An oath, in simple terms, is an invocation to the gods to bear witness that one’s statement, promise or commitment is true. It is a unique and loaded act of promising. The person taking the oath is saying that I am prepared kuwona malodza if I break my promise or commitment. Historically, oaths are the truth. Any disputation of an oath is blasphemous. Indeed, the god—the supreme being—as a witness links oaths to religion and the occult. Oaths, especially in the context of pledging loyalty to the Sovereign, are critical. The ceremony of the oath is equally important: the precise wording, the gesture and the location. Any departure from the accuracy of the oath invalidates it. [Chief Justice Lovemore Munlo, SC had to repeat certain phrases in the Oath of the Office of the President during the inauguration of Joyce Banda as President of the Republic of Malawi. The repetition was to ensure that the exact wording of the oath has been followed.]
Scholars have observed that oaths of office are oddly pervasive in largely liberal–democratic constitutional orders. Oaths commit public officers to the mandate of their office. However, the bonding is done through the invocation of divine or religious sanction in the discharge of duty. This is where the paradox of the oath of office lies. Liberalism is said to be based on purported secular modernity. In other words, government must be based on the rationality of thinking and not deferred to some amorphous power or centre of morality. An oath of office brings together the relationship of religious conviction, moral principle and political power. The oath—as a theological construct—rattles the secularity of liberal constitutionalism. Hence, oaths (or affirmations as their secular adaptations) remain endemic in our public law and administration.
The Constitution of Malawi does not declare Malawi a theological Republic. The Constitution—rooted as it is in liberalism—portrays its secular underpinnings in the Preamble by the ‘[p]eople of Malawi’ ‘[h]ereby adopting’ the Constitution. At the same time, all elected public officers (the Presidency, Members of Parliament or Councillors) are required to swear or solemnly affirm their allegiance to the Constitution. The oath of the Presidency, for example, states,
“I, […] do solemnly swear that I will well and truly perform the functions of the high office of President (or Vice-President) of the Republic of Malawi, and that I will preserve and defend the Constitution, and that I will do right to all manner of people according to law without fear or favour, affection or ill–will. So help me God.”
Technical–public officers are similarly required to take an oath or affirmation. And Judges too. All these must equally “do right to all manner of people according to law without fear or favour, affection or ill–will.” And God must help them.
The oath of the Presidency, for example, commits the relevant officers to, among other things, defend the Constitution. In public finance management, it is a constitutional principle of national policy that the State “guarantee[s] accountability, transparency, personal integrity and financial probity and which by virtue of their effectiveness and visibility will strengthen confidence in public institutions.” I will not even delve into the principles of constitutional supremacy, rule of law, equality before the law and others. The constitutional principle I cite states, in part, that an effective and visible [standard] of financial probity strengthens the confidence of public institutions.
I have lost count of the many instances of (possible) kusolola of public funds. The motion picture has been so action–packed it has been a tad dizzying. There have been petitions, threats of demonstrations, actual demonstrations, and diatribes in newspaper columns (including this column). The plunder of State resources has not relented. Those who took oath to defend the Constitution have not done any defending so far. Meanwhile ndalama za a-Malawi nzu’nka nu’pita.
That is why I think there should be a right to no oath (Ine sin’lumbira). The pomp and ceremony that engulfs the taking of the oath of office must be accompanied by a flip, albeit short, lecture that explains to a would–be oath–taker the implications for ignoring the Constitution and the laws of Malawi. If a would–be oath–taker declares that he or she cannot live up to the high levels of integrity envisaged by our laws, then they should perhaps not become the elected or technical public officer they seek to become.
Otherwise, n’tawuni–mu akuti masikombingo achuluka.
* Chikosa Silungwe is a lawyer & consultant at The Mizumali Foundation. He holds a PhD in Law from The University of Warwick in Coventry, England.