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‘Idle & disorderly’ no more but have you seen judges in traffic? By Joachim Buwembo



Uganda’s constitutional court last week nullified the Penal Code section that created an offence known as “idle and disorderly”. British colonial rulers created and implemented such rules in their colonies to keep natives who were not directly required to serve in their offices and homes from crowding their new towns. After colonising Uganda over 130 years ago, they imported their Indian Penal Code complete with Indian Police officers to enforce it into Uganda.

Sixty years after Independence, Uganda has finally removed that piece of racist discrimination from its laws. But this was the labour of a private citizen who petitioned the constitutional court, and, or more accurately but, our patriotic, nationalist and pan African government opposed the petition through the attorney general, but the justices of the constitutional court ruled on the side of the people.

Contravenes constitution

The five justices unanimously agreed with citizen Francis Tumwesigye Ateenyi that indeed that the section of the Penal Code which provided that “any suspect or reputed thief with no visible means of subsistence shall be deemed a rogue and vagabond and commits an offence punishable with imprisonment”, indeed contravenes several sections of the constitution.

Of course, the learned brothers on both sides of the petition argued using  a lot of “big English” before court arrived at what the rest of us consider obvious that you cannot criminalise a person’s having no visible source of income nor call one a reputed thief without adducing evidence of their having stolen anything.

Every day when you get onto the road in Kampala city you see the people who should celebrate the nullification of the notorious idle and disorderly offence. They include for starters, judges whose disorderliness you curse until you see the insignia on their cars and realise who they are. Besides daily breaking the specific laws of traffic as they drive on the wrong side, overtake in the wrong places and generally being nuisances with their blaring sirens which have been expressly prohibited by the transport authorities, these judges would under the idle and disorderly thing, be suspected without being able to prove their “means of subsistence” that are consistent with the lifestyle of having the means and power to take over so many square metres of road space from the public yet neither are they the president of the republic, nor are they ambulances.

Boda boda riders

Besides the judges, plus other big and small officials who claim road space and scatter other road users like rubbish, none of the one million or so boda boda riders in the country would survive the enforcement of the idle and disorderly thing. To begin with most of them are not operating within the law regarding the registration of their bikes as passenger vehicles nor the possession of valid driving licences and insurance policies. Until the public infrastructure is developed or organised to have different categories of road users in their spaces, particularly the larger means of public conveyance, it is difficult to stop drivers from being disorderly.

In short, the idle and disorderly law has not been enforceable, and where an authority cannot assert authority, they start looking impotent or irrelevant. So, the nullification of “idle and disorderly” has saved the law enforcement and judicial offices from looking impotent. The judges’ observation of the inconsistence with the constitution sounds nice and serious, but the truth is, that piece of legislation has been making the government look unserious. It was better to remove it than maintain it when you can do nothing with it.

So, we can all be idle and disorderly with nobody complaining that some are being arrested while others are doing the same but are not being arrested. It reminds one of an English prince who centuries ago married a French princess but could not stand the garlic on her breath. Until a wise person gave him advice that worked – start eating garlic. He did and they lived happily ever after.

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Strictly Personal

Malawi’s path to an ‘Award-Winning Judiciary’ By Chidi Odinkalu



Joyce Banda, Malawi’s fourth (and first female) president, was in Nigeria earlier this month as guest of the Nnamdi Azikiwe University in Awka, Anambra State in South-East Nigeria, where she spoke at the 12th annual lecture in memory of the man after whom the university is named. It was also the 119th birthday of Nnamdi Benjamin Azikiwe, Nigeria’s founding president, and the month of the 26th anniversary of the death in 1997 of Malawi’s founding president.

At the lecture, Joyce Banda described Malawi’s judiciary as “award-winning” and many Nigerians in the audience, embarrassed by the contrast with theirs which wallows in infamy, broke out in spontaneous acclamation. The story of how Malawi’s judges became “award-winning” should be of interest to Nigerians.

On the ruins of the banned Nyasaland African Congress, NAC, Orton Chirwa, Aleke Banda and their confederates, founded the Malawi Congress Party, MCP, in 1959. The previous year, Dr. Akim Kamnkhwala Mtunthama Banda, who would later lead the country to Independence as Dr. Hastings Kamuzu Banda (no relation of Joyce Banda), returned to the brutal embrace of a colonial jail in the country he left on foot in 1915. In the 42 years of his foreign sojourn, Dr. Banda had travelled through many countries and continents, acquiring qualifications in anthropology and qualifying as a medical doctor in both the USA and in the United Kingdom. On his release from jail in June 1960, Orton handed over to Banda the leadership of the MCP.

In 1964, on the sixth anniversary of Banda’s return to the territory, Malawi attained Independence with him as its first prime minister. Orton Chirwa, a graduate, like Nelson Mandela, of Fort Hare University in South Africa, became Attorney-General and Minister of Justice. Two months after the cabinet was sworn in, it was in disarray in a power tussle triggered by allegations of autocracy against Prime Minister Banda.

In many ways, Nigeria’s and Malawi’s trajectories managed to converge and diverge. Six months after the military took over power in Nigeria, Malawi became a Republic in July 1966, with Hastings Banda as its first president. It was also the month of Nigeria’s second military coup.

Orton Chirwa had little regard for the niceties of fair hearing. Prior to Independence, he took issue with the presumption of innocence and burden of proof in criminal trials, arguing for their replacement with traditional African ethos. As Attorney-General he sought these reforms but could not enact them before he was turfed out of cabinet in September 1964.

Following the collapse of the Chilombwe Murder Trials in 1969, Banda scrapped criminal trials by regular courts, transferring jurisdiction over them to so-called Traditional Courts, comprising a traditional chief as chair, with three citizen assessors and one lawyer. As both president and Justice minister, he appointed the traditional courts and they also reported to him. Orton’s ideas had become law.

The Traditional Courts eventually usurped the regular courts, affording to Hastings Banda a perverse veneer of process as they handed to him the heads of a succession of his political opponents in a periodic re-enactment of Biblical blood theatre designed for his macabre amusement.

The three decades of President Banda’s reign accounted for the murder and killing of over 6,000 in a rule described by the Los Angeles Times as characterised by “brutality, nepotism and whim”. The rule of law in the country was reduced to reading the mood swings of the man who would come to be known simply as the “Ngwazi”. As he memorably put it: “Everything. Anything I say is law . . . literally law.”

On Christmas Eve in 1981, Banda arranged to abduct an exiled Orton Chirwa and his wife, Vera, from Zambia and, in a tragic irony, had them arraigned for treason in 1983 before the kind of traditional courts that Orton had advocated for as Attorney-General. Their trial was a charade. The court denied them legal defence and the right to call witnesses. Initially sentenced to death on conviction, Banda commuted this to life imprisonment. Orton spent the remainder of his life in solitary confinement at the Zomba Prison in Malawi where, in December 1992, he died at 73.

In death, Orton exacted revenge on his nemesis. Reputedly born around 1898, Banda’s cognitive capabilities were in terminal decline. On June 12, 1993, Nigeria voted in elections to return the country to democratic rule after a decade of military rule. Two days later, Malawians similarly voted overwhelmingly at the end of tortured advocacy to end single party rule. In Nigeria, the military nullified the vote, extending its rule by another six years. In Malawi, the outcome stood and in elections the following year, citizens toppled Banda’s MCP, replacing him with Bakili Muluzi of the United Democratic Front, UDF.

Under President Muluzi, the country took steps to reinstate the rule of law, reform the Traditional Courts, integrate them into infrastructure of the lower magistracy and update the skills of former traditional court judges through suitable training. In the judiciary, the task of spear-heading this reform then fell upon two young judges: Andrew Nyirenda and Rizine Mzikamanda.

As his tenure wound to an end at the beginning of the millennium, President Muluzi thought himself indispensable and sought to extend his tenure, pitting him in a battle of wits with the judiciary who eventually ruled that being term-limited made him ineligible to run again. In this battle, the judiciary were strengthened by the popular support of citizens wizened by years under the Ngwazi.

In 2004, Professor Bingu wa Mutharika succeeded Muluzi. When Bingu died suddenly of a suspected infarction in April 2012, his younger brother, Peter, an American law professor for over three decades, who was also Foreign Minister, sought to engineer a departure from the constitution in order to by-pass the vice-president, Joyce-Banda, and install himself president.

Despite failing in this machination, Peter inherited his late brother’s political infrastructure and, in 2014, got himself elected president in succession to President Joyce Banda, whose effort to nullify this outcome was foiled by the courts. In 2019, Mutharika sought re-election and, knowing that he lost, got the electoral commission to erase enough results to announce him winner. In February 2020, the Constitutional Court invalidated that declaration.

The year after taking power, in 2015, President Peter Mutharika appointed Justice Andrew Nyirenda as Chief Justice of Malawi. It fell to Nyirenda’s Supreme Court to affirm in May 2020 that the election organised by the president that appointed him as Chief Justice was too flawed to be lawful. On May 8, 2020, they ordered a re-run.

Ahead of national elections in 2019, Nigeria’s President, Muhammadu Buhari compulsorily retired then Chief Justice, Walter Onnoghen, whose fate was buried by the selfish ambitions of his own judicial colleagues.

In Malawi, by contrast, believing that he needed a more pliable court, President Mutharika sought on June 12, 2020 to oust Chief Justice Nyirenda and his next in line, Justice Edward Twea. In response, Malawi’s citizens blockaded the streets and the courts restrained a desperate president. Two weeks later, the citizens delivered the coup de grace, ousting President Mutharika in the re-run. When he retired in 2021 as Chief Justice, Andrew Nyirenda became a judge of the IMF Administrative Tribunal. His successor as the Chief was Rizine Mzikamanda.

In Malawi, citizens learned the hard way that the judiciary is ordinarily a weapon in the hands of the powerful; that judges are not born independent; and that judicial independence is fought for not donated.

Courts and the judges who sit in them are liable to suffer elite weaponisation in any country in which citizens are unwilling to provide judges with the political support to enable them to strategically defect from the status quo.

Malawi’s politicians, having learnt that this kind of judiciary endangers them all, have become reluctant converts to judicial independence. Trading in short-term control for long-term security of expectation, they seek and appoint the best to be judges.

In Nigeria, by contrast, subsistence remains the cause of politics; so politicians weaponise the judiciary in advancing a jurisprudence of subsistence. Citizens interested in changing this could profit from a study of how Malawi changed it.

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Strictly Personal

Theatre and development: The Ghanaian case, By Michael Akenoo



That theatre and its philosophy are grossly misunderstood in Ghana­ian society due to deep ignorance about what theatre is all about cannot be disputed by any sincere authoritative expert of theatre or theatre critic. Before I begin my discourse on this important topic, let me first explicitly explain what theatre is all about and its all-encompassing implementation in any human society, in the past, in the present, and, for that matter, in the future.

The word or term theatre is derived from the root Greek word “theatron”. This word literally means “seeing place.”

And what does this mean, by the way?

Theatre is intrinsically a reflec­tion or mirror of what takes place or happens in the society of humans. It mirrors all that human beings do daily in their lifestyles by their interactions with each other.

Writers or playwrights who write in theatre create stories about what happens in society, and these stories are acted out on stage for the audience to watch. The stories may have subjects and themes on issues of health, agriculture, sanitation, education, politics, history, religion, tradition, etc. in society.

Thus, playwrights in society observe and see how human beings behave in their daily lifestyles, and write stories about these to be acted on stage for an audience to watch, for the purpose of information, education and entertainment.

And in this way, it can be said that theatre, or “theatron” for that matter, is a projection of all issues that emanate from the actions and activities of human beings living in a particular society or nation.

Theatre is, therefore, a part and parcel of society; and it is embedded in the character or lifestyles of the people.

Writers and playwrights, by their writings or works, can reprove, admonish, inspire, and direct the people in all fields of human endeavour and, in a way, preserve and precipitate the progress and development of a society or nation.

It must be noted that it was the result of a vibrant theatre practice that the ancient Greeks achieved the Golden Age of Civilization in the 5th century B.C. during the reign of King Perides. At this time in recorded history, theatre was at its apogee of practice in ancient Greece.

The ancient Greeks left their great achievements of knowledge, enlightenment, and advancement in all fields of human endeavour—arts, science, and technology—to the Romans, who pursued theatre practice to reach their enlightenment and greatness as the great Roman Empire of the ancient world, which survived and lasted for many many years.

The great Roman Empire became the source of knowledge and enlightenment to the rest of the world.

And now, in the modern world of today, countries such as America and China have achieved great wealth, power and advancement as a result of a vibrant theatre practice.

It will be of much interest to note that America, the most wealthy and powerful nation on earth today, derives two-thirds of its revenue generation capacity to build its powerful economy from theatre and its adjuncts, film production, music, and dance!

This indisputable fact and truth may sound amazing to many a lay Ghanaian citizen who, up until now, despises theatre practise owing to deep ignorance and does not know what theatre is all about. Indeed, theatre is the sine qua non of knowledge, enlightenment, development, and prosperity for all nations in the past, present, and future!

The unpalatable Ghanaian situation of ignorance about the priceless value of theatre and development beats one’s understanding so much to the extent that one wonders about the fact that literary Ghanaian theatre began in the early 1960’s, and it has yet to make a great impact in Ghanaian society!

Although Ghana possesses a gigantic theatre complex building in Accra, the capital city of Ghana, which was built at a huge cost of 10 million U/S Dollars loan from the Chinese government and was nego­tiated for by the erstwhile PNDC government under Ft. Lt. Jerry John Rawlings of blessed memory, Ghana is still yet to find her feet in vibrant theatre practice.

The theatre psyche in Ghana as of now, is extremely low to incite vibrant theatre practice!

In light of the present low theatre psyche in Ghana, I will humbly suggest that the Ministry of Tourism and Creative Arts and the National Commission on Culture should collaborate now, brainstorm ideas, and develop a blueprint for the effective promotion of theatre practice in the country to meet world standards.

In his book titled “Black African Theatre and Its Social Functions” Tayeb Sadiki, the world-renowned Moroccan dramatist and theatre practitioner, stated, “If you want to build a nation, start with a national theatre”, and Ghana has a gigantic theatre building complex to promote vibrant theatre practice.

In conclusion, I state categorically that Ghana needs to develop her theatre practice to a very high level to meet the world’s standards so that her developmental aspirations can be accelerated to bring about a very high level of development; for theatre is the sine qua non for all developmental aspirations, and Ghana cannot be an exception to this universal rule.

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