Killing democracy behind doors

Almost all the finest words have been uttered urging Speaker of Malawi Parliament Henry Chimunthu Banda to uphold the Constitution by invoking Section 65.

The clergy, the international community, the youth and women groups, the civil society and even the public—through Nation on Sunday’s nationwide survey carried last week—have all spoken.

And their words support the fact that Section 65 is a pillar of the country’s democracy, as such, it should not just be maintained in the Constitution, but also applied.

Yet, since its inclusion in the Constitution in 1994, and again, despite the rising numbers of MPs crossing the floor, the section has only been successfully applied once—on Fred Nseula in 1994.

The question is: Why should MPs that cannot stop defying the country’s pillar of democracy continue to go unpunished?

Injunctions

There might be a number of reasons, but MPs resorting to court injunctions sounds fashionable. It happened with Zomba Central MP Yunus Mussa during Bingu wa Mutharika’s first term, and we have seen it again, today, with Ntcheu West parliamentarian Christopher Hiwa.

Of course, neither Mussa nor Hiwa breached the law to obtain the injunctions. But getting an injunction does not suggest they did not breach the law.

In fact, it does not mean the injunction can stay forever—like Mussa’s, without being vacated for the Speaker to uphold the Constitution.

Through the office of the Attorney General, government’s principal legal adviser, the injunction could be vacated.

But why, then, has the office of the AG failed to spearhead vacating them for the Speaker to act?

Independence of AG’s office

The answer to this question reveals, to a larger extent, how the office of the AG has, for years, conspired with other irrational anti-democracy forces —through stifling Section 65—in killing the country’s democracy behind doors.

The basis is simple: Holders of this office [AG], who are supposed to make impartial legal processes involving all the three arms of government, are prone to be biased towards the Executive, in this sense, the ruling party.

That is why, through tactfully leaving the injunctions unharmed, their agenda was to protect Mutharika’s Democratic Progressive Party (DPP) then, and to nurse People’s Party (PP) today.

The result of their actions is the continued destruction of what Section 65 aims to protect—diverse political views, which is the bedrock of multiparty politics.

Interestingly, questions over the AG’s capacity to act independently, as it is presumed, does not just begin and stop with how they stifle Section 65.

Since the resumption of the multiparty democracy in 1994—that is after it was curtailed in 1966, the AG’s office has not looked good in public eyes.

Stakeholders at the First National Constitution Conference expressed concern over what they perceived to be lack of independence of the AGs office. Interestingly, the Law Commission, too, appreciated and shared the concern.

“The Commission was aware that during the one-party era, the office of the Attorney General worked well, providing legal advice to all three organs of government.

“In the current multiparty dispensation, the Attorney General has at times been, or perceived to be, a functionary of the ruling party and as such his or her ability to give independent advice has been compromised,” reads the 2007 report of the Law Commission on the review of the constitution.

Building on the same context of the AG’s independence, recently the Malawi Law Society (MLS) have cautioned Joyce Banda’s government on several legal areas, including the apparent conflict of interest for the AG who doubles as the Minister of Justice and Constitutional Affairs.

Arguably, if the AG’s office had a history of impartiality and independence in the way it executed its duties, definitely, these concerns could not have been cropping up. They crop up because something terrible must be wrong with the office.

As an office through which every legal suit for or against government is channelled, the need for its impartiality and independence is not debatable.

The AG, according to Section 98 (3), is appointed by the president. The security of the AG’s tenure of office, as provided in sub-section (4) of the section, is, again, at the president’s mercy.

“The Attorney General shall be subject to removal by the president on the grounds of incompetence, incapacity or being compromised in the exercise of his or her duties to the extent that his or her ability to give impartial legal advice is seriously in question,” reads the sub-section.

Could the president’s sole power of appointment and control of tenure explain why the AG’s office is always glued to the Executive?

“That does explain it. The AG is part of the Cabinet. Can he or she, given such provisions, play to the contrary? Practically, it is not,” says Dr Mwiza Nkhata, law lecturer at Chancellor College.

Additionally, sub-section (5) of Section 98 makes the AG’s office either the office of a minister or a public officer. Here, too, delegates at the first constitutional review, raised eyebrows.

“The Commission observed that where the Attorney General is the holder of political office, upon dismissal, it is not clear as to whether the Attorney General is dismissed under Section 98 or under Section 95 (2) under which the president is empowered to remove ministers,” reads the Law Commission review notes.

The Commission further recommended that the office of the AG should be strictly a public office, to mean, necessitating amendments to sub-sections (4) and (5) of Section 98.

In fact, even delegates to the Second National Constitution Conference unanimously supported this position. And they also added some insights.

“The Commission was urged to consider proposing legislation that specifies situations where the AG may or may not act for the other branches of government. In such a situation branch of government should be in a position to engage a legal practitioner without seeking consent of the Attorney General,” reads the report.

Almost four years have passed now; the recommendations are yet to take effect. The AG is still in the whims of the Cabinet, and even worse, the return of the situation where the AG doubles as Minister of Justice is almost a nail on democracy’s coffin.

“Legally, there is nothing wrong when the AG is also the Minister of Justice,” says Nkhata.

In fact, Ralph Kasambara is not the first to combine the two roles. Peter Fatchi and Henry Phoya did the same during the leadership of Bakili Muluzi.

However, despite being legally right, practically, according to Nkhata, it cannot work.

“The question of conflict of interest as advanced by the MLS is real. The doubling really presents complications,” he says.

Nkhata notes that a straight forward instance is where the AG is expected to advise government on matters that directly concern himself or his office. He gave the example of Section 65 court injunctions that MP Hiwa obtained against Speaker through the AG’s office.

“The AG is part of the Executive (Cabinet) which is an interested party, and we expect him to advise the President on the same matters over which both have a direct interest? Practically, that Is not on,” he says.