Former President Peter Mutharika and former Secretary to the President and Cabinet Justice Lloyd Muhara ordered to pay K69 Million on attempting to dismiss Chief Justice Andrew Nyirenda

Chief Justice Andrew Nyirenda.

The High Court in Lilongwe has ordered former President Peter Mutharika and former Secretary to the office of President and Cabinet, Lloyd Muhara to pay costs amounting to a total of K69.5 million to the applicants in the Chief Justice case.

The ruling states that the first applicant, Human Rights Defenders Coalition (HRDC) and the second applicant Magistrates Associations of Malawi is to be paid K26 million whereas the third applicant (the Malawi Law Society) is to be paid K43 million, within 14 days.

The two defendants were found guilty of trying to send onto forced leave Chief Justice Andrew Nyirenda and Justice of Appeal Edward Twea, pending their retirement in June last year after the Chief Justice sitting in the Supreme Court of Malawi had upheld a historical Constitutional Court Election decision of the High Court, which ruled in favour of the then opposition leaders, Lazarus Chakwera and Saulos Chilima, nullifying the May 2019 Election results.

Khumbo Soko, one of the lawyers for the applicants said that the case had set a new legal precedent and that public officers in Malawi will from now onwards be personally liable for costs of their misconduct.

“A message has now been sent that there will now be personal costs for constitutional delinquency. This is a warning to those holding public offices that a day of reckoning will surely come.”

– Khumbo Soko

Judge Charles Mkandawire who presided over a judicial review of the case in his earlier ruling ordered that Peter Mutharika and Lloyd Muhara should be personally liable to pay the costs.

It will be interesting to see how this precedent is applied going forward in subsequent cases, since in the past Malawi has had quite a number of instances when public officials have acted in a manner that is unlawful, and that has ended up costing the country’s public purse millions of kwachas in court settlements/ court awards, while escaping personal liability. This judgement appears to put a stop to that practice.

Why President Lazarus Chakwera shouldn’t have visited former president of Malawi Peter Mutharika

The Christmas holiday season is a strange time. One where friends, families, acquaintances and others who don’t fall into any of these categories meet to catch up, for food, celebration, for worship and generally for festivities. Suddenly, far removed from the ordinary day to day preoccupations most of us are usually accustomed to the other 11 months of the year, the petty-dislikes, by December many of us begin to plan for Christmas. Where we’ll spend the day, with whom, and for how long: we begin buying presents, buying gifts for the children, close friends and family, our choice of Christmas cards (even for those who we’re only obligated to do so), we begin planning the feast that is the Christmas meal/dinner, complete with all manner of indulgences from expensive drinks we don’t usually buy to calorie-rich desserts that do no justice to our health. It happens everywhere, even in countries where Christianity is not a big deal

President Lazarus Chakwera & the first lady meeting the former president and former first lady.

And so it was no great surprise seeing President Lazarus Chakwera and the first lady stop by Mangochi to visit the former president of Malawi Peter Mutharika and his wife.

However, Malawian are divided as to whether the visit was a smart move, and there has been a lot of harsh words on social media as to whether the visit should even have taken place. There are some hailing the visit as a sign of leadership and of building unity. But others think in terms of preserving the integrity of the presidency and giving out the right messages, the visit wasn’t a smart move.

As a private person, Lazarus Chakwera has the right to visit who he likes, when he likes, and at a place of his choice. But as the President of Malawi, I believe those personal liberties are constricted by the office of the presidency, and need to be exercised a lot more cautiously.

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The above picture is a beautiful picture of two leaders spending some time together, but I think the concern for most Malawians is that any interactions between Lazarus Chakwera and Peter Mutharika should not influence due legal process, or give the wrong signals to those in charge of discharging that due legal process.

There is also the idea that a President who won the country’s support on the back of the noble and overdue anti-corruption ideal “of cleaning up the rubble” to quote Chakwera’s own words should not associate with a former president who is either facing an impending investigation, or whose very close associates are facing corruption / embezzlement charges. And refusing to associate with a former leader whose colleagues are under investigation is not tantamount to punishment. Instead it’s saying that the Presidency should be above disrepute, and so any associations that can potentially tarnish that Office must be avoided.

That’s the reason why some of us were very angry with what some South Africans were suggesting regarding who smuggled the controversial self-proclaimed ‘prophet’ Shepherd Bushiri out of South Africa.

In any case, now you have a man of integrity in President Lazarus Chakwera – by any measure an honest and conscientious leader. But what happens the day Malawi somehow gets a dishonest and rogue leader; a tinkerer who after such a visit to a former president starts insinuating without proof that the former leader is in fact innocent? Or starts casting doubts or throwing aspersions on the legal process, or interfering in any impending investigation? What happens if at a different time and in different circumstances a Malawian leader indulges in behaviour – much like what the outgoing US president Donald Trump has often done in the US – to try to undermine Malawi’s institutions and legal process?

That’s when Malawians will realise that it’s not a great idea for a sitting president to be chummy with someone who has a grey cloud over their head, or in Mutharika’s case – someone who presided over the monumental racketeering of state resources, embezzlement of government funds and wholesale corruption like never seen before in Malawi.

Of Ethics, Rashid Gaffar & Government sanctioned Extortion

There is one little known Tonga Proverb that says : “Yo waswela mviheni wariyengi”. It translates ~: “A person who delays correcting things will end up crying.” It means that a solution taken earlier on, can save one from a much bigger problem down the line.

This Tonga proverb is relevant because of the recent comments by the new Minister of Mining Rashid Gaffar, who has been embroiled in a scandal involving the sale of buses to former president Peter Mutharika.

For those who are not familiar with this story, here’s a background: Former president, Peter Mutharika, in an attempt to lure voters to vote for his party in the June elections re-run promised to buy state of the art buses for two of Malawi’s biggest football clubs, Mighty Be Forward Wanderers and Nyasa Big Bullets. At the time, Mutharika claimed that he would be paying for the buses with his own money. However, it later transpired that the money for the buses came from the Malawi Government. Further, it was revealed that contrary to popular belief, the buses were sold to the government at nearly twice their price?!

As would be expected, Malawians were outraged. How can the former president lie to Malawians? How could Gaffar, a former DPP member of Parliament for Blantyre Kabula Constituency, agree to sell the buses at an extortionate price, which he knew was nearly twice the market price for the buses? How ethical were his actions? Did Gaffar knowingly overcharge for the buses because DPP functionaries were going to get a backhander cut from the deal? And critically, why did the new president, Lazarus Chakwera, select such a controversial and insenstitive figure to be in his cabinet as minister of mining? So many questions.

What made the situation worse are the comments Gaffar made afterwards when questioned about the deal.

In an interview with the Nation- a local newspaper in Malawi, Rashid Gaffar said that the “desperate” buyer (Mutharika) bought the buses on normal business terms of willing buyer, willing seller, and that Mutharika could have told him “if he were not satisfied with the price.”

He said the story should be to ask the former president if he bought the buses using his own money (as he claimed) or whether he used government money.

He also said “By the way, I have four more buses and they could be sold at an even higher price. Asafuna Asiye”

This smacks of total disregard to the suffering and poverty which many Malawians continue to endure. It shows that Gaffar is not a conscientious person, and does not have the interests of Malawians at heart. It also shows a clear disregard for the servant leadership which President Lazarus Chakwera has been preaching. If anything, it proves that Rashid Gaffar is merely a self-serving businessman and politician who is only interested in profit, and who has no qualms extorting the state, even when millions of poor Malawians are suffering.

These are not the kinds of people to have in your cabinet under the Tonse Philosophy, when you have been talking about tackling corruption. Because what does that say about you and your Government: That you are willing to pay a blind eye to someone who clearly and unmistakably was involved in an extortionate and fradulent scheme, one that overcharged Malawians for personal gain? It’s something which the Tonse Alliance Government may live to regret, if they do not do something decisive immediately to rectify it.

President Lazarus Chakwera and Vice President Saulos Chilima need to critically re-examine Gaffar’s suitability for the Ministry of Mining portfolio. This may not be the last scandal we hear of Gaffar, and I hate to think what else he’ll screw up next, because whatever he does next will simply undermine the government’s agenda, damaging the public’s trust in the Tonse Alliance. And that’s bad for many reasons.

There are many other better qualified, less controversial, more conscientious, and more honourable people, who unlike Gaffar – have integrity, and who can serve in that role, and lead that ministry without such obtuse carelessness: The Tonse alliance government should find them and utilise them fast.

As for Gaffar himself, he needs to return the money he overcharged (K70 million) on each bus back to the government. He also needs to make a public apology. That should restore some sort of dignity and accountability to the Tonse Alliance.

Should Malawi’s next Government have a Code of Conduct for Political Advisers?

lady holding a card with words Code of Conduct written on it

I’m reviewing the code of conduct of special advisers to the UK government.

It’s an interesting read which lists in quite some detail a lot regarding the role, status and transparency with which special advisers to the UK government should operate. It also talks about how contact with the media should be handled, and how involvement of politics in a private capacity can be undertaken.

As a form of background, Special Advisers in the UK are classed as temporary civil servants in the different legislatures of the countries that make up the UK, and are thus exempt from being appointed based on merit. However, that doesn’t make them exempt from accountability or scrutiny over their actions.

So you might ask what does that have to do with Malawi? Well, since Malawi has seen quite a fair share of controversy and other drama involving political aides, presidential advisers and even a president’s bodyguard, considering an election is just around the corner it seems topical to venture into this topic at this time.

Anyhow, among the stipulations of the Code of Conduct are that Special Advisers may:

  • give assistance on any aspect of departmental business, and give advice (including expert advice as a specialist in a particular field);
  • undertake long term policy thinking and contribute to policy planning within the Department;
  • write speeches and undertake related research, including adding party political content to material prepared by permanent civil servants;
  • liaise with the Party, briefing party representatives and parliamentarians on issues of government policy;
  • represent the views of their Minister to the media (including a party viewpoint), where they have been authorised by the Minister to do so; and
  • liaise with outside interest groups (including those with a political allegiance)

In working with Civil Servants, Special Advisers can

  • convey to officials Ministers’ views, instructions and priorities, including on issues of presentation. .
  • request officials to prepare and provide information and data, including internal analyses and papers;
  • hold meetings with officials to discuss the advice being put to Ministers; and
  • review and comment on –but not suppress or supplant –advice being prepared for Ministers by civil servants.

It’s important to note that when undertaking their duties, Special Advisers are not doing so in their own capacities, but on behalf of their minister / the government.

However, Special Advisers may not:

  • ask civil servants to do anything which is inconsistent with their obligations under the Civil Service Code or behave in a way which would be inconsistent with standards set by their employing department;
  • authorise expenditure of public funds or have responsibility for budgets;
  • exercise any power in relation to the management of any part of the Civil Service,except in relation to another special adviser;or
  • otherwise exercise any statutory or prerogative power.

All important and necessary stuff . Necessary because when it is broken, there are usually consequences. Obviously, the UK’s troubles are not like the problems we face in Malawi. In fact you might say their problems are rather tame, than some of the allegations special advisers have been accused of in Malawi. And that’s why the part of public funds is in bold.

The Code of Conduct goes onto say that:

Special advisers are able to give direction to such civil servants in relation to their day-to-day work for them, and their views should be sought as an input to performance appraisals on the basis that these are written by other civil servants. However,special advisers should not be involved in the line management of civil servants in matters affecting a civil servant’s career such as recruitment, promotion, reward and discipline, or have access to personnel files of civil servants.

It also says the following:

Special advisers are bound by the standards of integrity and honesty required of all civil servants as set out in the Civil Service Code.

Special advisers should not disclose official information which has been communicated in confidence in government or received in confidence from others. The Preparation or dissemination of inappropriate material or personal attacks has no part to play in the job of being a special adviser as it has no part to play in the conduct of public life.

Special advisers must not take public part in political controversy,through any form of statement whether in speeches or letters to the press, or in books, social media, articles or leaflets. They must observe discretion and express comment with moderation, avoiding personal attacks, and would not normally speak in public for their Minister or the Department

Special advisers are required to declare details of gifts and hospitality received in accordance with the rules set out in their departmental staff handbooks. Departments will publish,on a quarterly basis, information about gifts and hospitality received by their departmental special advisers and details of special advisers’ meetings with newspaper and other media proprietors, editors and senior executives.

It goes on and on.

Now, given the perilous history of political advisers and presidential aides in Malawi, and what we know of how such people have behaved, especially in terms of amassing unexplained wealth, or otherwise being caught up or named in one scandal or another, shouldn’t Malawi’s next Government ensure that there is a strong and functional Code of Conduct for Political Advisers?

I think it is of the utmost urgency for Malawi’s next government to have an effective Code of Conduct for Political Advisers. It should be drafted with a view to curbing the corruption that has embroiled Political Advisers in Malawi’s history. The Code of Conduct must be drafted by an independent panel of legal professionals and CSOs, and must be reviewed every 3 years to ensure it is functional and fit for purpose.

Further, and in the interest of curbing corrupt practices, a new supranational body, the National Fraud Agency (NFA) with powers to levy fines, powers to cancel contracts which are not in the best interest of the country, and with powers to impound, detain and forfeit goods, and to go after foreign property of officials or citizens (which is suspected of being bought using the proceeds of corruption) should be established specifically to look at the issue of declaration of assets, to scrutinise government spending, tender awards and contracts, and to prevent extortionate prices being charged for goods supplied to the Malawi government. The NFA can work with the Anti-corruption Bureau, but it has to be independent of the ACB, and parliament and PAC should establish a framework that decides how the NFA’s powers are to be exercised. This is important to make sure that the theft of public resources that has occured in the past in one guise or another, perpetrated by public officials including ministers, should be firmly put to an end.

Thus, such a Code of Conduct together with an NFA would encourage transparency and accountability, and would establish a high standard of ethics in Malawi’s politics. It would also ensure that if wrong-doing occurs, a course of action that swiftly and resolutely rectifies the situation can be implemented. It means unscrupulous officials can be cut off from the business of government sooner than later, and cannot run away abroad with the proceeds of corruption. It means every political adviser would know in black and white exactly the type of dutiful conduct which is expected of them.

Why has President Peter Mutharika of Malawi sacked General Vincent Nundwe?

General Nundwe (video via facebook)

Many people in Malawi are wondering why General Vincent Nundwe has been removed as Commander of the Malawi Defence Force (MDF), and replaced with Major General Peter Andrew Lapken Namathanga.

In an interview, General Nundwe said he was not aware of any wrongdoing that may have led to his removal, but he said it was the president’s prerogative to choose who led the army.

However, in a week where the president has refused to assent to bills that Malawi’s parliament passed a few weeks ago (those relating to the new elections to be held in May this year), and refused to sack the Malawi Electoral Commission commissioners, as recommended by the Public Affairs Committee, and when Mutharika had ordered the MDF to use force against protesters who plan to march to State House on March 25th, Media analysts, Governance experts and Political Scientists are saying the decision to fire Nundwe and his deputy are politically motivated.

My word to my successor is that they should always act according to the law

– General Vincent Nundwe

For those who have not been following politics in Malawi in recent months, General Vincent Nundwe has led the army through a time where it has dutifully and lawfully protected citizens from the lawless aggression of the Malawi police, during the protests which Malawi’s citizens have mounted against the government in recent months, calling for electoral justice against the fraud-marred May 2019 elections (which the Constitutional Court annulled in February due to widespread irregularities).

So Nundwe and the MDF are seen as heroes in Malawi, for their professionalism in protecting citizens and not allowing the MDF to be used as a tyrant’s tool that quashes peaceful protests against the regime – as has been commonly the case in many African countries that are ruled by despots.

Thus, if Nundwe was the preferred soldier’s choice to replace General Griffin Spoon Phri when he got appointed, what changed for Nundwe to be booted out? Did the same soldiers who wanted him in to lead them request the President that there be a change at the top? Did Nundwe do something wrong that was a grave breach of his duties to the constitution and to Malawi, or is Peter Mutharika merely looking for a partisan, compliant and spineless officer to push around, one who will try to force the MDF to do his bidding?

In these uncertain political times in the country, I think Malawians need to know.

And if there are no credible or convincing reasons why Nundwe has been removed, then the next government will have a duty to restore him to his role.

Looking at Peter Mutharika’s recent actions, and considering public anger against his unpopular government, especially in light of the constitutional court decision, the world’s eyes will be watching what the new leadership at the army does, especailly since Malawi is scheduled to hold fresh elections as directed by the Constitutional Court.

Minimally, Malawians will be expecting the army to uphold the constitution, and for the MDF to maintain the same level of professionalism and high standards which Nundwe and others before him presided over. And if not, Malawi will be yet again thrown into political chaos and public unrest. Especially since over the years, Malawi’s army has had a legacy of upholding the constitution, even when people outside Malawi expected otherwise. So a sudden change is likely to irk those who have been protesting against the may 2019 rigged election and will most likely work only to increase the intensity and magnitude of the protests. In 2012 for example, when the then president Bingu Wa Mutharika died, General Odillo, a Bingu appointee moved to uphold the constitution and prevent a coup by Bingu’s cabinet (which included Peter Mutharika), who had at the time conspired to prevent Joyce Banda (Bingu’s estranged Vice president at the time, but rightful second in command) from assuming the presidency, protesters only left the streets after there had been a peaceful and constitutional transition of power.

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