If Ralph Kasambara was South Africaâ€™s Attorney General in 1993, and, faced with public fury to have Nelson Mandela released from prison, what advice would he have given to the president?
Would he have used common senseâ€”the capacity to tailor legal requirements to the demands of a particular situationâ€”to move the president to listen to the people?
Or he would have, quoting dense sections in the Constitution, convinced the president to keep Mandela in prison because the â€˜law is clearâ€™?
Of course, Mandela was not in prison by default. He was tried and convicted by a competent court of law, and as such, he was legally, just as any convict, supposed to serve the sentence.
But what if Fredrick de Klerk, the then South Africa leader, abandoned his instinctsâ€”the basis of common sense, and listened to the dictates of the law? What could have befallen South Africa today?
Common sense, not law, saved South Africa from a long tumultuous history of apartheid.
In fact, it saved Malawi from dictatorship as well. Was it law or common sense that moved Dr Kamuzu Banda in 1993 to finally call for a referendum? It was common senseâ€”an individualâ€™s capacity to reason according to the needs of time.
History shows that common sense, not law, in critical social and political junctures, has been at the heart of solving fundamental questions that polarise nations.
Yet despite that, recent governance movements that come with wisdom of â€˜rule of lawâ€™ and â€˜constitutionalismâ€™ have largely, through official misinterpretation and manipulations, stuffed human brains of common sense, slowly drowning in law, legality and bureaucratic processes.
â€œWe have abandoned our common sense and individual sense of responsibility; we live in terror of the law; in awe of procedure, at war with one another,â€ writes American historian Phillip Howard in the must-read book Death of Common Sense: How Law is Suffocating Humanity.
The law is supposed to be a framework for humans to make choices, not the replacement for free choice, to be responsible to humanity. But the opposite appears to be the order of Malawi today. And nowhere is this apparent than in the way the Joyce Banda administration has handled the asset declaration debate.
Section 88A (i) of the countryâ€™s Constitution provides that the President and members of the Cabinet â€œâ€¦.shall, within three months from date of election or appointment, as the case may be, fully disclose all their assets, liabilities and business interests and, those of their spouses, held by them on their behalf as at that dateâ€¦.â€
â€œThe spirit of section,â€ argues Dr Mwiza Nkhata, law lecture at Chancellor College, â€œis to prevent corruption among public officers. The declaration is a transparency tool, something the public can use as yardstick of stocktaking how public officers amass wealth with given years.â€
Notwithstanding that she declared her assets after being elected as vice-president in 2009, civil society groups in the country want President Banda to re-declare her assets. They argue that her new office provides a different platform and opportunity of amassing wealth.
Kasambara, however, does not agree.Â
â€œThere is no reason for her to declare her assets now because she was a member of the Cabinet that was sworn in 2009,â€ he said in an interview with The Daily Times last week.
He added: â€œThis is all covered; some people are just being emotional without looking at the law.â€Â Â
Of course, Kasambaraâ€”even Justin Dzonzi of Justice Link agreesâ€”is quite right on the law. However, the question at hand is not within the bounds of law for the Constitution to provide answers. It is about common sense and taking responsibility.
â€œLetâ€™s look at the intention of the law, not just the wording of it. The section aims at curbing public officers from looting the public purse. Arguably, the potential of a vice presidency to loot and amass wealth is different from that of the presidency,â€ says Nkhata.
In fact, JB took an oath of office while vice-president. Why did she have to take another oath of office when she rose to the presidency? That shows she is now in a complete different role than the first.Â
So, is Kasambaraâ€™s insistence not a symbol of using the law to shield JB from taking responsibility? Again, these are not legal questions; they are question of common sense.
â€œIf JB wants to walk the talk on transparency, accountability and corruption fight, she needs to declare her assets again. This is not a legal question. It is a moral question filled with responsibilityâ€”the measure of a good leader,â€ says Joseph Chunga, president of Political Science Association of Malawi (PSA).
Chunga even adds that Malawians need to go beyond questioning the need for a leader to declare their assets.
â€œWe need to ask: â€˜declaring the assets to whom?â€™ Why should a president we elect declare assets to the Speaker [of Parliament]? Does that mean the leader is accountable to the Speaker? What if the Speaker doesnâ€™t tell us the truth about the declared wealth?â€ he asks.
To date, Malawians do not know how much late Bingu wa Mutharika amassed over the years. Speaker of Parliament Henry Chimunthu Banda refused to disclose the presidentâ€™s wealth.
So, if a Speaker can manage and succeed to sit on the declared wealth of a public officer, where is accountability and transparency in our system? Again, these are not legal questions. They are questions of common sense which we continue to revere in public discourse.
Of course, the tension between legal certainty and lifeâ€™s complexities, history records, has always been a primary concern of those who build legal systems. The Constitution is a model of flexible law that can evolve with changing times and unforeseen circumstances.
But when it falls short of resolving such unforeseen circumstancesâ€”the declaration of assets for instanceâ€”common sense need to take nations through.
Surely, without de Klerkâ€™s resort to common sense, South Africa would not have been free from apartheid as it is today. And without common sense spilling into the Attorney General, he will plunge his boss into a dungeon of irresponsibilityâ€”the mark of leadership failure.Â