Friday, 28 November 2014

“He who would be his own lawyer has a fool for a client.” (Abraham Lincoln)

The legal profession in Malawi has become an embarrassment. They are deeply involved in Cashgate affairs and there are many instances where actions displayed are no where near expected ethics in the profession. It all boils down to the inability of the profession to manage the self regulation régime provided. This is a sure opportunity for a Government to interfere and institute regulatory regimes to manage a profession that is failing to self-regulate.

What is the main Problem? At the helm of the problem is the weak Law Society of Malawi. Just like in Malawi's political system where mediocrity leadership rules, mature and credible lawyers have left the leadership of this important Association to kindergarten lawyers with no experience and no muscle to discipline colleagues who fall outside prescribed or expected ethics. The Association's governing rules also seem also to be very weak, probably deliberately so to ensure that status quo prevails. Malawian legal fraternity need to re-think of re-engineer the Law Society of Malawi if they are proud of their profession.

Looking at the weak governance regime, new graduating lawyers without or with insignificant experience and no supervision, seem to open legal practices as soon as they are called to the bar. In my considered view, it is like allowing a newly qualified pilot to be a captain of a flight (without supervision) or newly qualified medical doctor opening a hospital and performing all kinds of major surgeries. In UK for example, If you are setting up a firm, one of the managers must be 'qualified to supervise'. If you are setting up as a sole practitioner then you must be 'qualified to supervise'. To be qualified to supervise you must have: been entitled to practise as a lawyer for at least 36 months within the last 10 years; completed a 12 hour management skills training course ; You will also need a practising address in England or Wales. I am not sure what the requirements are in Malawi, but certainly it seems it's free for all.

In last couple of years, the standards of this age-old profession of our "learned" colleagues have deteriorated (to be polite). I am aware of the old problem of embezzlement of clients' money. Of late however, we have heard of allegations where lawyers have register bogus trustees with laundered money; bought property using laundered money, defended clients in court today and next day on trial themselves; over-charged clients; one day defended clients against Government and next day became Government legal advisers on the same cases; joining Government but still writing submissions for clients in cases against Government. Some of these allegations are true others are yet to be confirmed. We also saw the legal profession's bizarre conduct during the May 2014 elections which included those in the judiciary. There was a merry-go-round of injunctions and Judges failing to understand the role of the Electoral body or simply ignoring the electoral law.

Is it not scary that citizen number 1 is in the same profession?

Saturday, 24 May 2014

Presidential Slip of the Tongue- Madam Midday One

As I finally depart from the beautiful African soils to Europe, after my brief Johannesburg stop over, political drama continues to unfold in Malawi. 2 hours is a longtime in life.  When I departed Lilongwe yesterday,  Rev Dr. Chakwera had a narrow lead and, by the time I landed in Johannesburg, Prof Peter Muthalika had regained the lead. It all points to a APM win, based on the unofficial results from constituencies. There is indication of anomalies, for example, one result in Ntchisi shows a possible doctored result with MCP results not registered. Looks weird and raises suspicions. The question is the extent of such anomalies and whether they do affect the overall results. That is a matter for MEC to resolve.

Today 24 May, I woke up to a shocker as President Joyce Banda nullified the elections using Section 88 (2) of the Constitution which says:

"The President shall provide executive leadership in the interest of national unity in accordance with this Constitution and the laws of the Republic".

There is an overwhelming condemnation of President Banda's pronouncement as unconstitutional as this section of the Constitution is not about elections according to legal experts.  I listened to the phone call which the President made to Zodiak radio to make the pronouncement. It was a tired and confused voice of President Joyce Banda who was on that line. She had withdrawn an earlier statement that quoted Section 82(2), which she called "Slip of the Tongue".  It is true that the election was a sham by any standards in terms of logistics and opportunity that this created for rigging. It is equally true that the election was going to be between the three main parties namely PP, DPP and MCP. This means that each of the parties had an equal chance to win. The fact that PP is a distant third with projected 12 Members of Parliament and that they only won the northern region vote, says a lot about lack of genuine popularity in general for the party.

The President should have been the last person to try to flout the constitution especially after Malawians defended the constitution to get her into power. The Midnight 6 still stand accused and she has now become the Midday One.

I understand rioting has taken place in some areas and the President is being accused of fuelling the riots so that she can justify the use of section 88(2). It remains to be seen whether the plan will work. The role of the Armed forces will come into play and right now there is simply speculation as to the role the Army will play. I hope though that common sense will prevail and the President will rise above pettiness and withdraw her pronouncement.

When this is dusted and done, Malawi urgently needs a THIRD FORCE which is the citizenry, to ensure that the first agenda for the next Parliament should be adoption of the recommendations of the 2007 Constitutional Review which included provision for the 50+1 requirement, bringing back the recall provision, reduction of presidential powers and separation of Executive from Legislature. If we don't get the Parliament to consider and adopt some of the recommendation that achieve this balance and reduction of power, we will have bigger problems in 2019 and before. Unfortunately Lawyers who play this game are interested parties in getting a share of the "cash gate"pie and they easily compromise their professionalism once they get into power. We also have activists who are opportunists and a are always attracted to jobs with fat cheques and compromise their stand. To avoid this, there is need for a Pact by a group of concerned Malawians and all interested stakeholders who will be committed to work on pushing Parliament until this is achieved. The group can even lobby for suspension of aid until we achieve what is agreed. The group should come up with a Written Declaration that the political parties should sign and commit to undertake within a year after being sworn in. It is our only chance.

When the Sun is under Clouds

In August 2013, I registered to participate in the Malawi 2014 tripartite elections. At that time, I was already concerned with the PP Governments failure to articulate and implement a vision for Malawi. Cash gate had not been revealed but all stories talked about how the country was bleeding from fraud and corruption. Names were mentioned and most aligned to PP and the President's family. But these were allegations.

If my Father had not died, I probably would not have had the opportunity to cast my vote. It was his death that brought me home. At his funeral on 25 July one of the mourners was Rev Dr Lazarus Chakwera. At that time, he had announced that he was going to stand as a candidate during the MCP convention. In introducing him at the graveside, Rev Nyondo wished him well and hoped that if he became President of Malawi, he hoped the Golodi road would finally be considered. Despite having listened to his church ceremonies before, I was impressed with his humility and humanity.

 On 20 May, with no regret at all, I cast my vote for Rev Dr Lazarus Chakwera, who I believe did not become the President of MCP by accident. Today 23 May 2014, having cast my vote for Rev Dr Chakwera and, as I prepare to return to Watford, UK, I  reflect on my 6 days in Malawi.  I am of course leaving without knowing the declared winner of the 2014 Presidential elections. The only known fact is that President Joyce Banda is no longer going to be the President of Malawi. It seems the political similarities between Malawi and Zambia continue to surface. This starts from comparisons between Kamuzu and Kaunda to how cardiac arrest, arrested Mwanawasa and Bingu. The other known fact is that the next President of Malawi is going to be either Arthur Peter Muthalika (APM) or Lazarus Chakwera (LC)

Indications as I leave are that that LC is narrowly leading by a few votes. The lead established is however from unofficial results from constituency tallying centres. Malawi Electoral Commission (MEC) is yet to announce the official results. So like everyone else I hold my breath. However both APM and LC should know that people voted for them not just because they like them, but because they have hope and faith in their leadership for the future and Malawi's future.

Irrespective, there are lessons to be learnt from this election. First, the Power of Incumbency can be a myth in a maturing democracy especially if majority of the people cry for change. This was clearly shown in the results in Zomba the homestead of the incumbent Joyce Banda. Second, sadly Malawi still sees election as an event and not part of our democratic system which requires a functional Electoral Commission. MEC currently operates like a "Wedding Committee". This has to change going forward. Just like everyday we teach mothers regarding family planning, MEC should have an ongoing programme of voter education and establishment of electoral systems. Third, politicians need to consolidate their Party structures on the ground. This was very a visible weakness of the MCP in the North and Southern region where party structures were non-existent which made it difficult for MCP to reach out to the people.  On the other hand DPP seems to have retained local party structures that canvassed voters every other day in their weaker regions.

Going forward, the next elected President should immediately move and seriously restructure our civil service, insulating it from politics. Let's try to build a professional civil service in terms of staffing as well as delivered public services. Second, Ministers should now not double as MPs. This will ensure that MPs concentrate on their role. Third, decentralisation and devolution of power should be started with the intention of having stronger local authorities. Although elections of councillors did not attract much coverage, the future of Malawi's development lies in strong and functional District Assemblies that will have and implement local development plans. Finally, we need to go back to the 2007 Constitutional Review document to implement recommendations made including reclaiming section 64, having 50+1 provision etc. Our democracy has been compromised by greedy politicians who managed to massage constitution to fit their agenda.

To Outgoing President Banda (JB) I applaud her and the people that made it possible for JB to step in the vacuum after Bingu's death. I have no doubt that when she stepped in, she wanted to make a difference in Malawians lives. She however has herself to blame for not performing and for losing this election. She only had 2 years to utilise the goodwill shown by Malawians soon after that fatal Thursday in April 2012 when we lost our unpopular President.  She unfortunately never listened to the free and good advice offered by many genuine Malawians. I vividly remember Edge Kanyongolo's wise words when both if us we were panellist in Scotland on Malawi's democracy. It seems she preferred to listen to the sharks that have moved from party to party since 1994. I can foresee PP ending up like AFORD, a historical party. I wish her God's guidance as she waves goodbye to the power, pomp and the Orange movement. There is life after State House. A good start would be a rethink on "One Cow, one Family" and Mudzi transformation Trust outside State House.

As I leave Malawi, irrespective of who wins, I do not regret voting for Lazarus Chakwera. I believe as I have said before, he has the integrity and the heart to lead Malawi into the future. If he loses, he will be a credible Leader of Opposition. Like he said in his Press briefing yesterday, that even if he were to lose and despite challenges MEC faced, he will accept the outcome of the elections.

One phrase that I will always live to remember uttered by Rev Dr Lazarus Chakwera is, "just because the sun is under the clouds does not mean it has stopped shining". And I say to my fellow Malawians, "just because your preferred candidate has lost the election, does not mean Malawians don't need development".

God Bless us and Malawi