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Z Allan Ntata’s Uncommon Sense: Does the Law Matter Anymore?

Dr Ansah was speaking to the media in Blantyre on Friday alongside with Mec Commissioners.

It is rare for an
autocratic or authoritarian regime to have the approval of the people over
which it rules. Thus, an illegitimate regime wields its power on the basis of
fear and corruption. It harnesses the institutions that are supposed to provide
relief and legitimacy and subjects them to it so that they do only that which consolidates
their power. Institutions are manipulated in such a way that they no longer
serve the people but rather work only to perpetuate the regime’s hold on power.
This is the case of Malawi.

It is now evident that
from the behavior of Justice Jane Ansah and the Malawi Electoral Commission
back in May 2019, observant Malawians should have known this. Fast forward to
the present time, and not only has MEC been fully harnessed but now also the
Army and all other institutions that are supposed to protect citizens from
Executing overreach. 

The legitimate
expectation of every Malawian is that in all areas and spheres of government,
public entities will place priority on revitalizing our economy while
exercising the greatest care in the use of public funds. After all, according
to the International Monetary Fund (IMF) Malawi is one of the poorest countries
in the world with 50.7 percent of the population living below the poverty line
and 25 percent living in extreme poverty.

Alarmingly, in their
efforts to protect president Mutharika’s hold on power, this important fact is
lost on MEC Commissioners. MEC recently entered into a contract with Mboweni Maluleke
Inc Attorneys securing their legal services for the appeal in the elections
case for a whopping $788,500.00 which translates to over half a billion Malawi
Kwacha. The Chairperson for MEC, during an interview informed the public that
MEC had hired the foreign lawyers at this fee because they could not find a
lawyer in Malawi who could handle the case.

Let’s analyze this
statement for a bit. First of all, Malawi currently has over 400 licensed
lawyers, admittedly not all of them are experienced enough to handle the appeal,
but there are more than enough senior lawyers that can. Surely the statement
that there is no lawyer in Malawi to handle the appeal is unbelievable.

In a country as poor as
Malawi, rarely will lawyers find a client willing to pay such an exorbitant fee.
Any lawyer, senior or otherwise would jump at handling a case for this amount
and certainly one that would bring him free publicity. It is thus laughable
that of all the justifications that could have been offered to Malawians for
such flamboyant and illegal expenditures, the best that the MEC Chair could
come up with was that there was no lawyer in Malawi that accepted to take on
the case. Supposing this justification were true, would a refusal by ‘all
lawyers’ to take on the case for such hefty unjustifiable sums not be enough to
raise alarms to MEC about the merits of the appeal. Shouldn’t that point, (if
true) be a cue to a discerning MEC Chair to drop the appeal altogether and
address the anomalies that were unveiled in the elections by the Constitutional
Court instead of proceeding to dip their fingers into our taxes to spend on
lawyers that they hope will secure their and APM’s seats.

But, not only are we being
given these laughable and outrageous explanations for spending our taxes on a
useless exercise in such wanton fashion, we have also seen how MEC proceeded to
spend our money illegally.

The governing law for
public procurement is the Public Procurement and Disposal of Assets Act of
Malawi (PPDAA) which applies to all procurement and disposal of assets carried
out by entities using public funds as MEC has done. Under the PPDA, public
procurement is supposed to be done by means of open tendering proceedings
except in the following circumstances.

MEC did not procure the
legal services through open tendering. Further, looking at the said procurement
it is clear that the procurement did not fall under any of the exceptions to
open tendering provided for under the PPDA. In addition, the PPDA makes it
mandatory that where there is single source procurement as in this case,
approval needs to be sought from the Director General after satisfying him with
reasons as to why the services are not being procured through open tendering,
however, we are not aware of any such approval from him. In fact, it is on
record that not even the Secretary to the Treasury was aware of this
transaction. We also saw through a leaked letter on social media purporting to
make arrangements for accommodation for the illegally procured lawyers, that
there was a statement by the Attorney General (AG) that ‘procurement
procedures’ had not been finalized.’ It is even surprising that the AG was
involved in the procurement exercise as the Constitutional Court ordered him
off the case but clearly, just like the Commissioners, he has proceeded to do
as he wishes.

It is important to
mention that procurement laws are not only there for financial management,
transparency and accountability alone. They are also there to combat corruption
hence the reason that the PPDA provides that single source procurement or any
high value procurement should be vetted by the Anti-Corruption Bureau (ACB). We
are not aware of the contract having gone through any such vetting process by
ACB.

In spite of all these
anomalies, MEC headed by a Justice of Appeal who also happens to be a woman of
the cloth proceeded to spend our hard-earned taxes on procuring these lawyers.

The procurement of the
foreign lawyers (which was only known by the public because of leakages by
whistleblowers) is a clear indication of why it is foolhardy to maintain someone
in their position after two arms of Government, namely the Judiciary and
National Assembly has found them wanting and even bearing in mind that some of
the Commissioners actually admitted that they were incompetent. This governance
gap is now left to be abused by the executive as an ostensible argument for
holding on to power by maintaining the same people that used irregularities to
ensure he won the elections to conduct the upcoming fresh elections.

If we are going to
change the country as Chilima and Chakwera are championing, there will be a
need to address these governance gaps that have become so glaring during this
period. I hope sincerely that these gaps will be addressed through relevant policy,
legislative and Constitutional reforms so that office bearers in similar circumstances
are monitored individually and collectively and where their conduct is wanting
as in this case, necessary action is taken before they can begin to protect an
illegitimate regime.

Public Affairs Committee (PAC) Members
Malawi Parliament Public Affairs Committee (PAC) Members Facing GI Jane Ansah – They were no Match

And this is what Malawians need to know and contemplate upon. For Peter Mutharika, holding on to the power that is quickly slipping away will be done at any cost. Any. Whether it involves instructing or supporting MEC as it breaks the law, or whether it even involves bringing in the very Attorney General himself to help in the illegality.

It seems to me the order from the president is clear. MEC must stop at nothing to maintain their seats as well as that of APM. His beloved MEC having been found incompetent by both the Constitutional Court as well as the National Assembly, Mutharika doesn’t care anymore about the rule of law. He cares only about holding on to the presidency.

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