Sunday, 15 April 2012

From President Mutharika to President Joyce Banda in Malawi By Chikosa Mozesi SILUNGWE*

By Chikosa Silungwe. PhD

It is one of my favourite works in the field of psychology. In 1999, Justin Kruger and David Dunning  published an article with the Journal of Personality and Social Psychology (Volume 77, Number 6) entitled: ‘How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self–Assessments’. In their words, Kruger and Dunning argue,
‘People tend to hold overly favourable views of their abilities in many social and intellectual domains. This overestimation occurs, in part, because people who are unskilled in these domains suffer a dual burden: Not only do these people reach erroneous conclusions and make unfortunate conclusions, but their incompetence robs them of the metacognitive ability to realize it. Across four studies, participants scoring in the bottom quartile of tests in humour, grammar and logic grossly overestimated their test performance and ability […] Several analyses linked this miscalibration to deficits in metacognitive skill, or the capacity to distinguish accuracy from error. Paradoxically, improving the skills of participants, and thus increasing their metacognitive competence, helped them realize the limitations of their abilities.’
In English, the two professors are saying: People who are incompetent suffer a dual burden: not only are they incompetent, but they may also be too incompetent to assess their own incompetence. The skills that are needed to have an ability to make a correct judgment are the same as the skills required to recognize a correct judgment, or indeed to recognize the shortcomings of one’s ability. Put another way, ignorant and incompetent people are not only unable to recognize true skill in others; they also have an inflated idea of their own ability. It is a disease where the patient has no way of knowing that they actually do not know.
This is what has come to be known as the Dunning–Kruger effect.
5 April, 2012. It is morning and the tragicomedy begins. State President Ngwazi Professor Bingu wa Mutharika collapses at New State House, Lilongwe, Malawi. He is rushed to Kamuzu Central Hospital in Lilongwe. Unconfirmed reports state that he is ‘DOA’. ‘DOA’ is doctors’ speak for ‘Dead On Arrival’. Rumours start making the rounds in Malawi and the virtual–sphere that President Mutharika is dead. During my lunch break, I meet this guy everybody calls ‘Abigi’. He tells me the news of President Mutharika’s demise. His face betrays him. He is clearly happy that President Mutharika is dead. I do not know why he is happy. I caution him that we must wait for a Government statement on the matter. All afternoon, there is no official communication from Government on the state of health of President Mutharika. It is well into night on the eve of Good Friday; still there is no word from Government on what has befallen President Mutharika. Malawi goes to sleep.
Good Friday, 6 April, 2012. One of the two local dailies, The Daily Times, screams: ‘Bingu’s illness creates anxiety’. The story states that President Mutharika was taken ill the previous morning at the New State House; that he suffered cardiac arrest; that he was rushed to Kamuzu Central Hospital; that he has since been airlifted to a hospital in the Republic of South Africa for specialist treatment. I am now confused. Is President Mutharika alive or dead? Energy Minister, the Honourable Goodall Gondwe confirms, however, that President Mutharika has been airlifted to South Africa. He goes on to state,
‘He was not in very good condition but I am told his health is improving now.’
The grapevine is now rife with the news that, yes, President Mutharika was airlifted to South Africa a dead man. International media, most notably the British Broadcasting Corporation, begin to report that President Mutharika is, in fact, dead.
4:00 p.m., Good Friday, 6 April, 2012. A local private radio station, Zodiak Broadcasting Service (‘Radio Zodiak’), announces that it will run a live broadcast of a press conference by the State Vice President Right Honourable Joyce Banda. Malawi waits with pregnant expectation. At 5:45 p.m. or thereabouts, the Vice President is on air. She informs the nation that President Mutharika is unwell; that she is in touch with the Government of the Republic of South Africa who are providing her with updates on the President’s condition; that she will hold another press conference the next day, Easter Saturday, 7 April, 2012. More tellingly, she informed the nation that President Mutharika is incapacitated and that the Constitution of the Republic of Malawi will have to take its course. Well, at least there is now something from Government. Indeed, the hidden transcript from the Vice President’s press conference was this: ‘Fellow Malawians, I am now in charge of all matters of State.’
Circa 10:30 p.m., Good Friday, 6 April, 2012. The national broadcaster, Malawi Broadcasting Corporation, announces that there will be a press conference by Government. We fear for the worst. The cameras roll as Minister of Information, Honourable Patricia Kaliati; Minister of Health, Honourable Jean Kalirani; Minister of Sports, Honourable Simon Vuwa Kaunda; Minister of Local Government, Honourable Henry Mussa; Deputy Minister in the President’s Office, Honourable Nicholas Dausi; and Deputy Minister of Foreign Affairs, Honourable Kondwani Nankhumwa, all troop in. I reproduce the statement Minister Kaliati read out on national television purportedly on behalf of Government:
The Malawi Government notes with regret statements made by Honourable Joyce Banda and former President Dr. Bakili Muluzi regarding succession to the presidency. Regarding the Vice Presidency and the question of succession to the Presidency, the Government would like to inform the public as follows: The conduct of Honourable Joyce Banda in forming her own opposition party precludes her from being eligible to succeed the Presidency. In this regard, statements relating to succession made by the former Head of State, Dr. Bakili Muluzi and also echoed by Honourable Joyce Banda herself are misleading of the true nature of the situation. As already stated, information regarding the condition of the President will be made available to the public in due course. There has been speculation in certain quarters that Parliament will convene on Tuesday, 10 April, 2012. This information is false. The Government would like to emphasize that Parliament has absolutely no role in this matter. The Government would like to appeal to all Malawians to remain calm and not to listen to any misleading information coming from anyone except official Government sources.’
For good measure, Minister Kaliati declares that the statement has had the vetting of legal counsel; that in attendance at the conference is a whole PhD in Law, Zolomphi Nkowani.
What a bombshell: Vice President Banda will be blocked from assuming the office of the President of the Republic. The Constitution will not be followed.
Easter Saturday, 7 April, 2012. It is barely mid–morning but the script is getting more complicated and the pace is getting even faster. One of the weekend papers, The Malawi News, declares: ‘Bingu Dead’. Wait a minute; did he die in the wee hours of this Easter Saturday or what? The Office of the President and Cabinet announces the death of President Mutharika at ‘an undisclosed military hospital’ in South Africa. Cause of death: He suffered a cardiac arrest. Finally, the dreaded news from Government. His Excellency the State President Ngwazi Professor Bingu wa Mutharika is dead. He was 78. Local media announces that Vice President Banda will be holding another press conference that morning. Vice President Banda confirms to the nation that President Mutharika was pronounced dead on arrival at One Military Hospital in Pretoria, South Africa on Thursday, 5 April, 2012. She informs the nation there will be a Cabinet meeting in the afternoon of Easter Saturday.
Who does the girl, boy, woman or man in Malawi believe? The grapevine or the statements from Government? The grapevine was awash with the breaking news that President Mutharika died circa 10:30 a.m., Thursday, 5 April, 2012. He was DOA when he was rushed to Kamuzu Central Hospital. The government machinery, however, states that President Mutharika in fact died on the Thursday but was pronounced dead at the military hospital in South Africa. The implication being that President Mutharika was still alive when he was rushed to Kamuzu Central. I cannot help but conclude that it is the typical African ‘big man’ syndrome. As Elizabeth Ohene has noted in relation to the he–is–not–dead–he–is–alive drama that was Omar Bongo’s death in Spain in 2009: ‘Our leaders are never ill, never get tired and they certainly do not die.’ And I add that if they also happen to rule a weak economy such as Malawi, the President cannot be dying at a poorly funded, ill–equipped hospital like Kamuzu Central. The President must die at a glamorous, state of the art hospital in ‘Sosafirika’.
Catherine Hara Gotani. Deputy Minister of Transport and Public Works under the Mutharika Administration and a contemporary of yours truly at Chancellor College, the University of Malawi. It is still the morning of Easter Saturday and she decides to go on air on Radio Zodiak. And boy, oh boy, is her interview revealing. She informs the nation that since Thursday, 5 April, 2012, there had been three purported meetings of Cabinet; that the meetings were to devise a strategy stopping Vice President Banda from assuming the office of President of the Republic; that Peter Mutharika was to be appointed Acting President of the Republic; that Minister Goodall Gondwe chaired all the meetings; that Peter Mutharika attended all meetings; that a few Ministers vehemently opposed any scheme to stop Vice President Banda from assuming the office of President; and that Peter Mutharika himself was of the view that Vice President Banda should not be allowed to take over the reins of power in Malawi.
Well, thank you, Catherine. The message was loud and clear from the statement Minister Kaliati read out to us the night before. But thanks to you, that drab statement now has been spiced up with some names. Who else is involved? Who are the ‘young turks’?
Circa 2:00 p.m., Easter Saturday. The word in the air is that Vice President Banda – who as things stand is in effect President–designate Banda – will be formally sworn in as the President of the Republic. The swearing in ceremony will take place at Parliament Buildings in Lilongwe. I link up with my brother, ‘man–man’, and we make our way to Parliament Buildings. The place is teeming with people. Security is tight; I gather the military police, and not the Malawi Police Service, is in charge here.  The Parliament chamber (both the members’ floor and the visitors’ gallery) is breaking at the seams; it is filled with folks sweating confidence. Each time, one of the six Ministers who attended the press conference the previous night walks into the chamber, they are greeted with boos. I do not know whether to feel sorry for them or be plain angry. I decide to enjoy the moment and ignore the Ministers.
Somewhere around 5:00 p.m., the formal swearing in ceremony starts led by the Chief Justice, the Honourable Lovemore Green Munlo, SC. When President–designate Joyce Hilda Mtila Banda finally repeats after the Chief Justice the last bit in the formal oath of the office of the President: ‘So help me God’; I choked. I quickly regain my composure and join in the furious hand–clapping that goes on and on in the chamber. The Constitution 1 versus Akapirikoni† 0. Game over.
Easter Monday, 9 April, 2012. The other local daily, The Nation, bellows: ‘OPC disowns DPP Cabinet Meeting’. The sub–heading states: ‘Kaliati explains her role in succession statement’. I muse to myself, there we go; the he–said–she–said has begun. The Deputy Chief Secretary in the Office of the President and Cabinet and my teacher in law school at Chancellor College, Necton Mhura, is quoted as saying that their Office did not call for any ministers’ meeting; that they did not sanction a ‘succession statement’ that was read out late at night on Good Friday; that they do not convene Cabinet meetings; that they merely take notes and instructions that need to be implemented.
In the same article, Minister Goodall Gondwe is adamant. He insists that the Office of the President and Cabinet convened the ministers’ meeting. He was made ‘presiding minister’. He states,
‘All that is now behind us because the President called a Cabinet meeting and we pledged our loyalty to her. As far as we are concerned, we hope that things can be walked over [sic]’
Oh, really?
Then, there is Minister Kaliati. She states in the article that the Good Friday statement by her and her fellow Ministers was not her own; that the statement was endorsed by the meetings of all Ministers that took place between Thursday and Good Friday; that she felt betrayed by those Ministers who distanced themselves from the statement; that the statement has since been withdrawn; and that the President has since forgiven them.
The Nation quotes her extensively as follows,
‘I could not do that alone. The unfortunate part is that as Minister of Information, I speak on behalf of Government and Cabinet. Though some Cabinet ministers were saying this and that, they were part and parcel of that [statement]. Even the chief secretary was there.
The nation should not look at it as Patricia’s statement but it was the Cabinet statement. We are happy that the President has forgiven us as Cabinet ministers and for the statement that we made. We have withdrawn that. I think other Cabinet ministers and the chief secretary will also be coming with [the same] to say that that statement is being withdrawn.
[People] must also understand that that thing was done during the crisis with the sudden death of the late Ngwazi. Let me take the blame, but people should know that I was not speaking on my own behalf. I was given that statement to read. That’s why I refused to be alone and asked to be accompanied by other ministers.’
A closer analyses of the various statements: Minister Kaliati, Minister Goodall Gondwe, the Good Friday statement, Necton Mhura – all of them, point to one conclusion. President Mutharika was already dead when ‘he’ was being airlifted to South Africa. It may well be that all along the grapevine was right; that President Mutharika was DOA when he was rushed to Kamuzu Central.
From the moment President Mutharika collapsed at New State House, Vice President Banda ought to have been swiftly informed of the development so that she takes charge of all matters of State. It is clear to me that this was not done. Instead, we are informed that there were at least three purported Cabinet meetings chaired by Minister Goodall Gondwe. Indeed, the façade continued throughout Easter. Until Easter Monday, folks are still being quoted in the press as having had some ‘Cabinet meeting’; statements being made and endorsed by ‘the whole Cabinet’; an Office of the President and Cabinet that ‘merely takes notes and instructions’ and proceeds ‘to implement’; yada yada.
The statements epitomize a classic Dunning–Kruger effect. Here is a group of public officers who clearly do not know (this late in this tragicomedy) that they do not know. For me, it gets more and more comical with each statement that is made. Let me make one thing very clear at this stage: Under the Constitution, the ‘Presidency’ is the only ‘public office’ with the power to convene and preside over a meeting of Cabinet. For this purpose, the ‘Presidency’ means the President, or in his temporary absence, the Vice President, or in his temporary absence, the Second Vice President; or, an Acting President or Acting Vice President, as the case may be. Therefore, between the time of President Mutharika’s collapse and subsequent death on the Thursday and the time of the Cabinet meeting convened by President–designate Banda on Easter Saturday, there could not have been a cabinet meeting convened by anybody else apart from President–designate Banda anywhere in this country. Before Easter Saturday, President–designate Banda had not called for a Cabinet meeting. The three purported meetings that took place between Thursday and Good Friday are unconstitutional in so far as the attendees seek to give the impression that these meetings were Cabinet meetings. They were not.
Now, where were the advisors in all this? Where were the two law officers; the Attorney General, Honourable Justice Maxon Mbendera, SC and the Solicitor General, Anthony D. Kamanga, SC? Were the law officers informed of President Mutharika’s incapacity and subsequent death? Or, indeed whether they were informed or not, did the law officers take the initiative to ensure that the constitutional process is adhered to? The law officers never made a public statement on the matter. In the case of the Office and President and Cabinet, Minister Kaliati confirms that the Chief Secretary to the Office and President and Cabinet, Bright Msaka, SC, attended the ill–advised meetings that purported to block Vice President Banda (as she then was) from assuming the office of the President. And my teacher, Necton Mhura, is quoted in the press as saying the role of their office is facilitative. I disagree. Msaka and Mhura, as lawyers, know very well that as public officers their office cannot be facilitating a process that is unconstitutional; a process that is illegal.
Then there is Zolomphi Nkowani. He holds a PhD in Law and is a senior lawyer in the Ministry of Justice and Constitutional Affairs. Minister Kaliati places him at the venue of the late night conference on Good Friday. Was Dr Nkowani present at the press conference with the blessing of his superiors, namely, the Attorney General and the Solicitor General? Did Dr Nkowani defy his superiors?
Let us look at the statement Minister Kaliati read on national television. The statement reads, in its critical parts, that ‘[t]he Malawi Government notes with regret statements made by Honourable Joyce Banda and former President Dr. Bakili Muluzi regarding succession to the Presidency.’ The statement then zeroes in on Vice President Banda and notes that ‘[r]egarding the Vice Presidency and the question of succession to the Presidency, the Government would like to inform the public as follows: The conduct of Honourable Joyce Banda in forming her own opposition party precludes her from being eligible to succeed the Presidency.’ The statement went on to state that ‘[i]n this regard, statements relating to succession made by the former Head of State, Dr. Bakili Muluzi and also echoed by Honourable Joyce Banda herself are misleading of the true nature of the situation.’ The statement ends on a rather blunt note: ‘The Government would like to appeal to all Malawians to remain calm and not to listen to any misleading information coming from anyone except official Government sources.’
A number of things: Note the reference to ‘Malawi Government’, ‘Government’ and ‘official Government sources’. Second, the country has no Vice President. Third, Vice President Banda is not ‘Malawi Government’, ‘Government’ or ‘official Government source’ and cannot speak as such. Finally, the original text of the statement from ‘Government’ preferred the American spelling ‘Honorable’ from the Queen’s English ‘Honourable’. Is this indicative of the author of the statement or it is one of those things a spell–check does to one’s document? I digress.
Minister Kaliati and her team; do they know that they do not know? Is this not the classic case of an ant feeling more powerful than an elephant? How haughty were Minister Kaliati and her team going to get? Can the Office of the President and Cabinet – the Msakas and Mhuras of this world – hide behind the ‘veil of facilitation’ when clearly a purported Government statement is spewing matters that are unconstitutional; that are illegal? Chief Secretary Msaka is reported in the press to have actually called for the cabinet meetings. He was calling for the meetings in what capacity? The Constitution could not have been clearer on the point: The ‘Presidency’ convenes and presides over Cabinet meetings. The hour may have been late but at the time of the statement, Malawi had a Vice President in office. As such, a statement by Vice President Banda is Government speaking and it is as official as it gets; it could not have gotten any higher than that.
‘We have withdrawn the statement. We have since apologized to the President. The president has forgiven us.’ Somehow, life must go on. Well, not so fast. I am told President Banda is a very strong Christian. As a good Christian she has forgiven all ‘sinners’. Well that may be the case, that the Ministers (and I do not know who else) have been forgiven. But the law must take its course:
Let us look at the principal law on crimes in Malawi; the Penal Code. The relevant part of the Penal Code has this heading: ‘TREASON AND OTHER OFFENCES AGAINST GOVERNMENT’S AUTHORITY’. I assert that at the time that Minister Kaliati and her team read their statement on Good Friday, we had a Vice President. Any insinuation in their statement that the office of the Vice President was in fact vacant was not only unfortunate but unconstitutional; and I dare add, treasonous.
What is the law on treason? Section 38 of the Penal Code provides for the serious crime of treason. The section reads,
(1)    Any person who—
(a)         prepares, endeavours or conspires to overthrow the lawfully constituted Government by force or other unlawful means;
(b)        prepares, endeavours or conspires to procure by force any alteration of the law or the policies of the lawfully constituted Government;
(c)         prepares, endeavours or conspires to carry out by force any enterprise which would, if effected, usurp the executive power of the State;
(d)        incites or assists any person or conspires to invade the Republic with force or unlawfully to subject any part of the Republic to armed attack by land, sea or air, or assists in the preparation of any such invasion or attack;
(e)         in time of war and with intent to give assistance to the enemy, does any act which is likely to assist the enemy; or
(f)         recruits or trains persons for the implementation of any of the aforementioned purposes, or participates in any such recruitment or training,
shall be guilty of treason and shall on conviction be sentenced to death.
(2)    In this section, the expressions—
(a)         “the lawfully constituted Government” includes the President and any Minister of the Government;
            (b)        “force” means either—
(i)         force used in such a manner as, whether by reason of the number of persons involved or the means used or both, to imperil or be likely to imperil the safety of the State or to cause, or be likely to cause, death or grievous bodily harm or serious damage to property, or
(ii)        a show of aggression calculated to arouse reasonable apprehension that force, as defined in subparagraph (i) will be used;
(c)         “armed attack” shall include any unlawful use of force constituting an act of rebellion against or calculated to undermine the authority of the Government or any arm thereof.
(3)    A person may be tried and punished for an offence against this section whether committed within or outside the Republic.
There is the related crime of misprision of treason. Section 39 of the Penal Code states,
Any person who—
            (a)         becomes an accessory after the fact to treason; or
            (b)         knowing that any person intends to commit treason, does not give information
thereof with all reasonable despatch to the President, an administrative officer, magistrate, or officer of police or use other reasonable endeavours to prevent the commission of the offence,
shall be guilty of the felony termed misprision of treason and liable to imprisonment for life.
In English, section 38 is saying that any person who seeks to overthrow a Government that has been in put in place in accordance with the Laws of Malawi commits the crime of treason. The manner of the overthrow can be through force generally, forceful alteration of law, forceful alteration of policy, usurping executive power of State, or other military action generally. Section 39 is saying that if a person has knowledge of the matters in section 38 and he does not report to State authorities, he is concealing treason. He commits a crime and may be tried for it. Hence, treason is an unsuccessful enterprise to overthrow a government in office. Otherwise, a successful enterprise to overthrow a sitting government is a coup d’état. The law on treason operates after the fact and is set in motion by the ‘machinery’ of the government that would otherwise have been overthrown.
The statement that Minister Kaliati read on national television clearly states that the country has no Vice President. The statement naively stated that Vice President Banda is ineligible to assume the office of the President. In my book, this is an act of treason as envisaged under section 38 of the Penal Code. In the circumstances, all those who took part in the formulation of the ill–advised statement commit the crime of treason and they should be prosecuted accordingly. The Director of Public Prosecutions, Rose Kanyuka, should inform the nation what the position of her office will be on this act of extreme arrogance and magnified self–importance by all those behind the statement.
Since Easter Saturday, we have had a galore of declarations of loyalty and allegiance to President Banda. When President Banda and Vice President Khumbo Kachali were being banished from the Democratic Progressive Party in 2010, were it not the same folks pledging loyalty and allegiance ‘today’ who were ‘yesterday’ falling over each other in a bizarre competition of who will shower the most insults at Vice President Banda and Minister Kachali (as they then were)?
Circa 10:30 p.m. on Good Friday, Minister Kaliati and her team are telling the nation that the then Vice President Banda cannot be President. Twelve, twenty four or thirty six hours later, they are pledging their loyalty and allegiance to President Banda. My take is that this dramatic turnaround has nothing to do with the purported forgiveness by President Banda. It has everything to do with these folks making sure that ‘their bellies are full’ because they know ‘we are hungry.’ (My apologies to Nesta Bob Marley, here.) The nature of political patronage in Malawi is such that politicians shift with ease from the red shirts of Malawi Congress Party to the yellow t–shirts of the United Democratic Front to the blue Chinese suits of the Democratic Progressive Party and now to the orange kaftans of the People’s Party. 
The people of Malawi deserve better. President Banda needs to advance a ‘Malawi’ agenda and should strengthen democratic institutions in the country. For a start, and in relation to our politicians, section 65 of the Constitution (the ‘crossing the floor’ provision) needs to be invoked without fear, favour or ill–will when the situation arises for its invocation. I saw tell–tale signs at the swearing in ceremony on Easter Saturday that we risk prolonging a personalized agenda instead of a ‘Malawi’ one if songs like ‘Joyisi Banda ndi boma’ (‘Joyce Banda is the government’) are the norm rather than the exception. The Joyce Banda Administration must champion a people–based governance culture which is truly bottom–up in its approach. Under this culture, the citizenry are accorded the respect they deserve in recognition that they are the foundation of the ethos embodied under the Constitution. Going forward, let us move away from songs of praise. It should not be about Joyce Banda, it should be about what our constitutional order has put in place.
In the end, those who do not know do not know that they do not know. They do not have the skills to recognize their limitations, or to arrive at a correct judgement. Cue; the statement read by Minister Kaliati on behalf of all those ill–advised Ministers on Good Friday. Second, such folks (who do not know) have an inflated idea of their ability. Cue; the avalanche of ‘apologies’ that has ensued. This lot truly thinks that they are the only folks out of all Malawians who have something to offer the President, right? And just to add to what Dunning and Kruger have said, such folks (who do not know) do not know that they cannot get away with it.

†  The term ‘Kapirikoni’ (plural: ‘Akapirikoni’) is rooted in Malawi’s nationalist struggle of the 1940s, 1950s and 1960s. It refers to a ‘traitor’ to a (national) cause.

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