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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

Nigeria’s Currency Crisis: Time to deploy Amotekun, By Chinedu Chidi

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I have thought long and hard about just the right solution to the downward spiral of the Naira, and confidently believe I have come up with the perfect response. It is my humble proposal that the time is right to deploy the dreaded Amotekun to arrest this situation. I’ll explain why.

 

Since it is now clear that the Naira’s salvation is not in the hallways of the CBN or the gold-plated policy rooms of Bretton Woods, but in the battle grounds of the nook and cranny of Nigeria, all patriotic Nigerians must now rightly ignore suit-wearing technocrats and search for militant solutions with real promise. As a patriotic citizen, I have risen to this challenge. I would humbly like to thank the patriotic Nigerian leadership, from the CBN to the Executive, for leading us into this new era of mortal combat.

 

Only a few days ago, we were greeted with the live action scene of security operatives combating BDC operators in the nation’s capital, discharging live ammunition in broad daylight in an open civilian space like fearless patriots at the battle front. The EFCC and accompanying security operatives charged forward and backwards as the enemies of state dared challenge them. It was almost like a combat scene from Gibson’s Braveheart. I was touched. I’m not too sure, but I may have heard the humming of the national anthem from these fearless patriots as they battled the savage saboteurs. What a touching moment! Someone who was at the scene mentioned that these patriots recited the pledge before the onslaught. I can’t confirm this for sure, but if it did occur, it would be consistent with the new nationalistic fervour of the Tinubu administration as reported in the news recently that citizens would be required to recite the pledge at events. I also hear the operation is going on in different parts of the country. All these, coming only days after Sahad Stores, a retail supermarket in Abuja, was forcibly shut down for “economic sabotage”, fill me with great joy. Some unpatriotic citizens had shockingly opposed the move, claiming Sahad Stores was one of the good ones, and that deploying force would not resolve the inflation crisis. Cowards and co-conspirators! They’re too distracted by textbook ideas to see that we’re in war. Shame.

 

Normally, I would have recommended the army for this most important national assignment, but they’re overstretched. They’re battling terrorists, bandits, armed robbers, secessionists, their welfare; just about every violent aggressor around. The police would have been my second option but they too are preoccupied and, as some mischievous people claim, have a special DNA for compromise. For these and some other reasons which I will explain, Amotekun has my blessings.

 

I know Amotekun is also seriously engaged with battling bandits in the South West, but they must be pleaded with to spare some personnel for this all-too-important national emergency. Their stealth, daredevil disposition, and my favourite—charms from the gods— will come in handy.

 

I have heard rumours that some of the BDCs hide their stockpile of dollars in forests. This is the domain of the Amotekun warriors. Through their local intelligence gathering and tactical navigation of the forests, they can uncover these dollar chests and win for the country a huge deliverance. Their spiritual protection against wild animals and attacks from dark forces will be very useful here.

 

I am also confident that what has for so long appeared to be the near-impossible goal of finding the dollars some loud-mouthed people claim are hidden by politicians, bank executives and— I struggle to even contemplate it— CBN officials will be spiritually detected by Amotekun. We desperately need this.

 

It was with great joy that I also received the news that our gallant security personnel are now stopping truckloads of food from leaving the country. What took them so long! How can any patriotic businessman think of trade and profit at a time of economic crisis? This beats my imagination. I am even more infuriated by the argument of their unpatriotic defenders that we don’t have food scarcity, just food unaffordability, and that we can’t seriously let them abandon their goods in warehouses while the vast majority of Nigerians can’t purchase them. This is so inconsiderate and sad. Their argument that the exports bring in needed forex at this time of forex crisis is also another textbook nonsense. Shame on them.

 

I am particularly touched by Cardoso’s sincerity and humility. Realizing that the air-conditioned policies have hit the brick wall and that the fight has morphed into street combat, he did not try to deceive the populace about it. This is uncommon (apologies to Akpabio) pragmatism.

 

I want to enjoin the President to rally leaders in the South West towards mass mobilization of Amotekun for this national assignment. We can’t afford to fail!

 

Chinedu Chidi is a public affairs commentator. He can be reached via: chiobe24.cc@gmail.com

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Strictly Personal

The problem of DRC’s beautiful wife, maize it planted by roadside, By Charles Onyango-Obbo

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Watching the upheaval in the Democratic Republic of Congo in recent days, one is tempted to invoke the African proverb that “the man who marries a beautiful woman and the farmer who grows maize by the roadside have the same problem.”

The police fired tear gas on Monday to disperse protesters who burned tyres and US and Belgian flags near Western embassies and UN offices in the capital Kinshasa, angry about insecurity in eastern Congo.

The protesters claim the West supports Rwanda, which they and their government accuse of backing the M23 rebellion, whose advance could see them seize the strategic border city of Goma in the east.

This is a new phase of what has become an entrenched tradition of the Congolese oscillating between blaming everyone else but themselves for their problems, and demanding that other people solve these problems, including fighting for them.

In recent years — rightly — the Congolese have railed, then attacked, the long-running and ineffectual United Nations Organisation Stabilisation Mission in the Democratic Republic of the Congo (Monusco) for not ending the rebellion in the east.

In late 2022, DRC’s kin in the EAC dispatched the East African Community Regional Force (EACRF) to separate the warring sides. Before long, Kinshasa and the people had risen against them, hounding them to go out to the jungle and fight the rebels for them. At the end of last year, EACRF left DRC with its tail between its legs.

Because the Congolese are our brothers and sisters, and we have a responsibility to love them, we also have a duty to tell them uncomfortable truths that will help them overcome.

So, we will return to our proverb. African proverbs are complicated. First, one needs to know that they passed into society through the mouths of men who were not feminists, so too many of them tend to portray women in bad light.

This one paints a heroic hard-working farmer (although it is mostly women, not men, who work the land in Africa) whose maize is stolen by passers-by, in contrast with the beautiful wife who betrays her husband and falls to the charms of other men.

However, African proverbs are also layered, so there is what they say, and the many things they mean. In this case, that people will covet a good thing — a good crop, a beautiful woman and, if we may add, a handsome, enterprising man. The “problem” here is how to keep your maize, beautiful wife, and enterprising husband. If you are better than all the men who hit on her, your beautiful wife will stay faithfully by your side.

Having your wife, husband, girlfriend or boyfriend run off with someone else can be very hurtful, but if you have a cantankerous truth-telling African aunt or uncle, they will also whisper to you that a partner whom no other man or woman has ever or will ever want is probably not worth having.

In real-world Congo politics, then, the reality is rebels will have friends and allies at home and abroad. Even Uganda’s Lord’s Resistance Army (LRA), as despicable as a rebel group can ever be, had friends outside who backed it.

The thing that should terrify everyone is a rebel group that no one wants to touch with a 10-metre pole, both in the day and night. The opposite is also true of rebels fighting to overthrow a government. If it is a government that doesn’t have a single friend even in the cynical world of geopolitics, then it’s probably worse than a cabal of cannibals.

For Congo, what is left is how to solve this “problem”. To stay with the farmer and the beautiful wife, what the Congolese are doing is like the strapping young man in old Africa who spent all his time attacking his parents, relatives, neighbours, and their friends because they failed to give him cattle to pay a bride price for a wife and build a hut for him to live in with her.

The scale of surrender of agency by many Congolese, including the political class and the government, is unsettling.

It’s partly understandable, too. The unusually brutal Belgian rule; the exploitation of all sorts of vultures for its vast minerals lasting over 100 years now; and an unbroken long spell of corrupt and cruel rule, have broken its self-confidence. The way to come to terms with the scale of failure and remain sane is to externalise all the problems to evil forces.

It has led to national paralysis, a belief that they can’t do much on their own to overcome.

DRC’s neighbours to the east, Uganda and Rwanda, offer good lessons. When President Yoweri Museveni took to the bush with his small band of rebels in 1981, the odds were stacked up against them. The British had a big programme with a special police force; the Tanzanian army that helped overthrow military dictator Idi Amin was on the side of the government, and hardy North Koreans soon got into the fight against them. They still won.

The prospects were even worse for the Rwanda Patriotic Army/Front when it crossed from Uganda and took to treacherous hills in 1990. Apart from Uganda, it was alone against the world, including one of the world’s superpowers at the time, France, which was in bed with the government in Kigali. They suffered setbacks, picked themselves up, and won.

Congo can win, but first, it will have to plant its own maize and fight its war for its own beautiful wife.

Charles Onyango-Obbo is a journalist, writer, and curator of the «Wall of Great Africans». Twitter@cobbo3

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