analysisBy Richard Lee
With national elections just a couple of months away, there could hardly be a better time for the launch of a major new report into democracy and political participation in Malawi.
Produced by the Africa Governance Monitoring and Advocacy Project (AfriMAP) with support from the Open Society Initiative for Southern Africa (OSISA), the report finds ample evidence to suggest that democracy in Malawi is working, albeit with some obvious challenges - and makes a series of recommendations to resolve these.
According to the report, the country has a popularly accepted constitution that enjoys broad-based legitimacy, established institutions for democratic governance, and adequate mechanisms and opportunities for the promotion of popular participation in politics. Citizens' rights are fully guaranteed and protected in the constitution. Citizens can participate through general elections held every five years, and representation in the National Assembly, civil society organisations and local governance structures.
Meanwhile, the proliferation of media outlets enables Malawians to enjoy relatively unrestricted access to politically useful information, although harassment of critical journalists and media houses remains a common feature. Organised civil society, previously almost non-existent in Malawi, provides political space for the open deliberation of public affairs. Political parties, though structurally and ideologically weak, are free to recruit mass membership and to mobilise their members and supporters for elections.
However, the 'founder' syndrome and 'the big man' mentality entrench authoritarian predispositions and inhibit policy debates and competition for party leadership.
The unmodified first-past-the-post electoral system used in Malawi ushers in winners that garner a lesser percentage of the votes than the losing candidates combined. This, coupled with the lack of confidence in the Malawi Electoral Commission due to doubts about the institution's independence and professional integrity, are matters of concern. Of equal concern is the failure of local government elections, the incomplete process of decentralisation and the poor funding of local authorities.
Local governance institutions are potentially the most accessible sites of political authority for ordinary citizens. The law provides that these institutions play a key role in the implementation of development projects and in social service delivery.
High levels of aid dependency and indebtedness have the potential to undermine spaces for popular political participation due to their associated conditionalities. There has been no clear public debate on these matters. Of late, development partners have made statements suggesting that they are experiencing some amount of donor fatigue. Malawi may soon face the challenge of having to find alternative ways of generating resources for its development.
Given these general conclusions, the AfriMAP report makes a number of realistic and concrete recommendations that would help to boost public participation and consolidate the country's democracy.
Malawi should ratify the African Charter on Democracy, Elections and Governance. It should also complete the constitutional review process by debating in Parliament the recommendations of the Special Law Commission on the Review of the Constitution and passing the proposed bills. This would make it more difficult to amend the constitution by protecting its key provisions, and reducing the number of sections that require only a simple majority vote for amendment - key sections of the constitution should require a two-thirds majority and/or referenda to amend.
Malawi should ratify the UN Convention on the Reduction of Statelessness and the Convention relating to the Status of Stateless Persons to allow foreigners who have stayed in the country for long periods of time to fully participate in public affairs. Refugee policy should be reformed to facilitate local refugee integration, including the acquisition of Malawian citizenship after a period of residence.
The Law Commission should review the Citizenship Act with the aim of proposing amendments to remove racial, ethnic and gender discrimination and provide due process protections in relation to the granting and deprivation of citizenship and other matters. The debate on affirmative action should go beyond the issues of gender to include minority status in general, covering ethnic minorities, disabled people, the elderly, youths and children and other categories of persons.
The Penal Code should be reviewed, amended and aligned with the constitution to remove sections that may, by interpretation, criminalise political activities and those that limit political freedoms. The government should introduce to Parliament a bill to repeal those provisions of the Preservation of Public Security Act (Act 58 of 1965), the Penal Code (Act 22 of 1929) and the Censorship and Control of Entertainments Act that infringe on the rights to freedom of expression and the media.
The proposed review of media laws, media policy and codes of conduct for the state-owned public broadcasters should be conducted as a matter of urgency.
The proposed Access to Information Bill should be tabled, debated and passed in Parliament.
The NGO Act should be reviewed and amended to provide the necessary independence for CSOs. Consultation procedures between government and civil society bodies on issues of public interest should be clearly laid out and institutionalised so as to make consultation and public participation common practices.
To enhance the credibility of the national electoral system, the MEC should implement the recommendations of the international and national election observation teams, including most importantly in relation to voter registration procedures and processes, and the management of the voters' roll. The MEC should create a new voters' roll well ahead of the next elections, and take steps to ensure that electoral abuses, including illegal use of state resources and violence against political opponents, are uniformly investigated. Prima facie cases should consistently be prosecuted under the law.
The MEC should widely publicise and monitor compliance with the code of conduct adopted for political parties during election periods. But a code of conduct for political parties that governs the period between elections should also be established in law, with monitoring and enforcement by the Electoral Commission.
The Malawi Communications Regulatory Authority (MACRA) should strictly enforce the legal requirements for equal and equitable coverage of all political players by the public media in order to level the political playing field. Civic education and voter mobilisation for by-elections should be given the same priority as the general elections in order to reduce apathy and low voter turnout.
The unmodified FPTP electoral system does not appear to be serving Malawi well. It requires serious dialogue and debate leading to reform and the adoption of an appropriate electoral system.
The legal framework governing political parties in Malawi is inadequate, and requires review and reform. Clear rules should be established in law for state funding to be provided in accordance with an agreed interpretation of section 40(2) of the constitution. The terms on which such funding may be suspended should also be established in law. Legislation should be introduced to regulate privately raised political party funds. Political parties should be required to publish annual audited accounts, which should be accessible to the public.
The government should introduce - and civil society should campaign for - legislation to be adopted by the National Assembly establishing rules of internal democracy for political parties, including in relation to the selection of candidates, primary elections prior to general elections and the adoption of policy platforms. The production of party policies should be part of the legal requirement for party registration and/or participation in general elections.
Political parties should adopt measures to achieve the target of 50% representation of women in politics established by the SADC and the African Union.
The research capacity of Parliament should be enhanced by allocating adequate resources to the research department, purchasing necessary equipment and hiring qualified technical staff. Parliament should allocate more resources to the meetings and operations of its committees so as to enable them to meet regularly and to effectively discharge their duties.
The executive should present the recommendations of the Special Commission on the Review of the Constitution on floor crossing, the recall provision and the Senate to Parliament for debate and possible adoption.
Both the constitution and the Local Government Act should clearly distinguish between the roles and mandates of local councillors and MPs so as to remove the inherent tensions between them.
Local ward boundaries should be reviewed and re-demarcated to make them consistent with the boundaries of traditional authorities and those of constituencies. The numbers of wards should be reduced and rationalised based on demographic, physical and socio-economic features.
The local government law should provide percentages for the revenue generated locally to be transferred to the central treasury and the percentages to be retained by the local authorities.
The legal framework for traditional authorities that subjects chiefs to the powers of the executive should be reviewed. The Chiefs' Act should also be reviewed and the proposal for the establishment of the Chief's Council should be adopted.The debate on the Upper House in Parliament should be reopened including the possibility of the representation of chiefs in a restored Senate. The non-voting status of chiefs in the district assemblies should also be reviewed because chiefs need to have voting rights in local government structures. Open and transparent public debate on the land law and its relationship with the authority of chiefs must also be introduced.
Civil society should campaign for, and government should initiate, open and transparent debate on Malawi's foreign policy, and its governing principles. Debate about relations with development partners - including the possibility of subjecting aid agreements to a vote - should be introduced in Parliament.
The executive should provide public access to information about aid agreements beyond what is published in newspapers - preferably through Parliament. Aid for democracy should prioritise programmes and other interventions that promote popular participation in public affairs, poverty reduction and the improvement of the socio-economic wellbeing of ordinary citizens.
The delivery capacity of CSOs that receive aid for democracy should be enhanced and monitored, and the impact of their activities properly evaluated. Priority areas for aid flow should be publicly debated, preferably through Parliament, CSO networks, the media and local government structures.
Clearly there is no time to implement these recommendations before the May polls but the report certainly shines a light on the issues that undermine democracy and public participation in Malawi - and hopefully whoever wins the elections will use this report as the basis for implementing some far-reaching and vitally important reforms.