Ubuntu in modern day Africa: Romantic idealism or potent catalyst ?

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PATTERNS IN GOVERNANCE AND CONSTITUTIONALISM IN MALAWI

Introduction

Malawi has been an independent nation for over 45 years with a ‘stable’ and functioning central authority. This, arguably, is evidence that governance, in some form, has been practised in the country. Even more ubiquitous in the post-independence period has been the existence of a constitution as the basic framework for governance in Malawi at every point in the country’s post-independence history. In further shaping the context for the discussion in Chapters Four and Five, this Chapter provides a contextualised discussion of governance and constitutionalism in Malawi. By looking at the history of governance and constitutionalism in Malawi an attempt is made to unearth and highlight the patterns that are discernible from governance and constitutionalism as practised in Malawi. This, it is hoped, should illuminate the background against which this study proposes social trust-based constitutionalism and governance as the way forward for Malawi. Even more importantly, the history of constitutionalism and governance in Malawi will be presented in this Chapter because, as Clark argued, the personality of a country and the characteristics of its inhabitants stem directly from past events.¹ The history presented in this Chapter will, therefore, provide the context within which governance and constitutionalism in Malawi must be appreciated. Although the focus in this chapter is on governance and constitutionalism in Malawi after independence, a brief discussion of the situation before independence is also provided. The discussion in this chapter is conducted from a perspective that focuses on legal and political developments. The first part of this Chapter deals with the history of governance and constitutionalism in Malawi while the second part analyses the patterns that are discernible from the history discussed. The patterns discussed in the second part of the Chapter are derived from and should be understood together with the history discussed in the first part of the Chapter.

A brief history of constitutionalism and governance in Malawi

The pre-colonial period²

Like most countries in Southern Africa, Malawi’s pre-colonial history remains largely unknown as it was never comprehensively written down.³ This means that there are no existing systematic records of the country’s history before the advent of colonialism.⁴ The little that is known about this era has been pieced together from the accounts of various travellers to the area and also the first Europeans to settle in the area now known as Malawi. Archaeological and anthropological studies carried out from the 1950s onwards have also provided invaluable insights into Malawi’s pre-colonial history.⁵
Malawi’s earliest recorded history begins with the records of Portuguese travellers in the seventeenth century.⁶ The emerging picture indicates that pre-colonial Malawi was occupied by various social groups that exercised authority within their specific precincts. It is often agreed that the first people to occupy Malawi were the Akafula, also known as Batwa or ‘pygmies’.⁷ These people were later displaced or absorbed by Bantu groups that moved into the region.⁸ Between the thirteenth and sixteenth centuries most of central and southern Malawi was settled by Bantu-speaking groups. These Bantu-speakers were at first ‘a collective part of the vast and widely settled community of Maravi peoples.’⁹ Kanyongolo notes that the first inhabitants of Malawi did not live as part of an organised state in the modern sense.¹⁰ They did not have a common legal system and each group was governed by norms of tradition that were considered as binding only on members of that group. Two features, among others, stand out in the way these early inhabitants of Malawi organised themselves.¹¹ Firstly, they established structures of governance that in most cases were relatively centralised but they did not adhere to the notions of separation of powers as understood in modern constitutional law. Secondly, these societies did nevertheless provide a degree of protection for human rights even though this was ‘mainly in relation to entitlements based on communal solidarity and patriarchy rather than on individualism and gender equality.’¹² In the 19^th century the Nguni peoples from the south and the Yao from the southeast invaded and settled in large parts of Malawi. The most recent group to enter Malawi were the Lomwe who came from Mozambique in the late 19^th century.¹³
It is clear, therefore, that when the first European settlers arrived in 1870, Malawi was populated by settled groups that exercised authority within their respective areas with varying degrees of effectiveness.¹⁴ As earlier intimated, the political and social organisation of these groups varied from one tribal group to the other.¹⁵ In spite of this, the supremacy of a chief over the tribal groups and their villages was, generally, recognised. However, how far a particular chief could exercise his rule largely depended upon his personal authority and power. During the pre-colonial era, judicial power was exercised by hereditary traditional authorities to reconcile or promote various social and political interests in the context of pre-capitalist communities.¹⁶ Almost all tribes had more or less institutionalised court procedures which used unwritten customary law to settle disputes and punish the guilty.¹⁷ Domestic disputes were first settled by the family elders and where this was unsuccessful the matter would be decided by the village elders against whose decision an appeal to the local chief could be made. Notably, however, the village elders and chiefs were only representatives of political and judicial power. This meant that they could not decide a dispute without the agreement of their advisers and the role of the chief was to confirm the decision proposed by the advisors.¹⁸ It is also clear that decision making in most pre-colonial Malawian societies was characterised by consultation and was very participatory.¹⁹ Although societies generally recognised chiefs as their leaders, there was often a deliberate insistence on consultation before making any decisions affecting the community at large.
It is immediately noticeable that even though the pre-colonial systems of Malawi manifest many elements that are commendable, for example, a large degree of democratic governance, these systems also evidence traits that are deplorable, for example, overt prejudice against women.²⁰ Clearly, therefore, if the history of Malawi during this period has any importance at all, it is for the laudable traits that governance often followed – for example, consultation and participation in decision making – and not for its unacceptable attributes. It is to these admirable traits that resort must be had in devising governance paradigms and seeking inspiration for constitutionalism.

The colonial period

Three groups of Europeans, the Portuguese, Germans and British, in addition to the Arabs, were interested in Malawi before the territory was declared a British protectorate.²¹ The Portuguese were the first to arrive via Mozambique in the seventeenth century, followed by the Germans who entered though the North from Tanganyika. When the British arrived they had to contend with the Portuguese and the Germans, as well as the Arabs who were engaged in a ‘lively trade in ivory and slaves.’²² During the mid-1800s significant missionary activity was also commenced in Malawi following the travels to the area by the Scottish missionary explorer Dr David Livingstone.
Pachai contends that the actual establishment of a British protectorate over Malawi took place in three stages.²³ Firstly, on 19 August 1889, John Buchanan, Acting British Consul, wrote to Serpa Pinto, leader of the Portuguese expedition to Malawi, telling him that the Kololo people living north of the Ruo River were placed under British protection. When the Portuguese rejected this claim, the British took the second step when Buchanan declared a British Protectorate over a wider area which he described as ‘Makololo, Yao and Machinga Countries’ on 21 September 1889. The third, and arguably most decisive step, was taken on 14 May 1891 when the territories adjoining Lake Malawi were added to the regions adjoining the Shire River as part of the British Protectorate. It must be appreciated, however, that the declaration of the protectorate was ‘neither a sudden nor an automatic affair.’²⁴ The declaration of the protectorate in May 1891 was preceded by a long debate between the British Foreign Office and Harry Hamilton Johnston, the first Commissioner and Consul-General to the territory.²⁵ In as far as the motivation for establishing a protectorate over Malawi (then known as British Central Africa) is concerned, it is clear that Britain established the protectorate in order to safeguard the interests of the British missionaries, planters and traders against encroachment from other European powers, notably the Portuguese and the Germans. As Kadzamira puts it:²⁶
A protectorate was proclaimed because British interests in Central Africa could not be safeguarded in any other way. Thus British interests came first, those of the native inhabitants were secondary. This theme was endorsed with the establishment of the protectorate and was to continue throughout colonial rule in Malawi until major constitutional changes occurred some seventy years later.
Between the time the protectorate was proclaimed in 1889 up to 1907 the country was known as British Central Africa. In terms of administration, the protectorate was governed under the British Central Africa Order-in-Council of 1889 up to 1902. The early form of government in the protectorate may be described as direct rule.²⁷ There was a central administration headed by the Commissioner and Consul-General who was assisted by a Deputy Commissioner and Consuls. These were followed by Vice-Consuls under who served several administrative officials including a Secretary to the Administration and a judicial officer.
The next milestone in Malawi’s constitutional history occurred in 1902. On 11 August 1902 a new Order-in-Council for British Central Africa came into force. The British Central Africa Order-in-Council of 1902 is widely regarded as the country’s first Constitution.²⁸ The 1902 Order-in-Council also represents the first attempt to define the territorial limits of the protectorate within a constitutional document.²⁹ Importantly, the 1902 Order-in-Council heralded the introduction of several fundamental changes in the organisation of the protectorate. Arguably, the most important feature of the 1902 Order-in-Council was that it attempted to embody the concept of separation of powers.³⁰ It created, for the first time, an ‘administration’ headed by the Commissioner and a ‘Court of Record’ or High Court.³¹ The High Court had ‘full jurisdiction, civil and criminal, over all persons and over all matters in the Protectorate’.³² The enactment of laws, however, was left within the powers of the Commissioner. Article 15(2) of the 1902 Order-in-Council contained the reception clause for English law in Malawi and established the English judicial model in Malawi.³³ Thereafter English law was applied in all courts with the exception that customary law could be enforced in cases involving Africans under article 20 of the Order-in-Council.³⁴ Notably, there were no provisions in this ‘constitution’ relating to human rights. Nevertheless, the ‘constitution’ required that in making ordinances, ‘the Commissioner [should] respect existing native laws and customs except so far as the same may be opposed to justice or morality.’

Declaration
Acknowledgment 
Dedication
Summary
Table of Cases
Table of contents 
Chapter 1: Introduction
1.1 Statement of the research problem
1.2 Definitions
1.3 Background to the research problem
1.4 Focus and objectives of the study
1.5 Significance of the study
1.6 Assumptions
1.7 Literature review
1.8 Methodology
1.9 Limitations of the study
1.10 Overview of the chapters
Chapter 2: Understanding the concepts and their relevance: Ubuntu, the social trust, good governance and constitutionalism 
2.1 Introduction
2.2 What is ubuntu?
2.2.1 Ubuntu in modern day Africa: Romantic idealism or potent catalyst?
2.3 Understanding the social trust
2.3.1 The law and fiduciary relationships
2.3.2 Identifying fiduciaries and fiduciary relationships
2.3.3 Fiduciaries and fiduciary relationships in an evolving society
2.4 Good governance
2.5 Constitutionalism
2.6 The interface between ubuntu, the social trust, good governance and constitutionalism
2.7 Impediments to recognising government as an enforceable trust
2.8 A conceptual starting point: Government as a trust and administrative law.
2.9 What is social trust-based governance and constitutionalism? The search for a viable
paradigm for governance and constitutionalism in Africa.
2.10 Conclusion
Chapter 3: Patterns in governance and constituttionalism in Malawi 
3.1 Introduction
3.2 A brief history of constitutionalism and governance in Malawi
3.3 Trends in constitutionalism and governance in Malawi.
3.4 An evaluation of governance and constitutionalism in post-colonial Malawi: The Second Republic (1994 to date)
3.5 Conclusion
Chapter 4: Democratic governance and constitutionalism in Malawi: Is there a need for an alternative paradigm? 
4.1 Introduction
4.2 Rethinking governance and constitutionalism in Malawi: The need for an alternative paradigm .
4.3 Interrogating the connection between democracy, governance and constitutionalism and African traditions, customs and institutions
4.4 Ubuntu and the social trust: A potent bulwark for governance and constitutionalism in Malawi?
4.5 Conclusion
Chapter 5: (Re) Discovering and revitalising social trust-based governance and constitutionalism in Malawi: The way forward 
5.1 Introduction
5.2 Recapturing the foundation: The law, public functionaries and social trust-based governance and constitutionalism in Malawi
5.3 The relationship between the branches of government in Malawi
5.4 Public resource management
5.5 Accountability of public functionaries and citizenry empowerment
5.6 Conclusion
Chapter 6: Which way Malawi?.
6.1 Towards social trust-based governance and constitutionalism in Malawi
6.2 The relationship between the branches of government
6.3 Public resource management
6.4 Accountability of public functionaries and citizenry empowerment
6.5 Final remarks
BIBLIOGRAPHY

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