The Human Rights Defenders Coalition (HRDC)

As a lawyer and a governance professional, I am grappling with the question of how a society can effectuate real change to a governance framework within the law in a democratic, consensual, non-violent way when the law’s normal procedures are inadequate or held captive by anti-legal forces and selfish private agendas.

As I observe the effort by Malawian Civil Society to put pressure on the Malawi Electoral Commission Chairperson Jane Ansah to resign, and in their fight for electoral justice after an election that clearly was disputable and unreliable, I wonder if the effort is perhaps being undermined by a failure to appreciate some fundamental truths underlying the concept of protesting.

Protests and Demonstrations, or what some call a non-violent coercion is a choice to use non-violence to modify the conduct of others to promote a grouping’s interests or ideals.

In the current situation in Malawi, it is important to understand and accept, especially on the part of the three main groups engaged in the current political impasse: the protestors, the government and the judiciary, that what has resulted in Malawi after the May elections is not a normal situation but an abnormal one, without legal or political precedent in Malawi.  It therefore should follow that the situation must be understood and handled dispassionately and with a fair amount of wariness.

Peter Mutharika

It appears that while the populace opposes the legitimacy of a government installed by a dubious election, the government itself believes it can still assert its entitlement to thwart rights and freedoms of expressions and assembly by invoking the courts to intervene on its behalf. The courts need to be wary of such attempts by the government, remembering that the issues under consideration are far-reaching and hold the destiny of the nation in the balance. It is important to remember that under the constitution, the right to rule is legitimized through universal suffrage and must be properly approved by the people.

Most crucially, however, it is important for those leading in the protests to appreciate that in order to change a system declared to be rotten and unfit to govern, it is foolhardy to continue to be compelled to obey the laws and power demonstrations of that very system. The success of the protests so far has been limited because those that have been in the lead see themselves as celebrities and have become unwilling and afraid to damage their clean status or make their hands dirty by being seen to be disobeying the law.

Malawi is at a governance crossroads. Words like revolution and change are being thrown about. I doubt though if those throwing these words around and talking about the transformation of the country’s governance framework from one of corruption, impunity and patronage that benefits only one tribe to one that serves all Malawians truly understand the depth of such words.

Revolutions change governance systems and frameworks. They are by nature coercive because reigning regimes tend to resist them vehemently. To coercively influence a government, strikes, boycotts or other acts of non-cooperation are supposed to be the recognized weapons. These weapons may seem to be non-coercive because they are mere abstentions. But, if applied correctly, they are coercive. Under modern conditions the “power structure” against which the resistance is directed must have the cooperation of the resisting group to survive. The noncooperation compels power (which thought it had such absolute control as to prevent effective dissent) to make concessions, even against its will. The movement has a two pronged attack: to touch the conscience of the “masters” and make them listen, and to recruit the support of disinterested onlookers for the “underdog.” Strikes have often had extensive and profound political significance.

Some call this kind of effort to influence power “Civil Disobedience”. Civil disobedience has much the same purpose as non-violent coercion, relies on some of the same techniques, and is grounded in much the same theory as non-violent coercion. It has one distinguishing characteristic: it is against a specific law or act of the State having the effect of law, which is disobeyed; and the law is that of the state having jurisdiction of the protestor. In a very real sense, therefore, civil disobedience is civil non-violent resistance or coercion just as we speak of “civil” war.

Let us examine a few other characteristics of civil disobedience used in its limited or proper sense: (1) “Civil” is not used in contradistinction to “criminal” (for some civil disobedience is indicted as criminal), but it is used as “against the state, the civil, the civitas.” (2) It is an “intentional” act, a chosen course, not occasioned by accident. (3) It is used for an external purpose (to call attention to injustice, to change conditions). (4) It is non-violent, at least in origin. (5) It is a form of communication and asserts that it is within the theory of the Constitution. (6) It is used by those who are in fact barred from otherwise exerting power. (7) It may be legal or illegal.

When, a person, or group of persons challenges state law or policy by violating a specific law, then we have a case of civil disobedience, which presents certain legal problems. There are those who tend to prejudge the whole issue of civil disobedience by restricting its meaning to intentional violation of a law already declared valid and controlling by the highest national authority. Such a definition cannot be accepted, for it is far narrower than either the law or the practitioner of civil disobedience accepts.

Without belaboring the point with technical discourse, in accepted legal terminology, I wish to suggest (1) that civil disobedience is a recognized procedure for challenging law or policy and obtaining court determination of the validity thereof; (2) that theories of jurisprudence recognize the propriety of non-violent challenge to law or policy; (3) that the obligation to obey the law is not absolute but relative, and allows for some forms of such non-violent challenge; (4) that protests and civil disobedience should receive protection under the Constitution; (5) that even if the act of protest or disobedience is found to be a technical violation of law, the purpose of the disobedience should cause the punishment to be nominal (certainly not more severe).

These truths need to be borne in mind by every Malawian who speaks about revolution, change or transformation, and believes that now is the time to seize the moment and create a better society and a better nation.

There is no such thing as a clean revolution.

Allan Ntata
Barrister of middle temple, Z Allan Ntata

True and far-reaching change almost invariably is preceded by periods of governance crisis and social upheaval. There usually are arrests and detentions, riots and rebellions. If this botched up election has provided Malawi with such an opportunity, then it is important for all those on the cutting edge of the impasse to accept it with all its accompanying responsibilities and take it with the courage and the seriousness it deserves.

Malawi is looking for heroes, not celebrities.

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