Why federalism represents justified but misdirected political disaffection of our time- Malawi law scholar

What justifies federalist sentiments?

The idea of federalism has proved to be so seductive to many Malawians that I have felt compelled to restate my opposition to it and communicate it to a wider audience. I understand and will explain why more and more people are finding it attractive, but argue nevertheless that federalism is a bad idea for our political context.

The proposal for a federal system of government is coming at a time when the country is facing a political cul de sac. The general population is desperate to see the change that multiparty democracy promised in the 1990s. Twenty years down the line, we seem to have reached the end of the road.

We have just come out of bitterly contested but poorly organised presidential and parliamentary elections, which brought back to power a political party with a dubious past, headed by a dinosaur who is struggling to hold the country together, to shake off the ethnicist mask from his own and his party’s face, and to inspire confidence in his own leadership and in the future of the country.

The leading opposition party does not inspire confidence either. After mistaking his popularity at a party convention for that of the rest of the country and orchestrating a shambolic presidential campaign, its leader does not seem to understand his role as an opposition leader. No wonder his party appears to be as lost as, if not more than, the government in terms of contributing ideas that can move this country forward at this point. This explains why the MCP feels isolated and has latched on and tried to appropriate a political proposal suggested by and popularised by the general public. Strangely, its own concrete position and proposals on federalism remain mysterious. It is indeed amazing that a serious political party could adopt a position on such an important topic without commissioning a substantive study and presenting it to the general public.

Twenty years down the democratic path, public confidence in political parties and politicians is at its all time low. The gulf between the public and the political elite continues to widen. While the general population has become more politically aware and demanded change consistently and continually, the political elite have increasingly become deaf and reluctant to translate public demands into policy and action. There is also an unusual, inexplicable sense of solidarity among politicians which has meant that unpopular individuals are continuously brought back from the political wilderness even when they have been rejected by their constituencies.

The presidents have tended to accumulate more powers not because the Constitution gives them such powers but because elected individuals allow them to do so. In originating the practice of MP shopping after the breakdown of the first and only properly constituted coalition government in the late 1990s, former President Bakili Muluzi informally rewrote the Constitution, elevating the presidency to an unaccountable institution. The folly of all this was illustrated when former President Bingu wa Mutharika managed to rule for five years with a party that never participated in elections, relegating the party that won elections to an opposition party.

If this development was bizarre and extraordinary, then words cannot describe what happened when former President Joyce Banda came to power in 2011. As an interim President who had been fired from the party under whose auspices she was elected Vice President (in all fairness not all because of her fault), she behaved as if she had won elections and went ahead to form a government without any public consultations. She did not care that her constitutional legitimacy was tenuous, that she did not have her own MPs in Parliament and that civil society and the general public had contributed more than her to the demise of the DPP’s government. At no time had Malawi needed a government of national unity more than that time. In short, both Banda’s interim government and Mutharika’s first-term government were unconstitutional because they flouted the fundamental principles of our Constitution. Somehow, they were accepted as legitimate, normalising chaos in the process.

It is thus not surprising that these dubiously constituted governments were unsuccessful. They were clearly founded on deceit, fraud and a lack of respect for the fundamentals of democracy and constitutionalism. It is also not surprising that they have been implicated in unprecedented looting of state resources.

Unfortunately, the architects of and conspirators in these deeply flawed governments continue to dominate the political landscape on both sides of the aisle. It makes for a depressing state of affairs. It is therefore understandable that the general public feels deeply betrayed and finds itself in what can only be described as a political coma. The country has become almost lifeless. There is no hope.

In these bleak circumstances, the people have to look for something that can offer them hope. Federalism has become that rallying point for hope.

 Arguments for and against federalism

Seductive as federalism might appear to be, it is a wrong prescription for our political and constitutional problems. Because no one on the proponents’ side has ventured an in-depth case for federalism, the specific type being proposed and the modalities of its co-optation and implementation, it is difficult to make an effective response to it. Nevertheless, from several comments I have come across, I have been able to knit together the following main reasons in support of federalism.

The first is that the current system has over-concentrated powers in the presidency. Federalism, it has been argued, will enhance devolution of powers and make it possible for greater public participation in political decision making. If powers are devolved at the regional level, it will be possible for development to take place more evenly throughout the country. It will also be possible for the central government to be held accountable to regional governments. Federalism is also seen as a solution to ethnicity. The argument from development sees ethnicity as the underlying reason for the three regions’ skewed developmental pattern.

To understand and evaluate these reasons fully, it might be worth clarifying the meaning of federalism in practical terms. A federal arrangement can mean that a country is divided into a given number of provinces or states. Each province or state will have a government constituted by the premier or governor who acts as the president of the province or state and a cabinet (provincial or state executive government). Each province or state also has to have its own legislature (called provincial or state parliaments). In a federal state system (not necessarily in provincial), there also has to be federal courts. In other words, a federal or provincial system replicates in all the provinces or states the three branches of government that exist at the national level. In this situation, a constitution has to be so designed that it allocates powers to provincial executives, parliaments and judiciaries (in the case of a state federal system), to the national executive, judiciary and parliament, and to local government councils whose councillors serve as legislative members and mayors as heads of the executive councils. For it to work well, the system has to be so designed that each level of government has exclusive powers is specified areas and concurrent powers in other specified areas.

Now, to start with the problem of over-concentration of powers in the presidency, this is less a constitutional problem than a problem of lack of constitutionalism. As I have explained above, the presidency has been allowed to act unconstitutionally for more than a decade by a deeply gullible cohort of MPs who have reduced Parliament to an arm of the executive instead of seeing themselves as a check on executive power. Furthermore, politicians generally do not seem to understand the scope and limits of their constitutional mandates and only see the value of state institutions such as Parliament and the courts when they are out of power. Creating more institutions such as federal parliaments and cabinets might serve the aims of devolution at the level of theory but is, with respect, not a solution to a poor generation of political leaders. Given the complexity that federalism comes with and the propensity of this generation of politicians intentionally to obfuscate clear laws and abuse loopholes, new institutions stand to be dominated and undermined much in the same way as the current ones are.

Furthermore, as my sketch of a federal system above illustrates, federal governments are subservient to the national government, just as federal governments are superior to local governments. The current system of national and local governments must serve as an example. What this means is that less experienced and junior party members will serve at the local government level and progress to the provincial and national levels as their seniority grows. This does not mean that one cannot start right at the top tier. What it means though is that only those that are sufficiently prominent and powerful can play a role at the national level, and the less prominent a politician is the more likely he or she will find a place in the lower tiers of politics. This structure makes federal governments (executive and legislature) poor substitutes for national checks on the presidency and the executive. A national government is best controlled by institutions at its level, that is, the national courts and national parliament. Junior politicians, in a context of where political submissiveness is cultural, cannot control senior politicians who have access to the greater piece of the pie.

Moreover, in a political context where intra-party politics remains to be institutionalised, regional representatives are prone to the same top-down party machinations that currently exist with respect to national MPs. The phenomenon of independent members might serve as a counter-weight to this problem but we have already seen how little independent members have contributed to deepening democracy. If anything, they have served as fodder for illegitimate governments. All in all, far from devolving political power from the national government to the regional levels, federalism will most likely result in the devolution of crookedness, corruption, dishonesty and political shenanigans.

It is certainly not the case that our current institutional framework is not sufficiently devolved, let alone sufficiently democratic. We do have a two-tier system of government, national and local government. It is a great pity that local government was suspended a few years ago by executive fiat, which underscores the problem of lack of constitutionalism alluded to above. Ideally, a three-tiered system is more devolved than the two-tiered system, but the choice between the two is ultimately determined by a particular political context. There were good reasons why the two-tier system was preferred and why federalism has never featured in the numerous constitutional reviews and amendments that have taken place to date. These reasons will become clear by the end of this piece.

Perhaps the least persuasive argument for federalism is that it will bring about equitable development in the country. This argument is unconvincing partly because it is founded on an obscure notion of development as physical structures such as buildings etc, and partly because it is unclear how its proponents derive the conclusion that some regions are better developed than others. That said I will assume for argument sake that the case of uneven development has been made. Is federalism the solution to unequal development?

I am afraid to say no, and the reason for saying so has to do with probably the most compelling reason for rejecting federalism. I will assume that development is a socio-economic and political process by which people’s well being is improved. This definition takes human well-being as the end of development, and thus requires that infrastructure, resources, institutions and processes, whether be they political, economic or cultural, are deployed and utilised to ensure the continual improvement of people’s quality of life.

On this definition, for a state to improve the well being of its people, it must be able to spend less than the money it receives or collects so that the surplus is dedicated to the establishment of the infrastructure, procedures, processes, policies and programmes for the improvement of people’s lives. The more the state spends on maintaining its institutions, the less surplus it will have to achieve any sustainable or meaningful development. It is simple economics.

Federalism presents the illusion that it will bolster the development of political institutions. I have shown how this will not happen in practice. But even if this possibility was real, the cost of the proposal is too much to result in any meaningful development, not least in terms of political institutions and culture and in terms of material benefits to people. As has been shown above, federalism will multiply political institutions from three at the moment (national legislature, judiciary and executive) to a minimum of nine (the 3 national organs of the state and at least two provincial organs per province, which comes to 6 assuming there will be three regions). Right now, we struggle to fund state institutions such as the courts, parliament, government departments, hospitals, schools, etc. With a federal system, not only will we have to fund federal governors and their cabinets (houses, cars, security, fuel, etc) we will have to fund their legislatures and representatives. Added to the bill will be the cost of sustaining local government. The calculus here is based on the leanest federal governments and national governments and the absence of abuse of state resources. If one were to throw greed and the increased opportunities for corruption that the system makes possible into the equation, the problem of affordability can only be underestimated at the expense of sanity.

It is indeed quite irresponsible to create a system of government founded on a platform of donor dependence. It scandalises the nation by reducing it to a begging state and denigrates all its citizens by portraying them as irresponsible human beings who are incapable of devising ways of rescuing the country from the chains of poverty and dependence.

It is not just that a three-tiered system is too extravagant and superfluous; Malawi needs less political actors than professional servants at this time in its political development. Widening the space for politicians in the affairs of the country will only serve to deepen at the regional level the dishonesty, corruption and moral decadence that we have seen at the national level. Malawi also needs to cut her wage bill by reducing underemployment and improving the efficiency of the remaining civil servants who need to be given as much room as possible to work to their professional best without political interference. Needless to say there is already enough duplication of responsibilities between chiefs, MPs, councillors and district commissioners but with no meaningful outcomes.

Federalism is just too complex a system for a small and poor country which has high illiteracy levels and whose political leadership is largely ignorant of its constitutional roles. The country’s legal profession is one of the most corrupt in the region and is ill-equipped to understand and help with the implementation of such a complex system. The disputes relating to competing jurisdiction will most likely paralyse the system. The system will also present problems for the electoral commission which has already proved to be incapable of delivering credible elections involving just two tiers of government. One does not even have to get to the problem of the additional procedural bottlenecks that the system will present. In a federal or provincial system, certain legislative proposals have to be debated in provincial legislatures first before they can be adopted at the national level. The snail’s pace at which business is conducted in the country will ensure that important policies will take even longer to obtain legislative approval.

If all these reasons are not sufficient to dissuade the reader from federalism, the following alone should. One of Malawi’s persistent problems lies in building a unified nation in which the ethnic identity of a person does not influence access to education, work and other public goods. A false identity based on regions has been contrived and some political parties have placed ethnic politics at the core of their manifestos.

Federalists tell us that we have to come to terms with regionalism, it exists, we must not ignore it, and hence we have to arrange our constitution so that it structures the state on the basis of the boundaries that regionalism makes. They are wrong. Regionalism and ethnicity are evils to be fought and rejected, not embraced as governing principles of the state. It is a good point to make against regionalism that it wrongly lumps together several ethnic groups under one ethnic identity, thereby indirectly introducing a further hierarchy of subjugation between the ethnic groups so lumped together. It is a poor strategy to accept such warped hierarchies as the basic framework of government. To be blunt, we cannot allow a state to be founded on the perceived superiority of the Tumbuka in the North, the Chewa in the Centre and the Lhomwe in the South. Federalist talk then amounts to request to expand the sphere of ethnic domination by admitting two more ethnic groups to the hegemonic hilltop and marginalising even further the smaller ethnic groups. All such lowly thinking however disguised is morally bankrupt and must be exposed and rejected in the strongest terms.

This is how federalism will promote brute ethnicity. Since the system is built on the assumption that federal political actors must promote their provincial and local interests, the politicians who will manage to rouse those narrow passions the most will most likely be elected to provincial and local governments. In turn these representatives will have to implement what they promised their local electorate and hence engage in perpetual tussles with representatives from other regions. In our context where ethnicity and regionalism are already a problem, this does not look like a blueprint for building the country.

In fact it means the legalisation of quota systems which are currently unconstitutional. The so-called equitable development will not happen partly because this kind of politics will pose as an obstacle to equitable development as each region and district will try to hold on to its share and contest attempts at prioritising other areas. In this scenario, the districts that are perceived to be the least developed will continue to contribute little to revenue collection and hence receive less from the national pie. Provincial politics conduces to such narrow-minded systems of resource allocation.

It needs to be emphasised that Malawi does not need to propel ethnicists to the forefront of politics. On the contrary, the country is in dire need of leaders who are able to discern and serve the national interest.

As a country, we started on a particularly bad note in 1994, when our first democratic elections showed regional voting patterns. However, by 2009, this trend had changed dramatically as more and more people were voting on grounds other than regionalistic. It is regrettable that President Bingu wa Mutharika singlehandedly decided to reverse this positive trend by donning the ethnic mask soon after being voted so overwhelming by the electorate from all the three regions. That the 2014 elections showed a return to regional voting has to do more with this retrogressive step by Mutharika and the absence of a leader with broad national appeal than with the hardening of regionalistic tendencies among the local people. To be sure, regionalism seems to be promoted by educated people more than by poor rural people who seem to get along fairly well.

The right solution

If federalism represents a poor outlet for the clearly justified and steadily growing public frustration with Malawian politics, what is the correct remedy?

The general public needs to redirect its attention to the basics. We must continue to demand a return to constitutionalism. We have veered too far away from that path and for far too long. This must start with the demand for Mutharika to understand that his current government lacks legitimacy. He has to understand that his victory was too narrow, in a poorly organised and, most likely, rigged election. He has to start a new chapter to that inaugurated by his elder brother in 2004 and perfected by Joyce Banda by forming a broad-based government in order to enhance its constitutional legitimacy. This must include an admission that the current electoral commission is corrupt and incompetent, and the establishment of a process to reform the commission and the electoral system and procedures.

Mutharika’s alliance with Muluzi senior and junior is an ill-advised substitute for a broad-based government that can unify the nation, if only because the Muluzi brand represents all that is bad and stands to be rejected about Malawian politics. The fact the young Muluzi performed so poorly in the 2014 elections just shows how overrated he is and how far the electorate has moved away from the Muluzi brand.

Thus far, Mutharika has failed to match the start of his elder brother’s first term. It is precisely the fact that the elder Mutharika rejected all that Muluzi represents and brought in as many new and clean people as he could that his first-term presidency was so successful. In contrast, the younger Mutharika remains hooked to the politics of appeasement, recycling and Lhomweisation of government. It is obvious that the quota system of regulating access to education is contributing more negatively than positively overall to nation building and thus must be scraped with immediate effect. There is no doubt that the more this government remains reluctant to embrace a new way of doing things and unwilling to reinvent itself as a government for all and not for some, the simmering disaffection will surely explode into something uncontrollable.

We need to rebuild and strengthen Parliament and other institutions of the state such as the courts, the human rights commission, the civil service, government departments, etc. As far as Parliament is concerned, this is primarily the responsibility of MPs and the executive. Can MPs live up to the standards expected of honourable people and restore order and decorum to Parliament? Can the executive respect other branches of government as important institutions of the state? We can add more institutions, but as long as the existing ones do not function as they should, there will not be any meaningful forward match to greater democracy, only a multiplication of mediocrity and dysfunctionality.

One of the most prominent causes of public disaffection is cashgate. Joyce Banda thought that this was a minor issue. All political parties do not devote as much time to this issue as the general public does. It will cost this government if it paid lip service to the issue of theft or abuse of public resources.

It is clear that the cashgate investigations and prosecutions currently being undertaken are a result of donor pressure. A clear commitment to the protection of public resources, to cutting wasteful public expenditure, to combating corruption, to improving public financial regulatory systems, to the prosecution of the banks that were complicit in cashgate, and to the arrest and prosecution of the main political architects of cashgate, remains to be made. Mixed messages continue to be sent. What is more concerning is that the practices of wasteful spending and ethnic patronage have continued even as complaints of inadequate public finances are being made. It is also surprising that the government has shown no urgency or interest in investigating any of the various acts of arson that have happened involving major state institutions and parastatals. In the public perception, criminality and crookedness have been appropriated as tools of political governance.

Crucially, Mutharika would establish a fundamental building block for a return to constitutionalism if his government were to ensure not only that all political players in the Banda administration who orchestrated and took part in cashgate are prosecuted swiftly and effectively, but also that the prosecution of Bakili Muluzi is concluded, and that an investigation into the looting that occurred at the hands of the Bingu wa Mutharika administration is also conducted independently and fully. The country needs to draw a red line on state rapine.

Some of these recommendations are easy to implement, others are not, partly because they touch upon the alleged misdeeds in which the current ruling party and its leaders have been implicated and partly because they require sidelining trusted but crooked comrades. However, implementing most of these would go a long way to pacifying the nation and restoring hope. We can ignore these obvious remedial steps and opt instead for the multiplication of state institutions, but in doing so, we must be under no illusion that there will be any positive change.

• Danwood M Chirwa is a Professor of Law, University of Cape Town and Visiting Fellow, Centre of African Studies, University of Cambridge

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