The Commission of Inquiry’s 105-page report into the death, in April 2012, of President Bingu wa Mutharika of Malawi and political manoeuvrings in the immediate aftermath makes for compelling reading.
Fully two and a half pages are devoted to considering whether a February 2012 prophecy by Nigerian evangelist TB Joshua of the imminent death of an African president, and its repetition just days before Mutharika’s sudden demise, had affected the president – TB Joshua was known to Mutharika, and his prophecy widely talked about among Malawians. The Presidential Food Taster – a job title reminiscent of Ryszard Kapuściński’s “The Emperor: Downfall of an Autocrat” – has a walk-on part. The president’s family grandiosely requested that Mutharika’s body be embalmed “for 100 years”, only to be told that 40-45 years was about the limit of such a process. It took the South African medical authorities almost a year to produce a post-mortem report – by which time the inquiry was complete. These are but a small selection of a plethora of curiosities.
Of greater importance is the thoroughness with which respected former Supreme Court judge, Elton Singini, and his ten-strong commission undertook their controversial and onerous task. The team included a former inspector general of police, a pathologist, the former chief executive of Air Malawi, a Catholic priest and members of civil society organisations. A total of 123 witnesses were interviewed, many of them more than once, over the course of seven months.
Disentangling and assessing the testimonies was fraught with difficulty. Quite clearly, a number of the leading players in the drama which engulfed Malawi in April 2012 brazenly lied to the Commission of Inquiry or experienced convenient lapses of memory – under oath. The key findings of the commission, presented to President Joyce Banda on March 7th 2013, can be summarised as follows:
- Following his collapse during a meeting with an MP, President Mutharika was dead by the time he reached Kamuzu Central Hospital at about 11.25am on April 5th 2012.
- The cause of death was cardiac arrest.
- The death created “panic among cabinet ministers, government officials and Democratic Progressive Party (DPP) functionaries”.
- In practical terms – given that Vice-President Joyce Banda had been excluded from government and the ruling DPP in 2011 for refusing to endorse the nomination of the president’s brother, Peter Mutharika, as the party’s 2014 presidential candidate – leadership of government after the president’s death was effectively in the hands of Peter Mutharika, Goodall Gondwe (the most senior member of the DPP), and Bright Msaka (chief secretary to the cabinet).
- Peter Mutharika, Goodall Gondwe, Bright Msaka and other party officials deliberately sought to conceal the president’s death. During the afternoon of April 5th, the death was even kept from senior cabinet colleagues, including the minister of justice and the attorney general. False or misleading press statements were released. In order to prolong the ruse, the president’s corpse was flown to South Africa on the night of April 5th, with papers identifying him – for no readily discernible purpose – as “Daniel Phiri”.
- The alleged objective of the ruse was to buy time in an attempt to prevent the constitutional accession to the presidency of Vice-President Joyce Banda.
- At a meeting with Mutharika, Gondwe and Msaka in the late afternoon of April 5th, General Henry Odillo, commander of the Malawi Defence Force, was asked about the possibility of the armed forces taking over government as a temporary measure in the event that their plan triggered civil unrest. Odillo was firm in his rejection of the suggestion.
- On the morning of April 6th, cabinet ministers agreed to seek a High Court injunction to prevent Joyce Banda from being sworn in as president, following which they would elect an acting president and vice president.
- Cabinet authorised a press release taken to Malawi Broadcasting Corporation studios by the so-called “Midnight Six” group of ministers. The statement was read out by one of them at close to midnight on April 6th and its alleged purpose was “to prepare the general public about the government’s intention to stop the swearing in of the vice-president, Rt. Hon. Joyce Banda…and to have Hon. Peter Mutharika instead sworn in as acting president of the country”.
- A combination of the appearance of reports in the international media speculating about President Mutharika’s death, the firm stance of General Odillo, South African President Zuma’s threat to announce the death if the Malawian government would not, and the minister of justice and attorney general’s decision not to proceed with seeking a court injunction largely put an end to the alleged plot.
- On the morning of April 7th one final attempt was made by certain alleged conspirators to get a private lawyer to file the court papers, but he advised against doing so.
- At 8am on April 7th the Malawian public was finally informed of the president’s death – some 45 hours after the event. The nation was told that he had died in South Africa. At 2pm, Joyce Banda met with the cabinet which had allegedly sought her exclusion from the presidency. She was sworn in at 4pm.
On March 11th 2013, eleven people mentioned in the report were arrested. The commissioners made no recommendations about legal action and stressed that their mandate was to ascertain the facts about a sequence of events, not to conduct a “criminal investigation”. But it was clear from the narrative who might have to defend themselves in the courts. The charges include treason, which carries the death penalty in Malawi.
The most prominent figures among the alleged conspirators were Peter Mutharika, Goodall Gondwe and Bright Msaka. In addition to facing treason charges, these three are also accused of inciting the Malawi Defence Force to mutiny. All of the indicted were granted bail by Justice Ivy Kamanga. A twelfth alleged conspirator, Allan Ntata, President Mutharika’s former legal adviser, has been asked to return from the UK to face unspecified charges.
One of the most squalid things to emerge from the report is the gross indignity to which the late president was subjected. For hours after he was quite clearly dead, attempts were made to resuscitate him. His body was in the open – and decomposing – until he arrived at the mortuary in South Africa almost 18 hours after his death. Such treatment was, in Justice Singini’s words, “most unbefitting for the honour and respect of a Head of State in death”. In his “Muckraking on Sunday” column, BBC Malawi correspondent Ralph Tenthani put it more explicitly: “the slapdash manner we handled our late president was criminal”.
Not all of the report’s findings are unedifying. There is much which is exemplary. The single biggest factor in stymieing the alleged conspirators was the conduct of General Henry Odillo, commander of the Malawi Defence Force (MDF). Questions were put to Odillo which may not have been absolutely explicit, but he was in no doubt as to their thrust. From the outset, he was unequivocal that he knew his responsibilities under the constitution which stipulated that the vice-president – Joyce Banda – should succeed the dead president.
Odillo also ensured that the MDF was the first formally to recognise the new president. Among other things, he testified that, having made his position clear to the alleged conspirators, he ignored five telephone calls from Peter Mutharika on April 6th. Mutharika denies ever making the calls.
The commission found that the minister of justice and the attorney general also “contributed to avert what could have been a chaotic and volatile political and security situation”. They did so by deliberately slowing down the process of applying to the High Court for an injunction against the accession of the vice-president – and then by deciding to abandon it altogether.
There have inevitably been loud mutterings among President Banda’s political opponents and critics to the effect that the Commission of Inquiry was a witch-hunt, that the commissioners were mostly enemies of President Mutharika, and that their findings based on hearsay. Attention has been drawn to the fact that since publication of the report two of the commissioners have secured important public positions – one as director general of the National Intelligence Bureau, the other at the Millennium Challenge Account.
The courts will ultimately decide whether this is merely “sour grapes” politicking – and judges will have to hope that the some of the accused take their oaths more seriously than they did before the Commission of Inquiry. In the meantime, it would be difficult for any impartial observer to discern overt bias in the manner in which the commission undertook its work, the thrust of its questioning, or the lengths to which it went to corroborate and clarify witness statements as best it could.
Two things are certain. An inquiry into what one Malawian political commentator has described as the “drama of a bomb that was defused before it exploded” was merited. Malawians needed – and deserved – to know exactly what happened in the immediate aftermath of the death of their president. Justice Singini emphasised, when presenting his report to President Banda, that the inquiry was “of considerable significance in the history of this country, particularly in regard to the constitutional and political development of post-colonial Malawi”. Secondly, there are many countries in which the commission’s report would never have been made public and its allegations used covertly to political advantage. Justice Singini specifically recommended to President Banda that the report “be made accessible to the people of Malawi as soon as possible through media dissemination among other means” – and his recommendation was duly followed.
The accused will stand trial within a judicial system that has long proved remarkably robust at resisting political interference. The assertion made by Edge Kanyongolo, a law professor at Chancellor College, in his “State of the Judiciary Report, 2003” – that “the judiciary is probably the most credible branch of government in Malawi” – remains valid. On March 14th 2013, the day the arrested politicians and government officials were bailed, the World Justice Project ranked Malawi fourth in sub-Saharan Africa for judicial independence in its Rule of Law index – behind Botswana, Ghana and South Africa.
Publication of the report leaves the late president’s Democratic Progressive Party in some disarray. With its leaders awaiting trial, a national convention – scheduled for mid-April – may well not proceed. Presidential, parliamentary and local council elections are due in 2014. In political terms, regardless of any other motivation for appointing a Commission of Inquiry whose findings would inevitably be pursued in court, the timing of publication of the report undoubtedly suits President Banda well. When she founded the People’s Party in 2011, she was its sole MP. Many opposition MPs have since “crossed the floor” to join her – a common practice which contravenes the constitution. The support of foreign donors for Malawi has been regained.
The Malawi Constitution commanded centre stage during the turmoil of 2011 and early 2012. The importance of adherence to its contents was frequently invoked by civil society organisations and protestors. The emphasis in the commission’s report on a rightful presidential succession, and the alleged attempt to prevent it, has refocused attention on the constitution.
In mid-November 2012, in Lilongwe, Africa Research Institute launched “Duty of care: Constitutional and law reform, in Malawi”. The publication was authored by Dr Janet Chikaya-Banda, who at the time was chief law reform officer at the Malawi Law Commission. More than 100 guests attended – including MPs, diplomats, lawyers, civil society representatives and the press. Many feature in the Commission of Inquiry’s report, some of them prominently.
In her timely presentation, Janet Chikaya-Banda highlighted impediments to the pursuit of democratic ideals articulated in the Malawi Constitution, the consequences of poor institutional commitment to law reform, and the vulnerability of the law in the face of a very powerful presidency. In her foremost recommendation, she made an impassioned plea to the new government to implement the recommendations of the 2004-6 constitutional review in order to establish an unambiguous commitment to constitutional and law reform. In response, the solicitor general, Anthony Kamanga, agreed on behalf of the government to revisit the recommendations of the constitutional review. Kamanga was subsequently promoted to attorney general and, in January 2013, Janet Chikaya-Banda was appointed his successor.
For most Malawians, spirited defence of the constitution – however vital – has changed little. From being one of the fastest growing economies in the world in 2009, the economic situation is as parlous as in the last two years of the Mutharika presidency – if not more so. By December 2012 inflation had reached 34.6%, driven mainly by soaring food prices resulting from the devaluation of the Malawi kwacha stubbornly resisted by the former president.
According to a 2012 integrated household survey, 25% of the population is now trying to survive on an income of less than US$0.10 per day. Fuel supplies are sporadic, essential medical supplies almost non-existent, and two million people in the southern region have been classified as “food insecure” by the Malawi Vulnerability Assessment Committee. On March 8th 2013, foreign exchange reserves stood at US$175m – sufficient cover for less than one month’s supply of imported essentials such as fuel, medicines, food and fertiliser.
The advent of the tobacco marketing season this month is expected to increase the availability of much-needed foreign exchange. The International Monetary Fund has pronounced itself satisfied with the progress of the government’s economic reforms. But the run-in to the 2014 elections will test President Banda’s political skills – and the patience of Malawians – to the hilt. As for the outcome of those elections, as Malawi celebrates 50 years of independence, that remains uncertain.
In the continued absence of any political will to stop “crossing the floor” – despite the constitutional stipulation that the Speaker of the National Assembly shall declare vacant the seat of any MP who leaves the party on whose ticket he or she was elected – personalities will continue to prevail over parties. While President Banda has the advantage of incumbency, a string of high-profile court cases involving DPP leaders may paradoxically prove to be to that party’s advantage. After all, in Kenya, indictment by the International Criminal Court appears to have bolstered rather than diminished support at the polls for president elect Uhuru Kenyatta.
Director – Africa Research Institute