~For Immediate Release
UN/African Union: Reject ICC Withdrawal
Security Council Meeting With AU
(New York, September 22, 2016) – The African Union (AU), in advance of a meeting with the United Nations Security Council on September 23, 2016, should end consideration of a call for mass withdrawal of its members from the International Criminal Court (ICC), a group of African nongovernmental organizations and international groups with a presence in Africa said today.
In January, the AU decided to mandate its Open-Ended Committee on the ICC to develop a “comprehensive strategy” that includes withdrawal from the ICC. The committee met on April 11, and identified three conditions that it said should be met for the AU to avoid calling for withdrawal. These included a demand for immunity for sitting heads of state and other senior officials from prosecution before the ICC.
“AU efforts to undermine the only permanent criminal court for victims of atrocities are fundamentally at odds with the AU’s rejection of impunity, and with its decision to make 2016 as the AU’s year of human rights,” said Stella Ndirangu of the Kenya section of International Commission of Jurists. “The AU’s commitment to justice cannot be reconciled with protecting African and other leaders from accountability for mass atrocities before the ICC.”
Article 4 of the Constitutive Act of the AU expressly rejects and condemns impunity. The AU has also identified justice as one of its “shared values,” and 2016 as the “African Year of Human Rights with Particular Focus on the Rights of Women.”
Some African ICC members are taking important steps to limit impunity, the organizations said. At the AU’s summit in Kigali from July 10 to 18, several African countries—Nigeria, Tunisia, Senegal, Côte d’Ivoire, Botswana and Algeria—pushed back against a potential call by the African Union for a mass exit of African countries from the International Criminal Court. Burkina Faso, the Democratic Republic of Congo, Cabo Verde, and Senegal also entered reservations to the AU decision that was adopted at the summit to continue its consideration of ICC withdrawal.
In the period before the summit, 21 international and African nongovernmental organizations released a video featuring 12 African activists on the importance of the ICC and the need for African governments to support the court. The video, and a shortened version of it, have attracted more than 80,000 views on social media.
Withdrawal from the ICC is a decision to be made by individual countries and cannot be carried out by the AU. At the same time, a call from the AU for countries to withdraw or consider withdrawal would make it more difficult politically for African countries to show support for the court.
“The ICC remains the crucial court of last resort,” said Timothy Mtambo of Malawi’s Center for Human Rights and Rehabilitation. “The AU should work to strengthen and support the ICC, not urge its members to quit the institution.”
The work of the Open-Ended Committee on the ICC is the latest development in a backlash against the ICC by some African leaders, focused on charges that the ICC is unfairly targeting Africa. The backlash first surged in the wake of the 2009 ICC arrest warrant for President Omar al-Bashir of Sudan, on charges of serious crimes committed in Darfur. It reached a new level of intensity in 2013, when then ICC suspects Uhuru Kenyatta and William Ruto were elected president and deputy president of Kenya, respectively.
Six out of the nine African situations under ICC investigation came about as a result of requests or grants of jurisdictions by African governments–in Côte d’Ivoire, Democratic Republic of Congo, Mali, Uganda, and two requests from the Central African Republic. In January, the ICC prosecutor opened the court’s first investigation outside Africa, in Georgia, and it is conducting several preliminary examinations of situations outside Africa. They include Afghanistan, Colombia, Palestine, and alleged crimes attributed to the armed forces of the United Kingdom deployed in Iraq.
At the same time, some powerful countries—including China, Russia, and the United States, all permanent UN Security Council members—and their allies have been able to avoid the reach of international justice. They have been able to do that by not joining the ICC and because they have a veto on the UN Security Council, which can refer situations to the court. The organizations encouraged the AU to raise these concerns during its meeting with the UN Security Council.
The three conditions the AU’s Open-Ended Committee on the ICC set at its April 11 meeting for remaining in the ICC are:
Immunity under the ICC’s Rome Statute for sitting heads of state and heads of government and senior government officials;
Intervention of the ICC in cases involving African states only after those cases have been submitted to the AU or AU judicial institutions; and
Reduction in the powers of the ICC prosecutor.
Blanket immunity for sitting heads of state has never been available before international criminal courts dealing with crimes under international law. No international tribunal—from the International Military Tribunal at Nuremberg, to the International Criminal Tribunals for the Former Yugoslavia and Rwanda, to the ICC—has allowed immunity on the basis of official position.
The AU in 2014 adopted a protocol to give its regional court authority to prosecute grave crimes, also while granting immunity for sitting heads of states and other senior government officials. That protocol, which needs 15 ratifications before coming into force, has yet to be ratified by any country.
Kenya has played a leading role in mobilizing AU attacks on the ICC since 2013. On September 19, the ICC issued a finding of non-cooperation by Kenya in the now-withdrawn case against Kenyatta to the ICC’s Assembly of States Parties. The charges in the case against William Ruto, Kenya’s deputy president, were vacated for lack of evidence in April.
The decision is the first ICC finding of non-cooperation related to the failure of an ICC member country to provide assistance to the prosecution’s investigations.
For more on views of independent organizations on backlash against the ICC in Africa, please visit:
https://www.hrw.org/news/2015/ 11/17/memorandum-african-state s-parties-international-crimin al-court-assembly-states
https://www.hrw.org/news/2015/ 07/01/civil-society-declaratio n-sudanese-president-omar-al- bashirs-visit-south-africa
https://www.hrw.org/news/2015/ 06/09/au-icc-members-should-le ad-justice
For more information, please contact:
In Abuja, for LEDAP-Legal Defence & Assistance Project, Chino Edmund Obiagwu (English): +234-0703-000-0014; or +234-012-802-009; or +234-0803-691-3264 (mobile); or email@example.com
In Freetown, for Center for Accountability and the Rule of Law-Sierra Leone, Ibrahim Tommy (English): +232-76-365-499; or firstname.lastname@example.org
In Johannesburg, for Southern Africa Litigation Centre, Angela Mudukuti (English): +27-767-623-869; or AngelaM@salc.org.za
In Lilongwe, for Center for Human Rights and Rehabilitation, Timothy Mtambo (English): +265-992-166-191; or mtambot@c hrrmw.org
In Nairobi, for Kenya section of the International Commission of Jurists, Stella Ndirangu (English): +254-7222-336-399; or email@example.com
In New York, for Human Rights Watch, Elise Keppler (English): +1-917-687-8576 (mobile); +1-212-216-1249 (office); or firstname.lastname@example.org. Twitter: @EliseKeppler
In New York, for Coalition for the ICC, Steve Lamony (English): +1-347-905-3060; or email@example.com
The following organizations that are active in an informal network that promotes support for serious crimes endorsed this news release:
African Center for Justice and Peace Studies (Uganda)
Africa Center for International Law and Accountability (Ghana)
Center for Accountability and Rule of Law – Sierra Leone
Coalition for the ICC
Ghana Center for Democratic Development
Malawi Center for Human Rights and Rehabilitation
Kenya Human Rights Commission
Defend Defenders-East and Horn of Africa Human Rights Defenders Network
Human Rights Watch
International Commission of Jurists-Kenya
Legal Defense and Assistance Project (Nigeria)
Nigerian Coalition for the International Criminal Court
Released today, Thursday on 22nd September, 2016
Centre for Human Rights and Rehabilitation (CHRR) has renewed its call on Malawi government to domesticate the Rome Statute of the International Criminal Court (ICC) in line with the Statute’s principle of complementarity.
Speaking from Dakar, Senegal, after witnessing the sentencing of former Chad ruler, Hissene Habre over crimes against humanity, CHRR Human Rights Advocacy Coordinator, Fletcher Simwaka, said Habre’s successful trial in a foreign country, Senegal, is a moment of reflection for Malawi regarding her legal position on serious crimes such as war crimes, crimes against humanity, genocide and war aggression.
“Cognizant of the fact that Malawi is party to the Rome Statute, having ratified it in 2002, Malawi can make good on that commitment through domesticating the Statute through either a stand-alone law or penal code,” said Simwaka.
He said it is encouraging to note that Malawi’s Constitution has a progressive Bill of Rights which reflects well on other international human rights instruments such as International Covenant of Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights which the country is party to, a status, he said, could simplify the country’s domestication of the Statute.
So far, only Genocide is criminalized in the country’s penal code, leaving out war crimes, crimes against humanity, aggression within ambits of the ICC.
CHRR has since welcomed the life imprisonment sentence handed down to the former Chadian leader, saying the landmark ruling is a dawn of hope for international criminal justice in Africa where most leaders are championing impunity and immunity.
Habre ruing is of historical importance to note that the trial in Senegal of the former Chadian leader by the Extraordinary African Chambers (EAC)---a special tribunal set up by the African Union under a deal with Senegal--- is the first of its kind. END
The Centre for Human Rights and Rehabilitation (CHRR) through Karonga Gender Equality and Women Empowerment (KAGEWE) project has withdrawn 80 young girls from marriages and re-enrolled them to school in Karonga the northern district of the country.
The exercise has been done in two Traditional Authorities (TAs) only which include Mwilang’ombe and Wasambo in a period of 11 months.
Speaking during the project review meeting, the project coordinator Stain Katuli said this follows implementation and application of various interventions to end child marriages.
“From January to November 2015, the organization has managed to terminate 80 teenage marriages in two traditional authorities only and as I am talking they are back to school,” said Katuli.
He said “these are young girls who were forced to go into marriages especially because of poverty and some harmful cultural practices and all of them were at secondary school level.”
According to Katuli, some of the interventions used include “provision of financial support such as fees, and school materials as well as involving the mother groups to encourage them.”
In his remarks, CHRR national coordinator of the project Makhumbo Munthali expressed worry with the number of girls who sometimes go back to their marriages due to lack of financial support.
“It is really painful that our effort of hooking girls from marriages back to school may turn to be in vain. This is because some of them end up going back into marriages as they are lack financial support,” disclosed Munthali.
Munthali further said “as CHRR we have managed to financially support 41 girls out of 80. However, the ending of the project this month gives doubts to whether those we have been supporting will finish with their education.”
While commending the stakeholders’ commitment toward the support to the project, Munthali asked for the project extension in order to let the already hooked girls continue with their education apart from appealing for the bursary.
Karonga Gender Equality and Women Empowerment (KAGEWE) is a Government project which is implemented by CHRR in Karonga district with technical support from United Nations Population Fund (UNFPA ) and financial support from European Union (EU).—www.nyasatimes.com/80-karonga-married-girls-rescued-taken-to-school/
Recently, Nation Publication Limited’s Weekend Nation (NPL) engaged CHRR Executive Director, Timothy Mtambo, on the cash-gate prosecutions progress and other related matters. CHRR web hereby shares what transpired.
WN: As CHRR, are you satisfied with the investigations surrounding cashgate trials?
TM: Not entirely.
WN: What have you been CHRR’s observations so far?
TM: While we have seen a series of arrests which clearly point to some level of progress being made on the matter, there is still a cloud of suspicion that surrounds these cashgate investigations, and cashgate in general. The manner in which some of these arrests have been conducted raises more questions than answers as to whether the public is being taken for another ride or not – that is, being made to believe as if something is happening. Of course, there are claims by some quarters that the cashgate arrests are selective, only targeting the previous regime. While realising that such claims may contain some level of truth based on our political history which has been characterised by a cat-and-mouse relationship between the ruling and predecessor party, we at CHRR are of the view that such notions should not inhibit the relevant authorities or the current government from carrying out independent investigations into cashgate, and in cases where those belonging to the previous regime are found to be on the bad side of the law they ought to face justice. People should not hide behind “political witch-hunting” accusations in order to evade the law. As long as such investigations are informed by intensive independent investigations, void of political interference.
WN: What are your fears as CHRR?
TM: The perennial failure by relevant authorities to finalise prosecution of “high level” cases of “national interest” has always been and continues to be our greatest fear even in the current cashgate saga. No regime since the dawn of democracy has been exempted from this cancer. The K17 billion corruption case involving the former head of state Dr Bakili Muluzi, Cassim Chilumpha treason case, the Chasowa murder case, the famous midnight six case just to mention a few are all not completed, and there is seemingly no indications that such cases shall be completed, at least for now. Informed by such a regrettable background, there is no guarantee that the swift pace which the current government has started in the investigations and its subsequent arrests shall be sustained. We may be in for another ride, and, if not careful, we may we realize this just when we are just a few days, months to another election. We just hope that the current regime will do things differently, by ensuring that all prosecutions into cashgate cases, irrespective of whether they concern big fish or small fish, are finalized as soon as possible in the best interest of the citizens who are painfully yearning for justice on the matter. It’s great to hear from both the President and the Minister of Information that government will not shield anyone implicated in the cashgate. It’s high time to translate such rhetoric to action
WN: Some members of the public have expressed their dissatisfaction over the sentences, which are said not to be fit given the amounts of money squandered, what does CHRR think?
TM: In our view, the public is justified with the expression of dissatisfaction over the sentences especially when you consider the harm cashgate has caused on the general public. Cashgate is a clear human rights violation as it impinges on the fundamental freedoms and rights including right to development, right to food, right to life, right to health just to mention a few. As such, at least from a moral perspective, a person convicted of this malpractice deserves hell and any sentence or punishment that does not live up to such expectation is likely to generate public outcry or discontent as has been the case in some of the recent cashgate cases. Even some have gone a step further to suggest that cashgate should be considered as a new form of crimes against humanity in view of the deaths which were registered in public hospitals due to shortage of drugs which the looted money would have catered for hence preventing the deaths. It is premised on such a context that the public outcry is justified. However, at the same time special consideration should be given to the question of whether such sentences imposed by the courts are within the law or not. If not within the law, then this would mean courts were in the wrong, and this would even further justify the public outcry. However, if it’s within the law, then perhaps certain actions or steps may be considered to be taken in as far as harmonizing the existing laws with the current situation. This may require some sort of legal reforms just to ensure that they speak to the reality or modern or current situations.
WN: Any last comment
TM Cash-gate cases ought to be treated with seriousness, especially when one factors in the economic and social ramifications the looting has left for the country. And the onus is now on this DPP-led government to prove that it can holistically deal with the vice without fear or favour. That should be the major post-election priority for the country.
CHRR;CEDEP DEMAND SWIFT INVESTIGATION INTO MEC WAREHOUSE ARSON
Centre for Human Rights and Rehabilitation (CHRR) and Centre for Development of People (Cedep) have learnt with chock and suspicion news that Malawi Electoral Commission (MEC) house in Lilongwe has been gutted down by fire. As CHRR and Cedep gather, the incident has destroyed 1,500 ballot boxes and other related electoral materials. This is no doubt an unfortunate reversal to the country’s hard-earned democracy.
Looking at the time of the event, CHRR and Cedep can’t help getting suspicious of some underhand machinations in the whole incident. All and sundry is aware that the warehouse was housing ballot papers which were---until the court injunction a couple of days ago--- ear-marked for a recount following the disputed parliamentary poll results in the Lilongwe City South East Constituency. As such, CHRR and Cedep expect nothing short of expeditious and thorough investigations into the matter. We expect the Police to exercise professionalism and integrity for good of the country when investigating the matter. Otherwise, fire has denied the constituents and Malawians in general the truth on who was the legitimate winner between the DPP’s hopeful his MCP counterpart.
Meanwhile, CHRR and Cedep call upon MEC to desist from rushing into describing the incident as normal. Such kind of a statement---coming from an institution like MEC-- can potentially thwart the quality of investigations into incident.
As recommendations, CHRR and Cedep are of the view that:
Let’s make a post 50 Malawi a true beacon of democracy, rule of law and human rights.
About CHRR and CEDEP
Centre for Human Rights and Rehabilitation (CHRR) remains one of the leading human rights non-governmental organisations in Malawi. It was founded in February 1995 as a non-profit organization registered under the Trustees Incorporation Act of 1962. Since its inception CHRR has championed its work at national level, SADC level through the SADC Human Rights Defenders Network at which it sits in the board, continental level through the African Commission on Human and Peoples Rights using its observer status, and at UN level through different UN mechanisms such as the International Convention on Civil and Political Rights (ICCR) and Universal Periodic Review (UPR).
Centre for Development of the People (CEDEP) is a registered human rights organisation under the Trustees Incorporation Act of 1962. The organization was established in November 2005 in order to address the needs and challenges of minority groups in Malawi in the context of human rights, health and social development. CEDEP works also at international level using international mechanisms such as the African commission and UN mechanisms such as the International Convention on Civil and Political Rights (ICCR) and the Universal Periodic Review (UPR)
Timothy Mtambo Gift Trapence
Executive Director CHRR Executive Director CEDEP)
Cell: 0992166191 Cells: 0991573514
Issued on Wednesday, 16h July, 2014/Lilongwe
MALAWI AT 50: STOCKTAKING MALAWI’S PROGRESS IN PROMOTION AND PROTECTION OF HUMAN RIGHTS FOR ALL AND GOOD GOVERNANCE
Presented at a press briefing organized by Centre for Human Rights and Rehabilitation and Centre for Development of People in partnership with human rights defenders to track progress made by the country over the years in the realm of human rights, good governance and rule of law as part of the country’s 50th anniversary celebration
Cross Roads Hotel, 4th July 2014
REFLECTING THE PAST, PRESENT AND FUTURE IN LIGHT OF VIENNA CONSENSUS AND OTHER DOMESTIC AND INTERNATIONAL HUMAN RIGHTS INSTRUMENTS: A GOLDEN OPPORTUNITY TO BEND THE HAND OF CLOCK TOWARDS A TRUE DEMOCRATIC STATE BUILT ON RESPECT FOR ALL HUMAN RIGHTS, RULE OF LAW AND CONSTITUTIONALISM
There is no gainsaying that, as a country, Malawi has earned itself continental adoration for reaching a golden mark---more so when the feat is attained with peace and unity still prevailing in the country. Attaining independence from the British colonial masters in that defining year, 1964, was not easy, and neither was the post-colonial path to development. Graduating from a one party state into multiparty democracy in 1993 was remarkable. All these strides recorded are no mean achievements. We therefore join the rest of the county in celebrating this golden jubilee. We also call on government, CSOs, and all Malawian citizens to make the post-Jubilee years even better.
2.0. THE VIENNA CONSENSUS AND ITS RELEVANCE IN STOCKTAKING MALAWI’S PROGRESS IN HUMAN RIGHTS AND GOOD GOVERNANCE OVER THE YEARS
Malawi’s 50th anniversary of independence provides the rare opportunity for all Malawians to take stock of the progress the country has registered over the years on fronts ranging from social-economic to political development. However, one of the vital areas which must be given careful consideration when stocktaking Malawi’s progress over 50 years of independence is human rights and, of course, good governance. Protection and promotion of human rights for all and good governance are the bedrock of development all levels. Most importantly, the universal human rights principle of “indivisibility, universality and interrelatedness of all human rights” is vital. This principle insists that human rights be universally applied to all, and that there is nothing like “selective” human rights restricted to only one geographical area but not applying to other areas. Human rights are universal and, hence, for all irrespective of cultural background, race, sexual orientation, religious belief, nationality and other aspects of life. This means that any assessment of a country’s track record on human rights should be measured against the existing universal or international human rights instruments, and, of course, the domestic legal instruments which foster the protection and promotion of human rights for all as enshrined in the Universal Declaration on Human Rights and other international human rights instruments.
To what extent has Malawi--over the years--conformed to the various international human rights instruments it has ratified? Is Malawi progressing or retrogressing in as far as promotion and protection of human rights for all is concerned? These are some of the questions which we at thought we should seriously reflect on as a country as we commemorate this year’s 50 years of independence. We will use the Vienna Declaration and Programme of Action of 1993 and other existing domestic and international human rights instruments to guide this reflection. The fact that this year’s independence celebration follows the international human rights day celebration [ 10 December 2013] of the 20th anniversary of the Vienna Declaration and Programme of Action offers the country an opportunity to reflect on its human rights progress over the years in light of the Vienna consensus. According to Ms. Navi Pillay, the United Nations High Commissioner for Human Rights, the consensus to the Vienna Declaration and Programme of action emerged due to the delegate’s appreciation of the notion of universality, indivisibility and interrelatedness of all human rights. In Pillay’s words, the Vienna Declaration and Programme of action “reaffirmed the dignity and rights of all, and showed us how to achieve them. It crystallized the concept of universality and impartiality with regard to justice. It showed us the way forward, and to some extent we have followed that path”. Special focus will dwell on the progress registered since 1993, the dawn of democratization in Malawi.
3.0. CONTEXTUALIZING GLOBAL HUMAN RIGHTS ACHIEVEMENTS OVER THE YEARS: TO WHAT EXTENT DO THEY APPEAL TO MALAWI’S SITUATION?
One great global achievement that stands out since the inception of the Vienna Declaration and Programme of Action is the creation of the position of High Commissioner for Human Rights in 1993 which has enabled an “independent, authoritative voice to speak out for human rights worldwide”. Since its inception, the office of the High Commissioner has been responding to crises, supporting human rights defenders, and bringing human rights closer to people.
Despite the various challenges so far registered and anticipated in the quest for protection and promotion of human rights and fundamental freedoms at the global stage, the office of the United Nations High Commission cites the following as some of the achievements accomplished since 1993:
Our perennial failure to internalize and implement international human rights instruments
With regard to the new human rights standards built on the 1948 Universal Declaration of Human Rights, it must be clearly stated from the very outset that Malawi is party to many major human rights instruments at global, regional and sub-regional levels. They include: Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights, Convention Against Torture and other Cruel, Inhuman or Degrading Treatment and Punishment, International Covenant on the Elimination of all Forms of Racial Discrimination Against Women, African Charter on Human and People’s Rights and SADC Protocol on Gender and Development. It should also be mentioned that with regard to human rights, Malawi should be commended for its liberal constitution.
Despite being party to several major human rights instruments, Malawi has done very little to ensure that such international human rights standards are ably internalized and implemented. In fact, none of these instruments have been specifically domesticated in Malawi. They cannot, therefore, be invoked by citizens in the domestic courts in Malawi. However, the extent that most of them are inspired by the Universal Declaration of Human Rights whose most provisions have matured into customary international law norms, some of the provisions may be relied upon in domestic courts. In fact, according to the case of Chakufwa Tom Chihana-vs-The Republic, the Universal Declaration of Human Rights (UDHR) has a force of law in Malawi. All its provisions may actually be invoked in domestic courts in Malawi.
While acknowledging that economic, social, cultural, civil and political rights and the right to development are recognized as universal, indivisible and mutually reinforcing rights of all human beings, without distinction, some quarters have contended that socio-economic rights are not given the same level of protection as civil and political rights under the new Constitution of Malawi adopted on 18th May 1995, which has a somewhat comprehensive Bill of Rights. In our view, the Bill of Rights substantially reflects the normative framework set by these instruments.
Mismanagement of Public funds a gross violation to the right to development and socio-economic rights
However, we remain deeply concerned over the growing public mismanagement of funds over the years with the infamous cashgate scandal standing out which has cost the nation of its hard-earned domestic and donor funds as well as development. We view the shoddy fiscal deals that have characterized our history as unfortunate and serious human rights violation, especially the the right to development as well as socio-economic rights. The continued failure of our political leaders over the years to allow the principles of accountability and transparency to guide and inform their respective government’s attempts to get to the bottom of the chronic disease of looting public resources remain a serious human rights violation- that all patriotic Malawians must be concerned with.
As rightly observed by the office of the UN High Commissioner last year during the commemoration of international human rights day, there is indeed a heightened awareness and growing demand by the people across the world for greater transparency and accountability from governments, and any government that tends to conceal vital information from the public as was the case in the infamous cashgate saga has no place in a democratic and human rights dispensation. The absence of access to information legislation, the continued failure by our Presidents over the years to declare their assets as a democratic and human rights obligation all continue to impinge on the public’s demand for a greater transparency and accountability as we celebrate our independence at 50. Malawians are tired of being denied of their socio-economic rights and right to development [particularly for the past 50years] due to selfishness of a few, who do not care a hoot about the plight of the common man.
The State and its relations with the Media; Political Will key for an impartial MBC
The issue of the public media as being skewed towards the government of the day since our independence has been of great concern over the years. All this has been happening despite the prevailing legal framework (section 87  [a] and [d] which directly demand MBC to be free from bias in its reporting. But why has MBC been acting in this manner of “treating itself as little more than a mouthpiece of the ‘ruling party’ of the day”? We observe that lack of political will especially on those in the ruling towards ensuring an impartial, “open-to-all” state-media as partly behind MBC’s continued “arrogance” of “treating itself as little more than a mouthpiece of the “ruling party” of the day. Of course, there have been cases where MBC has registered some improvements to the extent of covering some opposition political figures particularly during the first days of Joyce Banda ascendancy to power and recent election period. Suffice to say, such changes have tended to come into fruition at the word of the sitting President. On this, we would like to commend the former head of state Dr. Joyce Banda for opening up MBC and urge the current regime never to take MBC backwards. We strongly believe that an impartial and open to all MBC is possible considering the conducive legal environment. The key to this, however, is the demonstration of political will on the part of our leaders to allow MBC to freely function in conformity to the existing laws guiding its operations.
We observe with dismay the perennial disease that is our governments of perceiving the private media as opposition agents bent at thwarting their development agenda particularly since 1994.Journalists or media houses that have exposed and condemned the existing wrongs of such politicians have either been threatened or subjected to “unjustifiable” arrests. Raphael Tenthani and Mavuto Banda landed themselves in trouble with DPP’s government for covering a story concerning mysterious events that had characterized the Sanjika palace. They were both arrested. Zodiak Broadcasting Corporation car too got bombed by suspected DPP thugs. Within the same era, DPP administration issued a directive prohibiting all government agencies from advertising with Nation Publications Limited which was deemed as critical of Mutharika’s leadership and the pathetic passing into law of section 46 bill which empowered the minister responsible for information to ban media institutions which were deemed critical of the government.
A few weeks into office, Joyce Banda administration showed some political will towards an improved government-media by among other things making some verbal commitments towards the promotion and protection of press freedoms. On one occasion the former Malawi leader visited Nation Publications Limited where she publicly vowed never to follow the undemocratic path of her predecessor of subjecting this one of the leading print media house in Malawi to any form of ban let alone a directive prohibiting government agencies from advertising with it. Section 46, which impinged on media freedom, was repealed, and Malawi Communications and Regulatory Authority (MACRA) went on to issue both radio and television licenses to several applicants including applicants like Zodiak Broadcasting Corporation, Blantyre Newspapers Limited and CCAP Livingstonia Synod who were deemed critical of Mutharika’s regime and hence their respective applications couldn’t get the nod of the most often “politicized” MACRA.
However, a few months down the line the “rulling” Peoples Party’s attitude towards the private media began to change from better to worse especially with the coming in of cash-gate scandal. Addressing a delegation of Media Institute of Southern Africa (MISA) on certain occasion, Joyce Banda said she had stopped reading newspapers because of their growing criticism on her administration. Said Banda: “When I became the President. I thought the media were my partners. But I have serious problems especially with the Newspapers. At first I thought Bingu was wrong. But I have now realized that you have no compassion and you can kill a sitting President”. President Banda’s press conferences graduated from being platforms for the President to engage with her esteemed scribes into Peoples Party’s functionalities where journalists could be subjected to all sorts of intimidation and name calling. Some media houses and journalists like Blantyre Newspapers Limited and Justice Mponda found themselves in the bad books of the administration through either lawsuits or arrests just because of publishing materials which were deemed critical of Banda’s regimes. If this was not enough, one of People’s Party top brass publicly advised the former President and her government to stop giving business to private media houses as they tended to be critical of her administration.
To what extent is Malawi Human Rights Commission (MHRC) Independent and authoritative?
By reflecting on the role of the Malawi Human Rights Commission (MHRC) over the recent years in exerting influence on governance, we cannot agree more with the United Nations last year observation that national human rights institutions have become more independent and authoritative globally. The Malawi Human Rights Commission have in several instances worked hand in hand with the Civil Society in exerting influence on human rights and issues especially in the scenario where there have been gross human rights violations. So passionate has the Malawi Human Rights Commission been in its human rights obligations that some of her personalities have found themselves in bad books with the existing “authoritarian” governments. The case of John Kapito (Former Chairperson of MHRC) and Bingu Wa Mutharika (Former President of Malawi) between 2010-2011 stands out.
Human Rights Defenders and the state; friends or foes?
We also concur with UN’s observation, particularly when applied to Malawi’s context, that the Civil Society has been at the forefront of human rights promotion and protection, pinpointing problems and proposing innovative solutions, pushing for new standards, contributing to public policies, giving voice to the powerless, building worldwide awareness about rights and freedoms and helping to build sustainable change on the ground. However, this is not to suggest that the civil society has played an “angelic” role since the advent of democracy. There have certainly been instances when some of its advocacy work may have left a lot to be desired due to a number of challenges including those to do with lack of adequate resources to effectively provide adequate awareness to the general public to appreciate the status quo on various issues of national interest and lack of preparation. Despite its shortfalls, the civil society has all along especially for the past 15 years cultivated a sense of public trust in its engagement with government and the opposition in the face of human rights violations- No wonder whenever it has tended to be silent or acted in “undesirable” manner on matters the public feel are of great nation interest the civil society has come under public ridicule. For no doubt, the Civil society has the great task of jealously safeguarding its good legacy, and endeavor not to allow anything erode such public trust.
As to whether the Malawi governments have over the years recognized the pivotal role the civil society play in the advancement of human rights, rule of law and good governance is a question that can be ably answered depending on what perspective one is looking at the issue. While our governments especially since 1994 have time and again professed their recognition of the pivotal role played by the civil society as development partners in the advancement of human rights, little has been done to translate such theory into action. The civil society working in the realm of democratic governance and human rights advancement have often been in government’s bad books over the years.
It’s a well-documented fact that during the MCP regime, there was no space for critical voices as most critics were forced into exile, ‘accidentalised’, killed or detained for years on end. Civil society organisations were banned. Private media was undreamed-of. Academic freedom was unheard-of. No wonder, this culture of tyranny that reigned supreme necessitated strong calls for new Malawi in 1993. Malawians wanted freedom, respect for human rights and multiparty democracy. In short, Malawians hankered civil and political space which they duly achieved through a referendum.
The UDF regime started on a good note in consolidating some multiparty democracy gains, through amongst others, opening up some civil and political space. Private media mushroomed, civil society organisations emerged and various political parties emerged on the bloc. However, the Dr. Bakili Muluzi administration started reversing the gains through undemocratic tendencies that started emerging. A Chancellor College student Fanikiso Phiri was short in cold blood for simply demonstrating against government’s style of running universities. A prominent civil servant Kalonga Stambuli mysteriously died and the family and nation are yet to know what really happened to this son of the land. The emergency of the ruthlessless ‘terrorists’, the young democrats only exacerbated the already dismal performance by the UDF regime in the second term. Then came the open and third term bids for the country’s democracy. The rest, they say, is history.
When President Bingu wa Mutharika came onto the scene in 2004, a lot was expected. Malawians needed a leader who would spur economic development, bring to an end a political culture of terror and politicizing national development. Remarkably, Mutharika started responding well to some of the expectations. But the situation became different in after 2009. The President turned himself into the worst dictator ever in a multiparty democracy. Any one critical of his administration was ‘smoked out’.
Mutharika close all civil and political space.The Bingu Wa Mutharika regime was in fact hell-bent at completely bring to an end the noble human rights service rendered by civil society organizations working in the realm of democratic governance and human rights. Activists were harassed left and centre with some receiving death threats and living in their own country as if they were slaves. Emma Kaliya, Dorothy Ngoma, Habiba Osman, Robert Mkwezalamba, Ben Chiza Mkandawire, Benedicto Kondowe, Moses Mkandawire, Undule Mwakasungula, Gift Trapence, Rafik Hajat, Macdonald Sembereka, Peter Chinoko, Billy Mayaya, Martha Kwataine, Voice Mhone, and John Kapito(just to mention a few)all suffered under Bingu Wa Mutharika’s tyrannical rule. At the peak of the infamous cashgate scandal, civil society organized “Black Monday” to protest the economic meltdown due to lack of government’s financial discipline in managing public resources. Joyce Banda’s administration unleashed excessive political diatribes at the Civil Society Grand Coalition for Defence of good government leader Voice Mhone, describing the black Monday initiative as “Satanic”. The civil society also incurred resistance from the United Democratic Front leadership when it stood its ground against Bakili Muluzi third term bid. All these illustrations clearly point to the fact that our governments have over the years shown some resistance towards civil society organizations working for the advancement of human rights particularly in scenarios when such governments are kept on their toes to account for the prevailing serious human rights violations. Nevertheless, the civil society looks into the future with great optimism towards improved relations with the existing and future governments of the day. Interestingly, the same DPP led government that brought the human rights to peripheral is in power again, albeit with a minority government. Malawians will be keen to see if the DPP regime is a changed party. The onus, is therefore on the party to drop off its own olive branch or not.
The growing homophobia against LGBTI Community; repealing draconian laws is the way
Despite the rights of lesbians, gays, bisexual and transgender individuals being placed on the international agenda, Malawi’s legal framework remains hostile to the LGBT community, a scenario that is exposing the group to various forms of discrimination. While initially showing some commitments towards abolishing existing laws that criminalize homosexuality, former President Joyce Banda chose to remain mum on such matters especially as we drew closer to the elections. Contrary to human rights norms, some of Malawi’s big political parties United Democratic Front (UDF), Malawi Congress Party (MCP), and Peoples Party (PP) during the campaign period even went further to suggest that they would subject the human rights issue of minority LGBT to a proposed referendum, where the majority of Malawians should choose whether to maintain the status quo or not. Appealing to the democratic principle of “majority rule” to justify a referendum concerning a universally recognised human rights issue of the minority LGBTdisplays not only sheer ignorance of the very core and spirit of democracy, but also hides the issue behind smoke and mirrors.
Nevertheless, we find solace in the commitments made by the Democratic Progressive Party through spokesperson Nicolaus Dausi during the election debates organized by Zodiak at Crossroads Hotel in Lilongwe that DPP would follow the constitution of Malawi on the matter. Now that the DPP is in power, we expect that it will take the lead in repealing the existing penal code, including those provisions which criminalise same sex marriages. As such this penal code provision is in conflict with section 20 of the constitution of Malawi, which is the Supreme law of the land. Besides, the recent commitments of the new President Author Peter Mutharika towards protection and promotion of human rights is a positive move and also an opportunity for his government to walk its talk by, amongst other things, taking a leading role in repealing the existing penal code which infringes on the human rights of the LGBTI community. We at will not relent in reminding the current government to honour its commitments towards promotion and protection of human rights for all.
When Impunities are legitimized; The perennial failure to come to the bottom of Chasowa, Stambuli and July 20 saga
We also agree with UN’s observation that there is a global consensus that serious violations of human rights must not go unpunished and that the victims have the right to claim justice. However, the developments that have characterized the country over the years in as far as adhering to such global consensus leaves a lot to be desired. There are several serious violations of human rights issues hanging which pose a threat on our commitment to protect right to life, liberty and security of person and access to justice. For instance, reference to the case of Francis Kafantayeni Versus the Attorney General. In that case, the High Court ordered that all murder convicts should be re-sentenced. As at now, only few of them were re-sentenced. We therefore urge the government of Malawi to unveil the steps it has put in place in order to ensure that all these murder convicts are re-sentenced. This matter is certainly of great concern because it means that all current sentences are unlawful and the state cannot continue holding onto convicts illegally and violate their right to fair trial as guaranteed in the Malawi constitution.
Then, there is the issue of late Kalonga Stambuli and the subsequent Commission of Inquiry instituted to find out the causes of his death. Dr Kalonga Stambuli is on record to have died under very mysterious circumstances and Malawians have all along been eager to know the cause of the death through the outcome of the said report. A few years down the line since the Commission of Inquiry started its expected tasks, the final report is yet to be realised and there seems to be clear indications that the release of such an important report may now be water under bridge. We also remain concerned at the pace at which Robert Chasowa’s murder and July 20 issues are moving as well as July 20 issue. Justice delayed, is justice denied.
The continued lack of awareness on gender-related laws
We observe that through various government, development partners and civil society’s interventions issues relating to women’s rights are gradually being acknowledged as fundamental human rights across the nation, and discriminatory acts of violence against women and girls are now at the centre of human rights discourse. Just recently the government of Malawi ratified the SADC Gender Protocol as part of her continued commitment towards achieving gender equality and women empowerment. However, despite progress registered towards gender equality and women’s empowerment, as well as the fight against gender based violence there are still some gaps which ought to be addressed by all stakeholders involved with urgency. There still remains lack of awareness amongst girls and women of the existing gender related laws to help them combat gender based violence, including early marriage, human trafficking, and the continued influence of patriarchal gendered norms. While it has been widely acknowledged that gender is a cross-cutting issue, the process of gender-mainstreaming has not been given the required due attention it deserves in order to ensure that women and girls issues are mainstreamed within the sectorial plans and budgets. A case in point is the recent cabinet which lacks gender balance by a far margin. The nation expected President Prof. Peter Mutharika to appoint quite a good number of women in the cabinent to signal government’s commitment to uplift women in various key sectors of the society. We believe the nation has many women who have what it takes to deliver in most cabinet posts given to men. As a nation, we must not just talk, but also be seen to be implementing gender parity and it’s only prudent that government take lead in advancing the gender cause.
Separation of party and government functions
Since attaining multiparty democracy, the nation has witnessed a very thin line-- if at all it exists—between a state and a ruling political party function. The painful tendency has always seen the ruling party using state resources to advance the affairs of its political party. Consequently, tax-payers’ money which was meant for essential services such as water, education and health are put to unintended use, which is very unfortunate. We condemn this tendency in strongest terms and call upon the current government to come up with measures to ensure that no political party, let alone the ruling party, benefits from tax-payers resources. We also insist that it is crucial that Malawi avoid politicizing its development agenda or placing projects under the ‘ownership’ of political figures, which can only increase the disturbing trends of patronage, corruption, and nepotism. We encourage Malawians and government itself to take stock of the tendency of each new government to bring in new development policies to glorify their own positions, leading to non-continuity and inhibiting follow through of agendas and projects. We look forward to the day when senior public positions will be allocated based on merit not on networks of loyalty, filiations, or ethnicity (as is evident in the recent appointments).
4.0. LOOKING INTO THE FUTURE; A GOLDEN OPPORTUNITY TO BEND THE HAND OF CLOCK TOWARDS A TRUE DEMOCRATIC STATE BUILT ON RESPECT OF ALL HUMAN RIGHTS, RULE OF LAW AND CONSTITUTIONALISM
However, reminiscent of the troubled path the country has travelled to reach this far, we refuse to get lost in the frenzy of celebration, but instead, would like to seize the historical moment to bring to the attention of the country---specifically government--- long-standing issues which have for a long time undermined the democracy creed we pride ourselves in. Thus, as the country celebrate; we humbly submit the following issues to be critically looked into as the county starts a post-50 life:
Reforming electoral laws
It’s a cardinal point that free, fair and credible elections are a fundamental indicator of democracy. Elections legitimize leadership and define the general will of the governed. However, the just-ended tripartite elections have—for lack of a more precise expression--- fallen short of measuring up to expected score. Of major concern is that the electoral body-- the Malawi Electoral Commission--- went ahead to announce the presidential results despite an admission to a number of irregularities, simply because the body wanted to fulfill an eight-day rule. The undue influence by the judiciary in whole electoral process through issuing of endless injunctions and counter-injunctions was unfortunate and unnecessary in a democratic event like tripartite elections, to say the least. What could sound as a mockery to multiparty democracy Malawians fought for and attained in 1993 is that five elections down the lane, the country is still stuck with the fast-past thepost electoral system despite the unfortunate bearing the system has on the meaning of majority rule. The current FPTP electoral system creates problems for democratic governance because it allows for weak minority-led governments, led by a President elected by a minority at the expense of parties that might have majority representation in Parliament. With the exception of the 2009 elections, the system has repeatedly handed victory to the minority-supported candidates with all winners under the Presidential race in the 1994, 1999, 2004, and 2014 below 50%.
Thus, looking ahead, we call for the immediate reform of the electoral laws, especially the eight-day rule and first-past-post system. Malawi needs to adopt the 50+1percent system as a matter of urgency if the next president is to have genuine trust and legitimacy of the electorate. The onus is on the current crop of parliamentarians to right this wrong for posterity’s sake. Otherwise, the current system has the potential of creating divisions, a recipe so delicate for the smooth running of the country.
Section 65 vis-à-vis Section 64
We also note with concern an intriguing turn of events that has characterized Section 65 in the country’s August House. Parliamentarians have always found a loophole in the constitutional provision to become ‘cross-stitutes’ in parliament, thereby betraying the will of their constituents. Obviously, it has always been the electorate crying foul in this whole democratic equation. Much as most parliamentarians argue that their move in parliament gets the blessing of their constituents, we found it grotesque to believe their assertion in absence of a well proven and verifiable democratic exercise to validate the parliamentarians’ actions. We, thus, feel re-introduction of Section 64, also known as the ‘Recall Provision’ is the only democratic leverage the constituents may have as regards the questionable representation of their parliamentarians. Without the ‘Recall Provision’ section 65 risks becoming irrelevant in the eye of the constituents.
Reviewing Section 193 (4) which prohibits the use of public resources for political parties
Section 193 (4) of the Malawi constitution prohibits the use of public resources for political purposes. At the same time, there are restrictions on the use of civil service employees in political party activities. The constitution, in fact, mandates the civil service commission, set-up under chapter xx of the constitution to take up legal proceedings in the High Court against a government or a political party or a member of a political party who contravenes these rules. Regrettably, politicians particularly those in the ruling party have gone escort free despite abusing public resources for political purposes as well as subjecting civil servants particularly women in political party activities like dancing and others. It’s high time we as a nation began reflecting on the current legal framework if it’s effective in curbing the malpractice especially when viewed in relation to legal impunities on the President of a ruling party, who historically, has reportedly tended to be the main culprit in this scenario. How would the Civil Service Commission take up legal proceedings against a sitting, implicated, President who enjoys maximum legal impunity?
Strengthening and de-politicizing Governance institutions
Of late, we have witnessed steps being taken to inculcate a culture of transparency and accountability in government. This is evident in the establishment of offices such as the Malawi Police Services (MPS), Ant-Corruption Bureau (ACB) the Office of Accountant General, the National Audit Office, the Directorate of Public Procurement, the Directorate of Public Prosecution and the soon-to-established office of Assets Declaration. Despite the offices being established with good intentions, we continue to note weak capacities of such offices as well undue interference by the ruling party to use the institutions for ill motives. It beats all reasoning that the institutions entrusted with championing governance in the country are not adequately funded, thereby paralyzing their operations. Government must consider giving adequate capacity to these institutions so that they perform their duties to the expectations of the citizens.
Most importantly, however, is the need to de-politicise and ensure independence of the institutions. A case in point is the political performance of the MPS and ACB which have resultantly failed Malawians for so long. It’s now a naked fact that the two institutions have become government tools for silencing critical voices in the opposition. This, in all fairness, is a huge disservice to Malawians who depend upon the same institutions for peace and security purposes. The present government, therefore, has the opportunity to change the negative perception of Malawians towards the governance institutions by ensuring that they operate professionally and independently. It’s possible.
The Call to expedite and implement a series of hanging Commission of Inquiries Recommendations
This country has left a lot of impunity unpunished right from Kamuzu Banda, Bakili Muluzi regime, and Joyce Banda regimes. Consequently, we have found ourselves setting a very bad precedence for this country. We have continued to let acts of injustice go unpunished. It’s high time all the prevailing impunities tracing from the times of Kamuzu Banda to-date which had gone unpunished should face justice. In the same vein, we would like to call upon the state to implement and bring to the logical conclusion all the recommendations of the previous commissions of inquiries including those relating to the Karonga Stambuli, Robert Chasowa, 20 July Killings, the death of Bingu wa Muthalika to mention just to mention a few.
Towards recognizing the sexual minority rights as well as domestication of the Rome Statutes
We would also like to issue a clarion call upon the current regime to rise above politics and start recognizing and respecting all the human rights, including the sexual minority rights. It is unfortunate that political party leaders have repeatedly promised to subject the issue of minority rights to a popular vote in name of referendum. We would like to categorically condemn this kind of hypocrisy and insensitivity. Since when have issues of human rights been subjected to popular vote? We would like to remind political party leaders that human rights, let alone sexual minority rights should never be held at ransom for political expediency or indeed, aid. Human rights are never enjoyed by a popular vote as these are birth entitlements meant to be applied universally, equally, indivisibly, and interpedently. In the same breath, we would like to call upon the current government to consider domesticating the Rome Statutes which seek to punish any citizen including the citing president involved in most serious crimes of international concern. Reluctance to domesticate the statutes does not bode well with the country’s seriousness to combat injustices currently dogging the international community. In the same vein the current government must take the lead role towards the repeal of draconian laws which criminalise homosexuality – laws which do not augur well with the provision of the constitution of Malawi (section 20).
Access to Information Bill should be tabled in Parliament; The President should sign the Table Mountain Declaration as promised
We appeal to the government to stick to its promise of tabling the access to information bill in Parliament once all processes over the reviewing of the bill are exhausted soon. The recently passed declaration of assets legislation remains toothless in the absence of access to information legislation. In the same breath, the government must walk its talk by signing the table mountain declaration which fosters freedom of the press.
Moving away from misplaced priorities
We have also noted that misplaced priorities have been the driving factors behind the county’s stunted development. Malawi as a country has always blinked opportunities to get things right thanks to ill-defined priorities which are meant to benefit a few. These misplaced priorities could be in form of bloated cabinet, misallocation of resources and what have you. In the first place commend the DPP government for coming up with a lean cabinet that reflects the size of the country’s economy. As civil society institutions, we can only hope that the size of the cabinet, though it lacks gender balance, will live up to the billing. We, however, shudder to see DPP clining to its nepotistic behavior in most of its public appointments. As civil society organisations, we have witnessed number of appointments mostly based on nepotism and patronage. We find this attitude un-called for and a recipe for divisions in the country. We call upon the head of state to rise above this pettiness and start looking at Malawi a one single bloc. By the way, is it not the same president who promised to be the president for all? Turning to the President’s advisory team, we find, the size of the country’s economy too small to accommodate more resources drainers in the name of presidential advisors or whatever they are called as the President already has cabinet ministers who can dutifully perform the advisory roles. Still on misplaced priorities ee find it paradoxically funny that just when the Finance Minister is decrying excessive borrowing by government which made formulating the 2014/15 national budget almost unattainable, the same Minister asked parliament to approve a loan in the region of K9 billion for drilling boreholes and toilets at the expense of pressing needs such as road maintenance and drugs in the country’s hospital. Should toilets be the priority now when most students cannot access tertiary education due to limited spaces and crumbling infrastructure? Seriously, are the toilets a priority now when most prisons are conjested, government departments underfunded and civil servants under-paid? These questions sound like platitudes but they speak volumes of how our misplaced priorities can cripple the country’s development agenda. On a positive note, however, we commend the current sitting of Parliament for rejecting the bill which was meant to extend loans to students in all colleges, including private ones. Surely, the country needs to focus on providing enough infrastructure including the renovating the existing ones before focusing on giving loans to student.
To the CSOs
Finally, we compel our colleagues in civil society organizations to also take this Jubilee as a moment to critically reflect on their own roles, agendas, and alliances. We insist that an autonomous civil society is a fundamental building block of a truly democratic nation. In this regard, we hope that CSOs will take pause to inventory their own complicity in oppressive, nepotist, and non-democratic networks of benefit and financial distribution. CSOs should desist from being used as pawns by political figures for their own personal gain. Since the advent of the democratic era, governments have permitted CSOs different degrees of operation and voice; we hope the current government will respect and nurture freedom of expression.
As human rights defenders, will continue to monitor the human rights situation in Malawi and engage in lobbying and advocacy with relevant authorities towards a better Malawi where all human rights and fundamental freedoms are respected in the general interest of all.
Timothy Mtambo Gift Trapence
(CHRR Executive Director) (Cedep Executive Director)
Habiba Osman Robert Mkwezalamba
(Human Rights Lawyer) (Human Rights Activist)
posted Friday, September 23, 2016
~For Immediate Release UN/African Union: Reject ICC Withdrawal Security Council Meeting With AU (New York, September 22, 2016) – The African Union (AU),
posted Monday, May 30, 2016
Centre for Human Rights and Rehabilitation (CHRR) has renewed its call on Malawi government to domesticate the Rome Statute of
posted Tuesday, May 03, 2016
The Centre for Human Rights and Rehabilitation (CHRR) through Karonga Gender Equality and Women Empowerment (KAGEWE) project has withdrawn 80