Two researchers have established that some elected civilian authorities in Malawi entrusted with oversight services on the military have tended to over step their mandate to abuse powers.
Retired Malawi Defence Force (MDF) commander General Vincent Nundwe, now Malawi’s Ambassador to Morocco, and Mzuzu University (Mzuni) historian Chrispin Mphande made the findings in their study that assessed the relationship between elected civilian authorities and MDF in the multiparty dispensation.
The findings presented during a University of Malawi and Malawi Law Society conference in Blantyre that reviewed the country’s Constitution after 30 years cited events after the death of former president Bingu wa Mutharika in April 2012 and the reaction by then president Joyce Banda to the 2014 election results.
In the 2012 case, then governing Democratic Progressive Party (DPP) senior leaders wanted to block vice-president Joyce Banda from assuming the presidency. On the other hand, in 2014, Banda, who finished third in the elections, called for the nullification of results. However, her call failed.
The study has also mentioned events after the 2019 Tripartite Elections when elected civilians ordered MDF to block the demonstrations against the results.
Read the study findings: “Using the three cases cited, the study concludes that the Constitution was put to test by the elected authorities. However, the MDF opted to operate within the dictates of the law.
“The study concludes that while the elected civilians are mandated to provide oversight services over the military, some go beyond their mandate and abuse their powers.”
Ironically, Nundwe was the Army chief during the period of post-election demonstrations.
Specifically, the study said that on April 6 2012, the DPP administration announced that Bingu was being flown to South Africa for treatment and that his brother, Peter, would be president of DPP.
The study also highlighted resolutions of the midnight media briefing by some Cabinet ministers who stated that Banda could not ascend to presidency because she had ditched DPP and formed her People’s Party (PP).
Further reads the study: “Army commander [in 2012] was to ‘temporarily’ take over power till things are sorted out. This was contrary to the constitutional provision under Section 83[3].
“On 7th April, two developments happened: A move to stop Joyce Banda taking over power. Malawi Law Society issued a ‘strongly-worded letter’ against the move. MDF ordered beefing up of security at Banda’s residence against the midnight six declaration.”
Subsequently, Banda was sworn in as president and she appointed Khumbo Kachali as vice-president.
On the 2014 case, the study said: “Evidence suggests that the president [Banda] ordered closure of the tally centre, citing irregularities. Elected authority [principal] ordered the MDF [agent] to close the tally centre.
“Elected authority ordered nullification of the elections and directed fresh elections within 90 days. MDF [agent] shirked, opted to protect the law and sided with MEC [Malawi Electoral Commission].”
Speaking iIn an interview, Mphande said elected authorities have oversight duties over the MDF with the Minister of Defence being policy holder and the President as Commander-In-Chief with powers to hire and fire MDF commanders.
“While such is the case, there have been instances where the elected authorities abuse their powers and move the MDF to follow their line of thinking,” he said.
Reacting to the study, private practice lawyer Benedicto Kondowe said institutional safeguards must be strengthened through clear legal frameworks that insulate the military from partisan influence.
He said: “Oversight mechanisms, including parliamentary scrutiny, should be empowered and depoliticised, while military leadership should be regularly oriented on its constitutional role.
“There must be legal reforms to hold public officials accountable for unconstitutional conduct, including sanctions and prosecution. Civic education and public demand for rule of law can create the necessary pressure for institutional accountability.”
Catholic University dean of law James Kaphale cited Bingu’s decision to quit United Democratic Front (UDF), the party that sponsored his presidential ticket in 2004, to form DPP and relegated the UDF to opposition benches.
He said: “UDF became an opposition party despite the fact that it was the party that ushered in the president.
“I also suggest that on the appointment of the [MDF] commander, the Public Appointments Committee of Parliament should have an oversight function just as we do with the appointment of the Director of Public Prosecutions.”
On the political front, political expert Wonderful Mkhutche said anyone who tries to act against the constitution is a threat to Malawi and action must be taken against them.
The conference, organised to evaluate the impact of the Constitution on the nation’s political, social, and economic development, ended last Wednesday after some presenters highlighted shortfalls in the Constitution.
However, no recommendations were made for specific reviews of the supreme law adopted 30 years ago. Instead, the conference, which sought to explore the impact of the Constitution on the nation’s political, social and economic development, ended in Blantyre on Tuesday evening with a call to various experts to continue with the debate.
