Countries at the Crossroads 2006 - Malawi

(Scores are based on a scale of 0 to 7, with 0 representing weakest and 7 representing strongest performance.)

Introduction

Just over a decade after a national referendum ended 30 years of dictatorship under former President-for-life Hastings Kamuzu Banda, commitment to multiparty democracy, human rights, and the market economy appears, at least in principle, embedded in Malawi's political culture and embraced by the country's major political parties.

Yet Malawi's political system is characterized less by competing policies or ideologies than it is by personality- and patronage-driven rivalries in the framework of ethnoregional party loyalties.¹ This reality was reflected in events of 2004-05, including the failed attempt to extend presidential term limits, the contentious third multiparty elections in 2004, victorious President Bingu wa Mutharika's resignation from the United Democratic Front (UDF) and creation of the Democratic Progressive Party (DPP), and subsequent UDF attempts to impeach the president. All contributed to political turmoil that inhibited effective government response to Malawi's deepening food crisis and persistent criminality. Even President Mutharika's sorely needed and much-heralded anticorruption campaign, which has netted many prominent suspects, appears now to be focusing primarily on his political rivals.

Malawi's 1993 national referendum, in which 63 percent of the voting population opted for multiparty democracy, brought an end to the centralized, one-party, one-man dictatorship that had ruled the country since it gained independence in 1964. The referendum was the climax of a prodemocracy movement that included strikes, student demonstrations, and riots in opposition to the country's vast economic inequalities and political repression under President Banda and his Malawi Congress Party (MCP). Mounting domestic opposition, coupled with the pressure of foreign donors' suspension of nonhumanitarian aid, forced the dictator to accept a national referendum on the adoption of a multiparty political system.

Bakili Muluzi of the United Democratic Front (UDF) defeated Banda in the country's first multiparty elections in 1994, launching a decade of UDF political domination. The main parties during the first two terms of multiparty rule reflected the country's regional/ethnic voting patterns, which largely persist today. The ruling UDF gained overwhelming support in the country's heavily populated southern region, the MCP dominated the central region, and the Alliance for Democracy (AFORD) drew backing largely in the northern region. Personality battles rather than substantive debates over policy or ideology prompted an MCP-AFORD alliance prior to the 1999 elections, the rise of the National Democratic Alliance (NDA) in 2003, and an internal division in the MCP that aligned the majority with the UDF under John Tembo and left the rest aligned with AFORD under Gwanda Chakuamba. A narrow presidential win for Muluzi and parliamentary victory for the UDF in the 1999 elections was followed by violent protests, particularly in the AFORD-dominated north.²

UDF attempts to gain parliamentary approval for a constitutional amendment to allow Muluzi to seek a third presidential term dominated the political landscape in 2003 in the run-up to the 2004 elections. A host of civil society organizations, particularly religious coalitions, vigorously opposed Muluzi's efforts to change the constitution. A narrow parliamentary defeat decided the third-term debate, ending Muluzi's bid to retain power and marking a clear victory for the checks and balances of constitutional democracy in Malawi.

The 2004 elections ultimately ushered in what appears a new era for multiparty rule. The UDF's loss of its parliamentary majority to the MCP and Bingu wa Mutharika's ascent to the presidency have prompted an array of new political alignments while raising anticorruption to a national priority. After being hand-picked by Muluzi as the UDF candidate, Mutharika broke from the party in February 2005 to form his own Democratic Progressive Party (DPP). Malawi politics have been dominated by a bitter personal and partisan dispute between Mutharika and Muluzi ever since. The dismissal of the vice-president and enforcement of a constitutional ban on elected members of Parliament switching parties during a parliamentary session have become contentious and politicized issues.

Severe drought in 2005 devastated small-scale agriculture, which is the backbone of an economy based largely on subsistence farming, especially maize production.³ This has seriously threatened food security for millions of Malawians, who are now dependent on external food aid. Widespread and dire poverty continues to afflict the populace, with an estimated 55 percent of the population falling below the poverty line in 2004.⁴ The country's per capita income today (US$170) is a mere 10 dollars higher than it was in 1994,⁵ and from 2003 to 2005, economic growth averaged below 5 percent, far less than the 6 percent that the International Monetary Fund's (IMF's) Malawi Poverty Reduction Strategy Paper projects as necessary to significantly ameliorate the country's grinding poverty.⁶ Expansionary monetary policies have contributed to rapid inflation, which jumped from 8.5 percent in June 2003 to 11.6 percent in June 2004 and reached 14 percent in March 2005.⁷ Depreciation of Malawi's currency, the kwacha, has driven fuel import and retail prices higher and further raised the cost of living.⁸

Accountability and Public Voice – 4.75

Section 40 of the Malawi constitution guarantees the rights to form, join, and participate in the activities of political parties; to vote and campaign for political office or a political cause; and to freely make political choices.⁹ However, the electoral process, as currently practiced, makes genuine realization of these rights problematic.

Parliamentary and presidential elections were held at the mandated five-year intervals, in 1994, 1999, and 2004, in accordance with Section 83 (3) of Malawi's constitution. Although the president is constitutionally limited to two five-year terms, three years in advance of the 2004 election, the UDF launched a campaign to scrap the term limit. Active lobbying by civil society and faith-based organizations helped secure a narrow parliamentary defeat that prevented Muluzi from seeking a third term. Consequently, Bingu wa Mutharika was handpicked by Muluzi as the UDF candidate; it was believed that his older age and lack of political experience would allow Muluzi to continue to exercise real power in his role as national chairperson of the UDF.¹⁰

Although the May 2004 elections were conducted by secret ballot, numerous controversies and irregularities were documented before and during the voting. Several local election-monitoring groups, including the Public Affairs Committee (PAC) and the Malawi Electoral Support Network (MESN), rated the elections as less than free and fair.¹¹ Voter registration, unequal access to campaign resources, state media bias, and lack of transparency in vote tabulation were identified as the most problematic areas. The Malawi Election Commission (MEC), institutionalized by the constitution to ensure free and fair elections, exhibited a clear bias toward the UDF throughout the election process. The election was postponed for two days when a coalition of opposition parties, collectively known as Mgwirizano, took the MEC to court on the basis of a near-two-million discrepancy between the number of registered voters and the number of MEC-printed ballots.¹²

The constitution guarantees universal suffrage (except for serving members of the military) as well as opportunities for the rotation of power among a range of political parties. Five candidates from different parties competed in the 2004 presidential election, and 14 parties were represented in the parliamentary vote.¹³ The UDF's surprising loss of its majority in the 2004 parliamentary elections (winning 49 of the National Assembly's 193 seats as opposed to the MCP's 59 seats) indicates that despite electoral manipulation, power can change hands. Government efforts to bar the NDA (consisting mainly of disaffected UDF members) from registering for the presidential elections were eventually blocked by the High Court but consumed the opposition's valuable time and resources.¹⁴ And not all parties shared equal campaigning opportunities. The ruling party candidate enjoyed extensive use of state resources during frequent presidential rallies, as well as de facto support from the state-run electronic media. The Malawi Broadcasting Corporation (MBC) Television gave the UDF and its allies, AFORD and the New Congress for Democracy, nearly 90 percent of election coverage airtime and mostly positive coverage. The scant coverage of other parties and candidates was largely negative.¹⁵

Police frequently refrained from preventing election-related violence by the UDF's militant youth group, the Young Democrats, and failed to arrest alleged perpetrators due to political pressures and allegiances.¹⁶ There were numerous reports of candidate intimidation.¹⁷ Disputes marred the tabulation of the vote; the MEC was accused of prematurely announcing results, prompting suspicion that the vote counts were manipulated.

The Malawian constitution (Section 40²) includes several clauses on political financing, which stipulate that funding is to be allocated to parties proportionally, and any party that acquires a minimum of 10 percent of the national vote is eligible for funding.¹⁸ The country has no regulations regarding how state funding is spent, no limits on total election spending or spending disclosure laws, no laws prohibiting political party ownership of businesses, and no regulations regarding additional sources of funding. The International Institute for Democracy and Electoral Assistance (IDEA) identifies the "national electoral management body" (i.e., the MEC) as responsible for the administration and enforcement of constitutional financing regulations.¹⁹ Reports of widespread and open distribution of money to voters and abuse of state resources by the ruling party, as well as several allegations that the MEC failed to fulfill its responsibility under the constitution and the Parliamentary and Presidential Elections Act to address these violations, are indications that campaign finance regulations are not enforced.²⁰

The Malawi constitution calls for the separation of powers and equal authority among the executive, legislative, and judicial branches of government. The presence of official oversight institutions (among them the Human Rights Commission, Ombudsman, National Compensation Tribunal, Law Commission, and Anti-Corruption Bureau) and several instances in which one branch of government attempted to check another in the last few years indicate an operative, if not fully effective, system of checks and balances. Examples include Parliament's defeat of President Muzuli's push for a third term and the successful challenge of President Mutharika's appointment of an inspector general of police without parliamentary approval as required by the constitution. When Parliament accused two of its members of committing crimes and expelled them, a court review found the offenses did not meet the threshold of "moral turpitude" required for expulsion and ordered them reinstated. Further, the United States Agency for International Development has identified the vigorous response of the Anti-Corruption Bureau (ACB) and Parliamentary Committee on Agriculture to the 2005 "maize scandal" as a sign of the healthy emergence of checks and balances and accountability mechanisms.²¹

However, lack of funding and competent personnel continues to limit effective oversight and each branch's ability to effectively check another's actions. Resources and infrastructure in the judicial branch are especially poor, contributing to a large backlog of cases and prolonged delays in the administration of justice.²² Overall, the executive branch, especially the presidency, still dominates. The head of state retains the right to refer any constitutional dispute to the Constitutional Court for interpretation. In October 2005, as part of the continuing dispute between the Muluzi-led UDF and Mutharika's breakaway DPP, the Constitutional Court twice declared portions of the opposition-led Parliament's procedures to impeach the president illegal.²³

The civil service was a prime target of donor efforts to promote good governance in the 1990s following the political transition to multipartyism. However, reforms were largely resisted by long-serving civil service members, who perceived a direct threat to privileged positions they had gained under the Banda regime, stifling badly needed reform and blocking the rise of competent and committed officials.²⁴

While the Civil Service Commission is constitutionally mandated to handle recruitment and promotion in the civil service, reports suggest that appointments and dismissals at the highest levels are not made on a merit basis. The Ministry of Education failed to provide an explanation for not renewing the contract of Zangazanga Chikhosi, a principal secretary in the ministry, at the end of 2004 and rehired him in November 2005, only to fire him less than a week later. Many speculate that those decisions were motivated by a fear that the fact the minister of education and Chikhosi that were both from the central region would create an impression of regional imbalance that could promote political tensions.

The state has made an effort to address the specific interests of women, who, despite constitutional protections, remain unequal citizens in Malawi. Based on government findings that marriage and divorce practices are not constitutional and violate international standards regulating gender equality, a Special Law Commission on Review of Gender-Related Laws was established in late 2005 to "set uniform standards" for marriage and divorce in the country. Notable gaps between standards and traditional norms exist.²⁵ In the cabinet, women hold key appointments, including minister of education and gender. Mary Nangwale was appointed the first female inspector general of police in Africa, although Parliament rejected her appointment in what seemed to be a show of political defiance against the president rather than a rejection of her as an individual or a woman.

Malawi has public and privately owned schools, training centers, and businesses run by and for people with disabilities, and Section 13 of the constitution commits the government to support disabled people through greater access to public places, fair employment opportunities, and full participation in all spheres of Malawi society. The Ministry of Social Development and Persons with Disabilities was created in 1998, and some official programs and international assistance is coordinated through the official Malawi Council of Disability Affairs (MACODA). Yet the government has not mandated accessibility to buildings and services for the disabled, and the majority of Malawi's disabled population lacks equal access to public places. Three deaf students were turned away from the University of Malawi in 2003, for example, because of a lack of interpreters.²⁶ The greater challenge for the government is in changing societal attitudes. For example, the popular belief that HIV/AIDS can be cured through sexual intercourse with disabled persons has led to incidents of abuse of women and girls with disabilities.²⁷

Malawi has a vibrant civic society. Hundreds of civic groups comment on government policy and legislation, although they are largely concentrated in urban centers. Many civic groups were particularly active during the third-term debate.²⁸ The Public Affairs Committee, a coalition of religious groups, has played a strong role in promoting Malawi's democratic development since 1992, bringing charges against the state-run MBC, for example, for its bias toward the UDF during the 2004 elections. In the run-up to the June 2005 national budget session of Parliament, civic groups held several meetings specifically to address this issue, and the Malawi Economic Justice Network delivered a thorough position report to Parliament.²⁹ Some civic groups have been effectively using FM radio for live debates on impending legislation or an issue being discussed in Parliament. These debates are popular and have evoked responses from government officials. Key watchdog groups include the Civil Liberties Committee, the Public Affairs Committee, and official but to varying degrees largely autonomous offices including the Ombudsman, Anti-Corruption Bureau, Law Commission, and Malawi Human Rights Commission.

Nongovernmental organizations (NGOs) require official registration, but to date this has apparently not been used to limit their activities.³⁰ NGO activities and membership are restricted by the 2002 Non-Governmental Organizations Act, which established a 10-member board appointed by government in consultation with the Council for Non-Governmental Organizations in Malawi (CONGOMA) to register and regulate NGO operations. To qualify, an NGO must have at least two Malawi citizens as directors/trustees, provide a plan of activities and sources of funding (they are permitted to engage in public and other forms of fundraising), and pledge not to engage in "partisan politics including electioneering and politicking."³¹ Also affecting NGO membership and influence is the 2003 amendment of Section 65 of the constitution barring members of Parliament from associating with any organization political in nature – which appears to be in violation of Section 40(1) of the constitution, guaranteeing all persons the right to "form, join, and participate in the activities of, and recruit members for a political party."³² This amendment, however, has been applied extremely selectively.

Donors and funders of civic organizations are free from state pressures. Lack of coordination among both state and nonstate funders, however, has helped create funding imbalances in some development sectors.

Malawians' rights to freedom of expression and freedom of the press were clearly violated in the last few years, especially during the May 2004 elections, despite constitutional guarantees of each in sections 35 and 36, respectively. The state's failure to prevent police from, or later prosecute them for, arresting or attacking political dissenters indicates a general failure to support these constitutional protections during this time period. During the third-term debate, the 2004 campaign period, and just prior to and after the May 2004 elections, newspapers reported numerous cases in which individuals and journalists were harassed or physically attacked, especially by UDF militants, for expressing their opinions.³³ Three days after the contested presidential elections, police shuttered the community radio station MIJ 90.3 in the commercial capital of Blantyre, arrested four of its journalists, and accused two of them of inciting violence.

Media harassment has generally declined since the elections. In October 2004, Director of Public Prosecutions Fahad Assani ordered police to discontinue the arbitrary arrest of journalists and protect them from intimidation, warning that such acts are unconstitutional.³⁴ The Centre for Human Rights and Rehabilitation reported a remarkable improvement in various groups' access to the Malawi Broadcasting Corporation and Television Malawi in the first few weeks of Mutharika's administration. In 2005, it reported, "Today it is possible to hear news critical of government as well as views from the opposition."³⁵ In March 2005, however, two journalists from The Nation were arrested for reporting that President Mutharika had moved out of the presidential palace because he feared it was haunted. They were charged with "publishing a false story likely to cause public fear" and "causing ridicule to the high office of the President."³⁶ The Mutharika government has used libel and similar laws to pressure other journalists, and a number of government critics have been arrested during his tenure, including Malawi's former parliamentary Speaker Sam Mpasu and other UDF legislators.³⁷ Media watchdog groups are pressing for revisions of restrictive legislation.³⁸ However, the dangers of incitement by an immature or irresponsible media must be noted. A recent report has noted that the Catholic-owned Radio Maria and Radio Islam have engaged in what it describes as "vitriolic radio wars."³⁹ There is no evidence to suggest that the state directly censors print or broadcast media, despite occasional harassment and brief detentions of journalists. Government does not hinder access to the internet, although limited availability reflects a general lack of infrastructure.

Recommendations

• The system for political party funding should include enforceable laws to govern private funding to political parties with full disclosure that is transparent and accountable to the public.
• The government should ensure that sufficient funding is provided for local elections to be held as constitutionally scheduled.
• State media should serve as a nonpartisan outlet for news and civic and voter education, especially during campaign periods, and offer unbiased analysis of important campaign issues.
• The government should refrain from using libel or other laws to inhibit legitimate media expression and vigorously prosecute party militants or officials involved in assault, harassment, or illegal detention of media workers as well as other citizens.
• Media training focusing on covering corruption, development, human rights, and elections should be offered in addition to general journalism training that instills ethical approaches in media.

Civil Liberties – 4.58

Malawi's constitution and the Convention Against Torture (CAT), to which Malawi is a signatory, prohibit torture. Yet, according to the Malawi Inspectorate of Prisons and other reports, police continue to beat and physically assault prisoners to intimidate them and force confessions. Prison conditions are extremely dehumanizing, harsh, and often life-threatening due to overcrowding, inadequate nutrition, substandard sanitation, and poor health facilities. From January 2003 to June 2004, 259 prisoners died; the rate of 12 deaths in every 10,000 prisoners surpasses the International Committee of the Red Cross (ICRC) maximum acceptable death rates.⁴⁰ NGOs are permitted prison visits, and efforts to build new prisons and refurbish existing facilities are underway.⁴¹ Yet conditions remain dire, and prisoners sometimes suffer food shortages that reflect deteriorating conditions among the general population. In November 2005, New York Times reported: "This is life in Malawi's high-security prisons, Dickens in the tropics, places of cruel, but hardly unusual punishment. Prosecutors, judges, even prison wardens agree that conditions are unbearable, confinements intolerably long, justice scandalously uneven."⁴²

Chapter IV, Section 42 of the constitution protects against arbitrary arrest and unlawful detention and guarantees Malawians a fair and public trial. The Human Rights Commission reported that it registered a total of 663 cases during 2004, most concerning overstay on remand, denial of bail, and unheard appeals.⁴³

No cases of deliberate denial of fair trial were officially admitted in the 2003 and 2004 reports of the Malawi Inspectorate of Prisons, although very long delays in bringing detainees to trial often mean that justice is effectively denied. As of September 2004, many of the 763 detainees remanded on homicide charges had been held without trial for over a decade.

Section 129 of the Malawi constitution makes provisions to protect and promote human rights in Malawi in the broadest sense possible. Furthermore, Section 5 of the Ombudsman Act empowers the ombudsman to investigate any alleged instance or matter of abuse or manifest injustice or oppressive or unfair conduct by any employee in any part of the government. The constitutionally mandated offices of the ombudsman and the Human Rights Commission have been moderately effective in protecting and promoting human rights, but these agencies are unable to address many relevant issues because of staff and budget shortages.

General societal discrimination and violence against women remain serious problems in Malawi, as traditional norms continue to constrain women's inheritance rights and full participation in the country's economic and political life. In some areas, initiation rites that include genital cutting, which is not illegal, still prevail.⁴⁴ Malawi signed the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) in 1979, which came into force in 1981. The right to equal treatment is provided for in Section 20 of the constitution. In line with these provisions, the Human Rights Commission initiated the formulation and adoption of a policy on sexual harassment in the workplace. The Law Commission finalized and submitted to the Ministry of Justice a bill on wills and inheritance and a domestic violence bill and is currently finalizing a bill on marriage and divorce. These bills are intended to modify or replace existing laws, regulations, customs, and practices that constitute discrimination against women and promote relevant provisions in the constitution and the international conventions.

The state has stiffened punishments for those involved in trafficking of women. It has also increased awareness campaigns on trafficking, which has resulted in increased arrests, including at least two in 2005. While the government has moved to protect women's rights in specific instances, its broader ability to promote them remains constrained by a lack of capacity and resources in both autonomous constitutionally mandated groups such as the Malawi Human Rights Commission and the police, prosecutorial, and judiciary services. The Industrial Relations Court is the prime instrument for resolving violations of workers' rights, including sexual harassment at the workplace.⁴⁵

In general, no serious cases of religious or ethnic discrimination have been reported; members of the country's approximately 20 percent Muslim minority have been active participants in several political parties and serve at the highest levels of government. There are concerns among Malawians of Asian origin over the new land policy that reserves the right to freehold only to citizens. Asians fear this policy could discriminate against them because many of them maintain dual citizenship.

Freedom of conscience, thought, religion, and belief, guaranteed in Section 33 of the constitution, is widely respected. A requirement for religious groups to register with the government has not been used to limit religious expression, and the government and larger society have promoted a tradition of religious tolerance and peaceful integration. People of different religious persuasions generally live in relative harmony. Occasional clashes have taken place between Muslims and adherents of Nyau, a traditional religious group, in the Central Region, and isolated instances of violence between Muslims and Christians have occurred. However, such disputes have largely been related to local grievances and usually quickly resolved.

There are no reports of religious or other distinct groups receiving favorable government treatment or being denied opportunities to exercise their rights on the basis of group identity. Homosexuality is illegal, but no prosecutions have been reported recently. People with disabilities have legal rights to fair employment opportunities and are offered some public support, although access to buildings and services is not guaranteed by law and remains constrained by the lack of funding.⁴⁶ A 2004 report observed, "Hotels and banks are accessible to less than ten percent of individuals with disabilities. Places of worship, health care clinics, hospitals, shops and public transport are on the other hand reported to be accessible by over two-thirds majority of those with disabilities. The most notable shortcomings are schools, accessible to only 20 percent and the workplace, accessible to only 26 percent of the disabled population."⁴⁷ Societal discrimination against people with HIV/AIDS remains prevalent despite public education campaigns. A June 2005 industrial relations court ruling that awarded compensation to persons fired because they were HIV positive might set a useful precedent in protecting such workers.⁴⁸

The constitution guarantees the rights of freedom of expression and assembly. In 2004, the government barred many peaceful demonstrations or marches by opposition political parties. Attempts to suppress freedom to assemble provoked riots that included the burning of offices of the ruling UDF in Blantyre in April 2004. There is no compulsory membership in state or party organizations. Freedom of assembly and expression have been threatened by actions of party militants, especially from the UDF, that were often neither prevented nor prosecuted by government authorities, although such abuses have been curbed since the election of President Mutharika. Despite these problems, Malawians have exercised their right to political debate vigorously.

Workers' rights are protected in Section 38 of the Malawi constitution, under which the Labor Relations and the Employment Acts have codified the rights of workers into substantial protective laws. In 2004, of 451 cases of alleged workplace malpractice that were taken to the Industrial Relations Court, only 56 were resolved. The International Labour Organisation reports that the Ministry of Labor lacks resources to enforce labor laws efficiently or to facilitate improvements in working conditions effectively.⁴⁹ Reports of child labor are numerous, especially on tobacco plantations.⁵⁰ Conditions in garment factories are described as very difficult, with long hours at extremely low wages and "scant regard for workers[sic] health and safety."⁵¹

Mandatory union registration with the Registrar of Trade Unions and Employers' Organizations under the Ministry of Labour and Vocational Training is routinely approved. Unions may organize and operate freely in most circumstances but have faced harassment and occasional violence during strikes. Workers in essential services cannot strike, however, and unions say they have little access to the country's export processing zones.

Recommendations

• Funding for the Ombudsman and the Human Rights Commission should be increased to allow sufficient staffing and resources to expand and improve promotion, monitoring, and enforcement of human rights.
• Parliament should debate and enact all human rights-related bills (jointly reviewed by the Human Rights Commission and the Law Commission) as a matter of urgency.
• Legislation to improve gender equality should be expanded and enforced.
• Greater efforts to protect Malawians with disabilities, and to make public spaces accessible to them, should be pursued.
• Labor laws should be strictly enforced, particularly those concerning children, and closer monitoring of worker safety and health regulations undertaken, especially on sugar and tea plantations and in export-processing zones.⁵²

Rule of Law – 4.37

Section 103 of the Malawi constitution establishes an independent judiciary. Despite many limitations, some observers see Malawi's judiciary as its "most credible branch of government."⁵³ Other groups, including Transparency International, have noted political pressure on the courts and perceived prevalence of bribe taking in the justice system.⁵⁴ Malawi's judicial system is based on the British model, comprising magistrate's courts, lower courts, a high court, and a Supreme Court of Appeal. The chief justice appointed by the president must be confirmed by the Parliament with a two-thirds majority of members present and voting. The president on recommendation of the Judicial Service Commission appoints all the other judges. Magistrates and persons appointed to other judicial offices are appointed by the chief justice on recommendation of the Judicial Service Commission (Section 111). Judicial independence is enhanced by Section 119 of the constitution, which protects judicial tenure. All justices are appointed until the age of 65 and may be removed only for reasons of incompetence or misbehavior, as determined by the president and a majority of the Parliament.⁵⁵

In general, higher courts have in recent years demonstrated substantial independence, ruling against the government in several cases that were considered politically sensitive. For example, the court ruled in favor of opposition leader Gwanda Chakwamba when the government charged him with forgery. In addition, the constitutional review court ruled against the government's challenge to Parliament's rejection of the appointment of Mary Nangwale as inspector general of police.

Section 42 (2) of the constitution states that every person arrested for, or accused of, the alleged commission of an offense shall, in addition to the rights he or she has as a detained person, "have the right to & be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial & to be represented by a legal practitioner of his or her choice or, where it is required in the interest of justice, to be provided with legal representation at the expense of the state, and to be informed of these rights." However, accused persons are very often not brought to court and charged or informed of the reason for their arrest within the constitutionally required 48 hours.⁵⁶ Once cases come to court, suspects are generally given fair and public hearings by impartial courts. In felony cases, the state provides accused persons with legal counsel.

Judicial performance is hampered by dependence on the executive branch for resources as well as a lack of qualified staff and legal officers. From the senior resident magistrate level to the justices of the Supreme Court of Appeal, court officials are generally competent and appropriately trained. Their tenure is legally protected, and as noted earlier, efforts at blatant political interference have been rebuffed by a combination of political and civic opposition. However, low salaries hinder the courts in recruiting and retaining qualified personnel and provide fertile ground for corruption. The Office of the Director of Public Prosecutions (DPP) holds power to prosecute all criminal cases in the country (Section 99 of the Malawi constitution) but is severely limited by lack of resources and competent staff. Currently, there are only four prosecutors instead of the 20 or more that the DPP requires to be effective. Consequently, the DPP very often relies on ill-trained police to prosecute cases.

Magistrate courts (e.g., 4th grade, 3rd grade, 2nd grade, and 1st grade magistrate courts) handle the majority of cases in the country. However, the lower courts have few competent staff. Only senior resident magistrates are lawyers. Reliance on the police as prosecutors results in the mishandling of many cases. Furthermore, lack of legal expertise in the lower courts causes higher courts to reverse many lower-court decisions. Military cases are handled by the civilian judiciary and receive a similar level of fairness and impartiality but are also subject to similar problems.

By and large, both parliament and the executive comply with court decisions. However, there have been cases in which convicts have been pardoned by the executive on apparently dubious grounds.

Section 153(3) of the Malawi constitution subjects the powers of the police force to the direction and orders of the courts. Furthermore, the political responsibility of the police is vested in the minister of the government, and the appointment of police personnel is through an independent Police Service Commission. The Malawi Army has generally refrained from overt engagement in the political process. The police have on occasion acted with apparent political bias, especially in 2003-04, in not protecting members of the opposition from militants of the then-ruling UDF party.

Overall, the police are generally regarded as poorly trained, inefficient, and corrupt, and it is reported that confidence in the police has plummeted.⁵⁷ The government has sought to curb police excesses over the past year and continued to seek external support for police training programs, some of which are described as successful in raising police standards.⁵⁸

Unfortunately, the level of education among the police is very low. In the history of the Malawi police, no university graduate has held the position of inspector general. Officers who make arrests assess the case and decide on the charge. Inadequate training means that most officers do not know which law to use to charge a suspect, and many cases are dropped or delayed because of lack of proper police procedure in formulating charges or collecting evidence.

People are sometimes detained in jails or prisons without warrants. This is often because of incompetence rather than flouting of the law. Most prison wardens are poorly educated, are ill-trained in proper procedures, and have difficulties in understanding remand warrants.

The powers of the Malawi Defense Force are vested in the president subject to the recommendation of the Army Council. Furthermore, the powers of the Malawi Defense Force are under the scrutiny of the Defense and Security Committee of Parliament. There is effective and democratic civilian control of the Malawi Defense Force.

The rights to own property and engage in economic activity are provided for in sections 8 through 30 of the constitution. In this connection, the government has formulated a new land policy that aims to provide secure land tenure to all citizens without regard to gender, age, marital status, ethnic origin, or religion. When the draft bill is enacted, customary land transfers will be transacted within this legal framework. Generally, the government has not subjected citizens to arbitrary or unjust deprivation of their property. Compensation has been paid when land is needed for public utility. Furthermore, in the draft bill, compensation will now be at market price and the government will not have the final say on the compensation value.

Recommendations

• Adequate resources should be provided to the Office of the Director of Public Prosecutions to recruit and maintain qualified prosecutors and minimize the role of junior police in legal matters.
• To limit the executive branch's use of the budget to restrict or influence other arms of government, the judiciary and Parliament should be funded to their full budget allocations and allowed to control their own resources.
• The government should increase the judiciary's capacity to clear the large backlog of homicide cases. International recruitment of judges to cover short-term needs should be complemented by expanding the intake of the law school at the University of Malawi to provide trained Malawians for judicial service.
• To alleviate extreme congestion in prisons, more community service sentences should be introduced for minor offenses, and the government should expand prison space to accommodate those inmates who are considered to be a menace to the public.

Anticorruption and Transparency – 3.50

President Bingu wa Mutharika has made a strong commitment to fight corruption and widespread graft. In line with his tough anticorruption stance, many arrests have occurred. The mayor of Blantyre was arrested, tried, and sentenced to prison for the crime of theft by public servant. In May 2005, the former minister of education was dismissed from the cabinet post and charged with misappropriation of public funds. Further, the secretary of the treasury was arrested over allegations of financial malfeasance. The ACB arrested a former finance minister on allegations that he built a hotel using public finances. Moreover, the ACB is investigating the former head of state, Bakili Muluzi, on several allegations, including diverting large amounts of public funds to private accounts.

These investigations and arrests seemed to indicate President Mutharika's seriousness in fighting corruption. However, slow progress in prosecuting many cases has raised public doubts about the new government's credibility in this area. A recent report argues that many institutions are politically constrained and ineffective, whistle-blower protection is insufficient, and perceptions of the current anticorruption effort hold that it is "selective, favours the rich and the ruling party, and is quick to penalise the poor."⁵⁹ Media reports of graft at senior levels of the new administration are rising. As well, corruption investigations now seem to be focusing on President Mutharika's political rivals. In November 2005, three UDF parliamentarians who were instrumental in moving impeachment proceedings against President Mutharika were arrested on various charges, including forging a school certificate, and Vice President Cassim Chilumpha was detained on corruption charges shortly afterward.

The Chronicle newspaper in November 2005 reported that "Civil society organisations in the country have accused the Anti-Corruption Bureau (ACB) of bias in the way it is investigating and prosecuting corruption cases, charging that it is only targeting opposition politicians."⁶⁰ President Mutharika has also failed to enforce full compliance with the requirement of disclosure of assets by appointees to senior public offices, and a number of ministers and members of parliament have failed to disclose their assets.

At the beginning of his term of office, President Mutharika promised Malawians a clean and accountable government and that he would appoint civil servants based on merit through open and equitable competition. He trimmed the cabinet from more than 40 ministers to about 28. He dissolved the parastatal business corporation boards and replaced a number of top officials in the civil service. But it took the president more than a year in office to appoint new boards for the parastatals. The CHRR 2005 editorial suggests that in his appointments, Mutharika prefers individuals from certain geographic areas for key public positions. He has also apparently exceeded his official powers by creating the position of chief secretary for the public services without parliamentary approval as well as improperly dismissing senior officials.⁶¹

Several incidents have caused the public and Parliament to question the government's commitment to good governance. Both the World Bank and the IMF have lauded the new government for holding down public expenditure. However, the CHRR reports several controversies over government fiscal management. The president's many international trips, averaging one per month during his first year in office, and the functions of some members of the presidential entourage have been questioned. President Mutharika has also been criticized for poor prioritization of expenditures, including official purchases of luxury vehicles. Third, the executive decision to create a Malawi Rural Development Fund (MARDEF) worth MK1 billion without parliamentary approval was seen as ignoring fiscal procedures and regulations.⁶²

The Public Finance Management Act provides for management and control of public finances and specifies offenses for overexpenditure, misuse, mismanagement, or misallocation of public monies. Sections 25A-D of the Corrupt Practices (Amended) Act, 2003, create offenses for several types of abuse of office. However, allegations of serious corruption continued to surface in the media.⁶³

Yet the very basics of public finance are in question, a recent report claims, because the "budget process is a theatre that masks the real distribution and spending. All the actors, civil society, government, and donors seem aware that many of their statements and actions have little bearing on actual distribution of resources."⁶⁴ Despite this, some civil society groups are improving their capacity to monitor government spending and use this as a tool for advocacy.⁶⁵

Many abuses reported by the auditor general have not been prosecuted despite the existence of these laws. A lack of resources clearly hinders prosecutorial capacity, but failure to pursue government officials may also reflect the DPP's status as an appointee, whom, under Section 102 of the constitution, the president may dismiss without parliamentary approval.

During the one-party rule of Kamuzu Banda, most companies in the country were state owned. Since the transition to democratic rule, a market economy has taken root. A Privatization Commission divested many state assets, including Malawi Railways, Malawi Lake Services Limited, and Malawi Telecommunications Limited (MTL). While it is clear that the government is serious about privatizing government companies, the divestment process has not always been transparent.

The president, cabinet ministers, parliamentarians, and other public officers are required to declare their assets on taking office. The law also requires the president to appoint an independent manager to oversee any personal businesses he/she may own during his/her term of office. Public officers and parliamentarians are required under penalty of law to disclose circumstances where they have a direct or indirect material interest in a matter being handled by their office and are prohibited from participating in any decision on the matter.

Legally, separation of public office from the personal interests of public officeholders is sufficient, but enforcement is deficient. Not all cabinet members or parliamentarians declare their assets. Numerous reports in the news point to cases of ministers interfering with contracts for public projects, and one cabinet member has been tried and convicted for abuse of office.⁶⁶ There have also been persistent charges of localized abuses of donor food aid on the basis of nepotism or other affiliations. The governance dimension of food security and food aid is a crucial consideration in how Malawi meets continuing challenges of drought and potential famine.⁶⁷

Allegations of corruption are reported extensively in the independent media, although the very influential state-controlled broadcaster, while more open than in previous years, remains far more cautious in its reporting. While legal mechanisms to implement the access to information guaranteed in the constitution are under consideration,⁶⁸ there are complaints that the de facto situation is deteriorating.⁶⁹

For the past 10 years, higher education has suffered from rampant corruption and graft, involving cases of cheating in examinations, manipulation of grades, and stealing of certificates.⁷⁰ Several official efforts have helped curb such abuses. The Malawi National Examination Board has strengthened its oversight in the sector. A new law criminalizes many such behaviors, and fines have been enhanced. In addition, the University of Malawi has set up its own university entrance examination to assess applicants independently of the sometimes questionable credentials they offer.

Recommendations

• A robust, easily enforceable freedom of information act should be adopted as soon as possible.
• The current anticorruption campaign should be pursued on a demonstrably nonpartisan basis, with sufficient resources assigned to the ombudsman and the Anti-Corruption Bureau to allow them to operate effectively and without political interference. Protections for whistle-blowers should be enhanced.
• Government should strive to publish accurate budgets that are subject to full public scrutiny.
• Financial disclosure requirements for elected officials should be rigorously enforced.
• Government should strive to assure fair and equitable distribution of food aid and development assistance.

Author

Dr. Stanley Khaila is Director of the Center for Agricultural Research and Development at Bunda College, University of Malawi. Thomas Lansner is Adjunct Assistant Professor of International Affairs in the School of International and Public Affairs, Columbia University.

Notes

1 Useful background on this divide may be found in Wiseman Chijere Chirwa, "Elections in Malawi: The Perils of Regionalism," Southern Africa Report Archive 10, 2, http://www.africafiles.org/article.asp?ID=3967, accessed 26 April 2006. A very useful analysis that includes reference to Malawi's "neopatrimonialism" and "presidentialism" is included in David Booth and Diana Cammack, "Drivers of Change and Development in Malawi" (London: Overseas Development Institute [ODI], Working Paper 261, January 2006), http://www.odi.org.uk/Publications/working_papers/wp261.pdf.

2 Chris Maroleng, "Malawi General Election 2004: Democracy in the Firing Line," Africa Security Review 13, 2 (2004), http://www.iss.co.za/pubs/ASR/13No2/AWMaroleng.htm.

3 Mustafa Hussein, "Combating Corruption in Malawi: An Assessment of the Enforcement Mechanisms," African Security Review 14, 4 (2005), 94.

4 "Malawi Country Profile," CIA World Factbook (Washington, D.C.: United States Central Intelligence Agency [CIA], 2006), http://www.cia.gov/cia/publications/factbook/geos/mi.html#Econ.

5 "Doing Business in Malawi" (Washington, D.C.: World Bank Group, 2006), http://www.doingbusiness.org/ExploreEconomies/Default.aspx?economyid=118.

6 "Malawi: Poverty Reduction Strategy Report Progress Report" (Washington, D.C.: International Monetary Fund [IMF], Country Report 05/209, June 2005), 5.

7 Ibid.; "Press Statement by IMF Staff Mission to Malawi" (IMF, Press Release 05/50, 3 March 2005), http://www.imf.org/external/np/sec/pr/2005/pr0550.htm.

8 "Currency Depreciation to Hurt Malawi Consumers," afrol News/The Chronicle, 20 February 2006, http://www.afrol.com/articles/18207.

9 Constitution of the Republic of Malawi, http://www.sdnp.org.mw/constitut/chapter4.html#40.

10 Maroleng, "Malawi General Election 2004," 78-79.

11 "Statement on 2004 Parliamentary and Presidential Elections" (Malawi: Public Affairs Committee [PAC], 25 May 2004), http://www.sdnp.org.mw/~solomon/mec/pac.htm; "Republic of Malawi 2004 Parliamentary and Presidential Elections, 20 May" ( The Malawi Electoral Support Network [MESN]), http://www.sdnp.org.mw/~solomon/mec/mesn.htm.

12 Maroleng, "Malawi General Election 2004," 78.

13 "Republic of Malawi Presidential and Parliamentary Elections, May 20, 2004, Final Report" (Brussels: European Union [EU] Election Observation Mission), http://europa.eu.int/comm/external_relations/human_rights/eu_election_ass_observ/malawi/eu_eom_malawi_fin_rep_04.pdf, 14.

14 Maroleng, "Malawi General Election 2004," 79.

15 "Statement," (PAC), http://www.sdnp.org.mw/~solomon/mec/pac.htm; "Republic of Malawi 2004" (MESN).

16 Also see "Malawi Human Rights Report 2003-04" (Lilongwe, Malawi: Centre for Human Rights and Rehabilitation [CHRR], 2005), http://www.chrr.org.mw/downloads/malawi_human_rights_report_2003_04.pdf.

17 The Nation (Blantyre), 24 June 2003.

18 Andile Sokomani, "Money in Southern African Politics: the Party Funding Challenge in Southern Africa," African Security Review 14, 4 (2005), http://www.iss.co.za/pubs/ASR/14No4/ESokomani.htm.

19 "Matrix on Political Finance Laws and Regulations" (Stockholm: International Institute for Democracy and Electoral Assistance [IDEA], Political Finance Database), http://www.idea.int/publications/funding_parties/upload/matrix.pdf.

20 "European Union Election Observation Mission to Malawi 2004 Elections" (EU, 22 May 2004), http://www.sdnp.org.mw/~solomon/mec/EU_statement.htm.

21 Caroline Sahley, Bob Groelsema, Tom Marchione, and David Nelson, "The Governance Dimensions of Food Security in Malawi" (Washington, D.C.: United States Agency for International Development [USAID], 20 September 2005), http://www.sarpn.org.za/documents/d0001649/index.php.

22 Hussein, "Combating Corruption," 99.

23 "Malawi Constitutional Court Imposes Another Ban on Presidential Impeachment," The People's Daily Online (Beijing) 27 October 2005, http://english.people.com.cn/200510/27/eng20051027_217136.html.

24 Gerhard Anders, "Civil Servants in Malawi: Mundane Acts of Appropriation and Resistance in the Shadow of Good Governance" (Leiden: African Studies Center), http://www.ascleiden.nl/Pdf/paper08092005-anders.pdf.

25 Hopkins Mundango Nyirenda, "Malawi reviews marriage, divorce laws," The Chronicle, 29 November 2005, http://www.afrol.com/articles/17477.

26 "Malawi Human Rights Report 2003-04" (CHRR), http://www.chrr.org.mw/downloads/malawi_human_rights_report_2003_04.pdf.

27 Ibid.

28 "Bertelsmann Transformation Index" (Munich: Center for Applied Policy Research and Bertelsmann Foundation), http://www.bertelsmann-transformation-index.de/72.0.html?L=1.

29 "Comments on the Proposed Malawi Budget 2001-2002, Report for Members of Parliament" (Lilongwe, Malawi: Malawi Economic Justice Network, 18 February 2002), http://www.sarpn.org.za/CountryPovertyPapers/Malawi/Feb02/MalawiBudget2002.pdf.

30 "NGO Laws: Malawi, Mozambique, Namibia, South Africa and Tanzania" (New York: Human Rights Watch [HRW], Backgrounders, 2004), http://hrw.org/backgrounder/africa/zimbabwe/2004/12/6.htm.

31 Ibid.

32 "Malawi Human Rights Report 2003-04" (CHRR), http://www.chrr.org.mw/downloads/malawi_human_rights_report_2003_04.pdf.

33 "Malawi – 2004 Annual Report" (Paris: Reporters Without Borders [RSF], 3 May 2004), http://www.rsf.org/print.php3?id_article=10180.

34 "Malawian Police Ordered to Protect Journalists," afrol News, 7 November 2004, http://www.afrol.com/articles/10616.

35 "Human Rights Report 2003-04" (CHRR).

36 "Attacks on the Press in 2005, Africa: Snapshots" (New York: Committee to Protect Journalists [CPJ]), http://www.cpj.org/attacks05/africa05/snaps_africa_05.html#mala.

37 "Malawi's Former Speaker Arrested," People's Daily Online, 5 November 2005, http://english.people.com.cn/200511/05/eng20051105_219189.html.

38 "2005 World Press Freedom Review" (Vienna: International Press Institute [IPI]), http://service.cms.apa.at/cms/ipi/freedom_detail-new.html?country=/KW0001/KW0006/KW0164/.

39 Booth and Cammack, "Drivers of Change" (ODI), 59, http://www.odi.org.uk/Publications/working_papers/wp261.pdf.

40 "Malawi Human Rights Report 2003-04" (CHRR), http://www.chrr.org.mw/downloads/malawi_human_rights_report_2003_04.pdf.

41 "Malawi," in Country Reports on Human Rights Practices – 2005 (Washington, D.C.: U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, 8 March 2006), http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm.

42 Michael Wines, "The Forgotten of Africa, Wasting Away in Jails Without Trial," New York Times, 6 November 2005, http://www.nytimes.com/2005/11/06/international/africa/06prisons.html?ex=1288933200&en=7036e8fea197e295&ei=5088&partner=rssnyt&emc=rss.

43 "Annual Report of the Malawi Human Rights Commission for the Year 2004" (Lilongwe, Malawi: Malawi Human Rights Commission [MHRC], March 2005), http://www.malawihumanrightscommission.org/doclinks.asp?group=ANNUAL%20REPORTS.

44 See Mfulu, The Malawi Human Rights Commission Bulletin, www.malawihumanrightscommission.org/docs/mfulu_march2006.pdf.

45 For instance, Alice Nazombe, a personal secretary to the chief elections officer, was dismissed due to "relationship breakdown" with her boss. On February 2004, the court ruled in her favor and asked that she be reinstated (CHRR, 2004).

46 "Malawi Human Rights Report 2003-2004" (CHRR, 5 April 2005), http://www.chrr.org.mw/downloads/malawi_human_rights_report_2003_04.pdf.

47 "Surveys on Living Conditions among People with Activity Limitations in Southern Africa" (Trondheim: Norwegian Insititute of Technology, Foundation for Scientific and Industrial Research [SINTEF], 2005), http://www.sintef.no/content/page1____1561.aspx.

48 "Malawi," in Country Reports (U.S. Department of State), http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm.

49 "Botswana, Lesotho, Malawi and Zambia: Strengthening Labour Administration in Southern Africa" (Geneva: International Labour Organization, Projects, February 2002-February 2005), http://www.ilo.org/dyn/declaris/DECLARATIONWEB.ProjectDetails?var_Language=EN&var_ID=200, accessed 15 April 2006.

50 Chikondi Chiyembekeza, "Malawi's tobacco tenants 'suffer horrible abuses,'" The Chronicle, 8 March 2005, http://www.afrol.com/articles/15855, accessed 16 April 2006.

51 Garment Production in Malawi (Amsterdam: Clean Clothes Campaign [CCC] and Centre for Research on Multinational Corporations [SOMO], September 2003), http://www.cleanclothes.org/publications/03-09-malawi.htm, accessed 16 April 2006.

52 "Malawi" in Country Reports (U.S. Department of State), http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm, accessed 16 April 2006.

53 State of the Judiciary Report: Malawi 2003 (Washington, D.C.: International Foundation for Election Systems [IFES], April 2004), http://www.ifes.org/files/rule-of-law/SOJ/SOJ_Malawi_Final.pdf.

54 "Malawi 2004," in National Integrity Systems (Berlin: Transparency International [TI], Country Study Report), http://www.transparency.org/policy_research/nis/regional/africa_middle_east, accessed 16 April 2006.

55 Please see "Malawi," in Crime and Society, A Comparative Criminology Tour of the World, http://www-rohan.sdsu.edu/faculty/rwinslow/africa/malawi.html.

56 "Malawi" in Country Reports (U.S. Department of State), http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm, accessed 16 April 2006. http://www.state.gov/g/drl/rls/hrrpt/2005/61579.htm, accessed 16 April 2006

57 "Malawi 2004," in National Integrity Systems (TI), http://www.transparency.org/policy_research/nis/regional/africa_middle_east, accessed 16 April 2006.

58 Christopher Stone, Joel Miller, Monica Thornton, and Jennifer Trone, Supporting Security, Justice, and Development: Lessons for a New Era (New York: Vera Institute of Justice, June 2005), http://www.vera.org/publications/publications_5.asp?publication_id=298.

59 Hussein, "Combating Corruption," http://www.iss.org.za/pubs/ASR/14No4/EHussein.htm.

60 "Civil Society Accuse Anti-Corruption Bureau of Bias," The Chronicle, 21 November 2005.

61 "Statement on the Termination of Contracts for Principle [sic] Secretaries" (CHRR, press release, 25 January 2005), http://www.chrr.org.mw/press_room/pr_principle_secretaries.php.

62 "Defiant Mutharika's Loan Scheme Provokes Opposition," IRIN News, 1 September 2005, http://www.irinnews.org/report.asp?ReportID=48869.

63 Weekend Nation, 7-8, 14-15, and 21-22 January 2006. The Malawi Kwacha exchange rate was US$1 = MK130.

64 Lisa Rakner, L. Mukubwu, N. Ngwira, and K.Smiddy "The Budget as Theatre – the Formal and Informal I Institutional Makings of the Budget Process in Malawi" (London: Overseas Development Institute [ODI]), http://www.odi.org.uk/pppg/cape/seminars/may04papers/Schneider_Political_Economy_Malawi.pdf.

65 "Malawi: NGOs Monitor Budget Spending on Education," IRIN News, 14 December 2004, http://www.irinnews.org/report.asp?ReportID=44662.

66 Pilirani Phiri, "Malawi Loses US$ 40 Million in Corruption," The Chronicle, 21 November 2005, http://www.afrol.com/articles/17342.

67 Sahley, Groelsema, Marchione, and Nelson, "The Governance Dimensions of Food Security in Malawi" (USAID), http://www.sarpn.org.za/documents/d0001649/index.php.

68 Frank Namangale, "Access to Info Bill Operation Set for Next March & NGOs Support the Bill," The Daily Times (Malawi), 27 April 2006, http://www.dailytimes.bppmw.com/article.asp?ArticleID=1529.

69 "Malawi: Access to Information Threatened," The Chronicle, 10 April 2006, http://www.allafrica.com/stories/200604101126.html.

70 See, for example, Raphael Tenthani, "Heads Roll after Malawi Exam Fraud," BBC News, 18 October 2000, http://news.bbc.co.uk/2/hi/africa/978389.stm, accessed 01May 2006.