Updated: Feb 10
Whatever happens today, Malawi’s future will change.
Our fate rests on the wisdom and discernment of four men and one woman who have carried out the daunting task of hearing the case around the irregularities of the 21 May 2019 Presidential election alleged by the Malawi Congress Party (MCP) and United Transformation Movement (UTM) whose presidential candidates placed second and third.
Whatever outcome the five judges, who make Malawi’s Constitutional Court (ConCourt) in the high-profile case, decide is inevitably tied to the fate Malawi’s 18 million men, women and children are to face as our young democracy is tested to its limits. The decision that sends us back to the polls, which hits a jab in Peter Mutharika’s electoral victory, will have much less collateral damage. The Democratic Progressive Party (DPP) is expected to take the outcome with grace and opportunity to prove what it has always said before: that Mr. Mutharika was the people’s choice last May. It’s the outcome on the flipside of the judgement that is scary, that which vindicates Jane Ansah, the Malawi Electoral Commission (MEC) Chair, on account of no irregularities in an era where many skeptics are already tying up their shoes to take to the streets should that be the case.
But it wasn’t meant to be that this was to be the last thing on Malawians’ minds to move on in our political chronicle. It was a whistleblower who was to change the course of the Elections case and its aftermath. When Supreme Court Chief Justice Andrew Nyirenda heeded to the noise and referred the matter of a MK300 million bribe offered/given ConCourt judges on 28 November 2019 to Anti-Corruption Bureau (ACB) Director General Reyneck Matemba, the character of the Elections case was to shift from the ambiguity it had carried for the eight months it was being deliberated. For many Malawians, the optics of the case have never become clearer afterwards, inasmuch as we don’t want to conclude a matter before anyone is proven guilty.
So, no matter the decision that will be delivered today, the bribery case is the storm that will blow stronger and linger for much longer beyond the ConCourt. The bitter truth for every Malawian is whether their accountability institutions, in spite of the patriotism behind the 28 November referral, are really immune to external persuasions.
It becomes suspect, by evaluating the facts in the ConCourt bribery case, that our Judiciary is impervious. This is because one judge was in the course of checking with other judges of the Court if they had received their cut of the fateful MK300 million when the whistleblower alighted to inform the Chief Justice. Based on this, it is easy to conjecture that the whistleblowing occurred only after money was handed to two judges. It appears that Mr. Matemba may be onto something by hinting that the ACB is in fact investigating a judge in the bribery case.
It’s easy to see why a Judiciary member, a mere mortal seeking a comfortable retirement like everyone else, may find themselves weak before a portion of MK300 million. The first is structural and lies in the relationship between the two arms of government, the Executive and the Judiciary. How independent is the Judiciary from the Executive when appointments are dependent on the whims of Peter Mutharika, head of the Executive? Even more, Mr. Mutharika is in charge of slicing up the public budget and determines how much the Judiciary will receive from an Account #1 that also happens to sit in his pocket. In other words, Mr. Mutharika calls the shorts on every Judge’s status in Malawian society and can massage these niceties as he pleases.
It is in Mr. Mutharika’s interest, then, that the Judiciary is kept well-massaged. It feels logical that the relationship remains mutual. For it’s the Judiciary’s, or its parts’, interest to ensure Mr. Mutharika’s mood is frequently kept light and elated if he is to make sensible budgetary decisions. It’s no myth that our Judges – not the whole Judiciary – have ever asked for a 400% salary hike even before the triennium in which their remuneration is reviewed matured. The unilateral interests that have sporadically appeared in our media during Malawi’s democratic era have shown that judges will seek their comforts even when teachers can go months without being paid by the same system that is in the process of producing lawyers through our primary and secondary schools and universities.
The unsatiated quest for exuberance – a signal that some judges are constantly running after cash and, with it, status – creates a socio-economic loophole that politicians and those with enough cash stand at vantage point to exploit. The Presidential elections is only one among many examples of just how malleable the Judiciary can be at the sight of Kwacha bills. At the end of 2018, Chief Justice Andrew Nyirenda admitted that “public accusations of corruption and misconduct among judges may have substance and can easily compromise the integrity of the Judiciary.” A year earlier, in September 2018, High Court’s Justice Charles Mkandawire acknowledged the existence of corruption in the judiciary, an all-encompassing practice associated with judges as well as judicial officers.
If we go by the events surrounding the Elections case, however, it seems all is not lost for Malawi. The very fact that at least one from the Judiciary shirked at the sight of a bribe and reported it is one convincing aspect of ever-present morality. That the Chief Justice took the matter up to an appropriate public agency, the ACB, is another soothing factor.
How far the ACB will stand against the forces working against it – including deliberate efforts to chock its budget – will be further proof of just how ready Malawi is to deal with high-profile corruption. The evolution of the recent arrests of Thom Mpinganjira, First Discount House (FDH) Bank Chief Executive Officer, have been enlightening as to how far the justice system, of which the ACB is ironically a part, is willing to shield suspects from the cooler. The midnight nullification of Mr. Mpinganjira’s initial arrest by a Magistrate’s Court in Zomba, was quite suspect in itself. But in twenty-first century Malawi, the ever-prying eyes of the internet, media and camera phones subject the course of justice to a level of transparency no backhand can maneuver. Both Mr. Mpinganjira’s lawyer and the Magistrate that issued the Order of Cancellation of the defendant’s arrest have rendered them under the mercy of disciplinary actions in no time. Mr. Mpinganjira had to be re-arrested in a move that somehow restores the confidence of trust that Malawians have been seeking in the ACB.
Today, a lot of change is anticipated in our tiny country. But it will not change as much as this evolving corruption case will change Malawi. We will rely on more than just the permeable Judiciary and ACB to keep the virility of system of checks and balances going. Unless Malawi’s arms of justice are also as fatigued with the status quo like the rest of us, perhaps civil society pressure will continue to keep the ACB and Judiciary in check as a constant reminder that the new citizenry in Malawi will not take no for an answer anymore. Messrs. Mtambo, Trapence and company may need to take heed.