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

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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.

Strictly Personal

African Union must ensure Sudan civilians are protected, By Joyce Banda

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The war in Sudan presents the world – and Africa – with a test. This far, we have scored miserably. The international community has failed the people of Sudan. Collectively, we have chosen to systematically ignore and sacrifice the Sudanese people’s suffering in preference of our interests.

For 18 months, the Rapid Support Forces (RSF) and the Sudanese Armed Forces (SAF) have fought a pitiless conflict that has killed thousands, displaced millions, and triggered the world’s largest hunger crisis.

Crimes against humanity and war crimes have been committed by both parties to the conflict. Sexual and gender-based violence are at epidemic levels. The RSF has perpetrated a wave of ethnically motivated violence in Darfur. Starvation has been used as a weapon of war: The SAF has carried out airstrikes that deliberately target civilians and civilian infrastructure.

The plight of children is of deep concern to me. They have been killed, maimed, and forced to serve as soldiers. More than 14 million have been displaced, the world’s largest displacement of children. Millions more haven’t gone to school since the fighting broke out. Girls are at the highest risk of child marriage and gender-based violence. We are looking at a child protection crisis of frightful proportions.

In many of my international engagements, the women of Sudan have raised their concerns about the world’s non-commitment to bring about peace in Sudan.

I write with a simple message. We cannot delay any longer. The suffering cannot be allowed to continue or to become a secondary concern to the frustrating search for a political solution between the belligerents. The international community must come together and adopt urgent measures to protect Sudanese civilians.

Last month, the UN’s Independent International Fact-Finding Mission for Sudan released a report that described a horrific range of crimes committed by the RSF and SAF. The report makes for chilling reading. The UN investigators concluded that the gravity of its findings required a concerted plan to safeguard the lives of Sudanese people in the line of fire.

“Given the failure of the warring parties to spare civilians, an independent and impartial force with a mandate to safeguard civilians must be deployed without delay,” said Mohamed Chande Othman, chair of the Fact-Finding Mission and former Chief Justice of Tanzania.

We must respond to this call with urgency.

A special responsibility resides with the African Union, in particular the AU Commission, which received a request on June 21 from the AU Peace and Security Council (PSC) “to investigate and make recommendations to the PSC on practical measures to be undertaken for the protection of civilians.”

So far, we have heard nothing.

The time is now for the AU to act boldly and swiftly, even in the absence of a ceasefire, to advance robust civilian protection measures.

A physical protective presence, even one with a limited mandate, must be proposed, in line with the recommendation of the UN Fact-Finding Mission. The AU should press the parties to the conflict, particularly the Sudanese government, to invite the protective mission to enter Sudan to do its work free from interference.

The AU can recommend that the protection mission adopt targeted strategies operations, demarcated safe zones, and humanitarian corridors – to protect civilians and ensure safe, unhindered, and adequate access to humanitarian aid.

The protection mission mandate can include data gathering, monitoring, and early warning systems. It can play a role in ending the telecom blackout that has been a troubling feature of the war. The mission can support community-led efforts for self-protection, working closely with Sudan’s inspiring mutual-aid network of Emergency Response Rooms. It can engage and support localised peace efforts, contributing to community-level ceasefire and peacebuilding work.

I do not pretend that establishing a protection mission in Sudan will be easy. But the scale of Sudan’s crisis, the intransigence of the warring parties, and the clear and consistent demands from Sudanese civilians and civil society demand that we take action.

Many will be dismissive. It is true that numerous bureaucratic, institutional, and political obstacles stand in our way. But we must not be deterred.

Will we stand by as Sudan suffers mass atrocities, disease, famine, rape, mass displacement, and societal disintegration? Will we watch as the crisis in Africa’s third largest country spills outside of its borders and sets back the entire region?

Africa and the world have been given a test. I pray that we pass it.

Dr Joyce Banda is a former president of the Republic of Malawi.

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Strictly Personal

Economic policies must be local, By Lekan Sote

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With 32.70 per cent headline inflation, 40.20 per cent food inflation, and bread inflation of 45 per cent, all caused by the removal of subsidies from petrol and electricity, and the government’s policy of allowing market forces to determine the value of the Naira, Nigerians are reeling under high cost of living.

 

The observation by Obi Alfred Achebe of Onitsha, that “The wellbeing of the people has declined more steeply in the last months,” leads to doubts about the “Renewed Hope” slogan of President Bola Tinubu’s government that is perceived as extravagant, whilst asking Nigerians to be patient and wait for its unfolding economic policies to mature.

 

It doesn’t look as if it will abate soon, Adebayo Adelabu, Minister of Power, who seems ready to hike electricity tariffs again, recently argued that the N225 per kilowatt hour of electricity that Discos charge Band A premium customers is lower than the N750 and N950 respective costs of running privately-owned petrol or diesel generators.

 

While noting that 129 million, or 56 per cent of Nigerians are trapped below poverty line, the World Bank revealed that real per capita Gross Domestic Product, which disregards the service industry component, is yet to recover from the pre-2016 economic depression under the government of Muhammadu Buhari.

 

This has led many to begin to doubt the government’s World Bank and International Monetary Fund-inspired neo-liberal economic policies that seem to have further impoverished poor Nigerians, practically eliminated the middle class, and is making the rich also cry.

 

Yet the World Bank, which is not letting up, recently pontificated that “previous domestic policy missteps (based mainly on its own advice) are compounding the shocks of rising inflation (that is) eroding the purchasing power of the people… and this policy is pushing many (citizens) into poverty.”

 

It zeroes in by asking Nigeria to stay the gruelling course, which Ibukun Omole thinks “is nothing more than a manifesto for exploitation… a blatant attempt to continue the cycle of exploitation… a tool of imperialism, promoting the same policies that have kept Nigeria under the thumb of… neocolonial agenda for decades.”

 

When Indermilt Gill, Senior Vice President of the World Bank, told the 30th Summit of Nigeria’s Economic Summit Group, in Abuja, Federal Capital Territory, that Nigerians may have to endure the harrowing economic conditions for another 10 to 15 years, attendees murmured but didn’t walk out on him because of Nigerian’s tradition of politeness to guests.

 

Governor Bala Muhammed of Bauchi State, who agrees with the World Bank that “purchasing power has dwindled,” also thinks that “these (World Bank-inspired) policies, usually handed down by arm-twisting compulsions, are not working.”

 

What seems to be trending now is the suggestion that because these neo-liberal policies do not seem to be helping the economy and the citizens of Nigeria, at least in the short term, it would be better to think up homegrown solutions to Nigeria’s economic problems.

 

Late Speaker of America’s House of Representatives, Tip O’Neill, is quoted to have quipped that, at the end of the day, “All politics is local.” He may have come to that conclusion after observing that it takes the locals in a community to know what is best for them.

 

This aphorism must apply to economics, a field of study that is derived from sociology, which is the study of the way of life of a people. Proof of this is in “The Wealth of Nations,” written by Adam Smith, who is regarded as the first scholar of economics.

 

In his Introduction to the Penguin Classics edition of “The Wealth of Nations,” Andrew Skinner observes: “Adam Smith was undoubtedly the remarkable product of a remarkable age and one whose writing clearly reflects the intellectual, social and economic conditions of the period.”

 

To drive the point home that Smith’s book was written for his people and his time, Skinner reiterated that “the general ‘philosophy,’ which it contained was so thoroughly in accord with the aspirations and circumstances of his age.”

 

In a Freudian slip of the Darwinist realities of the Industrial Revolution that birthed individualism, capitalism, and global trade, Smith averred that “How selfish soever man may be supposed, there are evidently some principle in his nature which interest him in the fortune of others, and render their happiness necessary to him, though he derives nothing from it, except the pleasures of seeing it.”

 

And, he let it slip that capitalism is for the advantage of Europe when he confessed that “Europe, by not leaving things at perfect liberty (the so-called Invisible Hand), occasions… inequities,” by “restraining the competition in some trades to a smaller number… increasing it in others beyond what it naturally would be… and… free circulation of labour (or expertise) and stocks (goods) both from employment to employment and from place to place!”

 

Policymakers, who think Bretton Woods institutions will advise policies to replicate the success of the Euro-American economy in Nigeria must be daydreaming. After advising elimination of subsidy, as global best practices that reflect market forces, they failed to suggest that Nigeria’s N70,000 monthly minimum wage, neither reflects the realities of the global marketplace, nor Section 16(2,d) of Nigeria’s Constitution, which suggests a “reasonable national minimum living wage… for all citizens.”

 

After Alex Sienart, World Bank’s lead economist in Nigeria, pointed out that the wage increase will directly affect the lives of only 4.1 per cent of Nigerians, he suggested that Nigeria needed more productive jobs to reduce poverty. But he neither explained “productive jobs,” nor suggested how to create them.

 

In admitting past wrong economic policies that the World Bank recommended for Nigeria, its former President, Jim Yong Kim, confessed, “I think the World Bank has to take responsibility for having emphasized hard infrastructure –roads, rails, energy– for a long time…

 

“There is still the bias that says we will invest in hard infrastructure, and then we grow rich, (and) we will have enough money to invest in health and education. (But) we are now saying that’s the wrong approach, that you’ve got to start investing in your people.”

 

Kim is a Korean-American physician, health expert, and anthropologist, whose Harvard University and Brown University Ivy League background shapes his decidedly “Pax American” worldview of America’s dominance of the world economy.

 

Despite his do-gooder posturing, his diagnoses and prescriptions still did not quite address the root cause of Nigeria’s economic woes, nor provide any solutions. They were mere diversions that stopped short of the way forward.

 

He should have advocated for the massive accumulation of capital and investments in the local production of manufacturing machinery, industrial spare parts, and raw materials—items that are currently imported, weakening Nigeria’s trade balance.

 

He should have pushed for the completion of Ajaokuta Steel Mill and helped to line up investors with managerial, technical, and financial competence to salvage Nigeria’s electricity sector, whose poor run has been described by Dr. Akinwumi Adesina, President of Africa Development Bank, as “killing Nigerian industries.”

 

He could have assembled consultants to accelerate the conversion of Nigeria’s commuter vehicles to Compressed Natural Gas and get banks of the metropolitan economies, that hold Nigeria’s foreign reserves in their vaults, to invest their low-interest funds into Nigeria’s agriculture— so that Nigeria will no longer import foodstuffs.

 

Nigerians need homegrown solutions to their economic woes.

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