It is rare for an autocratic or authoritarian regime to have the approval of the people over which it rules. Thus, an illegitimate regime wields its power on the basis of fear and corruption. It harnesses the institutions that are supposed to provide relief and legitimacy and subjects them to it so that they do only that which consolidates their power. Institutions are manipulated in such a way that they no longer serve the people but rather work only to perpetuate the regime’s hold on power. This is the case of Malawi.
It is now evident that from the behavior of Justice Jane Ansah and the Malawi Electoral Commission back in May 2019, observant Malawians should have known this. Fast forward to the present time, and not only has MEC been fully harnessed but now also the Army and all other institutions that are supposed to protect citizens from Executing overreach.
The legitimate expectation of every Malawian is that in all areas and spheres of government, public entities will place priority on revitalizing our economy while exercising the greatest care in the use of public funds. After all, according to the International Monetary Fund (IMF) Malawi is one of the poorest countries in the world with 50.7 percent of the population living below the poverty line and 25 percent living in extreme poverty.
Alarmingly, in their efforts to protect president Mutharika’s hold on power, this important fact is lost on MEC Commissioners. MEC recently entered into a contract with Mboweni Maluleke Inc Attorneys securing their legal services for the appeal in the elections case for a whopping $788,500.00 which translates to over half a billion Malawi Kwacha. The Chairperson for MEC, during an interview informed the public that MEC had hired the foreign lawyers at this fee because they could not find a lawyer in Malawi who could handle the case.
Let’s analyze this statement for a bit. First of all, Malawi currently has over 400 licensed lawyers, admittedly not all of them are experienced enough to handle the appeal, but there are more than enough senior lawyers that can. Surely the statement that there is no lawyer in Malawi to handle the appeal is unbelievable.
In a country as poor as Malawi, rarely will lawyers find a client willing to pay such an exorbitant fee. Any lawyer, senior or otherwise would jump at handling a case for this amount and certainly one that would bring him free publicity. It is thus laughable that of all the justifications that could have been offered to Malawians for such flamboyant and illegal expenditures, the best that the MEC Chair could come up with was that there was no lawyer in Malawi that accepted to take on the case. Supposing this justification were true, would a refusal by ‘all lawyers’ to take on the case for such hefty unjustifiable sums not be enough to raise alarms to MEC about the merits of the appeal. Shouldn’t that point, (if true) be a cue to a discerning MEC Chair to drop the appeal altogether and address the anomalies that were unveiled in the elections by the Constitutional Court instead of proceeding to dip their fingers into our taxes to spend on lawyers that they hope will secure their and APM’s seats.
But, not only are we being given these laughable and outrageous explanations for spending our taxes on a useless exercise in such wanton fashion, we have also seen how MEC proceeded to spend our money illegally.
The governing law for public procurement is the Public Procurement and Disposal of Assets Act of Malawi (PPDAA) which applies to all procurement and disposal of assets carried out by entities using public funds as MEC has done. Under the PPDA, public procurement is supposed to be done by means of open tendering proceedings except in the following circumstances.
MEC did not procure the legal services through open tendering. Further, looking at the said procurement it is clear that the procurement did not fall under any of the exceptions to open tendering provided for under the PPDA. In addition, the PPDA makes it mandatory that where there is single source procurement as in this case, approval needs to be sought from the Director General after satisfying him with reasons as to why the services are not being procured through open tendering, however, we are not aware of any such approval from him. In fact, it is on record that not even the Secretary to the Treasury was aware of this transaction. We also saw through a leaked letter on social media purporting to make arrangements for accommodation for the illegally procured lawyers, that there was a statement by the Attorney General (AG) that ‘procurement procedures’ had not been finalized.’ It is even surprising that the AG was involved in the procurement exercise as the Constitutional Court ordered him off the case but clearly, just like the Commissioners, he has proceeded to do as he wishes.
It is important to mention that procurement laws are not only there for financial management, transparency and accountability alone. They are also there to combat corruption hence the reason that the PPDA provides that single source procurement or any high value procurement should be vetted by the Anti-Corruption Bureau (ACB). We are not aware of the contract having gone through any such vetting process by ACB.
In spite of all these anomalies, MEC headed by a Justice of Appeal who also happens to be a woman of the cloth proceeded to spend our hard-earned taxes on procuring these lawyers.
The procurement of the foreign lawyers (which was only known by the public because of leakages by whistleblowers) is a clear indication of why it is foolhardy to maintain someone in their position after two arms of Government, namely the Judiciary and National Assembly has found them wanting and even bearing in mind that some of the Commissioners actually admitted that they were incompetent. This governance gap is now left to be abused by the executive as an ostensible argument for holding on to power by maintaining the same people that used irregularities to ensure he won the elections to conduct the upcoming fresh elections.
If we are going to change the country as Chilima and Chakwera are championing, there will be a need to address these governance gaps that have become so glaring during this period. I hope sincerely that these gaps will be addressed through relevant policy, legislative and Constitutional reforms so that office bearers in similar circumstances are monitored individually and collectively and where their conduct is wanting as in this case, necessary action is taken before they can begin to protect an illegitimate regime.
And this is what Malawians need to know and contemplate upon. For Peter Mutharika, holding on to the power that is quickly slipping away will be done at any cost. Any. Whether it involves instructing or supporting MEC as it breaks the law, or whether it even involves bringing in the very Attorney General himself to help in the illegality.
It seems to me the order from the president is clear. MEC must stop at nothing to maintain their seats as well as that of APM. His beloved MEC having been found incompetent by both the Constitutional Court as well as the National Assembly, Mutharika doesn’t care anymore about the rule of law. He cares only about holding on to the presidency.