic and, just as significantly, his constitutional responsibility to provide ‘executive leadership in the interest of national unity in accordance with the Constitution and the laws of the Republic’.
The Mutharika government is incensed that its ‘detractors’ saw through the charade of the recently constituted commission of inquiry on the maize-gate (how it cobbled together the commission pursuant to Section 89(1)(g) of the Constitution, its composition, its implementation and the no-so-subtle unstated intention not to get to the bottom of the maize-gate but rather to protect the illegality in the maize-gate) and have taken the appropriate action to challenge the charade.
The Mutharika government’s ‘detractors’ have used the only means the Constitution provides for to attempt to right (remedy) the perceived wrong (violation of clear constitutional propositions in support of transparency and accountability) or simply seeking judicial scrutiny of executive inaction that appears not in the best public interest. The Information Minister has described the action as “usurpation of the executive’s powers” and some legal analysts have described the action as “extremely unusual”. Seriously?
The rule of law is the cornerstones of any functioning democracy and by Section 4 of our Republican Constitution, all public offices must to be transparent and accountable to the populace (all public functionaries must be accountable for all exercise of all public power) by stipulating that all executive, legislative, and judicial organs of state, at all levels of government (all government action) must comply with the Constitution in their operations, and any action or inaction by any public functionary (including the President) deemed not in the public interest is challengeable (or subject to judicial scrutiny) by the courts of the country. The heart of the rule of law is that everyone is subject to the ordinary law of the land, and that no one should be considered above the law (that all institutions and persons shall observe and uphold the rule of law, and no institution or persons shall stand above the law).
All executive actions (and inactions), commissions (and omissions), decisions (and indecisions) or conduct (and misconduct) is subject to constitutional scrutiny for conformity and compliance with the Constitution and where such decisions, actions, or conduct are found in violation, they will be struck off for unconstitutionality While the Constitution emphasizes the ‘separate status and functions of each of the three branches of government’, it also provides for checks and balances by ‘allowing the judiciary to review the manner in which the executive or the legislature are performing their duties for compliance with the Constitution’. Since the judiciary is granted the responsibility of interpreting, protecting, and enforcing the Constitution, in an independent and impartial manner, and has been endowed with the power to review all such action for conformity with the Constitution and to pronounce on the constitutionality of actions and inactions, commissions and omissions by the executive or the legislature, what is the basis of such descriptors as “usurpation of the executive’s powers” or “extremely unusual” when an empowered citizenry (equipped to ‘exert sufficient pressure on government to remain accountable and transparent’) demands transparency and accountability or wishes to subject the exercise of executive (or legislative) authority it believes not to be in the public interest to judicial scrutiny?.
There is a huge difference between ruling a country and governing a country; while the later is guided by best practices the former is not! And, there is nothing that does more irreparable harm and poses the most prominent threat to the rule of law than executive non-compliance with court orders. That the knee-jerk reaction by the Mutharika government would be to say they would ‘not act on the court order’ while not too surprising from a government that is ruling a passive people and one with such a ‘chequered’ picture with regard to compliance with decisions in areas of social and political governance but it is not what would have been ‘pleasantly’ expected from a government run by someone who wears on his sleeves and forehead claims of knowledge of a lad bit about the rule of law!
Kudos to the brave men and women of the country who saw the pretenses to democratic governance by the Mutharika government and found the courage and resources to challenge it in the manner they did and through their actions have given voice to the true intent of the Constitution, the supreme law of the Republic.
Comments
One response to “Challenging the charade to democratic governance: Malawi politics”
A well argued and written article. Great thanks indeed for the legal action taken by some courageous people in Mzuzu on the matter. It saves us loss of innocent lives that are sometimes lost in mass demonstrations.