The greatest injustice happening to President Peter Mutharika is, indeed, rooted in the law. Yes, the law. But just not the law of justice, but the law of nature: survival of the fittest.
Is Mutharika as fit as a fiddle to survive the torrid political times about to reach climax in the next few weeks? Or he is turning into a political weakling, crying over spills of milk?
The fact that he survived the HRDC demonstrations tells a story. Of course, his remarks in the post court ruling era display another part of Mutharika that is slowly turning to last ditch measures to survive regime change.
I have read the President’s State of the Nation (SONA) with trepidation. The statement is full of ironies.
Out of want of political correctness, the speech starts by saluting the Chief Justice, High Court and Supreme Court judges. After listening to him offering the salutations, one would think the verbal war against the courts is over: Nay!
A few paragraphs later, the President was bitter at the people he had just decorated with salutations. You realise most respect is out of professional courtesy and etiquette, nothing much. As I heard him speak on, I realised that were it not for want of conformity with the SONA template as per tradition, he wouldn’t have mentioned them to begin with!
As he continued, he accused the judiciary of robbing him of his victory – he also mentioned this at the presentation of nomination papers presided by Justice Dr. Jane Ansah, former MEC Chairperson, in Blantyre; and he has repeated this at all his other public appearances since then.
Let’s get one thing straight: the President’s conduct will either diminish his standing as a man of letters on matters of the law. If we may add, his adamancy will create an involuntary inertia on his part. In such a situation, he won’t move on and the country will stall with him.
Actually, its political inertia that is a catalyst for dictatorships.
That’s not all. The president’s continued attack is also laughable on the fact that suddenly, he seems to find parliament incorruptible and morally upright than the courts.
He seems to purpot that MPs should right the wrongs caused by the learned judges.
To get me right, read this exerpt:
“And let us also admit that we sometimes do what is not right because the Court has said so. But let us remember that Parliament is more supreme above the Courts. We are elected members who represent the people and we have the authority to make laws for the Judiciary to interpret.”
This is laughable. As a Constitutional Law expert, the President should have a solid understanding of the doctrine of separation of powers between the executive, legislative and judiciary. As a leader of the nation, he should realise that concocting a situation that pits the two arms of government is a betrayal to the people.
In his case, the judiciary did not make the law. Did it? It interpreted the law and recommended to Parliament to rectify the legal gaps through amending the laws accordingly.
His penchant for favour and entitlement is making him a danger to himself and the nation at large. His counter-narrative to the court decisions seem to have nothing with him being a retired law professor. It is deliberately designed and is nothing short of lamentations of an old man desperate for power.
If Mutharika’s narrative in the aftermath of the court rulings were to be fact-checked he would find himself embarrassed, yet again.
Already, the rulings have received excellent peer reviews. Our courts are now rated highly for being professional and incorruptible.
The good thing is that he agrees in the diverse opinions. He states that “to oppose judges when they err” is not to attack the courts. He labels the assertion that he is attacking the courts “poor thinking”.
Being a novice in the area of Constitutional Law grants me the license to think poorly. Perhaps using the licence to display my ignorance freely against a Professor of Law, let me disagree with him respectfully.
As President, he has a responsibility. He cannot wear the robes of an academician to theorize on a case he was party to and expect it to be unbiased. He cannot abuse the privilege of being President to attack a judiciary on mute through each and every public event he speaks. Besides, of what utility is it?
To those ignorant of the hierarchy of the courts and how the courts function, his perpetual lamentations project a truly victimised person. The common man in Msundwe in Lilongwe, Kanyama in Dedza, Santhe in Kasungu, Chitakale in Mulanje, Chinamwali in Zomba and Mbaluku in Mangochi should sympathise with him.
The lack of a response from the judiciary will, from a political point of view, create an impression that he is indeed an aggrieved person who is not being heard.
The fact, however, is that all steps were exhausted. With the appeal thrown out, no court other than that of public opinion can matter.
Of course like the president rightly stated, opinions differ. But in all instances, the court’s decisions were unanimously arrived at. It means even if he were granted the opportunity to be a party to the case with voting rights, it would have still been his vote against the other judges.
Well, we should forgive him. Mutharika has spent a lot of time theorizing than practicing. There is a great difference to holding a qualification and teaching people to earn a qualification, my lawyer friend tells me.
Teaching in law school prepares the officers of the court to understand the law, but practicing the law makes them realise the uncertainty of what their teachers meant so much so that they adapt to ongoing, real life learning that keeps evolving, she added.
Such continuous learning has foundations in the basics conveyed by the teachers, but there is more to it than mere basics. And from where I am standing, Mutharika is getting the basics wrong. He is desperate. Actually, he is split between being a Professor of Law and a President with the throne at risk.
He knows the arithmetic is not in favour at the polls.
Wait a minute. Mutharika talks of treason, a serious crime under the country’s laws. Think about it! He will return to the very injustice and unprofessional courts limping after a bruising run for political survival.
Obviously, there won’t be a case for treason. It’s neither here nor there. It’s just him fishing, trying to protect his nest!
Listening to the SONA, I thought: Here is a President demonstrating an unprecedented disrespectful attitude towards the courts and officers of the courts.
Read what he had to say:
This Parliament respects the Courts. But that does not mean that we must agree with every judgement that comes from the Courts. We must all hold one another accountable.”
What’s the accountability issue with the courts here? That he lost or that there is professional misconduct? Was there a mistrial?
There is a K 100 million bribery allegation allegedly made in his favour. There is evidence of irregularities in the elections. The decision was unanimously reach in both courts.
As President, he is becoming a danger to himself and the nation as a whole. By launching an incessant battle against the courts, what will stop people from disrespecting the courts whenever they (read: courts/judges) deliver rulings contrary to their (people’s) expectations?
The President’s advance of the law to augment his position is really interesting. He quotes Section Section 83 of the Constitution of Malawi to make his case. He actually advances his persuasion as if the section is to be read independently, without respect to any other laws.
What about the issues of “undue return” and “undue election”? The court determined there was no election in 2019, remember? Therefore, continuing to argue along the nullified election is a futility exercise.
Section 83 stipulates:
“The President shall hold office for five years from the date that his or her oath of office was administered, but shall continue in office until his or her successor has been sworn in.”
Having quoted the Section, the SONA continues with Mutharika warning that:
“… those of you who are plotting otherwise will be undermining the constitutional order and therefore committing treason.”
This sounds like blackmail. A threat to make the legislature submit to his whims of garnering support because tippex was, apparently, also used in their election. It is a plot designed to be juxtaposed against the order to hold of polls in 150 days. It is a plot to thwart contempt of court should the polls not be held as prescribed by the courts.
The threats however neglect that the 2019 election is an election that never was.
On the tippex and election of MPs, there are cases that were brought before court. But to generalize and accuse the court for incompetence where there was no case presented is pushing luck too far.
The logic is just not convincing. A thief caught cannot use the example of uncaught thieves (in this case suspects) to plead innocence. Ordinarily, the expectation is that the police should arrest (or a complaint made) and the court decides. Surely, in this criminal case example, the court cannot be prosecutor and arbitrator. In the civil case, which illustrates the matter at hand more appropriately, the courts cannot be accused for not addressing the tippex issue if nobody laboured to bring it to their attention.
Otherwise, Mutharika’s assertions on tippex only insinuate a plea of guilt subject to the other offenders being booked as well. But then, the judiciary will only act on matters presented before it as stated already.
The SONA has its sweet sounding sound bytes as well. For example, Mutharika talked about the essence of an election.
“The essence of an Election is that we must go into office by the will of the people. In every modern democracy, the will of the people is in the numbers that vote for us.”
On the above quote, I totally agree. Let the will of the people prevail without any shadow of doubt.
Going further, the President is avoiding the issues of undue return and undue election in their entirety. He says:
The Court failed to show or prove that irregularities affected the result of the Election.”
Irregularities must not be condoned in an election. The President acknowledges existence of irregularities. However, he seems to be seeking an attenuated approach to the consequences because it places his chances at risk.
He also talks about the COVID-19. This column has raised reservations on holding an election in the midst of the pandemic.
Mutharika, however, drowns the logic behind the narrative aimed at flattening the curve because he stands to benefit.
This should be for apolitical agents to champion. The moment vested political interests manifest in the pro movement, the opposers will also come in thus politicising the COVID-19 pandemic.
The approach followed recently shows a lack of seriousness on the part of all. Both government and opposition have been in blatant disregard for the measures to prevent the spread of COVID-19 at political rallies.
Let us admit we have a dilemma between going to an Election too soon or preventing the spreading of Coronavirus. As a nation, we need to make a collective decision. This Parliament must make its voice heard before the people,” he said.
Well, “too soon” is subjective. The Supreme Court ruled that 150 days was way too generous, actually!
Furthermore, the united opposition between Dr. Lazarus Chakwera and his running mate Saulos Chilima is a major political survival obstacle the President must overcome.
Sadly, he must overcome this by living the judges alone and do politics. How does he, ethically and legally, split the opposition? How does he implant a sense of trust and confidence in the citizenry?
Unfortunately, he has brazenly attacked the judiciary. Yes, the same judiciary he will run to to slap treason charges on those “charlatans” plotting to oust him. It’s so ironic how an iconic academician now politician is fast becoming a joke characterised by never-ending ironies!
Understandably, the tax vault is under threat. The fleet of cars, the free meals and all the freebies that comes with the title: His Excellency the State President…